• Supreme Court of Canada Awards Damages to Property Owner Impacted by the Construction of Public Works:Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13
  • March 18, 2013 | Authors: Signe Leisk; Melissa Winch
  • Law Firm: Cassels Brock & Blackwell LLP - Toronto Office
  • The right of a landowner to be awarded “injurious affection” damages for losses resulting from the construction of public works where no land is taken has been the subject of recent consideration by the Supreme Court of Canada (“SCC”). This decision is of particular importance as it considers when a property owner is entitled to compensation if their business or property is negatively affected by a public works project, but their land is not expropriated.

    The Facts

    Antrim Truck Centre Ltd. (“Antrim”) owned and operated a successful truck stop on Highway 17 near Ottawa. Highway 17 far exceeded its design capacity and was known as the “killer highway”. As a result, the Ministry of Transportation (“MTO”) constructed a new highway, effectively rerouting traffic away from the Antrim truck stop.

    Prior Decisions

    Antrim brought a claim to the Ontario Municipal Board (“OMB”) for injurious affection under the Expropriations Act. The OMB found that the construction of the new highway was a substantial interference for which Antrim deserved injurious affection damages. The Divisional Court upheld the OMB’s decision. The MTO appealed to the Court of Appeal, which found that the OMB failed to adequately consider two mandatory factors in the reasonableness analysis under the nuisance test: (1) there must be “substantial interference”; and (2) the interference must be unreasonable. The Court of Appeal also found that the OMB failed to recognize the public importance of the utility of the MTO’s conduct in constructing the new highway.

    Supreme Court of Canada

    In a unanimous decision, the SCC allowed the appeal and restored the decision of the OMB. The SCC confirmed that to support a claim in nuisance, and therefore award compensation for injurious affection where no land is taken, the interference with the owner’s land must be both substantial and unreasonable. The “reasonableness” of an interference must be determined by balancing the competing interests of the parties. The SCC emphasized that severity of the harm and public utility of the works are not equally weighted considerations. Otherwise, an important public purpose would always override even very significant harm, defeating the purpose of the Expropriations Act to compensate for injurious affection. The focus is on 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,” and not whether it was reasonable for the statutory authority to undertake the work. In this case, the interference to Antrim’s land caused by the construction of the new highway inflicted “significant and permanent loss”.