In an effort to halve the approval time for Canada's new high-speed rail network, the Liberal government is streamlining the land expropriation process in a way that some say could jeopardize property rights and lead to costly mistakes.
Budget Implementation Act of 2025 (BIA)which puts into effect measures proposed in the budget, also contains changes to the Expropriation Act and other laws that make it easier for the federal government to acquire land for a new railway.
“They removed the guarantees in the interest of saving time, but I wouldn't say it's just a protection for the homeowner,” Shane Rayman, a Toronto lawyer who specializes in expropriation law, told CBC News. “These guarantees protect both parties from mistakes that sometimes occur in a very complex process.”
Transport Canada told CBC News the expropriation process had to be adapted because the “geometric requirements of high-speed rail” place strict limits on how much the track bends, leaving only a “narrow range of technically viable” land for the project.
The proposed Quebec City to Toronto line, which Prime Minister Mark Carney wants to begin construction in four years, would have stops in Trois-Rivières, Laval, Montreal, Ottawa and Peterborough.
The department says that despite the changes, landowners will be treated fairly.
“Individuals and entities 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 think tank in Quebec, disputed this view, saying in comment posted on his website these guarantees are “thrown away,” threatening the livelihoods of farmers and other landowners.
“Suppressing property owners is no way to treat Canadians, and attempting to bury such erosion of property rights in an omnibus bill only adds insult to injury,” the commentary said.
Elimination of hearings
According to Article 10 (1) Expropriation Law The minister is required to schedule a hearing if someone objects to him. Changes in the BID, which now in second reading in the House of Representatives, repeals this requirement.
Rayman says hearings are valuable because they allow the federal government and landowner to reconsider the rationale for a purchase decision, a process that can often lead to planning changes.
“I have had experiences where the government has found that it is not following guidelines, has not made a case for its needs, has taken land it does not have access to, or has no established reason for taking property,” he said.
Rayman says identifying these errors and finding solutions often benefits governments by allowing them to avoid buying land they don't need.
If the Expropriation Act is amended, landowners will still be able to lodge an objection, but the Minister will rule on the matter without a hearing. If the government wants to complete the expropriation, the minister only needs to provide a written response.
Transport Canada told CBC News that “all objections will be considered before a decision is made” and landowners can challenge the compensation amounts in Federal Court. But critics say it opens the door to mistakes.
Renaud Brossard of MEI says when land is expropriated, the balance of power shifts in favor of the government, and due process is needed to protect homeowners.
“There are some legitimate points that landowners can make in this process that the government may not be aware of,” he said.
Through the consultation process, Brossard said alternative routes and rights-of-way can be found that will allow the landowner to maintain their property while still allowing the project to be built.
Rayman says in many cases, landowners have used the hearing process as a delaying tactic, and this change is likely being introduced to circumvent that possibility.
Prohibitions and right of first refusal
The legislative changes also give the federal government the power to impose a “work ban” on property that has not yet been expropriated but “may be required for railroad construction.”
Once this ban has been imposed, the landowner cannot carry out any improvement work on his land or buildings for four years or until the ban is lifted.
“It's a long time, if someone wants to renovate their house, it's [also] for a long time if someone has a development property that they bought as an investment,” Rayman said.
Work that was ongoing when the government declared an interest can continue, but anyone who starts work on their property after the ban was declared may face prosecution.
Transport Canada says the ban is being put in place to “prevent land speculation” and other attempts to increase property values that might be needed to build a high-speed rail line.
“This does not prevent landowners from carrying out necessary repairs and maintenance,” the spokesman said.
The time it takes to travel from one city to another could be cut in half, which could have a huge impact on how many people travel and even where they live. But some say the costs associated with the federal government's plan could put high-speed rail in Canada out of reach.
The federal government can also file a notice of “right of first refusal” when selling land on which work is prohibited.
According to the BIA, when a landowner receives an offer from a third party, it must submit that offer to the federal government so it can “purchase the land at the price specified in the agreement.”
But Rayman says that in many cases, a buyer will not offer the land with a right of first refusal.
“I would call it the dark cloud in the title. [because] it affects the owner’s ability to sell the property,” he said.
Rayman says both provincial and federal expropriation laws, and the way those laws are handled in court, demonstrate their intent is to ensure landowners are compensated for losses they may suffer as a result of expropriation.
He says this goes beyond the value of the land and includes how expropriation could economically impact adjacent land or the impact of a high-speed train passing through part of their property.
“These changes do not appear to affect the owner's rights to compensation and restoration of integrity under the Expropriation Act, but rather are intended to speed up the process,” he said.
Alto, the Via Rail subsidiary developing the project, will hold the first round of public consultation on the proposed route this winter, focusing on a wide track corridor. Two further rounds of consultation on a firmer route will take place over the next 18 months. These consultations will review field studies of impacts on wildlife and the environment, as well as noise, water and air quality studies.
Alto told CBC News he will not comment publicly on the changes to the Expropriation Act outlined in the BIA at this time.
