By Eric Finn, Associate
Rarely do expropriation cases get leave to appeal to the Supreme Court of Canada; so, it is interesting to see that the claim for compensation for injurious affection by Antrim Truck Centre Ltd. against the Province of Ontario, as represented by the Minister of Transportation, will be given consideration by Canada’s highest court. The Supreme Court will be called upon to give consideration not only to the injurious affection provisions of the Ontario Expropriations Act but also, because of the nature of the claim, to the principles relating to the application of the tort of nuisance.
Antrim owned a property which it operated as a truck stop on Highway 17 in the vicinity of Ottawa. As a result of concerns for traffic safety, the Ministry of Transportation decided to design and construct a new four-lane section of Highway 417 which bypassed the site of the truck stop. Prior to the construction, motorists could access the site directly from Highway 17; subsequently, access from Highway 17 was by way of an exit and a route of approximately two kilometres. As a result of the construction of the bypass, Antrim decided to relocate its truck stop business on a property in the Arnprior area.
The construction of the new highway did not require the expropriation of any land from Antrim but the Expropriations Act does provide that, even where no land has been expropriated, an owner may claim compensation for injurious affection in the nature of a reduction in the market value of the land and personal or business damages arising out of the “construction and not the use of the works”. The provision goes on to state that the claims must be such that “the statutory authority would be liable if the construction were not under the authority of a statute.” The requirement therefore has two key elements:
1. The claim must arise from the construction, and
2. The authority would have to be liable at common law, usually on the basis of nuisance.
Antrim decided to proceed to the Ontario Municipal Board, as provided for in the Expropriations Act, with an injurious affection claim. The claim had several elements to it. First, Antrim claimed that the value of its property on Highway 17 had been reduced by $335,000 as evidenced by the sale of the property shortly after the opening of the new site. Second, there was a claim of $58,000 for loss of business at the original Antrim site. Third, there was a large claim for the relocation costs involved with the move of the business.
The Board concluded that none of the relocation costs were compensable under the Expropriations Act in the absence of an expropriation. As noted, a claim for injurious affection where no land is taken has to relate to a reduction in value of the affected land and personal or business damages arising out of the use of that land.
With regard to the claims for the loss in value to the land and the business loss arising out of the use of the land, the Board had to decide whether the two required elements had been met. It was found that the claims did arise from the construction of the bypass as it effectively left the property fronting on what was left of the old Highway 17. Determining whether the activities of the Ministry would have been actionable at common law was somewhat more difficult. Reasonableness is normally a defence to nuisance and the Board had no difficulty in finding that the Ministry had been reasonable in its design of the new highway in light of the public interest in highway safety. However, the Board found that where the construction resulted in a “serious impairment” to the claimant, a claim in nuisance could succeed. The Board found that the Highway 17 access which the property had after the construction was “but a shadow of what it was before Highway 417” and that was “serious impairment.” As a result, the claims for the reduction in value and business loss were allowed.
The Province appealed the award to the Divisional Court and Antrim cross-appealed the disallowance of the claim for relocation costs. The Court gave a substantial review of the applicable provision of the Expropriations Act and the law of nuisance but came to the same conclusion as the Board. Both the appeal and the cross-appeal were dismissed.
Again the Province appealed to the Court of Appeal and Antrim cross-appealed. The decision of the Court of Appeal is an in depth analysis of the law of nuisance. The Court held that the Board and the Divisional Court had concluded reasonably that there had been substantial interference with the access to Antrim’s property. However, the Court went on to decide that the interference was not unreasonable.
“The interference was such that it fell within the boundaries of what the reasonable property owner in the area should be expected to tolerate and was the result of a project that served the public interest – more, was actually essential to public safety.”
The Court allowed the Province’s appeal and dismissed the cross-appeal of Antrim. In the end result, the claim of Antrim was completely dismissed.
As noted above, Antrim sought, and was granted, leave to appeal to the Supreme Court of Canada. The Supreme Court last dealt with a claim for injurious affection where no land was expropriated in 1987 in the case of St. Pierre v. Ontario. That case also involved claims for damages arising out of the construction of a highway and the Supreme Court denied the claim concluding that “highway construction will cause disruption” and “to fix the Minister with liability for damages to every landowner whose property interest is damaged … would place an intolerable burden on the public purse.” The Court also concluded, however, that there is a “balancing process inherent in the law of nuisance” between the public good and the disruption and injury. We will have to wait to see what the Supreme Court will conclude in the balancing of interests involved in the Antrim case.