Historical Development of Expropriation Legislation in Ontario
As a senior partner with BLG LLP and a founding director and past president of the Ontario Expropriation Association, Stephen Waqué has over 30 years of experience with Ontario’s expropriation legislation. Waque is the author of the text New Law of Expropriation that deals comprehensively with government acquisitions of real estate and business interests.
“When faced with the challenges of an expropriation, clients often inquire about the history of expropriation legislation in this province, that has undergone fundamental changes since the mid 1960’s,” explains Waque. The Expropriations Procedures Act, S.O. 1962-63, c. 43, which came into effect in January 1964, consolidated Ontario’s expropriation law that was previously spread throughout over thirty statutes. However, consolidation alone did not provide landowners with increased rights. Rather, the Ontario Law Reform Commission was asked to examine the law establishing the principles that govern the amount of compensation to be paid on expropriation, to expose deficiencies, and to determine what changes to the compensation model were necessary and desirable. The report of the Ontario Law Reform Commission took the position that a simple statutory directive that “due compensation” should be paid, as per the Expropriations Procedures Act, was not satisfactory. Rather, the Law Reform Report concluded that stipulation by statute of the relevant factors to be considered in the assessment of compensation would provide informative guidelines for negotiation and bargaining in a meaningful way. Further, the Inquiry into Civil Rights Report of the Honourable James C. McRuer provided procedural recommendations meant to safeguard and protect the rights of the individual.
The recommendations of the Law Reform Report and the McRuer Report lead to significant reforms to Ontario’s expropriation legislation, and in particular, added significant procedural protections for the individual. The modern day Expropriations Act, R.S.O. 1990, c. E.26, as amended, was introduced in December 1968 and brought about notable changes including (a) the approval procedure, (b) the substitution of market value plus damages in place of the value to the owner, and (c) the establishment of the Land Compensation Board.
However, while the Expropriations Act removed us from a subjective approach to valuation and instituted a more empirically demonstrable, objective approach, it also removed the premium or bonuses that previously developed through case law for “compulsory taking”. In fact, the new legislation only retains vestiges of a premium for expropriated individuals.
Generally speaking, when an individual seeks to advance a claim under Ontario’s new expropriation legislation, their rights are statute-based. There are two notable exceptions, being a line of cases respecting the principle of ignoring the scheme and principles involving a claim for compensation where no land is taken. However, no matter to what extent the Expropriations Act is interpreted liberally as “reform legislation”, the basic right that is the subject of interpretation must be founded in a specific provision of the Expropriations Act. Accordingly, it is the responsibility of the Ontario Legislature to address issues arising from new conditions as a matter of political responsiveness. We can only rely in a limited way on the capacity of the adjudicator to respond to new conditions through creative development of case law.