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Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13 – Part II

Apr 2

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4/2/2013 7:13 AM  RssIcon

Our last article was the first part of the case summary of Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13, in which we summarized the facts and judicial history of the decision, and began the summary of the Supreme Court of Canada’s analysis.

The Supreme Court of Canada looked at the elements of private nuisance, noting that the elements of a claim in private nuisance have often been expressed in terms of a two-part test:  to support a claim in private nuisance, the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable.  The analysis under the first part of the test is summarized in the first part of this case summary.  Beginning at paragraph 25, the Supreme Court of Canada looked at the second part of the private nuisance test. 

The court noted at paragraph 26 that the courts have traditionally considered factors such as the severity of the interference, the character of the neighbourhood, and the sensitivity of the plaintiff.  The court at paragraph 28 noted that generally, the focus in nuisance is on whether the interference suffered by the claimant is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable.  The burden on a claimant is to show that the interference is substantial and unreasonable – not to show that the defendant’s use of his or her land is unreasonable.

The court noted that the nature of a defendant’s conduct, however, may not be completely irrelevant.  Where a defendant’s conduct is either malicious or careless, this will be a significant factor in a reasonableness analysis.  However, a finding of reasonable conduct will not necessarily preclude a finding of liability.  The duty not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care.

At paragraph 30 of the decision, Justice Cromwell notes that even where a public authority is involved, the utility of the conduct is always considered in light of the other relevant factors in the reasonableness analysis.  It is not, in and of itself, an answer to the reasonableness inquiry to say that the conduct resulted in a public good. Moreover, in the reasonableness analysis, the severity of the harm and the public utility of the impugned activity are not equally weighted considerations.  A defendant cannot simply justify his infliction of great harm upon the plaintiff by urging that a greater benefit to the public at large has accrued from his conduct.  If that were the case, an important public purpose would always override even very significant harm caused by carrying it out.  The utility of a public work cannot simply be balanced against the severity of the harm as if they were equal considerations.  That sort of simple balancing of public utility against private harm would undercut the purpose of providing compensation for injurious affection.

The emphasis is that a disproportionate share of the cost of a beneficial service should not be shouldered by one member of the community by leaving him or her uncompensated for damage caused by the existence of that which benefits the community at large.  While everyone must put up with a certain amount of temporary disruption caused by essential construction, one citizen should not have to contribute disproportionately more to a public work than any other citizen.  The question is whether an interference is greater than an individual should be expected to bear in the public interest without compensation

At paragraph 37, the Supreme Court puts in context previous caselaw which held that in the balancing process inherent in the law of nuisance, the utility of highway construction for the public good far outweighs the disruption and injury which is visited upon some adjoining lands.  Justice Cromwell noted that these comments must be understood in relation to the nature of the alleged injury in that particular case, which was a simple loss of amenities.  He said, “It is clear that these comments do not stand for the broader proposition that great public good outweighs even very significant interference”. The court emphasizes throughout the decision that reasonableness is to be assessed in all cases where private nuisance is alleged.

In the result, the Supreme Court of Canada approved of the Board not allowing concern over the importance of the highway construction to “swamp consideration of whether it was reasonable to require the appellant to bear without compensation the burden inflicted on it by the construction”.  It found that the Board properly understood that the purpose of the statutory compensation scheme for injurious affection was to ensure that individuals do not have to bear a disproportionate burden of damage flowing from interference with the use and enjoyment of land caused by the construction of a public work.  As such, the Supreme Court of Canada allowed the appeal and restored the order of the Board, awarding the appellant damages of $393,000 for injurious affection.

In a future article, we will look at the effect of the Supreme Court’s decision in this case.

If you have questions or would like to discuss this topic further, please contact Jeremy P. Smith at Patterson Law at 1-888-897-2001.