Canada: British Columbia Expropriation Association - Case Law Update

Last Updated: March 25 2013
Article by Evan Cooke

Most Read Contributor in Canada, September 2016

Antrim Truck Centre Ltd. v. Ontario (Transportation) – Supreme Court of Canada

On 7 March 2013, the Supreme Court of Canada ("SCC") released its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, the first significant SCC decision regarding expropriation law in many years. At issue in the case was how courts should assess the interference with an owner's use and enjoyment of private land when the interference results from the construction of public works.


Antrim Truck Centre Ltd. ("Antrim") brought a claim for compensation against the Province of Ontario alleging that, even though the Province had not actually taken any of Antrim's land, the construction of a new section of provincial highway effectively put its truck stop, which was located along the old highway, out of business. The Ontario Municipal Board ("OMB") agreed with Antrim's position and awarded damages of almost $400,000 for business losses and the reduced market value of its land. On appeal, the Ontario Court of Appeal overturned the award, essentially finding that it was reasonable for Antrim to suffer a permanent interference with the use of its land given that the highway construction served a greater public good, being a safer highway. In an unanimous decision, the SCC reversed the Ontario Court of Appeal and re-instated the original compensation award.


The legal foundation for Antrim's position was based on the obligation in the Ontario Expropriations Act that a public authority shall compensate an owner of land for the reduction in market value of land and personal and business damages even where none of the owner's land is actually acquired, a claim also referred to as "pure injurious affection." The applicable principles for assessing claims for injurious affection are found in case law. A claimant must satisfy the following three-part test:

  1. The damage resulted from action taken under statutory authority;
  2. The action would have given rise to liability at common law, but for that statutory authorization; and
  3. The damage resulted from the construction of the public work and not its use.

The first and third parts of the test were not in issue before the SCC. Rather, Antrim's claim turned on the second requirement: if the highway construction had not been performed under statutory authority, could Antrim have successfully sued for damages caused by the construction?" Antrim argued that it satisfied this part of the test because it would have been entitled to damages based on a claim of private nuisance. At common law, an owner of land abutting a highway enjoys the right of access to and from the highway and interference with such access may give rise to a claim in nuisance. Private nuisance claimants must show that the interference with the enjoyment of property is both "substantial" and "unreasonable."

There was little dispute that the highway construction caused "substantial" interference. The SCC primarily focused its analysis on the question of reasonableness, particularly in the context of interference caused by public works. The SCC held that there is a need to balance the competing interests of public authorities that undertake projects to further the public good, with the private interests of individual property owners. The SCC acknowledged that, to a certain extent, "everyone must put up with a certain amount of temporary disruption caused by essential construction." In concluding that a "reasonableness" analysis is required, the SCC essentially reversed the B.C. Court of Appeal's reasoning in Jesperson v. Chilliwack, (1994) Canlii 1662 (BCCA), that claimants would only have to establish a substantial or significant interference to prove their claim. The Antrim decision clarifies that the interference arising from a public work, even if "substantial", will not always be "unreasonable" so as to amount to a private nuisance.

Furthermore, the SCC made it clear that the importance of the activity cannot necessarily trump private interests. The distinction lies 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." In the circumstances of Antrim's case, the SCC held that the OMB was not wrong in its analysis of reasonableness, and the decision that Antrim had suffered disproportionately should be upheld. The OMB's damage award was restored.


The Antrim decision should highlight for expropriating authorities the importance of conducting strategic assessments of projects, to identify potential risks of claims for compensation even where no land is to be taken. Factors to keep in mind include:

  • Do not assume that the utility of a public work will always outweigh the resulting harm to neighbouring landowners, or that compensation will not be required;
  • Emphasize and develop evidence to prove betterment from the public work;
  • Avoid causing specific landowners to disproportionately shoulder the burden of the construction of a public work. To the extent possible treat landowners equally and consistently in terms of impact;
  • Consider mitigation options where appropriate: for example, provision of replacement parking and alternative access;
  • Put claimants to their duty to mitigate early and often;
  • Critically assess whether alleged damages are both causally related and substantial;
  • Make reasonable efforts to reduce the impact of public works and act fairly and openly, but recognize that some interference is reasonable for landowners to endure as part of the normal "give and take" of being part of a community;
  • Be aware that duration of construction is important – permanent impacts are far more likely to be considered unreasonable; and
  • Assess the other defences to injurious affection claims that were not raised in Antrim, or addressed in this case summary.

It is important to understand the Antrim decision in the context of the specific statutory scheme in Ontario, which clearly allows for compensation for damages arising from pure injurious affection. In contrast, while the B.C. Expropriation Act refers to "injurious affection if no land taken" (section 41), the application of our language is less clear and our courts have provided limited guidance on its interpretation. Owners' rights may differ in British Columbia for other reasons. For example, the Province of British Columbia enjoys statutory immunity under the B.C. Transportation Act from injurious affection claims. Furthermore, in cases where the legal basis for a business loss claim is the common law tort of nuisance, as was the case in Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77, the defence of statutory authority may apply to relieve an British Columbian authority from liability. It is unclear whether the Antrim decision will result in more successful compensation claims against public authorities in this province. However, it can be expected that more landowners will avail themselves of the Antrim decision to advance pure injurious affection claims, at least until our courts rule decisively on this issue.

About BLG

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.