Canada: "Getting It Done" At What Cost? Bill 162's Impact On Expropriated Landowners
Real Estate Law Bulletin

Introduction

Landowners and expropriating authorities should take note of a forthcoming legislative change and its cascading effects that will allow provincial and municipal governments to expropriate land for projects before completing an environmental assessment ("EA"). This change is anticipated to expedite the expropriation process.

On February 20, 2024, the Ontario government introduced a change to the Environmental Assessment Act (the "Act")¹ that will impact the expropriation process. This change to the Act was introduced as Schedule 1 to an omnibus bill titled Bill 162, Get It Done Act, 2024 ("Bill 162"), which has recently passed its first reading.² The purpose of Bill 162 is to "accelerate construction of transit, housing and infrastructure projects" by reducing hurdles and streamlining approval processes for the EA process.³

Key Changes

Schedule 1 to Bill 162 expands the definition of "acquiring property" to include expropriation. Specifically, Schedule 1 amends the Act to "provide that, a reference to acquiring property or rights in property is a reference to doing so by purchase, lease, expropriation or otherwise".⁴ This amendment will provide greater certainty for expropriating authorities, such as municipalities, provincial ministries and agencies, by making it clearer that expropriation is one of the ways property can be acquired for a project before the EA process is completed. However, Bill 162 in its current form provides limited details on the extent of these expanded powers and their practical implications, warranting further examination once it comes into force on Royal Assent. It is unclear what "or otherwise" encompasses.

Expropriating authorities will continue to be required to comply with other applicable legislation for expropriating land, such as the Expropriations Act.⁵

What Are Environmental Assessments?

In Ontario, whether an EA is required before expropriation depends on the type of project.

Background to the Act

The purpose of the Act is to "provid[e] for the protection, conservation and wise management in Ontario of the environment". Projects subject to Part II.3 of the Act ("Part II.3 Projects"), titled "comprehensive environmental assessments", are designated by Cabinet via regulation.⁶ For instance, a generation facility using coal as its primary power source is a Part II.3 Project.⁷

The proponent wishing to proceed with a project subject to Part II.3 must apply to the Minister of the Environment, Conservation and Parks for approval.⁸ The application consists of the terms of reference and an EA.⁹

The EA Process

At a high level, the approval process of Part II.3 Projects consists of three steps. Foremost, the proponent is required to provide the Ministry of Environment, Conservation and Parks (the "Ministry") with a proposed terms of reference governing the preparation of an EA for the Part II.3 Project.¹⁰ Once the terms of reference are approved, the proponent is required to prepare and submit an EA to the Ministry.¹¹ The Ministry then prepares a review of the EA.¹² Upon completion of the Ministry review, the Director¹³ notifies the proponent, the clerk of the municipality in which the Part II.3 Project is to be carried out, and the public.¹⁴

Impact of the Legislative Change

Section 17.27(1)(b) of the Act permits a proponent to proceed with a Part II.3 Project before receiving approval, by "acquir[ing] property or rights in property in connection with the Part II.3 project".¹⁵ Bill 162 explicitly includes expropriation within the definition of "acquir[ing] property", meaning that a proponent can expropriate before receiving approval from the Ministry. Consequently, expropriation will be permitted before completing an EA.

Footnotes

1. Environmental Assessment Act, R.S.O. 1990, c. E.18.

2. Bill 162, Get It Done Act, 2024, 1st Sess, 43rd Leg, Ontario, 2024 (first reading 20 February 2024).

3. Bill 162, Get It Done Act, 2024, 1st reading, Legislative Assembly of Ontario Debates, 43-1 (20 February, 2024) (Hon Prabmeet Singh Sarkaria).

4. Bill 162, Get It Done Act, 2024, 1st Sess, 43rd Leg, Ontario, 2024 (first reading 20 February 2024).

5. Expropriations Act, R.S.O. 1990, c. E.26. Note: The Expropriations Act applies where a statutory authority (the Crown or any person empowered by statute to expropriate land or cause injurious affection) expropriates land or causes injurious affection (ss 1(1)).

6. Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 1(1), 3(1).

7. O. Reg. 50/24: Part II.3 Projects – Designations and Exemptions, s. 7.

8. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 17.2(1).

9. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 17.2(2).

10. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 17.4(1).

11. Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 17.6(1), 17.7(1).

12. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 17.11(1).

13. "Director" means an employee appointed by the Minister to act as Director under the Act; Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 31.1(1).

14. Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 17.6(1)-(2).

15. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 17.27(1)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.