UARB Decision on Business Loss Resulting from Highway Diversion
8/3/2012 8:04 AM
On July 27, 2012 the Nova Scotia Utility and Review Board dismissed a claim by an Annapolis Valley Resident for compensation for lost business arising from a highway expropriation.
Mrs. Inglis operated a roadside fruit stand next to Highway 201. As part of a program to extend neighbouring Highway 101, the Province expropriated some of the lands belonging to Mrs. Inglis and paid her for that land. The Board noted that the construction and subsequent operation of Highway 101 created no impediment to the access of Mrs. Inglis’s fruit stand. However, when Highway 101 came into operation, the amount of traffic along Highway 201 diminished and revenue for the fruit stand dropped. Ultimately, the fruit stand closed. Mrs. Inglis claimed for her lost business, with an expert calculating her losses at $477,037, plus other expenses.
The decision turned on the interpretation of “injurious affection” in the Nova Scotia Expropriation Act
and the application of what has been termed the “actionable rule”. This rule is simply that the damage claimed must be something which would be actionable under the common law. It is derived both from caselaw and the language of the Expropriation Act
. The Board found that the claim by Mrs. Inglis for injurious affection could only succeed if it could be shown that the Province would be liable at common law for the type of damage which she claimed.
The Board went to lengths to distinguish this case from one in which loss or obstruction of access to property was alleged, noting that there is ample caselaw which holds that impairment of access may be actionable at common law as a nuisance. The Board noted several times that this proceeding did not involve, in any way, loss or obstruction of access, partial or full, temporary or permanent. The loss which was claimed was that allegedly arising from the diversion of traffic from Highway 201 to Highway 101, so that a reduced number of vehicles on Highway 201 passed by the site of the fruit stand.
After examining several cases and texts stating that common-law damages do not
arise from the diversion of traffic, and noting that it had not been presented with a single case that provided clear support for the idea that diversion of traffic is compensable, the Board concluded that losses arising from diversion of traffic to another highway are not actionable at common law. Having already found that compensation for injurious affection in relation to business losses is not payable if the loss in question is not actionable at common law, the Board’s final determination was that there was no basis for the claimant’s claim for compensation, and dismissed the claim.
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.