Do Ontario School Boards Have Too Much Statutory Power? A Comparison of Expropriation and Eminent Domain in Ontario and Michigan

By Marrelli, Mario; Valenti, Michael | Canada-United States Law Journal, Annual 2017 | Go to article overview

Do Ontario School Boards Have Too Much Statutory Power? A Comparison of Expropriation and Eminent Domain in Ontario and Michigan


Marrelli, Mario, Valenti, Michael, Canada-United States Law Journal


ABSTRACT: The authors discuss the comparative law of expropriation, particularly as exercised by school boards in Ontario and Michigan They suggest that the sweeping authority given to governments in Ontario to expropriate land should be reviewed and subjected to a stricter legal standard, possibly through a constitutionalization of a right to private property in Canada. In the United States, the Fifth Amendment protects an individual's right to private property and as such, the government must meet a much stricter standard before it lawfully takes an individual's land. Individuals in the United States who decide to litigate issues of expropriation when their land is targeted have a far greater chance of success.

TABLE OF CONTENTS

I. Introduction
II. Ontario
    A. The Law of Expropriation
    B. Emotional Attachment to the Home
    C. The Importance of Analyzing Expropriation for Educational
    Purposes
    D. The process by which sites for new schools are selected
    E. The process of expropriation for educational purposes
III. Case Studies I
    A. The Expropriation of Homes for the Expansion of St. Joseph
    Morrow Park High School
    B. The Legal Implications of the Scott Park Expropriation
    C. The Issue of Lack of Physical Space and Access
    for French-Speaking Schools in the GTA
    D. Further Expropriation for Educational Purposes May Not be the
    Best Policy Solution for Ontario's Declining Enrollment nor the
   Lack of Access to French-speaking Schools
IV. Michigan
    A. Operative Law
    B. Public Use
       1. Kelo v. City of New London, Connecticut
V. School Board Context
    A. Necessity
       1. Livonia Township School District v. Wilson
       2. Board of Education of City of Grand Rapids v. Baczewski
VI. Case Studies II
   A. Proposed High School Site in Bonita Springs
   B. Proposed High School Site in Beaverton
   C. Expropriation and Eminent Domain Harming the Poor
   D. Scholarly Critique on Eminent Domain
VII. Will a Constitutionalization of the Right to Private Property
 Solve the Problem of Excessive Power Given to School Boards
 to Expropriate Lands?
VIII. Suggestions for Further Research
IX. Conclusion

I. INTRODUCTION

Expropriation (or eminent domain as it is known by our southern neighbors) can bring very different responses depending on the party in a legal dispute. An arm of the Ontario provincial government is likely to have a jovial predisposition because it can exercise its statutory powers under the Expropriations Act. (1) Provided your land is within the province's jurisdiction, it can in effect be lawfully taken under the guise of the greater public good. For landowners, expropriation brings a very different feeling, one that pigeonholes an individual into making one of two decisions. Either retain counsel and attempt to litigate the matter (likely leading to a judgment in favor of the government) or accept fair market value and move; this leads to a series of other issues that will be discussed in the later sections of this article. Normally, if the government serves an individual with a notice to expropriate, the land will likely be taken. In rare circumstances, having political clout increases the chances of preventing expropriation.

The law of expropriation in Ontario and eminent domain in the State of Michigan provide the legal parameters whereby a government can in effect take possession of private property for the benefit of the public. The focus of this article is to analyze the broad statutory power of school boards to expropriate land for educational purposes, which is namely to expand or build new schools. Through an analysis of American jurisprudence and statutory law regarding eminent domain used by American school boards for educational purposes, it will be shown that the time has come for a re-examination of the statutory power that has been bestowed on school boards through expropriation legislation. The constitutional entrenchment of a right to private property under the Constitution of the State of Michigan (2) and the U. …

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