How common is expropriation, and for what kinds of projects is it used? There is no ready answer. Although expropriation is one of the most extreme uses of government power, citizens are hard-pressed to find out when and why governments resort to it.
Neither the federal nor any provincial government maintains a registry of expropriations. There is no centralized source of information about what land is being taken for what purpose, or of the reports of inquiries into expropriations. Nor do most municipalities maintain or publicize such information – decisions to expropriate are usually buried in the minutes of council meetings.
Only by piecing together media reports from across the country can we get an idea of how frequently governments take private land. Rarely does a week go by without fresh stories surfacing in local papers. The most dramatic coverage tends to address the most objectionable expropriations – often, cases in which private land is taken for private purposes. (For examples of such takings, see Corporate bullying: Expropriating for private purposes in Nova Scotia.)
But many – perhaps most – of the media stories document expropriations for traditional public purposes, such as roads, sewers, and other infrastructure. Some of these stories are disturbing. The public nature of a project cannot on its own justify expropriation. The public projects for which local, provincial, and federal governments are currently expropriating raise a number of questions. Are the projects necessary? Are they economically and ecologically sound? Is the process open and fair? Are authorities taking more land than they need? Are landowners being fully compensated for their losses? Could authorities acquire the land from willing sellers, rather than expropriating it from those who do not want to sell?
The following sampling of cases that have attracted media attention in 2014 provides an overview of some of the public drivers of recent expropriations and some of the shortcomings of the process. Without ready access to centralized and comprehensive information, it is impossible to know how typical these stories are. But they do provide a glimpse of how this coercive power is being used across Canada.
Expropriation for roads is commonplace. Manitoba, for example, is taking 10 homes in order to obtain land for a cloverleaf intersection in East St. Paul. And Ontario is demanding land for the construction of a four-lane freeway between Guelph and Kitchener. The province expects to acquire 143 properties for the project; it registered expropriation plans for 84 properties along the route in September.
Occasionally, expropriation seems justified. Barrie, Ontario’s expropriation of the Lakeshore Mews Laneway is such a case. The city cannot purchase the laneway, since there is no one with whom to negotiate: The laneway was owned by a man who died in 1894 and left no known heirs. More often, expropriation for roads is less palatable. Following are several examples that raise troubling questions about the process.
• The federal government is expropriating 16 Victorian houses on Verdun’s May Street – a tiny street in one of the Montreal borough’s oldest neighbourhoods – to accommodate the widening of the highway west of the new Champlain Bridge. The expropriation took the residents by surprise. The local MP complained that it “was done in such a clandestine way behind doors where they tried to keep everything under wraps.” Transport Canada had in 2012 promised that no one would be expropriated for the bridge replacement project and had reiterated that promise the following year. Not until this June did it notify the homeowners of its plans to expropriate. Verdun’s mayor admitted that he had been aware of the impending expropriation for several months, but said that a confidentiality agreement had prevented his telling the affected owners. Some of the owners noted that more prompt notification would have saved them from investing in costly renovations that will now be worthless.
• In February and May, Winnipeg council initiated the expropriation of portions of 16 properties in order to widen, extend, or otherwise improve streets near the Polo Park Mall. Council, eager to begin construction, directed the city to ask the province to waive its requirement for an expropriation inquiry. Normally, such an inquiry provides affected owners an opportunity to question whether the expropriation is “fair and reasonably necessary for the achievement of the objectives of the expropriating authority,” to present evidence to the contrary, and to cross-examine the city’s witnesses.
• An audit of Winnipeg’s real estate policies and transactions, released this summer, raised questions about the expropriation of the Mid-Town Car Wash to make way for a bus corridor. Auditors found that the city had acquired the car wash for $3.36 million in 2010, and, after using less than 20 percent of the land, had resold the car wash in 2011 for just $1.5 million. It questioned whether value for money had been achieved. It noted that a car wash continued to operate on the site, and found no documented rationale for expropriating the full property.
