Supreme Court


Interference caused by construction of new highway inflicted significant and permanent loss

In 2004, province completed new four-lane section of Highway 417 for public safety reasons. New highway routed traffic away from Highway 17. Claimant owned truck stop located on affected part of Highway 17 and took position that undertaking severely impeded road access to truck stop and substantially interfered with use and enjoyment of property. Claimant applied to Ontario Municipal Board for determination of compensation for injurious affection pursuant to Expropriations Act (Ont.). Board concluded claimant established business loss and loss in market value of affected property and awarded damages totalling $393,000 for injurious affection. Divisional Court affirmed board’s decision, finding that board reasonably concluded interference was substantial, correctly realized importance of balancing interests and conducted appropriate weighing of competing interests. Court of Appeal set aside board’s decision, finding that board failed to consider character of neighbourhood and any abnormal sensitivity of claimant and failed to recognize heightened importance of utility of defendant’s conduct where interference was product of essential public service. Claimant’s appeal allowed. Reasonableness of interference must be determined by assessing whether individual claimant has shouldered greater share of burden of construction than reasonable to expect without compensation. Interference caused by construction of new highway inflicted significant and permanent loss. Act provides right to compensation for injurious affection if damage results from action taken under statutory authority, action would give rise to liability but for that statutory authority and damage results from construction and not use of works. Only issue was whether claimant could have successfully sued for damages caused by construction under law of private nuisance if highway construction not done under statutory authority. Although focus in nuisance on whether interference suffered by claimant unreasonable, defendant’s conduct not irrelevant. Court of Appeal erred in finding that board’s application of law of nuisance to facts unreasonable. Board not required to specifically enumerate and refer by name to every factor. Board did not fail to take account of utility of province’s activity or fail to engage in required balancing. Board’s conclusion that claimant should not be expected to endure permanent interference that caused significant diminution of its market value in order to serve greater public good was reasonable.

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) (Mar. 7, 2013, S.C.C., McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ., File No. 34413) Decision at 332 D.L.R. (4th) 641, 202 A.C.W.S. (3d) 310 was reversed. 223 A.C.W.S. (3d) 970.

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