What you should know about the Ontario Expropriations Act

On the way to Guildwood beach photo by Justin Ziadeh, via Unsplash

The term "expropriation" refers to the taking of land without the consent of the owner by an expropriating authority (i.e., the Crown or any person empowered by statute to expropriate land) in the exercise of its statutory powers.

The Ontario Expropriations Act governs the process by which government authorities can seize private property for public purposes, such as infrastructure development. Expropriation is a form of eminent domain, where land can be taken without the owner’s consent, but with fair compensation. Expropriation typically occurs when an amicable purchase cannot be reached between the government and the property owner. Key aspects of the Act include the procedural steps authorities must follow, the rights of property owners, and the compensation they are entitled to receive.

Who Has Authority to Expropriate

The approving authority in respect of an expropriation can be:
(1) the Minister responsible for the administration of the Act in which the power to expropriate is granted (in the case of universities or other educational institutions this is the Minister of Colleges and Universities; in the case of hospitals or other medical or health institutions this is the Minister of Health and Long-Term Care; in the case when an expropriation is made under the Ministry of Infrastructure Act, 2011 for the benefit of a ministry or agency of the Ontario Government, the approving authority shall be the Minister for the ministry or responsible for the agency for the benefit of which the land is expropriated; when an expropriation is made under the Ontario Energy Board Act, 1998, the approving authority is the Ontario Energy Board; and in the case of all other instances and corporations, the approving authority is the Attorney General);

(2) the council of the municipality, when a municipality or a local board thereof, other than an elected school board, expropriates lands for municipal purposes; or
(3) the school board, when an elected school board expropriates lands.

Expropriation Process

Once the government identifies the need for a property, the expropriating authority (EA) must seek approval from the approving authority (AA), which could be a municipal council or a provincial minister. Following approval, a Notice of Application is issued to the property owner and published in local media for three weeks.

The owner then has 30 days to request a Hearing of Necessity to challenge the expropriation’s reasonableness. This hearing assesses whether the expropriation is "fair, sound, and reasonably necessary" for the intended public project. However, even if the hearing’s findings oppose expropriation, the government can still proceed with written justification.

Once expropriation is approved, the EA registers a Plan of Expropriation, legally transferring title to the authority. Subsequently, the landowner receives notices for expropriation, possession, and valuation.

Compensation offers are presented, typically based on market value and additional damages like relocation expenses or business losses.

Compensation Rights

Under the Expropriation Act, landowners are entitled to compensation for:
- The fair market value of their property;
- Disturbance damages, which cover losses incurred as a result of the expropriation (e.g., moving costs or business interruption);
- Business losses if applicable; and
- Legal and professional fees, which are reimbursable to ensure the owner is not at a disadvantage when negotiating.In some cases, landowners can also claim for injurious affection, which compensates for reduced property values of neighboring lands not directly expropriated but adversely affected by the public project.

Legal Interpretations

Law firms emphasize that the focus for many landowners shifts from stopping the expropriation to securing adequate compensation. While challenging the expropriation itself is difficult, owners can still push for higher compensation through legal means. Recent changes, such as the Building Transit Faster Act, have accelerated the expropriation process, particularly for transit projects, reducing owners’ chances to contest through a Hearing of Necessity.

For further reading, you can consult the full Ontario Expropriation Act and legal interpretations:
- Willis Business Law
- Sullivan Mahoney LLP
- Borden Ladner Gervais LLP
- Soloway Wright Lawyers

The members of the Ontario Expropriation Association are likely to be a good resource for you on this topic.

Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer and seek professional legal advice tailored to your unique situation.