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Oct 28, 2020

The Province of Ontario, Yet Again, Proposes to Reduce Hearing of Necessity Rights in Expropriations and Related Rights

By Ajay Gajaria and Matthew Helfand

For the third time in 2020, the Province of Ontario has proposed legislation to further remove hearing of necessity and other rights for landowners faced with an expropriation related to certain transit projects.

A hearing of necessity, which is an inquiry into whether lands are necessary for the purpose for which they are to be expropriated, is one of the few opportunities for a landowner to challenge an expropriation commenced under the Expropriations Act.

Previously, and as highlighted in our update on Bill 171 earlier this year, the province eliminated and modified the rights of a landowner faced with an expropriation for a select group of enumerated transit priority projects. As identified in our subsequent publication, this change was expanded to apply to additional projects.

On October 22, 2020, the provincial legislature introduced Bill 222, the Ontario Rebuilding and Recovery Act, 2020. This proposed legislation further extends the scope of projects where the right of a hearing of necessity is eliminated and introduces related changes which have the effect of diminishing procedural rights afforded to landowners under the Expropriations Act.

Bill 222 proposes to amend the Building Transit Faster Act, 2020 to once again allow for a wider scope of projects where the proponent will be afforded stronger expropriation powers. The proposed change allows the province, by regulation, to increase the list of “prescribed transit projects” beyond the current closed list of: The Ontario Line, The Scarborough Subway Extension, The Yonge North Subway Extension and The Eglinton Crosstown West Extension.

Another notable expansion is that Schedule 3 of Bill 222 amends the definition of “transit oriented community projects” to include the to be prescribed projects under the Transit-Oriented Communities Act, 2020. This would allow for enhanced expropriation powers and more limited landowner rights for land-takings related to non-operational line infrastructure.

The foregoing projects are all located within the Greater Toronto Area. The proposed amendments in Bill 222 open up the possibility that the list of “prescribed transit projects” will include projects outside of the Greater Toronto Area.

The projects that will attract these new powers under Bill 222 have not yet been determined. However, the proponent of any prescribed transit project would have the expanded rights contained in the Building Transit Faster Act, 2020, including the elimination of a Hearing of Necessity, the ability to impose the requirement that a landowner obtain additional development permits, and the unilateral right to remove obstructions on adjacent properties without triggering rights to compensation under the Expropriations Act.

Aird & Berlis has experience acting on behalf of property owners and expropriating authorities in both simple and complex transit and infrastructure undertakings. A member of the firm’s Expropriation Law Group would be happy to answer any questions you have about how this new legislation may impact you.

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