Your Rights Under Expropriation

Part 1: The Expropriation Act
Part 2: Legal, Appraisal and Other Expert Assistance
Part 3: Appeals
Part 4: Further Information

The information provided below is for guidance and general information purposes only. Consult The Expropriation Act, Chapter E190 of the Continuing Consolidation of the Statutes of Manitoba (CCSM) for the strict interpretation and application of the law.

Part 1: The Expropriation Act

Introduction

It is government policy to ensure that all property owners involved are treated fairly with regard to compensation for their land. Under The Expropriation Act (the Act), the determination of due compensation is based on the fair market value of the land as of a specified date, including appropriate amounts of damages, where applicable. The date for valuation is the date the Declaration of Expropriation is signed — the first step in the expropriation process.

[Download a PDF version of Your Rights Under Expropriation.]

Expropriation Process

On projects involving roads, drains, public buildings, etc., where several landowners are affected, a Retail Estate Services (RES) Land Acquisition Officer and government engineer will meet with the landowners to review the project. A final engineering plan will be developed to form the basis for the legal survey plan, which will form part of the Declaration of Expropriation. At this time, there is no discussion regarding compensation.

If the landowner does not consent to the purchase and a mutual agreement as to compensation cannot be reached, the following steps are initiated towards expropriation.

1. Declaration of Expropriation
   
   On projects where expropriation is necessary, a Declaration of Expropriation is signed on behalf of the Expropriating Authority.
   
   When the Declaration of Expropriation is signed, a Notice of Intended Expropriation, stating an application for a Confirming Order is pending, must be filed in the appropriate Land Titles Office.
   
   The Declaration of Expropriation and the draft Confirming Order are submitted to the Confirming Authority, the Minister charged with the administration of the project for which the land is required. Proceedings may then be taken in accordance with Schedule A of the Act. If the project is considered urgent, the proceedings must be put into effect immediately for the overall benefit of the public.
   
   It is not unusual for the Lieutenant Governor in Council to pass an Order-in-Council to waive a Public Inquiry into the expropriation. The Order-in-Council authorizes the Confirming Authority to make its Order confirming the Declaration of Expropriation without a Public Inquiry.
2. Expropriation Process Involving Public Inquiry
   
   If the provisions of Schedule A of the Act are not waived by Order-in-Council, the following will occur within 30 days of the signing of the Declaration of Expropriation.
   
   The Expropriating Authority shall:
   
   • serve a Notice of the Intended Expropriation on all owners
   • publish a Notice of the Intended Expropriation in a newspaper having general circulation in the locality in which the land is situated
   • submit the Declaration of Expropriation to the Confirming Authority
3. Notice of Objection and Timeframe
   
   Within 30 days of the service or publication of a Notice of Intended Expropriation, the owner may serve a Notice of Objection on the Minister of Justice and the Confirming Authority stating his/her name and address, the nature of his/her interest in the land, the nature of the objection and the grounds upon which the objection is based.
   
   Note: Objections must pertain only to the design of the project and not to the compensation involved.
   
   After the expiration of the 30-day period to object to the Intended Expropriation, the Confirming Authority shall:
   
   
   • if it has been served with a Notice of Objection, request the Minister of Justice to appoint an impartial Inquiry Officer.
   • if it has not been served with a Notice of Objection, confirm the Declaration of Expropriation.
4. Duties of Inquiry Officer
   
   Within 30 days of appointment, the Inquiry Officer will:
   
   
   • hold a public hearing into whether the expropriation is fair and reasonably necessary
   • submit a written report to the Confirming Authority setting forth his/her determination of the facts, etc.
   • after delivery of the report to the Confirming Authority, send a copy of the report to the Expropriating Authority and to each party to the inquiry

5. Confirmation/Refusal of Declaration of Expropriation by Confirming Authority
   
   Unless the Court grants an extension of time within which the Inquiry Officer is required to make a report, the Confirming Authority must make a decision to confirm or refuse a Declaration of Expropriation within 120 days from the date the Confirming Authority received the Declaration or it will be conclusively deemed to have refused the Expropriation. If confirmed, the expropriating authority must immediately serve the decision of the Confirming Authority on all owners and publish a decision to expropriate in a newspaper having general circulation in the area in which the land is situated.
   
   The Inquiry Officer’s report and recommendations are not binding on the Confirming Authority. However, if the Confirming Authority proceeds with an Order that is not in accordance with the opinion of the Inquiry Officer, the authority must state its reasons for doing so.
   
   If confirmed, the Expropriating Authority must serve the decision of the Confirming Authority on all owners immediately and publish the decision to expropriate in a newspaper having general circulation in the area in which the land is situated.
   
   Within 6 weeks after the date on which the order confirming the Declaration of Expropriation is published, any person aggrieved by an expropriation may apply to the Court to have the expropriation quashed. The Court will have to be persuaded that the procedures taken were not in compliance with the Act and that the aggrieved party’s position has been prejudiced.
6. Registration of Declaration of Expropriation and Confirming Order
   
   If the Confirming Authority’s decision is to confirm the Declaration of Expropriation, the Confirming Order and the Declaration of Expropriation must be registered at the appropriate Land Titles Office within 14 days of the signing of the Confirming Order. With this registration, the expropriation becomes final.
7. Service of Expropriation Documents: Notice of Expropriation
   
   Within 60 days of the registration of a Confirming Order and Declaration of Expropriation, the expropriating authority must serve every owner with a Notice of Expropriation.
8. Offer of Compensation
   
   Within 120 days of the registration of the Declaration of Expropriation, and before serving a Notice of Possession, the Expropriating Authority must serve an Offer of Compensation to every landowner.
   
