Expropriation

Expropriation

What is Expropriation?

Expropriation is when the government (or any other authority enabled by law) takes control of private land. In this regard, expropriation falls under the umbrella of “property law” in Canada.

Typically, expropriation occurs when a project, program, or initiative is said to be in the broader ‘public interest’. Crucially, expropriation is the taking of land without the owner’s consent.

Expropriation is not to be confused with “repossession”, which is almost always a consequence of unpaid bills or other misbehaviour.

Unsurprisingly, expropriation can be a severe violation of private property rights. As such, each province has laws – all of them called the ‘Expropriation Act’ – that aim to compensate the landowner. 

Nevertheless, depending on the laws that apply in a given context, it can be possible for the government to avoid paying out any compensation. The landowner is sometimes left in the lurch.

How does expropriation unfold?

As stated, expropriation occurs when the government (or anybody enabled by law) takes control of private property without the owner’s consent. Before expropriation happens, the authorities must issue an official ‘notice of expropriation’. In some instances, however, government action may produce the same effects despite providing no notice or without any ‘official’ process undertaken. This is referred to as unofficial or de facto expropriation. 

Unofficial or De Facto Expropriation

Sometimes government action can create conditions that effectively result in lost ownership. In this scenario, an owner may claim that virtual or de facto expropriation has occurred and may seek compensation. The owner claims that some government action or regulation has the effect of depriving him/her of ownership.

De facto expropriation makes sense when we remember that ‘ownership’ in the “property law” context refers to our bundle of unique rights that others do not have; rights to enjoy and access the land, for example.

In theory, then, there can be de facto expropriation because there are countless ways to squash an owner’s ability to exercise his/her rights. There is no one-size-fits-all for the scenario of stripped-away ownership. 

Nevertheless, this is rare because land use in Canada is already highly regulated. In other words, because we accept that regulations already limit the use of land, it is difficult to argue that a particular regulation is so severe that it is effectively the same as expropriation (i.e. lost ownership). In response, the courts have created a two-part test to determine whether de facto expropriation has occurred:

  1. The non-owner (the government, in most cases) must have gained some beneficial interest.

AND

  1. There must be a total removal of all the property’s reasonable uses.

The Newfoundland and Labrador case of Lynch v. St John’s (City) is an example of de facto expropriation. In that case, the court determined that the city of St. John’s benefitted from disputed use of the Lynch family’s property and that the property had lost all its reasonable uses as a result. The city’s behaviour effectively squashed the Lynch family’s ability to enjoy full ownership of their land. 

What do our property rights say about expropriation?

Contrary to popular belief, property rights in Canada are listed in the Bill of Rights and not the Charter of Rights and Freedoms

Part 1(a) of the Bill of Rights mentions the familiar rights to:

life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.

The law is quite clear that we possess these rights and freedoms, but which can be “deprived” by “due process of law”. In short – if a court determines that the government’s seizure of private property is enabled by the “due process of law” there is little a landowner can do in response.

Expropriation at the Federal and Provincial levels

As noted, each province and territory, as well as the federal government, has its own ‘Expropriation Act’. The federal expropriation act takes priority over all the rest and cannot be interfered with by any other expropriation law in the country. 

In both the federal and provincial contexts, it is not just the particular “Expropriation Act” that applies. Other laws directed at different matters sometimes include some expropriating procedure. In that case, it will generally point to the relevant Expropriation Act to clarify its authority; this is a typical feature of laws in general – they are interrelated and often provide mutual clarification. For example, the federal Expropriation Act notes how the Dominion Water Power Act, the Dry Docks Subsidies Act, and the National Energy Board Act each mention how the federal government can take private land for large public projects. 

Federal and provincial laws also vary in their timing. In the federal context, the Minister of Public Works and Government Services must confirm his/her intention to proceed with an expropriation project within 120 days, or it is deemed to be abandoned. 

In Ontario, numerous other deadlines apply, including when it possible to respond to a notice of expropriation, when a hearing can be arranged, and when compensation is to be paid out.

The Significance of Expropriation in Canadian Law

In principle, it is essential to recognize that in Canadian society, expropriation laws are broad in how they enable the government to seize private land. Expropriation is undoubtedly a significant violation of property rights and privacy. In practice, however, expropriation is largely uncommon and occurs when the lines between private land and the ‘greater good’ for the province/country become blurred. Canadians can reasonably expect to enjoy their private property without interference. 

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