Canada: Antrim: Supreme Court Gives Compensation For Nuisance When Highway Moved

Last Updated: March 18 2013
Article by Dianne Saxe

The Supreme Court of Canada has restored compensation to the Antrim truck stop, which lost its coveted place on the edge of a major highway when the highway was moved. The Court held that the $393,000 loss in business loss and property value was too heavy to expect Antrim to shoulder alone, even though the movement of the highway was necessary for public safety. The decision may increase the cost of many infrastructure projects, private and public.

However, it does not change the absence of compensable nuisance when the only impact complained of is a loss of property value, as in Smith v. Inco and some wind turbine claims. Nor does it change the ruling in Susan Heyes, that everyone must put up with disruption due to temporary construction. As both of these decisions are referred to with approval, the Court must believe that the Antrim decision is consistent with them both.

Here are some key excerpts from the decision:

"Introduction

[1] Highway construction by the Province of Ontario significantly and permanently interfered with access to the appellant's land.   The appellant claimed that this interference was unreasonable and sought an order for compensation before the Ontario Municipal Board. The Board awarded the appellant $393,000 as compensation for business loss and decline in market value of the land resulting from the highway construction. The Board's award, however, was set aside by the Court of Appeal; it concluded that the interference with the appellant's land had not been unreasonable given the important public purposes served by the highway's construction. In effect, the Court of Appeal found that it was reasonable for the appellant to suffer permanent interference with the use of its land that caused significant diminution of its market value in order to serve the greater public good. The appellant asks this Court to reinstate the Board's award.

[2] The main question on appeal is this: How should we decide whether an interference with the private use and enjoyment of land is unreasonable when it results from construction which serves an important public purpose? The answer, as I see it, is that the reasonableness of the interference must be determined by balancing the competing interests, as it is in all other cases of private nuisance. The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. Here, the interference with the appellant's land caused by the construction of the new highway inflicted significant and permanent loss on the appellant; in the circumstances of this case, it was not unreasonable for the Board to conclude that an individual should not be expected to bear such a loss for the greater public good without compensation...

What Are the Elements of Private Nuisance?

[18] The Court of Appeal concluded that a nuisance consists of an interference with the claimant's use or enjoyment of land that is both substantial and unreasonable: paras. 79-80.  In my view, this conclusion is correct.

[19] ...A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.  ...

[21] On balance, however, my view is that we ought to retain the two-part approach with its threshold of a certain seriousness of the interference.  ... Retaining a substantial interference threshold underlines the important point that not every interference, no matter how minor or transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give and take of life. ...

[22] What does this threshold require? In St. Lawrence Cement, the Court noted that the requirement of substantial harm "means that compensation will not be awarded for trivial annoyances": para. 77. In St. Pierre,while the Court was careful to say that the categories of nuisance are not closed, it also noted that only interferences that "substantially alte[r] the nature of the claimant's property itself" or interfere "to asignificant extent with the actual use being made of the property" are sufficient to ground a claim in nuisance: p. 915 (emphasis added). ...

[23] In referring to these statements I do not mean to suggest that there are firm categories of types of interference which determine whether an interference is or is not actionable, ... Nuisance may take a variety of forms and may include not only actual physical damage to land but also interference with the health, comfort or convenience of the owner or occupier: Tock, at pp. 1190-91.  The point is not that there is a typology of actionable interferences; the point is rather that there is a threshold of seriousness that must be met before an interference is actionable.

Striking the balance between public and private interests

[39] ...The distinction is thus between, on one hand, interferences that constitute the "give and take" expected of everyone and, on the other, interferences that impose a disproportionate burden on individuals. That in my view is at the heart of the balancing exercise involved in assessing the reasonableness of an interference in light of the utility of the public authority's conduct.

[40] Of course, not every substantial interference arising from a public work will be unreasonable. The reasonableness analysis should favour the public authority where the harm to property interests, considered in light of its severity, the nature of the neighbourhood, its duration, the sensitivity of the plaintiff and other relevant factors, is such that the harm cannot reasonably be viewed as more than the claimant's fair share of the costs associated with providing a public benefit. This outcome is particularly appropriate where the public authority has made all reasonable efforts to reduce the impact of its works on neighbouring properties.

[41] It is clear, for example, that everyone must put up with a certain amount of temporary disruption caused by essential construction...

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