Page 9 - GBC English Fall 2019

Golf Course Owner, Government or the Community
If you were asked who owns the land that your golf course is situated on, the quick and logical response would be simple ... you, the golf course owner! But is this actually the case?
Many residential property owners across Canada believe that all green space belongs to the community. Many do not correlate private property, such as a golf course, as being any different than public green space. Therefore, when a golf course is sold for development or part of the current golf course property is re-zoned for redevelopment, there tends to be signi cant public outcry and road- blocks. Furthermore, due to future major public projects, all levels of government have the right to take your land regardless of the impact to your business and thus, your livelihood. So I ask you again, whose land is it really?
EXPROPRIATION IN CANADA
Expropriation is de ned as the action of the government in taking or modifying the property rights of an individual or business in the exercise of its sovereignty.1 Essen- tially this means that in Canada, any level of government or its agencies, has the legal right to take over your golf course and use it in the future for greater public bene t or use.
Properties are most often expropriated in order to build highways, railroads, airports, water or other public utility systems, or other infrastructure projects. In recent years, this has come to the forefront in many regions, but speci cally through Southwestern Ontario when the former provincial government was planning for a new high speed rail service between Toronto and Windsor. This project is now on pause with the current Ontario government re-evaluating the project but many businesses throughout the province would have been impacted dramatically, includ- ing some golf course operations.
At all levels, governments require the power to expropriate private land. These expropriation laws mediate the inevitable con ictsbetweenprivaterealprop- erty rights and the public need for that same land, following clear step-by-step processes.
Given the obvious power imbalance between landowner and government, the legislation provides numerous procedural safeguards that favour the owner in the expropriation process. These include the following rights:
• to be noti ed of the expropriation; • to be noti ed of all steps being taken by the government in the
• to challenge the expropriation; and • to representation by a lawyer in that process. Reasonable legal fees are usually reimbursed to
the landowner.2
If landowners are not content with the expropriator’s initial proposals, they have the right to:
• a formal offer of compensation; a record of appraisal;
• negotiate the compensation; and ultimately
• a public hearing or inquiry proce- dure before an independent administrative tribunal.3
If an expropriating authority does not ful l the procedural requirements set out in the expro- priation legislation, it will be found to have acted without authority. Theexpropriationcanbeinvalidated and the property owner can bring an action for damages or an injunc- tion against the authority. If there is any uncertainty or confusion in the legislation about what the expro- priating government can do, that ambiguity will be construed and settled in favour of the landowner. The burden of proof in the expro- priation process is usually on the expropriating authority.4
process;
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