Injurious Affection and Nuisance Alternative Remedies for Government Interference with the Use of Land Andrea M. Simmonds

Picture this…

Or this…

Antrim Truck Stop Truck stop situated on Highway 17 New section of Highway 417 constructed parallel to Highway 17 Effectively closed Highway 17, putting truck stop out of business Do they have a right to compensation?

Expropriation The taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers “expropriating authority” means the Crown or any person empowered to acquire land by expropriation includes municipalities: section 14 of the Municipal Government Act

Right of Entry A right to enter land without the consent of the owner to remove minerals contained in or underlying the surface of that land to construct tanks, stations and structures for or in connection with a mining or drilling operation to construct, operate, or remove a pipeline, power transmission line, or telephone line

Right to Compensation Expropriation Act and Surface Rights Act provide the statutory authority for the taking or the entry Right to compensation for the taking or the entry derives from this legislation

Injurious Affection An injury to the value of land caused by the interference with the owner’s use or enjoyment of the land An expropriation of a portion of the land negatively affects the value of the remaining property; or The lawful activities of a statutory authority on one piece of land interfere with the use or enjoyment of another property

Injurious Affection A right to compensation for injurious affection only arises under statute There is no common law right to compensation for injurious affection

Injurious Affection Three-part test: 1. The damage resulted from an act rendered lawful by statutory powers of the person performing the act (the statutory authority rule); 2. The damage was such as would have been actionable under the common law, but for the statutory power (the actionable rule)*; 3. the damage must be occasioned by the construction of the public work, not its use (the construction and not the use rule).

Ontario Expropriations Act, s 21 A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection “injurious affection” includes a reduction in market value of the land and personal and business damages resulting from the acquisition of part of the land or the construction of works or use of works on the acquired land; or the construction of works

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation)

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) The construction of the new highway had changed Highway 17 in a manner that severely restricted access to the appellant's land; it had turned Highway 17 into a “shadow of what it was before Highway 417” In all of the circumstances, this interference was unreasonable and arose from the construction and not the use of the highway.

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) The landowner’s injury is a cost of highway maintenance and the harm suffered by them is greater than they should be required to bear in the circumstances, at least without compensation Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the landowner alone.

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) Finding of injurious affection upheld by Supreme Court of Canada Compensation for loss in market value of property and business losses awarded

British Columbia Expropriation Act, s. 40 When part of the land is taken, an owner is entitled to compensation--to the extent that they are directly attributable to the taking or result from the construction or use of the works for which the land is acquired--for the reduction in market value of the remaining land; and reasonable personal and business losses

British Columbia Expropriation Act, s. 41 Permits a claim for injurious affection if no land is taken, despite the repeal of provisions that explicitly allowed such claims

The Canada Line Cases Susan Heyes Inc. v Vancouver (City) Claim for business losses resulting from construction of Canada Line No injury to land alleged—no possible claim for injurious affection Gautam v Canada Line Rapid Transit Inc. Claim for loss in rental value of properties during construction of Canada Line A reduction in rental value, whether temporary or permanent, may be an injury to land Stay tuned… Business and property owners on Cambie Street in Vancouver Businesses disrupted by construction of Canada Line Skytrain between downtown Vancouver and the International Airport

Alberta Expropriation Act, s. 56 When only part of an owner’s land is taken, compensation shall be given for (a) injurious affection, including (i) severance damage, and (ii) any reduction in market value to the remaining land, and (b) incidental damages, if the injurious affection and incidental damages result from or are likely to result from the taking or from the construction or use of the works for which the land is acquired.

Injurious Affection Compared Ontario and BC Alberta Reduction in land value due to a partial taking Personal and business losses from construction or use of works on the taken land Reduction in land value due to construction of works elsewhere Personal and business losses from construction of works elsewhere Reduction in land value due to a partial taking Personal and business losses from construction or use of works on the taken land No right to compensation for reduction in land value or personal and business losses from construction of works elsewhere

Sutherland v Canada (Attorney General) (British Columbia) Following the construction of an airport runway, noise on the subject land increased, causing a reduction in the land’s value No taking or partial taking of land Injury results from the use of the works, not the construction Claim for injurious affection not possible

Nuisance The tort of unreasonable interference with the enjoyment and use of land a common law remedy—no legislative permission required! Environmental issues, golf courses, noise

Types of Nuisance Public Nuisance Private Nuisance Any activity that unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort, or convenience Actions are usually brought by the Attorney General An unreasonable interference with the use and enjoyment of land by its occupier Actions are brought by the occupier of the land

Sutherland v Canada (Attorney General) Public Nuisance Private Nuisance Noise created by the runway is a public nuisance General interference with the enjoyment of land suffered by several members of the public Noise created by the runway is a private nuisance Unreasonable interference with the use and enjoyment of land by its occupier

The Defence of Statutory Authority An act that is authorized by statute cannot be tortious Even if the act interferes with private rights, the statute authorizing the works implicitly authorizes the interference Any nuisance that is the inevitable result or consequence of exercising that authority is not compensable

The Defence of Statutory Authority Sutherland v Canada (Attorney General) The construction of the airport runway was authorized by legislation Noise was inevitably necessary from the operation of the runway No legal means to relocate the runway and avoid the nuisance Claim for nuisance is barred

What Won’t Work in Alberta No compensation for injurious affection without a taking Losses caused by the construction of works near the land are not compensable under the Expropriation Act No compensation for nuisance where the works are authorized by statute Disruption caused by the construction of the works is an inevitable consequence and are implicitly authorized An Alberta Antrim Truck Stop would be out of luck on both claims

What Might Work… What if the construction or operation of the work is so poorly managed that it caused personal or business losses? No statute can authorize negligent construction or operation of public works A claim for compensation would need to be framed in these terms to avoid the defence of statutory authority

Food for Thought Should a landowner have to bear the consequences of the negligent execution of a construction project? Stay tuned…

Questions?