• The Nova Scotia Utility and Review Board has sided with property owners in their dispute with Halifax Regional Municipality regarding compensation for expropriation for a road in Middle Sackville. The regional municipality had been willing to pay just $347,000. In January, the board ordered it to pay $1,170,000. In another dispute about compensation, an Antigonish developer filed a claim in June regarding the expropriation, five years ago, of a portion of its subdivision for a highway twinning project. Arguing that the expropriation of a one-hectare parcel reduced the development potential of its remaining eight hectares, the company asked the Utility and Review Board for $172,400 in additional compensation.
• In July, Metrolinx took possession of the site of a former Knob Hill Farms grocery store in Oshawa, Ontario. The transportation agency is considering building a new GO station there. But its plans – and the funding for them – remain uncertain. After taking the property, a spokesman for the organization would say only that the site could be a “possible future” station, adding, “It’s just too early to say more…. [I]f we do move forward we will definitely let the public know.”
Initially, unable to agree on a price, the owners had resisted selling the vacant property to the transit agency. But in recent years, the threat of expropriation had created so much uncertainty that it had become impossible for the owners to sell or lease the property to other parties. As they wrote in 2012, they had “lost multiple and more lucrative opportunities to sell/lease the site because the publication of Metrolinx’ interest in it and the potential for its expropriation have frightened off genuine prospects.” Frustrated by having to maintain a property in limbo, they urged Metrolinx to either expropriate quickly or to “remove the stigma” by fully releasing the property.
Municipal use (to be determined)
• When the Boy Scouts of Canada agreed to sell a property in St. John’s, Newfoundland and Labrador, to the Canadian Mental Health Association, the city intervened and expropriated the property. The city admitted it didn’t know what it would do with the land and building – it might locate a city department there, or establish a community centre, or use it for future expansion.
Taking private land for an unknown purpose violates the “fair, sound, and reasonably necessary” standard that governs expropriation in several other provinces. How can we know if an undetermined use is sound? How can we be confident that alternatives to expropriation have been adequately examined? (The existence of alternative ways of acquiring office space surely calls into question the necessity of expropriation for that purpose.) Adding insult to injury, the expropriation also failed the transparency test: Both Scouts Canada and the Canadian Mental Health Association learned of the city’s plans through the media.
The public responded with outrage to media stories about the expropriation of the Scouts’ property. One reader called the provincial Expropriation Act a “draconian piece of legislation” that permits “theft by Government.” The process of expropriation in the province, he continued, “is unfair, unethical, one sided, politically motivated and open to serious abuse or fraud.” Others called the expropriation “unfair,” “disgusting,” “sickening,” and “shameful.” Still others compared the province to Venezuela, Iran, or Russia, and accused the city of bullying.
Other readers were more measured, but right on target. One reader pointed out that “City workers can go anywhere,” and wondered, “Why that property?” Another accused the city of being “lazy,” asking how it could justify expropriating “just for a few offices?” And another distinguished between land that the city wants, and land that it needs, saying “needs might require expropriation, wants are negotiated. Shame on the council for this heavy handed approach.”
• After the flooding in June 2013, the Town of High River, Alberta, urged the owners of 107 homes and businesses in the neighbourhood of Wallaceville to abandon their properties. The town wanted to demolish the buildings, return the land to its natural state, and allow engineers to widen the river channel at that point, thereby protecting the rest of the town from flooding. Mayor Craig Snodgrass called the potential to move water through that area “a huge advantage for the whole community of High River.” This month, he identified another advantage: Returning Wallaceville to an undeveloped state presents “an amazing opportunity to have such a cool, natural area through town.”
High River asked the province to buy out Wallaceville residents, with payments reflecting 2013 property tax assessments. Initially, the town presented participation in the buyout program as optional. Mayor Snodgrass promised that there would be no expropriation, and that residents would have the choice of taking a buyout or staying and bearing future risks themselves. In the following months, however, the mayor wavered on the question of whether the buyout program was truly voluntary and whether it was backed by the threat of expropriation.
