Question 6 of 9: Expropriation under the Expropriations Act

Question 6: Expropriation under the Expropriations Act (15)

Question text not reproduced: the examination questions are © Engineers and Geoscientists BC. Open the official past paper (linked at the top of this page) to read the question, then follow the worked solution below.

(a) What can be expropriated

An expropriating authority — a body on which a statute confers the power (the Crown, a municipality, a conservation authority, a transit or utility authority, and the like) — may compulsorily acquire an "interest in land," which the Expropriations Act defines broadly. What may be taken includes:

• The fee simple — the whole ownership of all or part of a parcel.
• A lesser or partial interest — an easement or right-of-way (for a sewer, watermain, pipeline, or transmission line), a leasehold, or sub-surface or air rights.
• A temporary or limited interest — a temporary working easement over land needed only during construction.
• A restrictive interest — the right to impose a restriction on the use of the land (for example a limitation protecting a public work).

The authority may take the whole parcel or only the part it requires, permanently or temporarily, but it may take no more than the enabling statute authorises and only for the authorised public purpose. Compensation is always payable.

(b) Procedure to effect an expropriation (point form, Ontario Expropriations Act)

1. The authority determines that a specified interest in identified land is required for its lawful purpose (there is an expropriating authority and an approving authority).
2. It serves and publishes a Notice of Application for Approval to Expropriate on each registered owner and by publication.
3. Within the statutory time an owner may request a Hearing of Necessity; an inquiry officer inquires whether the taking is fair, sound and reasonably necessary and reports.
4. The approving authority considers the report and either approves or refuses the expropriation, giving reasons.
5. On approval, the authority registers the Plan of Expropriation in the Land Registry Office within the statutory period (within three months of approval); title vests in the authority on registration.
6. It serves a Notice of Expropriation and a Notice of Election (fixing the valuation date) on the owner.
7. It serves an Offer of compensation supported by an appraisal, with immediate payment of 100% of the estimated market value, without prejudice to the owner's claim for more.
8. It serves a Notice of Possession giving at least the statutory notice (not less than three months) before taking possession.
9. Compensation is settled by negotiation/mediation, and, failing agreement, is determined by the tribunal (the Ontario Land Tribunal); the heads of compensation are market value, injurious affection, disturbance damages, and special difficulties in relocation, with interest.