If you, like most Canadians, feel that your home is your castle, you are wrong. Thanks to broad powers of expropriation, thousands of public authorities – municipalities, universities, conservation authorities, power companies, and countless others – can take private property at their whim. Worse, expropriators often hide behind a hearing process, overseen by a provincially appointed inquiry officer, that gives the false impression that owners’ rights are respected and that a proposed expropriation will go ahead only if it is fair, sound and necessary. In fact, these hearings are a sham.
Just how little restraint such hearings provide was recently made clear in Toronto, when the Catholic District School Board decided to expropriate and raze 17 townhomes in order to build a new high school. At a three-day hearing into the proposed expropriation, the inquiry officer had determined that the school board’s plan was “not fair, sound and reasonably necessary in light of other viable alternatives.” He noted that the board had initially put forward a plan that didn’t require expropriation. That plan, he concluded, was “still suitable and less disruptive to the neighbourhood.” But his conclusions were not binding. The school board ignored them (along with the objections of the local councillor and the area’s MPP) and proceeded with its plans to expropriate. Said one dismayed resident, “I feel like someone just snatched my house away…. This is completely unjust.”
The Toronto school board is by no means alone in disregarding inquiry officers’ recommendations. Toronto lawyer Stephen D’Agostino has “never seen an expropriating authority decide not to expropriate based on the hearing.” Because aggrieved owners can so rarely successfully challenge expropriations, an Ontario Expropriation Association newsletter described the hearing process as “more window dressing than real.”
“Window dressing” likewise describes expropriation hearings in Manitoba. Earlier this year, Winnipeg City Council approved a plan to expropriate parts of two businesses, leaving the buildings intact but taking the parking spaces in front of them. Councillors ignored the findings of a five-day hearing into the proposed expropriation that had determined that neither business would be viable without sufficient parking, and that “it would be patently unfair to approve a course of action that would effectively destroy an existing and long-term business.” The inquiry officer recommended that in fairness to the owners, the whole of both properties be expropriated. But Council disregarded his recommendations, voting to proceed with the partial expropriations. One councillor explained, “The inquiry officer is there to give an opinion. We don’t agree with the opinion. So, we’ll move forward …”
In Alberta, too, councillors routinely brush aside recommendations from expropriation hearings. When defending Fort McMurray’s decision to ignore an inquiry officer’s report opposing expropriation for a sports arena, the director of the city’s downtown redevelopment explained that rejecting such reports 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 [she has said] that in every case, notwithstanding an officer who had raised some concerns, council had moved forward to complete the expropriation.”
Even when the recommendations of inquiry officers are respected, there is a fundamental problem with expropriation hearings: They are not permitted to address important issues. For example, property owners are forbidden to challenge the objectives of the expropriator – they can only challenge whether the proposed project is necessary to achieve those objectives. When the expropriator sets very specific objectives – putting a particular project in a particular place – the proposed expropriation is virtually unassailable.
Some provinces don’t even make a pretense of consultation. In PEI, Nova Scotia, and Newfoundland and Labrador, expropriation laws include no provisions for hearings to contest proposed expropriations. Only compensation is open to challenge. Owners in BC may not request hearings for expropriations involving linear developments such as highways, railways, power lines, pipelines, or sewers.
The right to be heard is a matter of fundamental justice. But where is the justice in creating a phony sense of participation and empowerment? Psychological research tells us that the perception – even if illusory – of control enables people to tolerate more pain. Is this what hearings accomplish? Do they simply make home and business owners more compliant as they lose their property?
It is time to stop this charade. Public agencies must provide for due process, and take property only when expropriation has been demonstrated to be truly fair, sound and necessary. Only then can Canadians believe that public hearings – and private property rights – do matter.
Elizabeth Brubaker is executive director of Environment Probe and author of Expropriation in Canada: Discretion Masquerading as Law.