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Submission on the Municipal Act expropriation provisions

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While the Association welcomes any suggestion from the government concerning a reform of expropriation legislation, it submits that a revision to the expropriation provisions of the Municipal Act alone will not satisfactorily accomplish the objective of providing British Columbia property owners greater protection from expropriation and ensure a fair procedure.

There is a pressing need in British Columbia for a modern expropriation statute of general application, containing adequate procedures and a suitable formula for compensation. Such legislation has been enacted in several other provinces including Ontario and Manitoba, and also by the Parliament of Canada.

The present statutory framework regarding expropriation presents a morass of various overlapping general and special provisions that are out of date. This should be replaced by one general expropriation statute applicable to all expropriations under the jurisdiction of the province. Special provisions relating to procedures and compensation contained in the various statues conferring expropriation powers should all be repealed. The general expropriation statute should contain adequate provisions concerning appropriation procedure and compensation, and it should expressly provide that it will prevail in the event of a conflict between one of its provisions and a provision of any other statute, whether general or special.

The Municipal Act provisions encompass merely one part of the mass of existing expropriation powers available to the Crown in right of the province, municipalities, school boards, other local public bodies and non-governmental bodies. Many other statues also confer expropriation powers and provide special procedures. Unless these statutes are also reformed, property owners will remain insufficiently protected.

Although the B.C. government has been promising a uniform expropriation law for eight years, such reform has not been forthcoming. With the suggestion now to instead submit revisions to instead submit revisions to expropriation provisions of the Municipal Act only, the government is apparently indicating that it has abandoned its earlier promise.

The Association is of the opinion that only by a broad reconsideration of all the powers of expropriation within provincial legislative jurisdiction and their consolidation in a single statute, will property owners in British Columbia be properly protected from unjust and inequitable expropriations, and be ensured of a fair procedure. Only a comprehensive statute can sufficiently avoid the possibility of injustice to an expropriated owner while aat the same time preserving the recognized right of government or authorized agencies to acquire property for a public purpose.

As the government is apparently insisting on only a partial legislative reform, leaving the present unsatisfactory stat the broad power of expropriation in the hands of authorities other than municipalities, the reform at this stage will be incomplete.

Nevertheless, the present reform of the Municipal Act, and the subsequent reform of any other expropriation in the hands of authorities other than municipalities, the reform at this stage will be incomplete. Nevertheless, the present reform of any other expropriation provisions should parallel the reforms enacted on a large scale in other jurisdictions, and which have been recommended in the B.C. Law Reform Commission’s 1971 report on expropriation.

The Association recognizes that the power of expropriation is a necessary adjunct of modern government. Legislation to date has apparently focused on necessity, and the result has been a great number of unconnected and uncoordinated powers of expropriation conferred upon various public bodies, whenever the government considered it to be in the public interest. To date, however, the legislation has, to a large extent, ignored or downplayed the fact that the exercise of these powers very often results in a traumatic experience for the property owners affected. That is to say, the legislation has failed to give enough recognition to fundamental freedoms of the citizen and basic concepts of fairness and equity.

The Association agrees with the following statement contained in the third special report of the Ombudsman of British Columbia to the legislative assembly regarding the Cuthbert case, at pages 20–21:

The right to own and enjoy property is one of the fundamental rights in our society and has a sacred place in our legal tradition. Section 1 of the Canadian Bill of Rightsputs it this way: It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination… the following human rights and fundamental freedoms, namely

  • the right of the individual to life, liberty and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law…

We value our land not only because it provides us with a place to live, but also because it is the place where we are at home, and around which we make friends and establish other relationships which are necessary for our emotional well-being. Because of its primary importance to the individual, the Courts have held that property may be expropriated only by the express authorization of the House of Commons or of the provincial legislative assemblies by way of statutory enactment. Moreover, property may not be expropriated except by due process of law, and most provinces have now enacted legislation to provide these procedural protections. British Columbia has not, although such legislation was recommended by both the Clyne Commission in 1964 and the Law Reform Commission in 1971.

Expropriation deprives the individual, in many cases, of a home and uprootsfamiliess from the communities in which they have established themselves. The adverse emotional and financial effects of such an action on the individual can be severe and ought not to be dealt with likely….

The Association recognizes that it is acceptable to give governments or authorized agencies the power to compulsorily acquire property for a public purpose and in the public interest. While expropriation may very often severely affect individual property owners and results inrestrictionn of certain fundamental rights, the Association does not entirely oppose conceding these powers to government where they are required for the greater public good.

