Expropriation Act reform: Rumour or reality?

Written by Cassandre Louis

When what is commonly known as the 2020-2024 fiscal agreement was signed on October 30, 2019, between the Government of Quebec, the Fédération québécoise des municipalités, the Union des municipalités du Québec, the City of Montréal and the City of Québec1, the government undertook to analyze whether the Expropriation Act should be reviewed and to set up a working group for this purpose2.

In its 2019 annual report, the Union des municipalités du Québec mentioned that it had already started preparations by calling the finance committee and the municipal general counsel committee to establish a common position representative of all its members.

During a public appearance shortly after the fiscal agreement was signed, mayor of Montreal Valérie Plante proposed that the Expropriation Act be amended to calculate the indemnity for expropriation based on the most reasonable market value of a property, taking current municipal regulations into account. Around the same time, the mayor of Saint-Bruno-de-Montarville, Martin Murray, made similar statements3,  even proposing that the market value be the value recorded on the municipal assessment roll. In a brief submitted in October 2020 as part of consultations surrounding the adoption of Bill 664, the Union des municipalités du Québec reiterated these proposals by formally asking the government to “reform Quebec’s Expropriation Act now to base the indemnity on market value”.

For several months now, we have been hearing that the promised work group has been created and includes representatives of the Ministère des Transports, the Ministère des Affaires municipales et de l’Habitation, the Union des municipalités du Québec and major Quebec cities.

Very little official information is publicly available on this group’s work, but rumours abound. One of them concerns the possible introduction of a bill sometime next year.

The last few years have also brought new laws setting aside several Expropriation Act provisions and subjecting certain expropriations to a different set of rules. For instance, the government has subjected expropriation for the REM project to a different procedure5 that greatly limits owners’ rights. The government then adopted a similar act in 2019 for acquisitions under the City of Québec’s tramway project6. In the wake of the pandemic, the government adopted similar rules7 with respect to the extension of the blue line and some 200 projects across Quebec.

As a result, the Expropriation Act, which had until recently been the framework law on expropriation in Quebec, now plays a secondary role and only applies in exceptional circumstances. There are now different “categories” of expropriated parties and certain expropriations are subject to different rules, whereas the original purpose of the Expropriation Act was in fact to standardize expropriation procedures regardless of the project or expropriating body.

These recent statements and events are cause for concern.

The Expropriation Act was initially adopted in 1972. Nearly 50 years later, the act could certainly benefit from being reviewed and adapted to current realities to simplify and optimize the expropriation process and facilitate public interest projects.

However, we urge the government to make sure that all stakeholders are involved in the review process, not just expropriating bodies.

Lawyers and assessors representing expropriated parties and owner associations should be involved in the reform process to produce a balanced act that meets government objectives of expediency and effectiveness while safeguarding private owners’ rights.

In the past, private owners and their representatives were too often only allowed to express their views before parliamentary commissions held after bills were tabled. Why not involve them earlier, so they can contribute constructively to the discussion?

After all, consultation leads to consensus, and consensus leads to adherence.

Politicians who make often misguided statements should be reminded that the Expropriation Act is essentially procedural, and that the principles surrounding indemnities for expropriation are grounded in far more foundational texts. They are grounded in the Quebec Charter of human rights and freedoms8. They are grounded in the Civil Code of Québec, which sets out that no property 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”9. The founding principles of our society on which they stand raise the right of ownership to a quasi-constitutional level. It would be difficult to conceive of an indemnity being considered just if it can be influenced by zoning bylaws imposed on a building prior to expropriation or if it is based on a building value assessed unilaterally by the city.

The Minister of Transportation is responsible for the Expropriation Act. But he is also the leading expropriating body in Quebec, closely followed by Quebec municipalities, which hold wide expropriation powers and use them frequently. It would be surprising if a working group comprising only representatives of expropriating bodies could propose a balanced reform that takes the concerns of expropriated parties into account.

Since new laws and actions taken by public bodies are always subject to the Superior Court’s power of review, only a process that includes all stakeholders can yield a reform that is immune to judicial challenge.

Certain stakeholders have recently made their voices heard, among them the Ordre des évaluateurs agréés du Québec, which shares our concern and has not hesitated to get involved to protect the public. We fervently hope that the Barreau du Québec, whose mission includes protecting the public while promoting the rule of law, will also take action and contribute to the debate.

As for us, in the coming weeks we will be providing commentary and proposing potential avenues for updating the processes in the Expropriation Act to facilitate the timely implementation of public interest projects while safeguarding private owners’ rights. We will cover topics such as challenging the expropriation right before the Superior Court, timelines for producing offers and claims, the determination of provisional and final indemnities and timelines for transferring title and taking possession. We will also discuss certain processes happening prior to or in parallel with expropriation, such as reserves and preemptive rights.

1. Partenariat 2020-2024 pour des municipalités et des régions encore plus fortes 2. Section 4.14 3. 4. Act respecting the acceleration of certain infrastructure projects 5. Act respecting the Réseau électrique métropolitain, CQLR, c. R-25.02 6. Act respecting the Réseau structurant de transport en commun de la Ville de Québec, CQLR, c. R-25.03 7. Act respecting the acceleration of certain infrastructure projects, CQLR, c. A-2.001 8. CQLR, c. C-12, article 6 9. Article 952