   The Expropriation Act refers to the compensation payable to expropriated owners as “due compensation.” Due compensation shall include the market value of the land. (The amount of money that the land and all manner of interests in the land might reasonably be expected to realize if sold in the open market, as of the date the Declaration of Expropriation was signed.)
   
   Where appropriate, due compensation may also include:
   
   
   • reasonable costs, expenses and losses arising out of or incidental to the owner’s disturbance
   • damages for injurious affection
   • value to the owner of any special economic advantage arising out of or incidental to the actual occupation of the land, to the extent that no other provision is made in due compensation
   Note: An owner can accept an immediate advance payment of the compensation offered as market value for the land, without prejudice to the rights of the owner to receive due compensation that is subsequently agreed upon or determined under the provisions of The Expropriation Act.
9. Notice of Possession
   
   In order to take possession of expropriated land, the Expropriating Authority must serve a Notice of Possession in accordance with the Act. Whenever possible, a Notice of Possession will give at least 30 days advance notice. However, this may be varied if the land is not occupied.
   
   Except, pursuant to an agreement with the Expropriating Authority, or in accordance with a Notice of Possession, expropriated land cannot be vacated unless seven days notice is given to the Expropriating Authority.
   
   For as long as an owner remains in actual possession of expropriated land, the owner is liable for all realty taxes and damage costs in accordance with the provisions of the Act.

Adjudication of Compensation Payable

If RESB and the landowner are unable to agree upon the due compensation payable, the landowner must request a hearing presided over by the Land Value Appraisal Commission (LVAC). The application must be made no later than two years after the Authority enters into possession of the land.

If the LVAC is requested to determine the due compensation payable, it may hold a public hearing in the district in which the land is located. LVAC hearings are similar to court hearings, but more informal. The LVAC cannot determine the compensation for goods and chattels. This matter must be settled privately between the owner and RESB on behalf of the expropriating Authority.

Decisions of the LVAC are binding on both parties, subject to the right of appeal to The Court of Appeal, within 40 days after the date the LVAC issues its certificate to the compensation payable. If an owner fails to appeal within that timeframe, the owner is deemed to have accepted the Certification of the LVAC and any claim to further compensation is barred.

If an owner fails to make application for a hearing before the LVAC within two years from the date, the owner will be deemed to have accepted the Compensation set out in the Offer of Compensation and payment will be made to the entitled owner.

Part 2: Legal, Appraisal and Other Expert Assistance

An owner is entitled to be assisted by a lawyer, a land appraiser and other consultants concerning the preparation and presentation of claims for due compensation. If the due compensation payable is settled by agreement or by an acceptable certification of the LVAC, the owner may receive reimbursement for such reasonable fees and costs incurred in the preparation and presentation of the claim.

If the amount certified as compensation payable by the LVAC is appealed to The Court of Appeal, reimbursement of such fees and costs, including those incurred in connection with an LVAC hearing, are in the discretion of The Court of Appeal.

Note: An appeal to The Court of Appeal may only be made on questions of law or fact, or mixed law and fact, and The Court of Appeal may:

• refer any matter back to the LVAC for determination; or
• make any determination that the LVAC has the power to make

Part 3: Appeals

The Court of Queen’s Bench

The Court of Queen's Bench will have to be persuaded that the procedures taken were not in compliance with the Act and that the aggrieved party’s position has thereby been prejudiced.

The Court of Appeal

Matters relating to determination of due compensation certified by the LVAC may be appealed to The Court of Appeal on questions of law or fact, or mixed law and fact, and The Court of Appeal may:

• refer any matter back to the LVAC for determination; or
• make any determination that the LVAC has the power to make

The Supreme Court of Canada

A further appeal may be made to The Supreme Court of Canada, but only with the permission of that court.

Part 4: Further Information

You will be furnished, at the outset of negotiations, with the name and telephone number of a contact person with the Expropriating Authority.

The following is a list of associated parties that may be of assistance to you:

• The Secretary of the Land Value Appraisal Commission
  1144 – 363 Broadway Avenue
  Winnipeg MB R3C 3N9
  T: (204) 945-4014
  (For information specific to due compensation under the Act)
• Statutory Publications
  10th Flr. – 155 Carlton Street
  Winnipeg, Manitoba R3C 3H8
  200 Vaughan Street
  Winnipeg MB R3C 1T5
  T: (204) 945-3101
  Toll Free (in Manitoba only): 1-800-321-1203
  F: (204) 945-7172
  W: http://web2.gov.mb.ca/laws/statutes/index_ccsm.php
  (For copies of The Expropriation Act, C.C.S.M, Chapter E190 and The Land Acquisition Act, C.C.S.M., Chapter L40)