Liam Valgardson
Davies Howe LLP
Section 15 of Ontario's Expropriations Act (the “Act”) represents a cornerstone of fairness in residential expropriation law. By codifying the "home for a home" principle, it ensures that expropriated owners are not left bearing the financial burden of acquiring equivalent accommodation. Understanding the scope, application, and evidentiary requirements of section 15 is essential for practitioners advising residential claimants.
The Legislative Framework
Section 15 empowers the Ontario Land Tribunal (“OLT” or “Tribunal”) to award additional compensation beyond market value where necessary to enable an expropriated owner to relocate to an "accommodation that is at least equivalent to the accommodation expropriated." Specifically, it provides as follows:
Increase by Tribunal
15 Upon application therefor, the Tribunal shall, by order, after fixing the market value of lands used for residential purposes of the owner under subsection 14 (1), award such additional amount of compensation as, in the opinion of the Tribunal, is necessary to enable the owner to relocate his or her residence in accommodation that is at least equivalent to the accommodation expropriated.
The underlying purpose of this provision "is to offset the hardship that will occur when compensation based on the market value of the expropriated residential property together with the moving costs is not sufficient to enable the expropriated party to purchase a comparable home at no cost to himself".[1]
This provision must be read in conjunction with subsection 13(2)(d) of the Act,[2] which provides for compensation for "any special difficulties in relocation”.
The Supreme Court of Canada's decision in Judson v. University of Toronto established that compensation under section 15 is determined "as of the date of the registration of the plan",[3] a temporal anchor that remains the default standard in most subsequent jurisprudence.
The Meaning of Equivalent Accommodation
A critical question for practitioners is what constitutes "at least equivalent" accommodation. The caselaw makes clear that the concept of equivalence is neither identical nor perfection.
In Martin v. Ottawa-Carleton (Regional Municipality), the Land Compensation Board (“LCB”), continued as the OLT, stated plainly that equivalent accommodation "need not be identical”.[4] In finding that the accommodation was at least equivalent and refusing to award additional compensation under section 15, the LCB noted the dissimilarity of the houses but the similarity of the accommodations, including the living room, kitchen, number of bedrooms, rec room, furnace and tool room, landscaping, hedges, trees, etc.[5]
In Morris v. Pembroke (City), the OMB agreed that “equivalent” does not mean identical but rather means “premises which are corresponding in function to the expropriated property, but not exceeding the limit prescribed by reason and not excessive”.[6]
In Farmer v. Grand River Conservation Authority, the former Ontario Supreme Court held that "lands used for residential purposes" encompass not merely the dwelling structure but also landscaping, barns, fencing, and recreational amenities such as tennis courts.[7] Similarly, in Shearer v. Ontario (Minister of Transportation & Communications), the LCB awarded $23,100 under section 15 to compensate for the loss of three acres of vineyards maintained for family recreation, recognizing that "accommodation" includes “all the residential uses and amenities… that were previously enjoyed”.[8]
In Bartkiewicz v. Edmonton (City), which has been cited with approval by the Ontario Municipal Board,[9] the Alberta Land Compensation Board considered a similar provision to section 15 and offered some helpful guidance:
This is a difficult provision to apply and particularly so where relocation has not in fact taken place. The prime difficulty revolves around the determination of what, on the facts of the particular case, is "at least equivalent" accommodation. While the matter should not be considered entirely subjectively, neither can it be resolved from an entirely objective point of view. It was clear from the evidence that equivalent accommodation could not be found which is identical or even approximately identical to that which has been expropriated and indeed the Board is of the opinion that the section should not be narrowly interpreted to attempt to achieve that result. On the other hand, it is clear that the phrase "at least equivalent accommodation" is not to be interpreted to mean accommodation which is substantially or inordinately superior to that which has been expropriated.[10]
The caselaw reveals that compensation awarded under section 15 extends to encompass:
- Unique or Specialized Amenities:
- In Kaschuk v. Credit Valley Conservation Authority, the Board awarded $20,000 under section 15 for the loss of lakefront privileges and unique seasonal amenities, including the ability to swim daily from May 24th to Thanksgiving due to warm water discharge from the Lakeview Generation Station, and the ability to anchor a boat off the property in the summer.[11]
- In Alfano v. Hamilton-Wentworth (Regional Municipality), under the pressure of expropriation, the claimants purchased a replacement home. Unlike their old home, their new home was not a bungalow in a semi-rural area, nor did it have a large lot. Instead, they bought a two-storey dwelling in a 20-year-old subdivision. The Board allowed $7,400 under section 15 for amenities not commonly found in newly built dwellings. This included compensation for driveway paving, ceramic tiles, fencing, brass house numbers, etc. The Board did not accept the entire list provided by the claimant; compensation was limited to improvements that actually replaced what existed in the expropriated property.[12]
- In Kaschuk v. Credit Valley Conservation Authority, the Board awarded $20,000 under section 15 for the loss of lakefront privileges and unique seasonal amenities, including the ability to swim daily from May 24th to Thanksgiving due to warm water discharge from the Lakeview Generation Station, and the ability to anchor a boat off the property in the summer.[11]
- Property-Specific Features: In Morris v. Pembroke (City), involving expropriation of waterfront property with dual residential and commercial uses, the Board awarded compensation for features not fully captured in the appraisal reports, including a 400-amp electrical service, a parking lot, insulation, special flooring, an allowance of 15% of market value for the speculative redevelopment potential of the expropriated property, and another 15% of market value to account for the lack of the special zoning exception affecting the expropriated property.[13]
The Test
The operative test, articulated in Farmer and reinforced in Nowell, is whether market value plus standard allowances (such as the 5% inconvenience allowance under section 18 of the Act) will be sufficient to enable the claimant, "acting reasonably", to relocate in equivalent accommodation "at no cost to himself".[14] This objective reasonableness standard guards against compensation based on purely idiosyncratic preferences while still accommodating legitimate hardships in finding appropriate accommodation.
