Elizabeth Brubaker

Expropriation – the taking of private property without the consent of the owner – is commonplace across Canada. Provincial and federal governments have granted the power to take property to thousands of “expropriating authorities” – municipalities, school boards, transit providers, utility companies, conservation authorities, and countless others. The rules governing expropriation vary from province to province. But one fact remains constant: Expropriating authorities face appallingly few restrictions.

Property owners can often request a hearing in which they can question whether a proposed expropriation is “fair, sound, and reasonably necessary” in the achievement of an expropriating authority’s objectives.[i] But the objectives themselves cannot be questioned. Nor are the findings of the hearing binding on the expropriating authority. As a result, projects that are unfair, unsound, or unnecessary often go ahead.

Unfair

In the most repugnant cases, governments expropriate for the benefit of private interests – they take property from one private owner and transfer it to another private owner. (For a discussion of this practice, see Stop Expropriation Abuse.) In more ambiguous cases, the distinction between a public and private purpose may be blurred. For example, property may be expropriated for a project that has both public and private components.

Sports and entertainment centre, Fort McMurray

Such is the case in northern Alberta, where the Regional Municipality of Wood Buffalo is expropriating several properties in downtown Fort McMurray to make way for a sports and entertainment centre. The project, should it go ahead, is expected to be privately financed and operated. It is also seen as a “Catalyst Project” that will pave the way for strictly private projects in a wider City Centre redevelopment. “Change,” the project’s boosters explain, “requires a spark and our Catalyst Projects will light a fire under the redevelopment of the City Centre McMurray. As a bright signal of intent and interest these Projects are already attracting private developers and entrepreneurs from all over North America.” But is it fair to destroy some businesses in order to attract others? Is this a legitimate role for a government?

Blatchford Redevelopment, Edmonton

Similar questions arise in Edmonton, which is expropriating interests in its City Centre Airport lands, forcing businesses and other leaseholders to make way for a new mixed-use development called Blatchford. The 217-hectare site will include a large park and other public amenities. But it will doubtless be dominated by private developments. Planners anticipate the construction of new housing for up to 30,000 people. And new retail and office space is expected to provide a place to work for as many as 11,000.

The decision to redevelop the airport lands has affected almost 200 parties with an interest in them, along with those who are employed there. Critics are concerned about the loss of as many as 2,200 direct, indirect, and induced jobs. They are also concerned about the costly challenges of environmental remediation, especially the costs of replacing soil that has been contaminated with jet fuel, glycol, and other industrial chemicals. In 2010, Envision Edmonton collected 92,563 signatures on a petition demanding a plebiscite on the closure. The city rejected the petition, challenging both its timing and the validity of almost 19,000 of the signatures. It moved ahead with its plans to expropriate, and will shut down the airport at the end of November.

Highway 407, Ajax

Expropriating for roads is common practice across Canada. But when those roads are privately operated, can expropriation be said to be for a strictly public purpose? Anticipating this question, Ontario’s Highway 407 Act explicitly deems any expropriation for the purposes of the highway “to be in and for the public interest and benefit.” Extending the privately operated Highway 407 northeast of Toronto has required 342 properties, 80 of which were expropriated. One of those expropriations was particularly heartbreaking. Who wouldn’t feel for the 90-year-old resident of Ajax, and his 88-year-old wife, who this summer were forcibly removed from their home to make way for the extension? The frail man’s pleas to allow him to live out his last days in the house he and his wife built 50 years ago fell on deaf ears, and police evicted him on a stretcher.

Edithvale Park, Toronto

In April, Toronto city council voted to expropriate two properties on Finch Avenue West in order to expand Edithvale Park. Expanding a park sounds like a public purpose. But in fact, the expansion was designed to meet the parkland requirements associated with the construction of private developments near Yonge and Sheppard – a 20-storey office building at 5000 Yonge Street and two condominium towers at 4726-8 Yonge Street. In lieu of providing the necessary green space, the developers paid the city to do so on its behalf. (The condo developer wrote a cheque for $3.8 million. The city has not revealed the contribution of the other developer.) The city then used some of that money to expropriate the Finch Avenue properties.

Unsound

Expropriation should be permitted only for public purposes. But serving a public purpose does not in itself legitimize an expropriation. Expropriation is legitimate only for sound projects that are likely to go ahead. Many expropriations are premature – they happen long before there is any certainty that a project will be built. The two most notorious expropriations in Ontario’s history – for the Spadina Expressway and the Pickering Airport, neither of which was ever built – illustrate the folly of premature expropriations. But these lessons go unheeded.

Sports and entertainment centre, Fort McMurray

The Fort McMurray sports and entertainment centre mentioned above was examined in a  four-day inquiry in March, after which the provincially appointed inquiry officer concluded that necessary studies had not yet been conducted, and that “there is no reasonable assurance that the project will ever proceed.” But the officer’s report did not deter the municipality. The director of the downtown redevelopment project explained that the report was not legally binding and that the administration did not agree with its conclusions. He defended the city’s right to ignore the report, suggesting that doing so is commonplace: “It isn’t unusual for an inquiry officer to raise these issues, brought forward by the people opposing the change. Our legal counsel is one of the most experienced in the province, and her statement was that in every case, notwithstanding an officer who had raised some concerns, council had moved forward to complete the expropriation.” The municipality is therefore pushing ahead with its plans.

