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September 12, 2016

Can I Fight or Contest an Expropriation?

Assuming the expropriating authority is acting within its jurisdiction to take land, the simple answer is yes, but with potentially limited upside. 

 The Expropriations Act allows for an Inquiry process whereby an owner can challenge whether an anticipated expropriation is “fair, sound or reasonably necessary”.  An Inquiry under the Act is often informally referred to as a “Hearing of Necessity”, and as the name suggests the aim of the Inquiry is to determine whether the lands are necessary for the purpose for which they are to be expropriated.  An Inquiry is not a forum to challenge the objective for which the lands are being taken, nor is it a forum to deal with issues of compensation.

 Although an approving authority must consider the Report of the Inquiry Officer when deciding whether to approve an expropriation, it is not bound by the outcome of the Inquiry. The approving authority has the discretion to approve the proposed expropriation despite the findings of the Inquiry Officer.  In other words, the Inquiry Officer’s findings can be viewed as a recommendation.

 There are certain circumstances in which an Inquiry is not available. The Act provides that where the Lieutenant Governor-in-Council considers it necessary or expedient in the public interest, it may direct that the intended expropriation process proceed without the option of an Inquiry.  In these situations the authority need not apply to expropriate the lands it requires and can advance directly with the intended expropriation.

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Why is My Land Being Expropriated

Land can be expropriated for a variety of public purposes, depending on the institution or government authority carrying out the work. Most expropriation projects arise out of a need for new and improved public infrastructure, and arrive on the heels of environmental assessments which determine the best route or location for the project.

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Legal Costs Under the Expropriations Act

The Expropriations Act is a remedial statute with the purpose of rendering the expropriated land owner economically whole. Accordingly, in addition to prescribing compensation for land taken and related impacts, the Act also prescribes the reimbursement of reasonable legal and professional costs incurred by an owner in the determination of compensation. The reimbursement of costs is contemplated under section 32 of the Act.

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