Law Times

PAGE 10 Professor touts compensation for emotional loss from expropriation FOCUS BY RON STANG For Law Times WINDSOR, Ont. — The Windsor-Essex Parkway con- struction project, the most expensive highway effort currently underway in Ontario, is also one of the largest cases of property expropriation in Canada. Authorities have acquired some 900 properties to build the $1.4-billion, 11-kilometre, six-lane expressway that will connect the end of Highway 401 to a new bridge linking Windsor and Detroit. The Ministry of Transportation and business and res- idential landowners along the route have reached some 350 property agreements. Construction got underway late last year with a completion date of 2014. The acquisition process has been going on for sev- Co-operation in Europe's mission in Kosovo and the Caucasus Institute for Peace, Democracy, and Development in Tbilisi, Georgia. During her work, she met victims of war who were seeking resettlement after displacement. The experiences created an enduring interest in the idea of forced loss of home, community, and identity, even in democratic countries and for relatively benign purposes. In Canada, the concept of emotional loss has "received virtually no protection" in expropriation law, she says. It' eral years with the ministry and property owners in large part coming to amicable deals based on appraised fair-market values. University of Windsor property law professor Anneke Smit agrees the process has gone smoothly with few residents or business owners upset about the money paid out. But that doesn't mean they're very happy about having to give up their homes and suffer the loss of community. Smit and her team are interviewing as many of these property owners as they can to find out how they felt about the process, particularly in terms of how the loss of their homes affected their lives socially and psycho- logically. One homeowner, a woman in her 60s, told Smit the process had been "wrenching." An 88-year-old man indi- cated he hated what was taking place and said "they are taking it all away from me after 50 years." In a chapter in a forthcoming book, Smit puts for- ward the case for compensation based not just on the loss of a physical asset but also the inherent emotional deprivation of giving up property that has a singular and symbolic value. Smit' easy" for the state, acting in the public interest, "to exert a right of expropriation over a title holder, with University of Windsor land-use planning law professor Marcia Valiante, is called Private Property, Planning, and the Public Interest. It explores various forms of compensation and compares the Canadian approach to jurisdictions such as Britain, Australia, and New Zealand that compensate above and beyond replacement of the home itself. Smit looks at some of the theoretical concepts of the Smit's upcoming book, co-edited " she notes. largely governs statute-driven expropriation law. Payouts relate to the appraised market value. "There' In Canada, it's the principle of pecuniary loss that " s background is in immigration and refugee law. She worked with the Organization for Security and bance damages that range from five to 15 per cent of market value. But the payouts compensate for factors such as the inconvenience of moving and not for the emotional impact. Canada's system can also make payouts for distur- A DAILY BLOGOF CANADIAN LEGAL NEWS WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS s "quite Expropriation law has 'clearly excluded' emotional loss from compensation, says Anneke Smit. June 25, 2012 • Law Times even parse for factors such as the homeowner' makes no difference whether some- one has lived in the building for 50 years or six months. Smit points to an alternative com- pensation system called "solatium." It's Moreover, Canadian law doesn't s length of residence. It a kind of soothing for a loss much like a sweetener or an apology. For example, there's a flat solatium of $2,000. In in New Zealand New South Wales, Australia, the sola- tium can go as high as $15,000. The amount depends on criteria such as the nature of an owner' property and the length of residence. In Britain, s interest in the al compensation through a percentage premium plan of 125 per cent of market value in cases of eminent domain. Smit notes Canadian expropriation law differs even In Michigan, the state constitution provides addition- home-loss compensation calculated at 10 per cent of market value. there's the concept of home as a refuge, as one of the most significant financial investments a person will make, and as an anchor to an overwhelming sense of place. She quotes scholars who describe forced loss of home as "domicide. of home or that sort of emotional stability or loss of com- munity, s nothing about loss of dignity or loss of a sense " says Smit. "It's been very clearly excluded." from other domestic legal areas such as matrimonial and landlord and tenant issues. In family law, the home has symbolic and practical importance compared to other property. At the same time, the law grants tenants protection from landlords entering their homes at any time. In tax law, there are capital-gains exemptions for primary residences. But some Ontario property law practitioners say the current system provides adequate compensation and argue expanding it for emotional harm akin to personal injury would be difficult to implement. For example, Robert Doumani of Aird & Berlis LLP says the concept is "ill-founded." good and says extra payouts "would be an additional burden to the taxpayers." He notes expropriations are usually for the public See Idea, page 11 POWERED BY CANADIAN LAWYER & LAW TIMES LegalFeeds-1/2-LT-Apr23-12 2.indd 1 www.lawtimesnews.com 12-04-24 12:17 PM

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