EXPROPRIATION

  1. DEFINITION OF EXPROPRIATION

What Is Expropriation?

Generally speaking, all people have the exclusive right to their property. In fact, section 6 of Quebec’s Charter of human rights and freedoms explicitly states that:

  1. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

There are however a few exceptions to this rule, and expropriation is one of them.

Expropriation is the process by which a public authority forces the transfer of privately owned property, in whole or in part, to itself to be used for the public good or in the public interest.

Expropriation can also include the forced transfer of a single element of the right of property such as a right of way or a servitude on a property.

Common examples of uses which can be considered in the public interest are as follows:

  • the development of a sewer system;
  • the installation of a high voltage power line;
  • the creation of a park;
  • infrastructure projects of varying degrees e.g. the widening of a road.

Who can expropriate your property?

As previously discussed, the public interest can require that you surrender your property or, at least part of it, to the state which includes the Federal and Provincial governments or to any public authority to which it has delegated this power by means of a law. The state maintains administrative control on the sought after public utility.

Common examples of such entities are:

  • Municipalities;
  • Urban communities;
  • School boards.

Such authorities have been provided the autonomous ability to expropriate.

Section 952 of the Civil Code of Quebec represents the most fundamental principle of expropriation in stating that:

  1. No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior indemnity.

 

This section affirms that the forced transfer of ownership from an individual into the public sphere is conditional upon receiving an indemnity which will fully compensate the owner of property which is to be expropriated. This means that a certain sum of money must be given to the owner of the expropriated property in exchange of its ownership.

This indemnity should represent the sum of both the value of the expropriated property and compensation for injury incurred as a direct result of the expropriation.

A portion of this indemnity must be provided to the expropriated party prior to the actual transfer of property itself.

There are several variations regarding the right to expropriate as may be described below:

 

 

  • What is a reserve for public purpose?

A reserve for a public purpose generally has the effect of ‘freezing’ the development of an immovable that will be expropriated on a future date for a period of 2 years, but which can subsequently be renewed one time for another 2 year period. This means that when the reserve is in place, all construction is prohibited on the immovable aside from repairs necessary to avoid the deterioration of the property.

The immovable can be expropriated or the reserve abandoned at any time prior to its expiration date.

The imposition of a reserve can give rise to an indemnity in the same way as expropriation provides for an indemnity.

Any entity that is authorized by the law to expropriate property also has the ability to place a reserve on said property for land planning purposes.

  • What is Disguised Expropriation?

It is also important to mention that a public authority cannot take possession of property by means of what is called a disguised expropriation or referred to in French as “expropriation déguisée”.

This refers to a situation where property is expropriated by a public authority indirectly without labelling the action as such and thus exempting itself from its obligation to pay an indemnity.

Although the public authority is not directly expropriating property, its actions can sometimes ultimately have that effect. An example of this type of action would be changing the zoning bylaws for the area in which a property is located. If this is the case, an indemnity must be offered to the party being expropriated.

  1. RECOURSES BEFORE THE COURTS:

What are Potential Recourses before the courts when faced with Expropriation?

If you come to an agreement with the public authority on the terms and conditions of the transfer in property which includes an indemnity, you forgo your right to any form of contestation.

However, if an agreement has not been reached between the parties, the expropriation process will commence regardless of the fact that the expropriating party has received your consent.

In such a situation, there are two possible recourses that are available to you:

  • You can challenge the right of the public authority to expropriate your property if, in fact, given the circumstances, it does not have the right to initiate the expropriation process. This aspect is heard before the Superior Court of Quebec

 

  • On the other hand, if you do not dispute the right of the public authority to expropriate your property, but at the same time you do not agree with the indemnity that is offered to you, you can ask for the indemnity to be established by the tribunal after it has heard all of the parties involved. This element is heard before the Tribunal Administratif du Québec
  1. a) The Superior Court of Quebec

The Superior Court of Quebec has exclusive jurisdiction in determining if the right to expropriate exists in a given situation given the state of the law.

This means that if you do not believe that the expropriator has the right to expropriate your property, this right can be contested at the Superior Court of Quebec within thirty (30) days of the receipt of the expropriation notice.

The probability of success of each of these recourses depends on the specific facts of each case. Our firm can, not only help determine whether or not such a recourse is worthwhile, but also help them come to fruition. For more details, Contact Us.

  1. b) The Tribunal Administratif du Québec (TAQ)

The TAQ has exclusive jurisdiction in determining the indemnities that are paid out for an expropriation.

This means that if you believe that the amount of compensation that is being given to you is insufficient, you can ask the TAQ to make a decision with regards to an appropriate compensation based on the circumstances of your case.

The first step in the process to have recourse before the TAQ is to fulfill the requirements and despot the appropriate forms.

Our firm can guide you in the process regarding the recourse before the TAQ.

Please see the attached link for further information on the deposit of the recourse before the TAQ.

http://www.taq.gouv.qc.ca/fr/deposer-un-recours/comment-deposer-un-recours/faire-une-requete-ecrite

The probability of success of each of these recourses depends on the specific facts of each case. Our firm can, not only help determine whether or not such a recourse is worthwhile, but also help them come to fruition. For more details, Contact Us.

Expropriation enabled by legislation

In Quebec, expropriation is mainly framed by the following pieces of legislation:

  • Expropriation Act, RSC 1985, c E-21
  • Expropriation Act, CQLR c E-24
  • Municipal Code of Québec, CQLR c C-27.1
  • Cities and Towns Act, CQLR c C-19
  • An Act Respecting Land use Planning and Development, CQLR c A-19.1

[1] C.c.Q. :909, 1080, 1115, 1164, 1457, 1758, 1888, 2795, 3042

[2] Loi sur l’aménagement et l’urbanisme, RLRQ, c. A-19.1: 117.1117.16

[3] Loi sur le patrimoine culturel, RLRQ, c. P-9.002: 78

[4] Loi sur les cités et villes, RLRQ, c. C-19: 570572

[5] Code municipal du Québec, RLRQ, c. C-27.1: 10971104

[6] Loi sur l’expropriation, RLRQ, c. E-24:

[7] Loi sur l’instruction publique pour les autochtones cris, inuit et naskapis, RLRQ, c. I-14: 237

[8] Loi sur la justice administrative, RLRQ, c. J-3: 32, Annexe II

[9] Loi sur les mines, RLRQ, c. M-13.1: 235

[10] Loi sur le régime des eaux, RLRQ, c. R-13: 1625, 26, 32, 62

[11] Loi sur la voirie, RLRQ, c. V-9: 12

[12] Règles de procédure du Tribunal administratif du Québec, D. 1217-99, (1999) 131 G.O. 2, 5616 (c. J-3, r. 3):

Essential Services When Faced With Expropriation

It is wise to consult a lawyer specialized in the domain of expropriation when confronted with this issue in order to fully understand the rights that the law has provided for you, to assure that said rights are being respected, and to take the proper course of action in the unfortunate situation where they are not.

The lawyers at our firm have experience representing corporations and individuals in front of all levels of court including administrative tribunals all the way up to the appellate courts and we can help determine whether or not an expropriation is, in fact legal, as well as if an appropriate indemnity has been provided.

We can also help in the negotiating process with the expropriating party in order to assure that you receive the highest possible indemnity for your property as well as the suffering caused by the loss of your home and relocation.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.