On March 3, 2013, the Supreme Court of Canada (the
"SCC") issued its decision in the matter of Antrim
Truck Centre Ltd v Ontario (Transportation).1
Allowing the appeal, the SCC restored the decision of the Ontario
Municipal Board (the "Board") which awarded the claimant
damages of $393,000. The decision clarifies the law surrounding the
rights of land owners to compensation for "injurious
affection" stemming from construction of public works where no
land is expropriated.
Between 1978 and 2004, Antrim Truck Centre Ltd.
("Antrim") owned a property on Highway 17 near Ottawa on
which it operated a busy truck stop servicing drivers travelling
both east and west along Highway 17. In 2004, the Ministry of
Transportation ("MTO") constructed a new stretch of
Highway 417 parallel to the segment of Highway 17 on which
Antrim's property was located.
The construction by MTO significantly reduced access to the
Antrim property from Highway 17 and failed to provide direct access
from another highway, Highway 417, resulting in diminished traffic
to Antrim's property and business loss. Antrim brought a claim
for compensation for injurious affection under the
Expropriation Act (the "Act") to the Board.
Injurious affection may occur with or without physical
expropriation of land. In circumstances where no land is taken from
the landowner but where, as in the Antrim case, construction by a
statutory authority negatively impacts the use and enjoyment of the
owner's land, Section 1(1)(b) of the Act is applicable and
defines injurious affection as:
(i) such reduction in the market value of the land of the owner,
(ii) such personal and business damages,
resulting from the construction and not the use of the works by
the statutory authority, as the statutory authority would be liable
for if the construction were not under the authority of a
The Board found that the construction of the new stretch of
Highway 417 resulted in reduced access to the Antrim business that
constituted "serious impairment in nuisance" and awarded
Antrim $58,000 for business loss and $335,000 for loss in market
value of the land.
The Divisional Court upheld the Board's decision, which was
subsequently set aside by the Court of Appeal on the basis that the
Board failed to enumerate and explicitly consider all three factors
in its reasonableness analysis and also "failed to recognize
the elevated important of the utility" of MTO's
From the outset Justice Cromwell, writing for the unanimous
Court, focused on the singular contentious element of injurious
affection in this case: If the construction of Highway 417 had not
been undertaken pursuant to statutory authority, could Antrim have
successfully sued for damages under the law of private
A claim in nuisance entails the interference with the
landowner's use or enjoyment of land that is both substantial
and unreasonable in all of the circumstances. In the Antrim case,
only the reasonableness of the interference was at issue. While the
SCC endorsed the various factors to be considered in determining
the reasonableness of the interference (its severity, character of
the neighborhood, utility of the respondent's conduct, and the
sensitivity of the claimant), it rejected the stringent approach of
the Court of Appeal in the application of those factors. The SCC
adopted the view that the factors are not a mandatory checklist
which must be explicitly enumerated, but form part of a
comprehensive analysis that includes consideration of all of the
The correct analysis, held the Court, is to be framed as
"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
The balancing of private and public rights is highlighted in the
key distinction made by the Court "between interferences that
constitute the "give and take" expected of everyone and
interferences that impose a disproportionate burden on
individuals." In the case before the Court, Antrim's
rights were interfered with by the construction of the new stretch
of Highway 417, which interference inflicted "significant and
The underlying theme throughout the decision is the balance
between the fundamental rights of private landowners and state
power. The SCC made it clear that private property ownership
interests and public utility are not to be afforded equal weight.
It also noted that if such an approach were endorsed, public works
would overshadow most injurious interferences with a private
landowner's rights, negating the purpose of compensation for
1 Antrim Truck Centre Ltd v Ontario
(Transportation), 2013 SCC 13.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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