In Antrim Truck Centre Ltd v. Ontario (Transportation), in a unanimous decision delivered March 7, the Supreme Court of Canada reversed the Ontario Court of Appeal decision that denied the owner $393,000 in damages.
“The question of injurious affection damages in the face of works being carried out is a big issue so it’s nice to have the SCC come down and really give us further guidance on how we should be looking at these cases and how you balance the public interest versus a private interest,” says Melissa Winch, a lawyer with Cassels Brock & Blackwell LLP.
From 1978 to 2004, the Antrim Truck Stop operated on Hwy. 17 near Ottawa in the hamlet of Antrim. In 2004, the Ministry of Transportation opened a new section of Hwy. 417 and access to Antrim’s land was severely restricted, effectively putting owner Jack Cameron and his truck stop out of business at that location.
Antrim made a claim to the Ontario Municipal Board for injurious affection under the Expropriations Act. In Ontario, the Expropriations Act allows claims for “injurious affection” where a property owner suffers certain losses resulting from the construction of public works carried out under statutory authority. Where no land is taken, injurious affection means reduction in the market value of land and personal and business damages resulting from the construction, but not the use, of the works by the statutory authority.
The OMB found the new highway was enough of an interference for Cameron to be awarded injurious affection damages in the amount of $58,000 for business loss and $335,000 for loss in market value of the land. Cameron had originally sought $8.2 million.
The Divisional Court upheld the OMB’s decision, however the MTO appealed to the Court of Appeal, which found the OMB failed to consider two aspects in the reasonableness analysis: there must be “substantial interference” and it must be “unreasonable.”
The Court of Appeal also indicated the OMB failed to recognize the importance of the new highway in the public’s interest.
But the SCC allowed Antrim’s appeal and restored the decision of the OMB, saying the “reasonableness” of interference must be determined considering the competing interests of the parties but that the severity of the harm and utility of the public works project should not be equally weighed.
If that was the case, says Winch, a public project would almost always override “significant harm,” defeating the purpose of the Expropriations Act to compensate for injurious affection.
In the decision Justice Thomas Cromwell wrote:
The answer, as I see it, is that the reasonableness of the interference must be determined by balancing the competing interests, as it is in all other cases of private nuisance. The balance is appropriately struck by answering the question 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 compensation. Here, the interference with the appellant’s land caused by the construction of the new highway inflicted significant and permanent loss on the appellant; in the circumstances of this case, it was not unreasonable for the Board to conclude that an individual should not be expected to bear such a loss for the greater public good without compensation.
“It’s helpful to have the SCC say, ‘you have to look at how much is the burden on the private interest and is it quite a heavy burden they shouldn’t have to bear.’” says Winch. “I think in this case they struck the appropriate balance.”