In an effort to halve the approval time for Canada’s new high-speed rail network, the Liberal government is streamlining how it expropriates land in a way that some say could compromise property rights and lead to costly mistakes.
The Budget 2025 Implementation Act (BIA), which enacts measures proposed in the budget, also contains changes to the Expropriation Act and other laws that make it quicker and easier for the federal government to acquire land for the new railway.
“They’ve taken away safeguards in the interest of time, but I wouldn’t say those are just protections for the homeowner” Shane Rayman, a Toronto lawyer who specializes in expropriation law, told CBC News. “Those safeguards protect both sides against mistakes that are sometimes made in a very complicated process.”
Transport Canada told CBC News the expropriation process had to be adapted because the “geometric requirements of high-speed rail” impose strict limits on how much the track can curve, leaving only “a narrow range of technically viable” land for the project.
The proposed line from Quebec City to Toronto — which Prime Minister Mark Carney wants to start building in four years — will have stops in Trois-Rivières, Laval, Montreal, Ottawa and Peterborough.
The department says that despite the changes landowners will be treated fairly.
“Individuals and organizations subject to expropriation will continue to receive fair compensation based on established principles, including market value and other eligible costs,” a Transport Canada spokesperson said in an email.
But the Montreal Economic Institute (MEI), a Quebec-based think-tank, challenged that view saying in a commentary posted on its website that safeguards are being “thrown out,” risking the livelihoods of farmers and other landowners.
“Steamrolling property owners is no way to treat Canadians, and trying to bury such an erosion of property rights in an omnibus bill only adds insult to injury,” the commentary said.
Eliminating hearings
Under Section 10 (1) of the Expropriation Act, the minister is required to order a hearing when someone serves them with an objection. The changes in the BIA, which is currently in second reading in the House, eliminates that requirement.
Rayman says hearings have value because they allow the federal government and the landowner the ability to re-examine the reasoning behind a purchase decision — a process that can often lead to planning changes.
“I’ve had the experience before where the government finds they’re not following guidelines, they haven’t justified what’s needed, they’ve taken land that they can’t access or that there’s no established reason for taking the property,” he said.
Rayman says discovering these errors and coming up with solutions often benefits the government by allowing them to get out of a land purchase they do not need.
If the Expropriation Act is amended, landowners can still raise an objection, but the minister makes a decision on the matter without a hearing. If the government wants to complete its expropriation, the minister only has to provide a written response.
Transport Canada told CBC News that “all objections would be considered before making a determination,” and landowners can challenge compensation amounts in Federal Court. But critics say this opens the door to errors.
The MEI’s Renaud Brossard says that in land expropriations the balance of power is skewed in favour of the government and due process is necessary to protect homeowners.
“There are some legitimate points that landowners can make as part of that process and that a government might not be aware of,” he said.
Through the consultation process, alternative routes and right-of-ways can be found that allow a landowner to keep their properties while still allowing a project to be built, Brossard said.
Rayman says that in many cases landowners have used the hearing process as a delay tactic and this change is likely being introduced to circumvent that possibility.
Prohibitions and the right of first refusal
The legislative changes also give the federal government the power to slap a “prohibition on work” on a property that is not yet being expropriated but it “may require for the purpose of a railway.”
Once that prohibition has been ordered, the landowner cannot do any work to improve their land or buildings for four years or until the prohibition is lifted.
“That’s a long time if someone wants to renovate their house, it’s [also] a long time if someone’s got a development property that they’ve purchased as an investment,” Rayman said.
Work that was ongoing when the government declared an interest can continue, but anyone starting work on their property after a prohibition has been issued could be prosecuted.
Transport Canada says the prohibition is being included to “prevent land speculation” and other attempts to increase the value of property that may be required for the high-speed rail track.
“It does not prevent landowners from performing necessary repairs and maintenance,” the spokesperson said.
The time it takes to travel from one city to another could be cut in half, which could have a massive effect on how many people travel, and even where people live. But some say the costs associated with the federal government’s plan may keep high-speed rail in Canada out of reach.
The federal government can also file a “right of first refusal” notice on the sale of land where work is prohibited.
According to the BIA, when a landowner receives an offer from a third party, the landowner must present the offer to the federal government so that it can “purchase the land at the price specified in the agreement.”
But Rayman says that, in many cases, a buyer wouldn’t bother making an offer on land that has a right of first refusal attached.
“I would call it a dark cloud on title [because] it impacts the owner’s ability to market the property,” he said.
Rayman says that both provincial and federal laws on expropriation, and the way those laws have been treated in court, demonstrate their intent is to ensure landowners are made whole for the losses they may suffer in an expropriation.
He says that extends beyond the value of the land to include how an expropriation may economically impact adjacent land, or the impact of having a high-speed train zooming through part of their property.
“It does not appear that these changes impact an owner’s rights to compensation and to being made whole under the Expropriation Act, but rather they’re meant to speed up the process,” he said.
Alto, the subsidiary of Via Rail that is developing the project, will be holding its first round of public consultations on its proposed route this winter, focusing on a broad corridor for the track. Two more rounds of consultations on a firmer route will take place over the next 18 months. These consultations will consider the result of field studies on wildlife and environmental impacts along with noise, water and air quality studies.
Alto told CBC News that it would not publicly comment on the changes to the Expropriation Act outlined in the BIA at this time.