In Morris, the Board explained that when considering a request under section 15, “an ordinary commonsense point of view to guard against the possibility of double compensation” must be applied.[15]
Temporal Issues: A Lingering Point of Contention
While the Supreme Court’s decision in Judson established that compensation is determined "as of the date of the registration of the plan", Farmer assessed the compensation under section 15 at the date of the hearing to allow time for the finding and construction of equivalent accommodation.[16] Most subsequent jurisprudence has favoured the Judson standard, but practitioners should be aware of this tension, particularly in volatile real estate markets where timing may significantly impact the cost of equivalent accommodation.
Practical Implications for Practitioners
Practitioners representing expropriated owners should keep the following in mind:
- Document all amenities and uses: Section 15 extends to intangible features and accumulated improvements. Comprehensive documentation – including photographs, invoices, testimonial evidence, etc. – of what makes the expropriated property a "home" is essential.
- Gather comparative market data: While the Tribunal will ultimately determine what is "necessary", evidence of actual costs and the premium (if any) required to secure equivalent accommodation in the relevant market strengthens the claim.
- Distinguish from physical improvements: Awards under section 15 differ from claims under subsection 18(1)(a)(ii), which typically require invoices and quantifiable construction costs. Section 15 is flexible, accommodating non-structural amenities and lifestyle elements.
- Consider the temporal question: While Farmer's hearing-date valuation approach offers a potential avenue where market conditions have moved significantly since registration, relying on it carries risk given its isolation in the caselaw.
- Emphasize reasonableness: Frame the claim as the minimum necessary to place the owner in the position they occupied before expropriation, a test firmly rooted in the statutory language and jurisprudence.
Although section 15 does not feature prominently in recent case law, a clear understanding of its scope and requirements remains a meaningful asset for counsel acting for residential claimants. Familiarity with the "home for a home" principle, the breadth of what counts as equivalent accommodation, and the evidentiary record needed to support a claim enables counsel to identify whether a section 15 entitlement exists, to raise it early in negotiations, and to frame it persuasively, whether the matter ultimately resolves through negotiations or proceeds to the Tribunal.
Conclusion
Section 15 remains a useful tool for ensuring genuine equity in residential expropriations. The jurisprudence demonstrates a principled flexibility: equivalence is measured by reference to the totality of the residential experience. For diligent practitioners, this breadth of scope, properly marshaled through evidence and argument, can yield awards that truly honour the "home for a home" principle.
[1]Nowell v. Ontario (Minister of the Environment), 1984 CarswellOnt 1866 at para. 68 (OMB) [Nowell].
[2]Judson v. University of Toronto (1970), 1970 CanLII 33 (ON CA) at para. 4 (Ont. C.A.); varied on the issue of interest [1972] S.C.R. 553 (SCC).
[3]Judson v. University of Toronto, 1971 CanLII 25 (SCC) at paras.15-16 [Judson].
[4]Martin v. Ottawa-Carleton (Regional Municipality), 1976 CarswellOnt 1222 at para. 26 (Ont. L.C.B.).
[5]Ibid.
[6]Morris v. Pembroke (City), 2004 CarswellOnt 6319 at para. 28 (OMB) [Morris].
[7]Farmer v. Grand River Conservation Authority, 1978 CanLII 1419 (ON SC) at 24-25 [Farmer].
[8]Shearer v. Ontario (Ministry of Transportation & Communications), 1980 CarswellOnt 1722 at paras. 62-63 (Ont. L.C.B.).
[9]Metvedt v. Credit Valley Conservation Authority, 1992 CarswellOnt 4661 at paras. 50-53 (OMB).
[10]Bartkiewicz v. Edmonton (City), 1977 CarswellAlta 494 at para. 22 (Alta. L.C.B.).
[11]Kaschuk v. Credit Valley Conservation Authority, 1976 CarswellOnt 1214 at paras. 47-49 (Ont. L.C.B.).
[12]Alfano v. Hamilton-Wentworth (Regional Municipality), 1993 CarswellOnt 4503 at paras. 12-16 (OMB).
[13]Morris, supra note 6 at paras. 38-40 (OMB).
[14]Farmer, supra note 7 at para. 24; Nowell, supra note 1 at paras. 68-70.
[15]Morris, supra note 6 at para. 28.
[16]Judson, supra note 3 at paras. 15-16; Farmer, supra note 7 at paras 22-24.