Light rapid transit line, Edmonton

Edmonton is likewise taking land for a project that may never get off the ground. It has decided to expropriate more than a dozen properties in order to expand an LRT line from downtown to Mill Woods, even though the proposed project is short $515 million. One landowner complained to Global News that the city is getting ahead of itself: “They’re booking the honeymoon before they even asked the girl to marry.” Although Ward Councillor Kerry Diotte acknowledged residents’ frustrations with the process, he justified the process: “I guess we all have to make some sacrifices in the name of progress at times.” But is spending money to pave the way for a project a city can’t afford really progress?

Sports and entertainment complex, Moncton

Moncton, too, is putting the expropriation cart before the project horse. Earlier this month, the New Brunswick city announced that it will expropriate the former Highfield Square shopping mall in hopes of replacing it with a new entertainment and sports complex – a project that city council hasn’t yet approved. But the uncertainty doesn’t worry city officials, who cavalierly insist they can simply sell the property should the project not proceed.

The Highfield Square expropriation could end up costing Moncton far more than the city expects. Some councillors warn that the value of the land has increased from $6 million to $11 million since the acquisition process began. No one knows what the final price tag may be. The city’s lawyer told CBC News, “It could be six years, 10 years from now, we could still be discussing, arguing, negotiating or litigating the issue of costs.”

Scott Park parking lot, Hamilton

Moncton is not alone in expropriating for a project of dubious economic value. In October, the Hamilton-Wentworth District School Board voted to expropriate the Scott Park building to make way for a parking lot to serve a new high school nearby. Nine years ago, the board sold the building for just $650,000 – less than 7 percent of its market value. Now it may have to pay a premium to regain the property. The building’s current owner claims it is worth at least $6 million as is – and more than $47 million once developed. On top of that, the estimated costs of tearing down the building and constructing the parking lot range from $2 million to $4 million. One trustee called the plan “fiscally irresponsible,” while another said it “is not good management of our educational funds.” Columnist Paul Wilson was even sharper in his criticism of the decision to build “the priciest parking lot in town,” calling it “just plain wacky.”

Unnecessary

Many expropriations could be avoided with some creative planning. But expropriating authorities are under no obligation to pursue alternatives to their favoured plans. As a result, they often expropriate needlessly.

St. Joseph Morrow Park Secondary School, Toronto

The Toronto Catholic District School Board, for example, is looking at expropriating 30 townhomes bordering Bayview Avenue in order to expand the site on which it plans to build a new high school for girls. Although the board admits that it “could live with the property as it is,” it would like to have more land to build a larger sports field.

There’s no evidence that the board has thought creatively about ways to both have a larger playing field and avoid expropriation. There is no indication, for example, that it has considered building a taller building with a smaller footprint in order to free up land for a field. Nor is there any sign that it has considered freeing up land by moving parking off-site, to properties purchased from willing sellers. Area councillor David Shiner told the Toronto Star that he was surprised by the board’s casual embrace of expropriation: “The school board said to me, ‘Well … if it doesn’t fit, we’ll just expropriate the homes.’ I was kind of shocked at the fact that you’d actually purchase a site, work out a plan, and feel if you can’t build want you want to build … you’re just going to tell people they’ll have to move.”

Edithvale Park, Toronto

At the inquiry into Toronto’s decision to expropriate two properties on Finch Avenue West in order to expand Edithvale Park (see above), the owners of the targeted properties suggested several alternatives that would have avoided expropriation. They suggested that the city expand a small park closer to the developments that had necessitated – and funded – the parkland expansion. But the city preferred to expand a larger, more “active” park. There is no indication that the city seriously considered expanding one of the eight closer parks or approached neighbours of any of those parks to see if some might be interested in selling their homes.[ii]

The owners of the targeted properties also suggested that the city re-work the design of the expanded park in order to exclude part or all of their properties. The city refused, insisting that both entire properties were necessary components in its park expansion project. But why were they necessary? The city had already acquired five properties along the park from willing sellers. Why not simply allow an irregularly shaped park to accommodate those who didn’t want to sell? The city demanded the Finch properties to help it “square off” the park. The properties, it said, were the “missing teeth in the smile.” Among other things, it argued, a more regular shape would facilitate maintenance, such as cutting grass and trimming trees. Expropriating for the convenience of city maintenance crews certainly stretches the definition of “necessary.”

Limiting expropriation

The above examples suggest that expropriation is currently far too easy, and far too common. Provinces need to curtail who expropriates, and for what purposes. They need to limit expropriation to genuine public uses, to projects that are economically sound and sure to go ahead, and to projects for which there are no feasible alternatives.

Back in 1968, the Honourable James McRuer, the Commissioner of Ontario’s Royal Commission Inquiry into Civil Rights, made a heartfelt plea to limit expropriation. Despite reforms to the process in the intervening years, his advice remains invaluable, and urgent:

It cannot be too strongly emphasized that the Legislature should not confer the power of expropriation on any body or person unless it is clear that the power is inescapably necessary in the interest of good government and that adequate controls over its exercise are provided…. Powers of expropriation constitute far too great an infringement on civil rights to be handed out as convenient tools.

Notes