5/28/2013 7:44 AM
“Injurious Affection,” in expropriation law, means an injury to land. This term has come up in some of our previous blog entries, such as on the Antrim and Inglis decisions. It was also explained in brief in our “Introduction to Compensation” post.
When a portion of a landowner’s land is taken by expropriation, the remainder of the land can be “injured”. The owner of the land may be compensated for this injury, by the expropriating authority. The term is defined in the Nova Scotia legislation at section 3. Significantly, injurious affection may also arise where no land was taken.
Recently, in Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13, the Supreme Court of Canada stated at paragraph 4 that injurious affection occurs when a defendant’s activities interfere with a claimant’s use or enjoyment of land. It was noted that such interference may occur where a portion of an owner’s land is expropriated with negative effects on the value of the remaining property. Alternatively, it may arise in cases where no land is expropriated, but the lawful activities of a statutory authority on one piece of land interfere with the use or enjoyment of another property. The distinction is important, as in either scenario, the type of injury for which the landowner may be compensated differs.
Where land is partially taken under the Nova Scotia Expropriation Act, the landowner may be compensated for a reduction in market value caused to the remaining lands caused by either the acquisition or the construction of the works for which the land was expropriated, or the use of those works (for example, the construction and use of a highway near someone’s land). The landowner may also be compensated for other personal and business losses resulting from the construction or use, or both, of the works.
Where no land is taken, the landowner may also be compensated for a reduction in market value caused to their lands. The difference is that while compensation may still be paid for personal and business damages resulting from the construction of the works (e.g. a highway), the owner may not be compensated for personal and business damages caused by the use of the works.
At paragraph 5 of the Antrim decision, Justice Cromwell summarized the three statutory requirements for a claim for damages for injurious affection where no land is taken as the requirements of “statutory authority”, “actionability”, and “construction and not the use”. These requirements mean that (i) the damage must result from action taken under statutory authority; (ii) the action would give rise to liability but for that statutory authority; and (iii) the damage must result from the construction and not the use of the works. Notably, if land is taken, the third element is not required.
So, for example, in a situation in which no land of Mr. Doe’s farm is taken to build a highway, Mr. Doe may be compensated for loss of business during the construction of the highway, but not for any subsequent loss of business caused by noise arising from the use of the highway by motorists.
On the other side of the coin, if a statutory authority takes some of Mrs. Doe’s farmland to build a highway, Mrs. Doe may be compensated for business losses caused by the subsequent use of the highway by noisy motorists.
Each case is different, and the compensation to which a particular landowner is entitled may be influenced by subtle nuances in the law. It is advisable to consult an expropriation lawyer if your land has been affected in a way for which you believe you may be entitled to compensation.
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.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.