Bill No. 22 regarding expropriation: when there is too much of a good thing

In September 2023, the National Assembly held special consultations on Bill 22, through which a major paradigm shift is underway with respect to expropriation in Québec.

Unlike what certain officials have been publicly claiming for several months, expropriation is not a phenomenon that is limited to real estate developers and major landowners. This topic involves, on a daily basis, a large number of citizens, who cannot all afford to ensure their rights are protected before the courts.

Yet, these are the citizens that Bill 22 will primarily be affecting.

Amendment to applicable indemnisation rules at the expense of citizens

Expropriation goes beyond the rights conferred by general law, as it allows government agencies to force a citizen to transfer their ownership for the benefit of the community, against their will and at a time not of their choosing.

It is because of this severe violation of the ownership right that current indemnisation rules are based on the “value-to-owner” principle, under which a fair and reasonable indemnity, considering all relevant circumstances, should be paid to expropriated parties.

Bill 22 provides putting this principle aside to ensure that the act of determining the expropriation indemnity to be paid is now restricted by implementation of limited calculation methods, in addition to many parameters and restrictions regarding components, circumstances and damages that must be considered. Obviously, these major changes will impoverish expropriated citizens, whose specific circumstances may not be properly considered by the court.

Moreover, the increasing complexity of expropriation procedures provided by Bill 22 will inevitably lead to substantial procedural delays, as well as a multiplication of potential interlocutory appeals. Significant impacts and costs are to be expected for our justice system, already overloaded, and for expropriated parties.

The case of disguised expropriation victims

Another highly disturbing characteristic: Bill 22’s framework with regard to the concept of disguised expropriation, namely the situation where a public body prevents any reasonable use made by a citizen of their building through diverted means, illegally denying them their ownership right, and without indemnifying them.

Bill 22 gives a second chance to public bodies that have wrongfully taken ownership of citizens’ private property. Should a judgment recognize the existence of such a disguised expropriation, Bill 22 grants public bodies a minimum time frame of six (6) months to cancel the problematic regulatory standards, with no other consequence and without losing the ability to subsequently adopt new restrictive standards. The citizen who is a victim of a disguised expropriation will therefore need to fight at great expense before the courts for several years, at the risk of the debate turning out to be futile.

Worse still, certain public bodies have even demanded, during the special consultations held in September 2023, that the existing disguised expropriation cases be subject to the new indemnisation rules provided in Bill 22 – less favorable for expropriated parties –even when legally executed expropriations by public bodies within six (6) months of this bill’s assent should be processed in accordance with the former law.

Such a request betrays the objectives set by several public bodies, namely to retroactively regulate abusive actions that are taken and to allow them to expropriate at a discount.

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“Too much of a good thing”, as the popular saying goes. It is definitely a rule that several public bodies are currently submitting to the Legault government in connection with Bill 22. However, when the government legislates about a matter involving such an important and fundamental right as the ownership right in Québec, restraint and the utmost caution should prevail.