By the end of July, the province had dropped the pretence of reaching voluntary agreements, saying that the town had decided the buyout program should be mandatory. Both levels of government continued to shy away from threatening expropriation. Although only 82 of its offers to Wallaceville residents had been accepted, the province vowed to continue negotiations. Ironically, expropriation may have been more attractive to residents, since the compensation mandated under the Expropriation Act supplements market value with a bonus to enable a homeowner to relocate to equivalent accommodation.
Whether the program to acquire Wallaceville homes and businesses is called a mandatory buyout or an expropriation, the threat of being flooded out like gophers, to paraphrase one resident, has left residents with no real choice. Said the resident, who objected that the compensation on offer was unfair, “it’s less than market value, [but] at the end of the day, if I don’t leave I’m going to end up drowning.”
Water and sewers
• Antigonish County voted in May to expropriate a property in order to secure a back-up for its water system. Antigonish had leased the land – which includes the Wright’s River aquifer, its reserve water supply – for 20 years. With the lease set to expire, and discussions with the property owners about a new lease or purchase ongoing, the county decided on “just taking a step now … so everybody can move on and county residents can be secure that they will have water into the future.”
• Charlottetown is separating 13 kilometres of combined storm-and-sanitary sewers to prevent sewage overflows during heavy rains. This summer, after the city came up against a landowner who refused permission to lay a new sanitary sewer pipe on his property, it voted to expropriate an easement over the land. The city admitted that an alternative route would avoid the property, but protested that choosing it would cost an additional $400,000. It also acknowledged that it could purchase the required land from the owner, but objected to the $100,000 price tag.
• In Winnipeg, Shindico Realty, a powerful commercial developer, built Fire-Paramedic Station No. 12 on land that it owned on Taylor Avenue. But the developer and the city were unable to reach an agreement on a price for the land – and whether that price should include compensation for land next door that Shindico claimed had been devalued by the construction. And so, in February, the city commenced expropriation procedures.
Expropriation in this case seems like a costly attempt to remedy some very bad administrative decisions. Originally, city staff tried to acquire the Taylor Avenue property through a secret and complicated land swap. A 2013 report by Ernst & Young found that the fire hall replacement program, millions of dollars over budget, had been badly mismanaged by city staff in a non-competitive, unfair process.
• Canada’s National Parks Act prohibits the use of expropriation to establish or enlarge a park. Parks Canada must purchase land from willing sellers, and sometimes waits years for land to come on the market. But it was not always so: Until the early 1970s, the federal government routinely expropriated land for parks.
In 2010, the government acknowledged the need for “healing” and “reconciliation” with those whose land it had taken. It announced a program that would allow families “to reconnect with areas that are dear to them,” promising to introduce, the following year, free access passes to expropriated landowners, their spouses, children, and grandchildren. In April of this year, Parks Canada offered such passes for Kejimkujik National Park in Nova Scotia, making them available to the 130 families whose lands were taken in the 1960s for the creation of the park.
• Frank Meyers’s eight-year fight to save his farm effectively came to an end in May, with the arrival of the demolition crew that tore down his barn, silo, and sheds. The federal government had expropriated the land two years earlier for the expansion of the Canadian Forces Bases at Trenton, Ontario. (For more on the expropriation, see Expropriation: Inescapably Necessary, or a Convenient Tool?) Buoyed by widespread public support, Frank had held out hope of regaining his land, which had been in his family for more than 200 years. That hope disappeared as a pair of excavators, watched over by military police officers, razed the farm buildings, leaving a tangle of metal, wood, rubble, and hay.
Frank sounded bitter and defeated by the destruction of his farm, calling the move “sneaky” and “heart-sickening,” and calling his opponents far worse. But even in defeat, he vowed to continue speaking out against the injustice done to him. His supporters likewise vowed to continue their fight against expropriation. “It’s not over,” said one. “This is much bigger than Frank Meyers. We need to change the Expropriation Act.”