Expropriation Lawyer: Understanding the Building Transit Faster Act
Read time: 5-6 minutes
The Ontario government introduced Bill 171, An Act to enact the Building Transit Faster Act and make other related amendments to other Acts (Act), on February 18, 2020 for its first reading in the Ontario legislature.
The Act is an attempt to remove roadblocks in the planning, design and construction process to allow transit to be built in a more streamlined and efficient manner. In particular, the bill is designed to ensure delivery of four priority transit projects within the promised timeframes:
- Ontario Line Subway with 15 stations by 2027.
- Scarborough Subway Extension with 3 stations by 2029 – 30.
- Yonge North Subway Extension with 5 stations by 2029 – 30.
- Eglinton Crosstown West light rail extension with multiple stops by 2030 – 31.
The Bill proposes to remove barriers to completing these projects by enhancing coordination and cooperation among utility companies, municipalities and Metrolinx. It also addresses transit corridor control and expropriation “streamlining.”
Transit Corridor Development
A transit construction project may be impacted by other development in or near the transit corridor. The Act allows the Minister to manage and minimize delays that may result from the proximity of a transit project to other development.
The ministry will designate land as ‘transit corridor land’ if the Minister of Transportation is of the opinion that the land is or may be required for a priority transit project. For owners or occupants of land that is at least partly on transit corridor land or within 30 metres of such land, a permit from the Ministry will now be required to carry out certain work.
With the exception of utility infrastructure, the Act would require a permit from the Minister to build, alter or place a building, other structure or road, or conduct excavation or dewatering on or under transit corridor land or land within 30 metres of transit corridor land. The bill also requires a permit to build, alter or place utility infrastructure that would require grading or excavation on or under transit corridor land or land within 10 metres of transit corridor land. An exception will be made for emergency work to be carried out by a municipality or utility company.
The Minister will set the terms and conditions on such permits and may cancel or change the permit at any time. The Minister may issue a stop-work order for any unsanctioned work conducted in or near transit corridor land. An exception to the permit requirement will be granted if the proposed work received all approvals before the land was designated as transit corridor land. However, the Minister may require that work be completed within 6 months after notice is served, failing which a development permit from the Province may become required.
This has the potential to create barriers to development on land located within or near a designated transit corridor. Requiring more permits may hinder rather than encourage development. The Bill does not expand on the criteria that will be used to assess whether a permit may be granted, or the timelines involved with this application process. Furthermore, the authority of the Minister to cancel the permit at any time adds uncertainty to the development process.
Transit Corridor Control
The Minister may determine that construction of a priority transit project could be delayed by physical structures located on or near a designated transit corridor. The Act would allow the Minister to alter or remove structures (excluding dwellings), trees, shrubs, etc. located on or under transit corridor land or within 30-metres of the corridor.
The Minister would have the right to enter a property to inspect the feature in question and notice to the owner is not required for this inspection. Although the Minister is required to make reasonable efforts to notify the property owner prior to removal of the structure.
The proposed Act would also allow the Minister to eliminate anything posing an immediate threat to the transit project. The Minister would be allowed to enter any property to identify and remove any structure, tree, hedge, etc. located on or within 30-metres of transit corridor land that, in the Minister’s opinion, posed an immediate danger to the project. No notice of entry is required, although reasonable effort must be made to notify the property owner before the removal.
The Act sets out a process for determining compensation in relation to obstruction removal, danger inspection and removal and a preview inspection. Compensation will be provided for “any damage resulting from the work”. This is rather vague, and it is unclear if loss to the value of land would be compensable.
If “a person” hindered, obstructed or interfered with the obstruction removal, danger inspection and removal or preview inspection, then the entitlement to compensation is forfeited. The Act does not expand on what would be considered hindrance, obstruction or interference or if a property owner would still be entitled to compensation if they were not personally responsible for the delay.
Part III of the Act sets out how the legislation will accelerate the expropriation process by bypassing some of the procedural steps laid out in Ontario’s Expropriations Act. The Act eliminates an owner’s right to a hearing of necessity.
In Ontario, an owner who has been served with a Notice of Application to Expropriate Land has the right to request a hearing into whether the proposed expropriation is “fair, sound and reasonably necessary.” The Bill provides that the sections of the Expropriations Act relating to this right do not apply to an expropriation of land when that land is at least partly on transit corridor land and is for the purpose of a priority transit project.
As a hearing of necessity is rarely used eliminating this step is unlikely to prove too controversial. The effect of Part III of the Act is to authorize the Minister to “bypass” the requirement to expropriate in certain circumstances by authorizing the Minister to remove obstructions from privately owned land or dangers to a priority transit project.
Section 83 of the Act provides that no obstruction removal, construction danger inspection and elimination or preview inspection constitutes an expropriation or injurious affection. As such, there is a disconnect between aspects of this proposed legislation and the remedial nature of the Expropriations Act.
The Supreme Court of Canada has observed that the latter Act <Toronto Area Transit Operating Authority v Dell Holdings Ltd>, must adequately compensate those whose lands are taken to serve the public interest. This proposed Act may be viewed by some as prioritizing the pace of transit construction over the rights of property owners and developers.
Unlike the Expropriations Act, this Act is silent on the issue of costs. Under the Expropriations Act, the reasonable legal, appraisal and other consulting costs of an owner who has been expropriated shall be reimbursed by an expropriating authority provided that a certain threshold of compensation is awarded.
Property owners who are the subject of obstruction or danger inspection and elimination orders under this proposed legislation have no automatic right to recovery of costs. Indeed, the Act is silent as to whether such costs could even be included in a claim for compensation.
Everyone wants transit projects to be built faster. This draft legislation aims to improve coordination and engagement with municipal services, rights-of-way and enhance cooperation with utility companies. Balancing public projects and private interests is always problematic.
Property owners and developers with land located in or near transit corridors should consider their options and timelines for any planned works. If the Act is passed and receives Royal Assent, it may impact their plans.
Please contact Michael Paiva at 519.729.5038 or at 416.800.1733 for more information, or if you require assistance with an expropriation related matter.