At the Court: Paving the Way Forward with Antrim Truck Centre v Minister of Transportation
Last December, the Court of Appeal for Ontario decided in favour of the Minister of Transportation, finding that highway construction that rerouted traffic (i.e. customers) away from an existing highway was not a sufficient ground for compensation for business owners.
Antrim Truck Centre operated a truck stop on Highway 17 outside Ottawa for almost thirty years. In 2004, it learned that the government would be constructing Highway 417, parallel to Highway 17, in order to enhance public safety for drivers in the region. The government did not expropriate or directly affect any land owned by Antrim, but the flow of traffic was rerouted to the new highway, greatly reducing the number of cars and trucks that stopped at Antrim. Antrim brought a claim for eight million dollars for its relocation costs under s.1(1)(b) of the Expropriations Act, arguing that the government’s actions amounted to injurious affection.
The Act defines injurious affection as meaning
1.(1)(b) where the statutory authority does not acquire part of the land of an owner,
(i) such reduction in the market value of the land of the owner, and
(ii) such personal and business damages,
resulting from the construction and not the use of the works by the statutory authority…
In finding for the Minister, the Court restated the statutory rule for injurious affection as follows:
1) The damage must result from an act rendered lawful by statutory powers of the person performing such act (the statutory authority rule).
2) The damage must be such as would be actionable under the common law, but for the statutory powers (the actionable rule).
3) The damage must be occasioned by the construction of the public work, not its use (the construction not the use rule).
The Court also restated the test for amenity nuisance, the actionable rule:
First, there must be “substantial interference.” Second, that interference must be unreasonable. In determining whether the interference is unreasonable, the Court must take into account 4 factors:
-the severity of the interference;
-the character of the neighbourhood;
-the utility of the Defendant’s conduct; and
-the sensitivity of the Plaintiff.
The Court found that, although there was interference with Antrim’s operation of its business, Antrim knew the character of the land and area when they established their business, and would have known that there was no guarantee that the main highway artery in the region would always be Highway 17.
The relationship between injurious affection and amenity nuisance was not addressed in detail, nor did the Court address the issue of balancing within the test for nuisance. Antrim was granted leave to appeal, and on November 14, the Supreme Court will have the opportunity to settle the murky law surrounding injurious affection, amenity nuisance, how they are related, and how Canadian courts should apply them.
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