Expropriation explained: What farmers need to know

Q: WHAT IS LAND EXPROPRIATION?

A: Expropriation is the forced taking of land by the government for public purposes without the consent of the owner, but the government compensates the owner for the taking.

Q: WHAT SHOULD FARMERS KNOW ABOUT EXPROPRIATION?

A: The federal government’s proposed high-speed railway line to connect Toronto to Quebec City, named “Alto”, is likely on the minds of many farmers who own land in the proposed railway corridor.

Expropriations follow a federal or provincial process. The provincial process is involved in most expropriations; the Alto project will be governed by the federal expropriation process.

The federal process has unique elements and has recently been changed. Farmers who believe that they may be impacted by the Alto project should consult with expropriation lawyers, because information that they find online and elsewhere may not apply to the Alto project.

Q: WHAT SHOULD FARMERS KNOW ABOUT THEIR RIGHTS WHEN IT COMES TO LAND EXPROPRIATION?

A: Generally speaking, owners have the right to notice of the expropriation process and, if all or part of their land is expropriated, to compensation and the reimbursement of reasonable costs. However, owners do not have the right to stop the expropriation. The government can take land from an owner before compensation is paid, and before compensation is finally determined.

For the Alto project, the formal expropriation process would begin when an owner receives a notice indicating that the government has an intention to expropriate all or part of their land. If the owner wishes, they have 30 days to provide a written objection to the proposed expropriation. Regardless of any objection, after the 30 days have passed, the government has complete discretion to proceed with the expropriation, to proceed with a lesser taking, or to abandon the taking. The government can essentially approve its own expropriation, which it almost invariably does.

After the 30-day notice period has elapsed, the government authority can then expropriate the lands. The authority must then notify the owner(s) of the expropriation. Before taking possession of expropriated lands, the government must give the owner(s) at least 90 days’ written notice, and must serve the owner with an offer of compensation for the market value of the lands (and for any loss in value to their remaining lands) supported by an appraisal.

An owner is unlikely to influence a government project at the expropriation stage in any significant way (or at all) because by that time, it is too late in the process and a preferred route has already been selected.

If an owner seeks to have input into a project, they may stand more of a chance of influencing it by participating in the public consultation process as early as possible. For instance, the federal government recently held online consultation sessions for the Alto project. No preferred route has yet been selected.

Q: HOW ARE LANDOWNERS COMPENSATED FOR EXPROPRIATION?

A: Expropriated owners are compensated or reimbursed for the following items:

• Market value of the expropriated lands: A number of special assumptions are required in estimating the market value of the expropriated lands that are particular to expropriations.
• Injurious affection: When only part of an owner’s land is taken, compensation is provided for any resulting decrease in value to the owner’s remaining land. For instance, if the expropriation undermines the operation of a farm on the remaining land, making it less attractive to a prospective purchaser, that may amount to injurious affection.
• Disturbance damages: This typically includes compensation for the loss of property improvements, such as barns, silos, production facilities, berms, or trees located within expropriated lands that need to be replaced elsewhere on the property.
• Business losses: This includes any loss of profits suffered by the business as a result of the expropriation or the project, including losses caused before the expropriation and during and after the construction.
• Relocation compensation: This is compensation paid to an expropriated owner who is forced to relocate their residence or business, include for any special difficulties they face.
• Reasonable costs: A landowner is entitled to the reimbursement of legal, appraisal, and other costs actually incurred in relation to determining the compensation. “Other costs” may include the cost of a business loss valuator.

Q: CAN YOU OFFER ANY ADVICE TO FARMERS OR LANDOWNERS WHO MAY BE FACING EXPROPRIATION?

A: If you expect that your land is to be expropriated, it is reasonable to consult a lawyer who practices in expropriation law, even if it is well before the expropriation is expected to happen.

With respect to potential business losses, it can be worth reviewing the nature and structure of the business to review the kinds of losses that may be claimed. Also, an owner may be approached by an

authority with an offer of purchase in advance of the expropriation process beginning. Expropriation lawyers can assist in evaluating an offer in comparison to what might be available if they were to be expropriated, and, if it is reasonable, potentially drafting an agreement.

The early retainer of a lawyer establishes solicitor-client privilege, which creates a presumption that communications are protected from disclosure to the government. This is not the case with any other professional communications.

Farmers may be informed about land values in their area. However, in an expropriation, special assumptions are required to estimate market value compensation. For instance, the market value of expropriated land is estimated based on the assumption that the government project never happened. This assumption can require significant research and lead to experienced lawyers and consultants arriving at very different conclusions in estimating the market value compensation.

For these reasons, it is worth a farmer’s time to consult with an expropriation lawyer at an early stage to at the very least identify matters that may be an issue. •