Comments on the B.C. Law Reform Commission’s working paper on expropriation

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One is impressed with the concern show by the Commission in the paper for rights and interests of persons who have their property subjected to expropriation. In the introduction at p. 2 it is stated:

…it is fundamental justice that there should be adequate procedural safeguards to protect the individual citizen from the abusive exercise of expropriation powers. In addition, he should be entitled to receive compensation that will provide him with full indemnification for the losses resulting from expropriation.

The paper lives up to the spirit of this declaration. The following are some specific observations and suggestions of the British Columbia Civil Liberties Association on the report:

  1. The paper suggests that a review should be made of the various rights of entry to ensure that they are necessary and that adequate safeguards to their exercise exist.At the time, a review should also be made to ensure clarity and uniformity of wording, where appropriate.
  2. The paper suggests that the general statute proposed should not apply to a few specific statutes for various reasons.We feel that the Special Surveys Act, the Noxious Weeds Act, the Plant Protection Act and the Grasshopper Control Act should be included. In each of these Acts damage may be caused to the owners of land by government agencies. In those situations where the owners are entitled to compensation, the compensation should be governed by the general statute.

    If any statutes are excluded, their provisions relating to compensation and procedures should be reviewed and where possible they should be made to conform to the compensation and procedures contained in the general statute.

  3. The paper proposes that the inquiry tribunal be established on the same basis as the tribunal in Ontario.The Ontario Act provides for an appointment by the Attorney General of a Chief Inquiry officer and such Inquiry officers as he or she may deem necessary.

    The federal Act, it is noted, provides for the appointment by the Attorney General of a “suitable person”, who is not in the public service, to be the hearing officer.

    Inasmuch as the paper proposes that the Attorney General may be an approving authority in some cases (see p. 149), it is not appropriate that he or she appoint the inquiry officer to review his or her own approval, nor should the appointee be a civil servant or, indeed, an employee of any approving authority.

    It would be more appropriate for the Lieutenant-Governor-in-Council to make the appointment of the Chief Inquiry Officer. The Chief Inquiry Officer should establish the roster of Inquiry Officers and appoint them as required. She or he could be the chair of the Arbitration Board.

  4. We recommend that, in addition to advertising, the expropriation authority should be required to deliver a copy of the notice of intention to expropriate and also a copy of the expropriation statute to the registered owners and to others likely to be directly affected, such as tenants or lessees. The inclusion of a copy of the expropriation statute would ensure that all likely to be affected by the expropriation would have their rights made known to them.
  5. The paper comes to no conclusion on the difficult question of who should be permitted to object to the decision to expropriate the particular property in question.The federal legislation provides that any person may object, provided he or she serves an objection in writing stating their name, address, and indicating the nature of the objections, the grounds on which objections are based, and the nature of his or her interest in the matter of the intended expropriation. A Federal Inquiry Officer need not hold a hearing or go further if it appears to him that the objection is frivolous or vexatious or is not made in good faith.

    The Ontario legislation permits objection only to be made by those with property interests being expropriated.

    The Manitoba legislation says those whose lands may be injuriously affected may object.

    In view of the special concern which citizens’ groups have for their surroundings and their environment, they and any concerned or interested citizen should be able to question whether the exercise of an intention to expropriate is appropriate. The federal legislation is suitable for this purpose and should be followed.

    The proposed legislation should ensure that in all cases a notice of intention to expropriate is given—even where a settlement has been negotiated—and that no settlement be binding until after approval by the approving authority of the expropriation.

    The paper proposes that the expropriating authority and should be able, wholly or partially to abandon its intention to expropriate prior to expropriation. It is suggested that where the authority wishes to reduce the area of claim a lesser interest, it should be able to amend.

    We feel that where there is a partial abandonment before expropriation the authority should have to give a new notice of intention as proposed in paragraph 4, and that the inquiry and approval procedures should also apply.

    This would allow the owner or other interested parties to question the necessity of the restricted expropriation, a right that would otherwise be taken away from him or her.

    The paper also proposes that the authority may wholly or partially abandon after expropriation but before expropriation proceedings are complete with the consent of the owner.

    Again we feel that a partial abandonment should require a notice to that effect, as proposed in paragraph 4 and inquiry and approval procedures.

    The paper raises the question of the rights of former owners where the authority wholly or partially abandons after completion of the expropriation proceedings. The paper points out many of the difficulties and problems that may arise where some form of right of purchase is given to the previous owner. We find we are not able to make any suggestions in this complicated area.

  6. In dealing with valuation, the report proposes that any increase in value due to illegal use be deducted form the market value. This proposal does not take into account the not uncommon situation where a business suddenly become a non-conforming use in a municipality because the municipality has changed the zoning for that property. Under the Municipal Act the business may continue to operate thought it may not expand. It is technically operating contrary to law but through no fault of its own. The municipality could then expropriate the land and pay less than its market value. We suggest, therefore, that such situations be taken into account when properties are being evaluated for expropriation.
  7. The paper points out that the provincial government has established the Air, Light and View Committee for the purpose of examining claims by property owners for certain kinds of losses aking to losses to be dealt with in the general statute, described as consequential damage to other properties. The Committee makes a recommendation to the Minister of Highways, which, if the Minister approves it, goes forward to the Lieutenant-Governor-in-Council for consideration and the Council may then authorize the making of a voluntary payment to the claimant.The paper suggests that thought be given to having the proposed statute deal with this type of damage and also whether the function of the Committee should be carried out by the general tribunal proposed by the Commission.

    We strongly suggest that the Commission should recommend that the definition of “injurious affection” be wide enough to cover any losses suffered because of undertakings carried out in the public interest, and that the general tribunal proposed by the Commission have authority to deal with such claims.