Canada: Supreme Court Restores Compensation Award For New Highway Construction

Last Updated: April 10 2013
Article by Sean G. Foran

Where no land is actually taken from landowners, when is a public authority liable to pay compensation for the construction of public works? In Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), a decision released on March 7, 2013, the Supreme Court of Canada has established guidelines in balancing the interests of public authorities and private landowners.

Key Facts

Antrim Truck Centre ("Antrim") owned property on Highway 17 just west of Ottawa in the village of Antrim from 1978 to 2004. Until 2004 Highway 17 was the main east-west highway travelling to and from Ottawa and was part of the Trans-Canada highway. It was a two-lane highway and the Antrim property had direct access on to the roadway in both directions. Antrim ran a "truck-stop" business at that location, with gas and diesel pumps, a restaurant, bakery, gift shop and a truck sales, leasing and service centre.

However, in September 2004 the Ministry of Transportation of Ontario ("MTO") opened a new section of Highway 417 running parallel to Highway 17 near the Antrim property. It is a four-lane highway in that location and there was no direct access from the Antrim property to Highway 417. Rather, motorists using Highway 417 could only reach the Antrim property via an interchange; the Antrim property was approximately 2 km from Highway 417. Shortly after Highway 417 opened, Antrim closed its business and subsequently opened another truck-stop further west on Highway 417.

Decisions Below

As a result, Antrim claimed compensation for damages for injurious affection before the Ontario Municipal Board and was awarded $58,000 for business loss and $335,000 for loss in market value of the land.

The Ontario Divisional Court upheld the MTO's appeal of the award, however, the Ontario Court of Appeal set aside the Board's decision, effectively concluding that the MTO was not liable in nuisance for the construction of Highway 417 in the vicinity of the Antrim property.

Antrim's claim was for compensation for injurious affection under Ontario's Expropriations Act. The MTO did not expropriate any of Antrim's land in constructing Highway 417. Where no land is taken by a public authority, the Act provides a right to compensation for injurious affection which occurs when the authority's activities interfere with the claimant's occupation or enjoyment of land. The claimant must meet three requirements to succeed: (i) the damage must result from action taken under statutory authority; (ii) the action must give rise to liability but for the statutory authority; and, (iii) the damage must result from the construction, not the use, of the works.

Supreme Court of Canada Restores Award

The Supreme Court of Canada overturned the Court of Appeal and restored the Board's award. There was no issue before the court as to requirements (i) and (iii) above. The real issue was whether the construction of Highway 417 by the MTO would give rise to liability but for the statutory authority (the "actionable rule"). The claim was advanced on the grounds of private nuisance, that is, the claimant alleged that the MTO's construction would have rendered it liable in nuisance but for its statutory authority to construct the highway.

Justice Cromwell, writing for a unanimous court, held that in determining whether a public authority is liable for public works, the main question is how to 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. As in all other cases of private nuisance the reasonableness of the interference must be determined by balancing the competing interests. That balance is appropriately struck by answering the question of whether, in all the circumstances, the claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation.

Nuisance consists of an interference with land that is both substantial and unreasonable. A substantial interference is one that is non-trivial, amounting to more than a slight annoyance or trifling interference. Assuming the interference is substantial, the next question to be determined is whether the interference was also unreasonable in all of the circumstances to justify an award of compensation.

Nuisance – Unreasonableness Balancing Test

Determining unreasonableness involves a balancing exercise, the focus of which is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. In this regard, the Supreme Court of Canada made it clear that the focus is not on whether the nature of the authority's conduct is reasonable, but rather on whether the interference suffered by the claimant is unreasonable. The authority's conduct is a relevant factor in the balancing exercise, however, the Court reasoned that if simply balanced against the interference to the private interest, without more, the public utility of the work will generally outweigh even very significant interference to private land. This would defeat the purpose of the right to claim compensation for injurious affection set out in the Expropriations Act. The Court held that "the distinction is thus between interferences that constitute the "give and take" expected of everyone and interferences that impose a disproportionate burden on individuals."

Conversely, the Court held that "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."

The Supreme Court of Canada held that the Board's application of the law of nuisance to the facts in this case was reasonable. The Board found that in all of the circumstances, Antrim should not be expected to endure permanent interference with the use of its land that caused a significant reduction of its market value in order to serve the greater public good and the Court held that this conclusion was reasonable.

In carrying out the balancing exercise to determine whether the MTO's construction was reasonable, the Board considered the extent of the changes to Highway 17, including the fact that it was diverted into a dirt road a short distance east of the truck stop, Antrim's knowledge and involvement in the plans to construct Highway 417 and the extent to which Antrim's concerns were taken into account by the MTO in its decision making. The Board also considered the utility of the new highway construction, however, it did not allow that concern to "swamp" consideration of whether it was reasonable to require Antrim to bear without compensation the burden inflicted on it by the construction. In this regard, the Court held that "the Board properly understood that the purpose of the statutory compensation scheme for injurious affection was to ensure that individuals do not have to bear a disproportionate burden of damage flowing from interference with the use and enjoyment of land caused by construction of a public work."

Public Authorities – Reasonable Conduct May Not Be Enough

The Supreme Court of Canada, in focusing on the damage suffered by the landowner rather than the conduct of the authority, has recalibrated the balancing exercise required in determining liability for nuisance. The Ontario Court of Appeal decision in Antrim afforded some certainty to municipalities and other statutory authorities that as long as their actions in carrying out the public works were reasonable, there was little risk of liability to pay compensation for injurious affection. By shifting the focus to the disproportionate harm suffered by landowners, public authorities no longer have the comfort of knowing that they will avoid liability even when their actions are reasonable.


For over 150 years, the lawyers of WeirFoulds have been proud to serve our clients in their most difficult and complex matters. We are the firm of choice for discerning clients within our core areas of practice: (1) Litigation; (2) Corporate; (3) Property; and (4) Government Law. Within these core areas, as well as key sub-specialties, we address highly sophisticated legal challenges. We have acted in some of Canada's most significant mandates and have represented clients in many landmark cases. Reflecting the firm's focus, our lawyers are consistently recognized as leaders in their chosen areas of practice and in the profession at large. To learn more about our firm, visit

Information contained in this publication is strictly of a general nature and readers should not act on the information without seeking specific advice on the particular matters which are of concern to them. WeirFoulds LLP will be pleased to provide additional information on request and to discuss any specific matters.

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.

Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

30 Jan 2018, Seminar, Toronto, Canada

WeirFoulds Partner Caroline Abela will instruct The Advocates' Society program, "Cross-Examination".

30 Jan 2018, Seminar, Toronto, Canada

WeirFoulds Partner Marie-Andrée Vermette will instruct The Advocates' Society program, "Cross-Examination: Strategies for Success".

In association with
Related Video
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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions