The right of a landowner to be awarded “injurious
affection” damages for losses resulting from the construction
of public works where no land is taken has been the subject of
recent consideration by the Supreme Court of Canada
(“SCC”). This decision is of particular importance as
it considers when a property owner is entitled to compensation if
their business or property is negatively affected by a public works
project, but their land is not expropriated.
Antrim Truck Centre Ltd. (“Antrim”) owned and
operated a successful truck stop on Highway 17 near Ottawa. Highway
17 far exceeded its design capacity and was known as the
“killer highway”. As a result, the Ministry of
Transportation (“MTO”) constructed a new highway,
effectively rerouting traffic away from the Antrim truck stop.
Antrim brought a claim to the Ontario Municipal Board
(“OMB”) for injurious affection under the
Expropriations Act. The OMB found that the construction of
the new highway was a substantial interference for which Antrim
deserved injurious affection damages. The Divisional Court upheld
the OMB’s decision. The MTO appealed to the Court of Appeal,
which found that the OMB failed to adequately consider two
mandatory factors in the reasonableness analysis under the nuisance
test: (1) there must be “substantial interference”; and
(2) the interference must be unreasonable. The Court of Appeal also
found that the OMB failed to recognize the public importance of the
utility of the MTO’s conduct in constructing the new
Supreme Court of Canada
In a unanimous decision, the SCC allowed the appeal and restored
the decision of the OMB. The SCC confirmed that to support a claim
in nuisance, and therefore award compensation for injurious
affection where no land is taken, the interference with the
owner’s land must be both substantial and unreasonable. The
“reasonableness” of an interference must be determined
by balancing the competing interests of the parties. The SCC
emphasized that severity of the harm and public utility of the
works are not equally weighted considerations. Otherwise, an
important public purpose would always override even very
significant harm, defeating the purpose of the Expropriations
Act to compensate for injurious affection. The focus is on
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,” and not whether it was reasonable
for the statutory authority to undertake the work. In this case,
the interference to Antrim’s land caused by the construction
of the new highway inflicted “significant and permanent
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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