Comment 16877

By statius (registered) | Posted January 08, 2008 at 23:23:54


You ask: "Could the city force LIUNA to sell the Lister through some form of eminent domain? "

The answer is actually no, but it could theoretically expropriate the property.

To be pedantic, eminent domain is actually an American, not a Canadian legal concept, and you can't really force a person to sell his property ... but Canadian municipalities, by way of various provincial statutes, do indeed possess some considerable expropriation powers, although these are far from plenary.

Presuming that the Lister meets the relevant statutory preconditions, s.36(2) of the Ontario Heritage Act (RSO 1990) would seem to obtain here. That section provides: "Subject to the Expropriations Act, the council of every municipality may pass by-laws providing for the expropriation of any property designated under this Part and required for the purposes of this Part and may sell, lease or otherwise dispose of the property, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part [...]".

The Expropriations Act, which qualifies s.36(2) supra, is geared (it must be kept in mind) largely towards ensuring that those parties subject to expropriation receive fair recompense for their expropriated property. Consequently, the Act provides numerous avenues through which the litigiously-minded expropriatee (which LIUNA would surely be) can make the expropriation process extremely costly and difficult for the expropriating municipality. For instance, it is a common misconception that expropriation need only entail the payment of fair market value for the property of the expropriatee. In fact, the amount to be paid by the expropriating power is determined by a host of complicated factors, of which FMV is only one. For instance, s.13(2) provides:

"Where the land of an owner is expropriated, the compensation payable to the owner shall be based upon,

(a) the market value of the land;

(b) the damages attributable to disturbance;

(c) damages for injurious affection; and

(d) any special difficulties in relocation"

LIUNA would surely (and quite rightly) make claims for many if not all of these elements. Further, as was done by the expropriatee in a recent case involving the attempted expropriation of some long dormant property in Winsdor, LIUNA would very likely bring an allegation of what is called "bad faith expropriation". Given (amongst other considerations) that the city has long had publicized personal designs on the use of the Lister property, and given that the expropriation could, at least prima facie, be seen to arise out of a dispute over leasing costs between LIUNA and the city, it is just as likely as not that a court would find a hint of bad faith in the city's dealings with the Lister property, even if the procedures required by the Expropriations Act had been followed to the tee.

Further, you have to keep in mind that while litigation is underway, development on the Lister will almost assuredly be frozen. Given the absurdly slow process of justice in this province, and given the fact that LIUNA would almost assuredly resort to appeal upon appeal, expropriation would probably mean that the Lister will sit and decay for an even longer time than if LIUNA had simply been allowed to dispose of the property as it wished. Expropriation, to put it succintly, is simply not a good means of effecting rapid change by a municipality, particularly when the expropriatee is a wealthy and (no doubt) well-advised organization like LIUNA.

You can probably appreciate, then, that the costs of expropriating the Lister would be exorbitantly high for the city, both in monetary and opportunity terms. If LIUNA wants to hold onto the Lister, it will be able to do so for a very long time, whether the city pursues the heavy-handed path of expropriation or not.

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