The Association submits that any legislative reform involving expropriation powers, while preserving this right to compulsorily acquire property for a public purpose, must also make every effort to give greater expression to the fundamental rights and concerns of citizens. To this end, where expropriation is necessary, legislation should include protections to ensure that basic notions of fairness and equity are preserved, and to guarantee full compensation to the persons affected.

This is generally consistent with the principles recognized in the LRC report, where, on page nine of in the introduction, 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 full indemnification for the losses resulting from expropriation.

These goals have been accomplished in comprehensive expropriation legislation enacted in other jurisdictions, as is noted in the following remarks by professor Eric Todd, in The Law of Expropriation and Compensation in Canada, at page two:

“More significant, however, than changes in outward appearances are the dramatic alterations in attitudes and substantive values that are reflecting in the new expropriation codes in Canada. The new laws involve some measure of public participation in the expropriation processandd their more generous compensation provisions recognize humanitarian and other non-economic factors that the old law largely ignored.

The new Canadian expropriation codes recognize the traumatic effect of expropriation on those directly affected and provide substantial relief in order that they may be economically rehabilitated. In particular, they recognize the normal lack of equilibrium.

Finally, it will be seen that the new legislation has one basic minimum underlying objective, namely to make the whole expropriatedownerr economically whole. However, the legislation also recognizes that in some situations justice may demand more than the minimum objective. In such cases, the owner may be additionally compensated or reimbursed with respect to matters that may have added nothing to the market value of the property and which, ex hypothesi, would not be included in an ordinary real estate appraisal of its value.

In particular, the Association has the following specific recommendations. In most cases, these recommendations follow the recommendations of the LRC report and references are made ot the appropriate pages of the report:

  1. All the expropriation provisions should be consolidated and dealt with in one part of the Act. At present, although the procedure and compensation provisions are all in division (4) of part 12, the specific powers of expropriation are spread throughout the Act.
  2. The Act should expressly provide that it will prevail in the event of a conflict between one of the provisions of the expropriation part of the Act and a provision of any other statute, whether general or special.
  3. The Act should expressly state that the present Expropriation Act does not apply to proceedings under the Act. As stated in the LRC report, at pages 73–75, this Act is out of date. Its provisions should be replaced by up to date express provisions in the Municipal Act.
    • Any statutory provisions that create, or might appear to create, or might appear to create, expropriation powers should clearly and expressly demonstrate the intention to confer those powers.
    • Wherever the power to expropriate is granted, the word”expropriate” should be used.
    • There should be an express provision that no provision that does not use the word expropriate shall be deemed to confer a power to expropriate (LRC Report, page 19).
  4. The replotting provisions now contained in Division (2) of Part 28 should be governed by the expropriationproceduress (LRC Report, page 63). At present a different procedure is provided for disputes concerning replotting.
  5. A permanent arbitration tribunal should be established to hear all claims for compensation, in accordance withthee recommendations on page 80 of the LRC report.
  6. All expropriations should be subject to the approval of a politically responsible person or body. Further, written reasons for the decision of the body having authority to authorize the expropriation should be madeavailablee to the parties to the expropriation and any persons who objected to the proposed expropriation at any inquiry.The Act should provide that no settlement negotiated with an owner shall be binding until after the proposed expropriation is approved by the persons having authority to authorize the expropriation.
  7. The Act should contain an inquiry procedure, in accordance with the recommendations of the LRC Report, at page 92.
  8. The Act should permit any person to object to an expropriation provided he or she serves an objection in writing with a name and address, and that indicates the nature of any objections, the grounds on which the objections are based and the nature of his or her interest in the potential expropriation. This is the procedure available under the Federal Expropriation Act, which further provides that a hearing officer may decline to 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.This system recognizes that citizen groups may have valid, special concerns, and that groups or interested citizens should be able to question whether the exercise of an expropriation power is appropriate. This is preferable to the approach adopted in Ontario and Manitoba, and which is recommended in the LRCReportt, which restricts the right to object to persons whose property is being expropriated.

    The LRC Report suggests that the function of the inquiry is not to deal with whether the intention or plan of an expropriating authority is proper and justifiable, but the function should be achieved at some form of public hearing regarding land use, well before expropriation proceedings have begun. In fact, such consultation processes as do presently exist do not achieve this objective and, in particular, are completely unrelated to the exercise of expropriation powers.

