On March 7, 2013, the Supreme Court of Canada issued a unanimous
decision with respect to the law of nuisance and the balancing of
Antrim Truck Centre Ltd. ("Antrim") had owned a
truckstop along Highway 17, which had formed part of the
Trans-Canada Highway System. As a result of the Province of
Ontario's construction of a new section of Highway 417,
motorists no longer had direct access to Antrim's truckstop,
which Antrim claimed was effectively put out of business. Antrim
successfully brought a claim before the Ontario Municipal Board for
injurious affection under the Expropriations Act, RSO
1990, c E.26, which decision was upheld by an Ontario Divisional
Court, but overturned by the Ontario Court of Appeal, which held
that the Ontario Municipal Board had erred in its application of
the law of nuisance to the facts, and concluded that the
interference suffered by Antrim was not unreasonable given the
public benefit of the newly constructed highway.
In Antrim Truck Centre Ltd. v. Ontario (Transportation),
2013 SCC 13, the Supreme Court of Canada unanimously set aside the
decision of the Ontario Court of Appeal and restored the decision
of the Ontario Municipal Board. A claim for injurious affection
must meet three requirements – namely, that (1) the damage to
the claimant must result from action taken under statutory
authority, (2) the action would give rise to liability but for the
statutory authority, and (3) the damage must result from the
construction and not the use of the works. Only the second
requirement was in dispute before the Supreme Court of
The Court made the following findings with respect to the law of
A nuisance consists of an interference with a claimant's
use or enjoyment of land that is both substantial and
An interference is substantial where it is non-trivial, and if
this threshold has been met, it becomes a question whether the
interference was reasonable. Although the two-part test may
introduce duplication in analysis, it is necessary to maintain the
threshold of a "substantial interference" in order to
highlight the fact that a certain amount of nuisance must be
accepted as a part of life.
To justify compensation, a nuisance must not only be
substantial but also unreasonable. Whether an interference is
unreasonable must be determined in light of the relevant
The jurisprudence has identified a number of factors that may
be considered when determining whether an interference is
unreasonable, including the severity, frequency and duration of the
interference; the character of the neighbourhood and sensitivity of
the claimant; and whether the Defendant's conduct was malicious
or careless. These do not form an exhaustive list or a checklist,
and as long as a court or board reasonably carries out its
analysis, it is not necessary for it to enumerate the factors it
While the utility or public good of the acts of a public
authority should be taken into consideration, this public good will
not trump all interferences with a claimant's land.
Compensation is to be awarded where the harm suffered
is greater than the claimant should be expected to bear in the
circumstances without being appropriately
The Supreme Court of Canada also clearly rejected a line of
jurisprudence that found it unnecessary to consider the question of
reasonableness where the interference was physical and material.
The Supreme Court acknowledged that although the test for
reasonableness may be very brief in cases where there is
substantial and permanent damage, the reasonableness analysis was
nonetheless to be applied regardless of the type of harm.
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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