The Process

THE ONTARIO EXPROPRIATION PROCESS

What is an expropriation?

The Expropriations Act prescribes the powers of expropriating authorities and corresponding rights of land owners. An expropriation occurs whenever a governmental body forcibly takes land from the lawful owner in order to carry out a public purpose.

What bodies are empowered to expropriate?

Both the federal and provincial government may carry out expropriations to achieve a public purpose. At a provincial level, the Ministry of Transportation frequently requires land to carry out highway expansion and improvement projects. Expropriations are also carried out by municipalities, school boards, universities and hospitals.

What notice is required?

Because powers of expropriation constitute a significant infringement of individual property rights, authorities must publish and serve notice of their intention to expropriate land.

Is there any room to object?

An owner who receives notice of an intended expropriation may apply for a hearing to determine whether his or her land is required to achieve the public purpose. In some cases, a different or smaller parcel might achieve the same purpose.

The Approval:

Once an expropriation is approved, the expropriating authority has 3 months to register a plan of expropriation.

Notice of Expropriation:

Within 30 days after the expropriation plan is registered, the expropriation authority must serve the owner with notice of expropriation.

Possession:

Generally, an expropriating authority cannot take possession of expropriated land before 90 days after the land is expropriated and notice that possession is required has been given to the owner.

Compensation:

If the authority and the owner have been unable to agree to the compensation payable, the authority must serve an offer of compensation together with an appraisal report within three months after the registration of the expropriation. The owner may elect to accept the offer as final compensation, or may prefer to accept the offer without prejudice to his or her right to claim additional compensation. The expropriation authority must pay out the offer of compensation and the owner may then apply these funds to expense that may arise from the expropriation.

Negotiation:

Where the owner is not satisfied with the offer of compensation made by the expropriating authority, the parties may attempt to negotiate a resolution before the Board of Negotiation. This procedure provides parties with a cost effective, informal alternative to arbitration.

Arbitration:

If the owner is not satisfied with the formal offer of compensation or negotiation proceedings, he or she may elect to have compensation arbitrated by the Ontario Municipal Board. Claims for additional compensation may be made for a variety of interests, including:

(a) market value of the land taken;
(b) loss in value to the land remaining;
(c) loss of amenities such as trees and landscaping;
(d) business loss; and
(e) personal disturbance and loss of time.

Costs:

Where an owner elects to have compensation arbitrated, his or her legal and expert fees, which commonly include appraisal, planning and engineering fees, will be paid for by the expropriating authority, provided that the Ontario Municipal Board awards 85% or more of the last offer of settlement made by the expropriating authority.

When should I call a new lawyer?

We can assist from a very early stage in a land acquisition project. Often we are involved when the project is first under consideration addressing issues of environmental approvals and other pre-conditions to proceeding. When we are called by a landowner, our policy is that the first half hour of each consultation is without charge. Thus we can always be available to individual landowners so they can determine whether or not it is timely to involve legal assistance without the apprehension that they will receive an account for a modest consultation.

THE ALBERTA EXPROPRIATION PROCESS

What is an expropriation?

The Alberta Expropriation Act prescribes the powers of expropriating authorities and corresponding rights of Alberta land owners. An expropriation occurs whenever an expropriating authority, in the exercise of its statutory powers, takes land without the consent of the lawful owner.

What bodies are empowered to expropriate?

An “expropriating authority” means the Province of Alberta or any other person empowered to acquire land by expropriation. For example, expropriations are typically also carried out by the federal government and Alberta municipalities (such as the City of Calgary and the City of Edmonton), among others.

What notice is required?

Because powers of expropriation constitute a significant infringement of individual property rights, Alberta expropriation authorities must publish, serve and register on title a “Notice of Intention to Expropriate” land.

Is there any room to object?

An owner who receives notice of an intended Alberta expropriation may object to the expropriation and, if an objection is made, an inquiry will be held, except in urgent circumstances, before an appointed inquiry officer to assess whether the intended expropriation is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority. In some cases, a different or smaller parcel might achieve the same purpose.

What happens after the inquiry?

If an inquiry is held, the inquiry officer prepares a report with his or her findings. The report is then considered by an “approving authority”, which depending on the circumstances will be either a provincial Minister, the appropriate municipal council, the Alberta Land Compensation Board or the Surface Rights Board. The approving authority can either approve, disapprove, or modify the expropriation. It must provide its decision in writing.

What happens after the approval of the expropriation?

The Alberta expropriation authority has 120 days from the registration of the Notice of Intention to Expropriate land to register the “Certificate of the Approval” of the expropriation by the approving authority. Once this is registered, generally speaking title to the land vests with the expropriating authority.

What happens after the certificate of approval is registered?

After the Certificate of Approval is registered, the Alberta expropriating authority must immediately provide the affected owner with a “Notice of Expropriation”.

Within 90 days of the registration of the Certificate of Approval, the Alberta expropriation authority must also provide the owner with a “Notice of Proposed Payment” which sets out the amount that the expropriating authority estimates to be equal to the compensation to which the owner is then entitled for the owner’s interest in the land. The Notice of Proposed Payment shall be based on a written appraisal which must be provided to the owner.

Within 30 days of the registration of the Certificate of Approval, the Alberta expropriation authority must also serve on the person in possession of the land a “Notice of Possession” which contains the date upon which the expropriating authority requires possession of the land. In most cases, the possession date must be at least 90 days from the date of the service of the Notice of Possession. Further, the Alberta expropriating authority cannot take possession of the land until 30 days after the proposed payment has been tendered.

What if the owner does not agree with the date of possession of the land?

The owner may apply to the Alberta court to adjust the possession date.

What if the owner does not agree with the compensation proposed by the expropriating authority?

The owner may elect to accept the amount in the Notice of Proposed Payment as the final compensation, or it may accept the amount without prejudice to the owner’s right to seek additional compensation. Either way, the owner is entitled to immediate payment of the amount in the Notice of Proposed Payment and the owner may apply these funds to expenses that may arise from the expropriation.

If the Alberta expropriation authority and the owner are unable to agree to the compensation payable, the owner may commence proceedings to determine the appropriate compensation for the expropriation. The owner must commence formal expropriation proceedings within one year of the owner’s receipt of the Notice of Proposed Payment.

In Alberta, formal expropriation proceedings are heard by way of a hearing before the Alberta Land Compensation Board or the Surface Rights Board. If the expropriating authority is the Province of Alberta, the owner may also elect to have its compensation determined by the Alberta court.

How is compensation determined?

Claims may be made for additional compensation for a number of different interests, including:

(a) market value of the land taken;(b) loss in value to the land remaining;(c) loss of amenities such as trees and landscaping;(d) business loss; and(e) personal disturbance and loss of time.

Who pays for the costs of challenging the expropriation or compensation?

Except in special circumstances, the owner is entitled to be paid by the Alberta expropriating authority for the owner’s reasonable legal, appraisal and other costs actually incurred by the owner for the purpose of determining the compensation payable.