On March 12, 2021, Shane Rayman represented the Ontario Expropriations Association (“OEA”) before the Standing Committee on the Legislative Assembly. He presented the OEA’s views on the proposed legislative changes to the Expropriations Act, R.S.O. 1990, c. E.26 under the Accelerating Access to Justice Act, 2021, Bill 245. He shared the OEA’s recommendation that the proposed substantive changes to the Expropriations Act should not be made at this time and if such changes are to be made, they are done with the benefit of further consultation, a transparent process, and the detailed involvement of stakeholders.
The full Official Report of Debates (Hansard) of the March 12, 2021 meeting of the Standing Committee on the Legislative Assembly can be found here: https://www.ola.org/en/legislative-business/committees/legislative-assembly/parliament-42/transcripts/committee-transcript-2021-mar-12#P665_189008
Below is the Hansard excerpt of Shane’s presentation:
“Good afternoon. I thank this committee for hearing me today. I am a lawyer who has practised in the area of expropriations law for over 20 years. I work for both property owners and expropriating authorities in this process. I have been a board member of the Ontario Expropriation Association for over 15 years, and I’m a former president. I have been asked by the association—I’ll call it the OEA—to represent it today in presenting before this committee.
The OEA is a group of professionals who work in the area of expropriation. We have over 400 members, who include government representatives, real estate appraisers, planners, lawyers, accountants, economists and many other professionals in the area. As the OEA has professionals who serve both government and property owners, we really don’t take a side between government or the owner, but rather favour an efficient, transparent, balanced and predictable process for expropriation in Ontario.
Although Canada does not have a constitutional protection to protect private property, it has a strong and well-established common-law tradition that ensures full and fair compensation to expropriated owners, to protect the security of private property in Ontario while establishing a fair balance between the owner and government.
As Mr. Justice Rand, writing for the Supreme Court of Canada, wrote in 1949—he summarized the process and the common law by stating: “A compensation statute should not be approached with the attitude that Parliament intended an individual to be victimized in loss because of the accident that his land rather than his neighbour’s should be required for public purposes.”
To further this goal, Ontario, like all other provinces in Canada, has established an Expropriations Act that provides guidance on this process and ensures a fair balance. The act is an act by government to protect individual landowners from the extraordinary powers of government. Expropriation is what the Supreme Court of Canada called one of the ultimate exercises of government authority. As a result, the Expropriations Act has remained a strong piece of legislation that has been undisturbed since 1967, when it was created. The act was created after a royal commission into civil rights in Ontario investigated expropriation, and then a law reform commission was constituted to provide recommendations to the Legislature for this act.
The OEA has reviewed and considered the proposed legislative changes under Bill 245. The OEA does not take objection to a number of changes and believes that those relating to hearings of necessity and changes to the Board of Negotiation reflect a refined and updated procedure that is consistent with accelerating access to justice. This doesn’t mean all members agree or disagree, but I’m speaking for the OEA collectively.
The bill also proposes changes to provisions of the Expropriations Act that affect substantive rights to compensation. Notably, these sections relate to the provision of interest on outstanding compensation and the reimbursement of legal costs. The OEA sees these substantive changes, which have not taken place to the act over the first 53 years, as a degree of concern. It also identifies provisions relating to substantive changes that are now going to be subject to regulation that can be passed by cabinet and are not entrenched in expropriation legislation.
It is the OEA’s recommendation that these changes to the Expropriations Act on the substantive portions are not made at this time, but rather, if such changes are to be made, they are done with the benefit of further consultation, a transparent process, the detailed involvement of stakeholders and what in the past has been the possibility of a law reform commission. This is to ensure a balanced and transparent process.
We note that when changes to expropriation legislation have been made in other provinces, they have been made with the benefit of recommendations of a law reform commission. This enables the public to have a say and to know what is being relied upon by government for these changes.
It is the OEA’s view that substantive protections to property should only be changed with exceptional care and balance to ensure that property ownership rights in Ontario remain strong. This would also include a more in-depth analysis on issues like the applicable rate of interest, which for the Expropriations Act is intended to stand in place of real estate capital that’s being taken away by government. It’s for that reason that our act gives interest to some damages while for other damages it doesn’t pay any interest at all.
We approach the interest issue on compensation as a substitute for property that is being lost, and for that reason, the current rate of, let’s say, bank interest may leave owners in a worse position than they would be in if their property wasn’t taken away, if the property market is rising and they’ve lost the real property that would be rising with it. I’m happy to elaborate on this further.
There is also the concern that if the government has the ability to make substantive changes to compensation through regulation, it could result in additional uncertainty and corresponding risk to property ownership in Ontario. Having strong and entrenched legislation to protect compensation and the rights of owners mitigates this risk and protects property for everyone in our province. It is for that reason that the OEA is not in favour of regulations being changed without legislative approval and recommends a more detailed process that could involve a law reform commission. Even if there is flexibility to interest rates under the act, it should be entrenched in legislation. That has been done in other provinces.
I’m very happy to answer other questions of the committee relating to these submissions, or if you have any other questions about expropriation. That’s why I’m here today. Thank you.”
Below is the excerpt from Hansard of Shane’s responses to the Committee’s questions:
“Mr. Faisal Hassan: …I’ll start with Shane Rayman first.
Expropriations happen most of the time. I know it happens in many communities across the province. You mentioned that this bill does not protect compensation—fair and balanced compensation. Could you, on the record, elaborate on why that is the case?
Mr. Shane Rayman: I should clarify my comments. We are not stating that the substantive changes to the act do not protect compensation; we are stating that it’s being done without a full, balanced and transparent process to change substantive requirements that have not changed in 53 years, and that runs the risk—we don’t really know whether it would change that balance or not because the changes are not being made as part of the legislation, but rather the legislation is having the changes deferred to regulations that can be passed by cabinet.
I don’t want to infer that it’s unfair. It’s just that it leaves the door open to a change being made in the future that does not have the due process protections that legislated entrenchment of compensation legislation would have. That’s what the concern is.
Mr. Faisal Hassan: And that is the rights to compensation to property owners.
Mr. Shane Rayman: Yes. It’s specifically with respect to interest on some compensation payable and the reimbursement of legal costs to make an owner whole after they’ve completed a claim.”