CASUAL LEGAL: An Overview of Expropriation

Attention: AMSC Members – Please distribute to all appropriate personnel

An Overview of Expropriation

By Greg Weber

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Whether it is for the construction of new projects or the upgrading of existing infrastructure, municipalities often require land from landowners. In such circumstances, usually the best and most economical way to acquire needed land is to negotiate with landowners, either directly or through a land agent. When negotiations break down, expropriation may be the best path forward in order to acquire the land. Subject to expropriating for an abusive or bad faith purpose, municipalities have the power to take any interest in land required to carry out its purposes.

There are two stages to an expropriation: (1) the administrative taking, and (2) the compensation proceedings. The first stage is an administrative process requiring Council and administration to follow the strict timeframes and requirements set out in the Expropriation Act. If a step is not done properly, or a deadline missed, the only option is to abandon the expropriation proceedings and start again. This can cause significant delay in effecting the taking with further delays for planned construction work. Several of the administrative steps require work in advance as well, so it is important to have a global view of the process in order to have the necessary requirements lined up, while at the same time carefully tracking the steps that trigger the next set of deadlines. The administrative taking stage culminates in a “Proposed Payment” supported by an appraisal that provides a market value payment to the landowner for the land that was taken. There are many pitfalls in this process that usually require legal assistance to navigate.

Once the administrative stage is complete, landowners have one year to file a claim from the date of the Proposed Payment with the Land Compensation Board (“LCB”) for further compensation. Landowners have the right to claim for further compensation if the Proposed Payment is deemed inadequate, for “disturbance damages” for consequential costs and losses that are incurred due to the expropriation (e.g. moving costs), or for business losses. The compensation stage of the expropriation process proceeds in a manner very similar to civil litigation culminating in a hearing before the LCB if the municipality is unable to settle the landowner’s claim.

One key consideration to bear in mind is costs. Section 39 of the Expropriation Act requires expropriating authorities to pay the actual reasonable expert and legal costs of the landowner. This is often done on a partial interim basis as the matter progresses in order to prevent a power imbalance from developing. Municipalities may be relieved of the obligation to make payment of section 39 costs if they are unreasonable, or if “special circumstances” exist to justify non-payment, but such unreasonable or special circumstances are very rare, and section 39 costs can accumulate very quickly.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP.  For more information on the Casual Legal Service, please contact Will Burtenshaw, Senior Director, Risk & Claims, at 780-431-4525, or toll-free at 310-AUMA (2862) or via email at wburtenshaw [at] auma.ca (wburtenshaw[at]auma[dot]ca).  Any Regular or Associate member of the AUMA can access the Casual Legal Service. 

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.