Court distinguishes: annoying and significant action

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March 7, the Supreme Court of Canada issued its decision on the Antrim Truck center v. Ontario, a case that had been working its way up the court system for nearly a decade.  The decision is of importance to property owners whose properties may be impacted by actions taken on behalf of the government (or a public entity).  The Court was asked to characterize when a person can claim that an action, taken by a public entity on behalf of the public, is a significant interference and due compensation.  Or, in legal terms, when can a person claim “injurious affection” to their property.

Five facts, key to understanding the decision:

1) The Antrim Truck stop (Antrim) was a profitable truck stop along Highway 17 in Ontario.

2) In 2004, the province of Ontario changed the structure of Highway 17 to improve safety.  The new highway also caused reduced revenues for Antrim.

3) Antrim’s owner took the province to court, claiming that the province had caused the owner to suffer loss of use and enjoyment of their property (or, “injurious affection”), and asked for compensation under Ontario’s Expropriations Act (RSA 2000, c E-13).

4) Various courts have asked the question: was the construction of the highway a significant disturbance or was it just annoying, given that the new highway would be of public benefit?

5) The Supreme Court of Canada decided that the construction of the highway was a nuisance for Antrim’s owner and that this nuisance was an interference which was substantial and unreasonable, and the owner was due compensation (i.e. they decided it was not just annoying).

How did they decide what is a substantial and unreasonable interference? Judge Cromwell tried to define the terms in the recent decision: He wrote that for an interference to be substantial it must “amount to more than a slight annoyance or trifling interference” and for it to be unreasonable, one must ask the question, if “whether, in all 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” 2013, SCC 13.

In the future, property owners should be vigilant of the severity, frequency and duration, as well as the sensitivity and the conduct of the government (i.e. did the government implement mitigative programs) when contemplating claims of injurious affection and asking for compensation.