How The Rest Of My Land Is Injured
Et Voila: The long overdue discussion paper on "injurious affection"
It may shock all of you to know that while the Canadian Charter of Rights and Freedoms, in my view, profoundly confuses rights with privileges, it is also lacking in one important aspect. Property rights are not enshrined in the Constitution. In the formation of the Charter, it was at one point proposed that Section 7 read: "everyone has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except in accordance with the principles of natural justice". However, the property rights insertion was defeated by both the Joint Committee and the House of Commons.
Section 7 of the Charter now reads: "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
So while the Federal Government has chosen to provide rights to everyone except property owners in this country, the Provincial Government has enacted the Expropriations Act to set out the rights and obligations of various parties involved in the expropriation process.
The Expropriations Act is constantly being revised, most recently in 1992.
In the Expropriations Act, "injurious affection" is defined as:
(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or by any combination of them, and
(ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute.
Where the Act refers to "the works", it is describing the public works project (i.e., road widening). The Act, furthermore, makes a distinction between the construction and use of the works. This distinction is significant in cases where no property has been taken. Any injury to the property (if no property is expropriated) can only result from the construction and not the use of the works. This is a complicated distinction and has often resulted in arbitration of various claims for injurious affection.
If a portion of a property was acquired by an approving authority for the construction of a highway (the works), injurious affection may result from the use (road salt damage), the construction (building damage during construction), or a combination of these.
Significantly, however, injurious affection can only affect the remaining lands of the owner and, injurious affection cannot, therefore, result from an expropriation of the entire property. There may be additional damages, relocation costs and business damages, but not in the form of injurious affection. The scope of injurious affection is so wide and so varied as to cover basically all injury to the remaining property which would result from the construction or use of the works, or a combination of the construction and use of the works.
I am not qualified or competent to comment on the legal nature of decisions or findings and only list some examples here for information purposes.
1) Claim for damages for loss of view (25/162) *
2) Claim for reduction in value of commercial building (38/88)
3) Claim for loss of access (44/275)
4) Compensation for sales loss during course of construction (30/223)
5) Loss of development efficiencies (29/297)
6) Delay of development (45/250)
The role of the appraiser is to quantify this loss in value to the remainder. That is usually done through pairing of sales. That is to say, find one sale without that negative influence and compare it to an otherwise identical sale which is, however, negatively influenced by one single factor. The appraiser then generally appraises the property "before the expropriation" and again "after the expropriation" and the difference in these two values includes injurious affection, as well as the loss in value of the lands taken. These items must be separately quantified in the appraisal report.
I hope I have assisted somewhat in understanding this complicated issue, but if not and if you are being expropriated hire our firm and we will direct you to a qualified solicitor experienced in such matters. He or she will explain the issues in detail.
These views are the opinions of the author only - Larry W. Bedford.
* The 25 refers to the volume of the Ontario Land Compensation Report and the 162 refers to the page
"This Land is not Your Land"
I thought that for my initial "News and Views" offering, I would discuss my own specialty; that being the expropriation process. As a result of 30 years of experience, I am often confronted with the anguish experienced by those being expropriated and hopefully this article will provide some guidance to what is happening.
Once a decision has been made by one or another government authority that, for the good of the general public, part or all of your property must be taken, the process is underway. The authority has always considered expropriation from the aspect of the public at large while you, the property owner, may feel distraught about the influence on your property and future dreams. What can you do?
Federal and Provincial law dictates that property ownership is subject to various rights such as taxation, as well as the right of expropriation. They can, in other words, acquire your property without your consent. You do, however, have many rights which are set out in the Expropriations Act of Ontario, which also sets out the process by which compensation may be sought. No public authority is entitled to indiscriminately acquire land for purposes which might not be for the public good, however, the most effective way of opposing any expropriation is to oppose the project at the early planning stages when the authority may have some flexibility in their overall plans. The Act also allows for a "hearing of necessity" to determine if the expropriation is "fair, sound and reasonably necessary", but the expropriating authority is not bound by the hearing's recommendations. If the process is well along in the planning stages, it is unlikely that this hearing will result in any major changes. It is really more of a legal fact finding session.
Once the authority's plans are formalized, the property owner will be contacted by an agent of the authority with an offer for compensation. You want to remain calm and your goal should be be maximize your compensation.
The Expropriations Act sets out the law that you are to be compensated for:
(a) the market value of the land;
(b) the damages attributable to disturbance;
(c) damages for injurious affection;
(d) any special difficulties in relocation.
The Act also states that the expropriating authority must pay for reasonable legal and appraisal fees so you should first look to a lawyer who is expert is these matters and who has a proven record at expropriation (OMB)hearings. You should also seek out an appraiser who is also expert in recognizing some of the important issues which may not be evident to you or even to your solicitor. The appraiser should also have a proven track record as an expert witness in expropriation matters.
Often the compensation can be negotiated, however, if not resolved, an Expropriation Plan is registered and 90 days thereafter the lands no longer belong to you. Prior to possesion, however, the authority must provide a statutory offer and an appraisal. You may not consider this offer of compensation to be fair, however, you can accept it without prejudice. That is to say, you and your appraiser and your lawyer can continue to seek fair compensation with the initial compensation offer in the bank. If you are unable to achieve compensation which seems fair to you, your lawyer and your appraiser, you can obtain a hearing of this matter before the Board of Negotiation. However, the findings of this Board are also not binding on the authority. As a final recourse, these matters may be heard before the Ontario Municipal Board.
It is easy to suggest that you should remain calm, however, this process can be protracted. It is my experience, nevertheless, that either through negotiation or through arbitration, fair compensation can be achieved.
These views are the opinions of the author only - Larry W. Bedford.
Next month's article will discuss "injurious affection" in greater detail.
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