    As noted above, the exercise of expropriation powers can have dramatic impacts upon the rights of citizens. While provisions having the objective of compensating the affected owners are certainly fundamental to any statutory expropriation scheme, they alone may not be sufficient to protect against abusive exercises of the expropriation powers. Where the opportunity exists for any concerned citizen to question the objective of particular expropriations, and thus possibly prevent successive abuses, the Act shall go one step further in achieving the objective of protecting the fundamental rights and freedoms of the public.

    Further, individual property owners are not always fully aware of the rights available to them, and the protections provided for in the legislation. In such cases, where the opportunity exists for any concerned citizen toquestionn particular expropriations, the affected property owners could be made aware of their own rights. Finally, even where an affected property owners is utilizing the procedures available, intervention and efforts of concerned citizens groups could be instrumental in bringing all relevant information to light and ensuring that the affected owner receives full and proper compensation, which could be greater than what would be awarded otherwise.

  9. The Act should formally provide for a negotiation procedure, in accordance with the recommendations of the LRC Report, at pages 100–101.
  10. The Act should provide that the notice of intention to expropriate must be served on all property owners whose properties are required, even if a settlement had been negotiated with a particular owner.
  11. The Act should contain provisions respecting compensation tribunal procedure in accordance with the recommendations of the LRC Report, at pages 103–104.
  12. The Act should define an expropriation procedure in accordance with the recommendations of the LRC Report, at pages 111–114, with the exception that the expropriating authority should be required to serve notice of intention to expropriate not only on each registered owner, but also on all others likely to be directly affected, for example, holders of registered charges, such as mortgages and leases.
  13. The Act should provide for procedures regarding claims for damages resulting from the exercise of a statutory right of entry, not amounting to an expropriation, in accordance with the recommendations of the LRC Report, at page 115.
  14. The Act should provide for theabandonmentt of expropriation proceedings prior to expropriation, in accordance with the recommendations of theLRCD Report, at pages 116.The Act should also contain provisions providing for abandonment of expropriation proceedings, before expropriation proceedings are completed, in accordance with the recommendations of the LRC Report at pages 117–118, except that where there is only partial abandonment, the expropriating authority should be required to amend its notice of intention to expropriate to ensure that the inquiry and approval procedures continued to apply to the land still intended to be expropriated.
  15. The underlying principle in the compensation provisions of the Act should be to provide persons whose property has been expropriated with full compensation for their economic losses resulting from the expropriation, in accordance with the recommendations of the LRC Report, page 123.
  16. The Act should state the basic formula for compensation and should define the appropriate bases for compensation, in accordance with the recommendations of the LRC Report, page 123–143.
  17. The Act should contain a formula for compensation payable for all costs, expenses and losses reasonably attributable to the disturbance of the owner or tenant dispossessed from his or herhomem and compensate for the time and energy expended in finding and moving to a new home, in accordance withthee recommendations of the LRC Report, at pages 149–154.
  18. The Act should contain provisions for compensation payable for consequential damage to other property, both with respect to situations where only a part of an owner’s land has been expropriated, and where no lands of a particular owner have been taken.
  19. The Act’s provisions concerning compensation in situations of a partial taking of property of an owner should be in accordance with the recommendations of the LRC Report on page 159.
  20. In situations where there is no property of a particular owner taken, the expropriating authority should be liable for damages caused by the construction and use of the works. The Association is not prepared to express a conclusion on the question of whether a scene of such liability should be restricted to situations where, in the absence of statutory authority, liability would have existed at common law.
  21. The Act should contain a “home for a home” provision that provides for additional compensation to enable the expropriatedhomeownerr to acquire a new home, where the market value of the property taken is sufficient for this purpose, in accordance with the LRC recommendations, at page 172.
  22. The Act should contain provisions with respect toaccommodationn works and granting other lands, in accordance with the LRC Report recommendations, at page 174.
  23. The Act should specify that the date for valuation should be the date of expropriation, in accordance with the recommendations of the LRC Report, at page 176.
  24. The Act should provide for the awarding of interest as compensation for temporary loss of capital, in accordance with the recommendations of the LRC Report, at pages 177 and 178.
  25. The Act should provide that theexpropriatinge authority is required to tender, at the time of making the offer of full compensation, payment of 100 percent of the market value of the lands expropriated, in accordance with the recommendations of the LRC Report, at page 178.
  26. The Act should provide that owners are entitled toreceivee funds for legal and appraisal costs in accordance with the recommendations of the LRC Report, page 179.
  27. The Act should provide for the compensation for personal property in accordance with the recommendations of the LRC Report, page 180.