Hearing of Necessity: The Practical Challenges of Exercising this Right
Without a prior visit or visits from negotiators representing an expropriating authority, the first notice that a landowner subject to expropriation has of the advent of that process is the service of a formal Notice of Application for Approval to Expropriate. “Often, after being served with a Notice of Application for Approval to Expropriate, a landowner will engage legal counsel to assist with the expropriation process,” explains Stephen Waque, senior partner at BLG LLP. Waque is also a founding director and past president of the Ontario Expropriation Association.
Legal counsel is able to assist a landowner in evaluating options made available to a landowner by the Expropriations Act, including whether or not to exercise the right to request a Hearing of Necessity. “A Hearing of Necessity theoretically safeguards a landowner’s interest by requiring an expropriating authority to prove that the land it seeks to acquire is necessary in the achievement of its objectives,” continues Waque. “A landowner has the right to challenge the authority and require that it prove that the proposed taking is fair, sound and reasonable necessary.”
Further, a landowner may use a Hearing of Necessity to discover information about the expropriating authority’s project and to assess the specific property impacts that the taking will have on the landowner’s property. In this sense, a Hearing of Necessity may be a cathartic experience for a landowner and may even save the expropriating authority from grave error. For example, fundamental issues that address the scope of the proposed taking may be addressed at a Hearing of Necessity. Such questions that may be asked include can the project proceed with a lesser taking or, is a greater or whole taking of the property an appropriate resolution. In certain circumstances, the Inquiry Officer may recommend that the expropriating authority increase or decrease the scope of the proposed taking.
However, despite a landowner’s right to request a Hearing of Necessity, a landowner must be cautious before exercising such right. Generally speaking, a landowner cannot challenge the expropriating authority’s objectives at a Hearing of Necessity and will be unable to raise issues that can be dealt with by compensation after the Ministry registers its plan of expropriation. Further, and of concern to most landowners, a landowner is only entitled to be reimbursed the modest amount of $200 to help pay for the cost of representation at a Hearing of Necessity. This is in contract to the general intent of the Expropriations Act that aims to make a landowner “whole” by reimbursing reasonable legal, appraisal, and other costs actually incurred by the owner for the purposes of determining the compensation payable.
In essence, although a landowner has the right to challenge the expropriating authority and require that it prove that the proposed taking is fair, sound and reasonable necessary, a landowner must weigh the advantages and disadvantages of requesting and attending a Hearing of Necessity before exercising such right.