Sean Gosnell | BLG

Part 2 – Injurious Affection Where No Land Taken

In part 1 of this series we referred to the definition of injurious affection in the Ontario Expropriations Act. That definition is as follows:

“injurious affection” means,

(a) where a statutory authority acquires part of the land of an owner,

(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and

(ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute,

(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, as the statutory authority would be liable for if the construction were not under the authority of a statute, and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired; (“effet préjudiciable”)

You will see immediately that when none of an owner’s land is taken by an authority the types of claim that can be advanced are much more limited than when there is a partial taking.

In particular, the following four types of claim are available when there has been a partial taking but not available when there has been no taking:

1. For the use of the works rather than just construction of the works;

2. For disturbance damages (available under sections 13, 18 and 19 of the Expropriations Act);

3. Specifically, a claim for business relocation costs incurred by the owner as a result of the partial taking (Section 19 of the Expropriations Act); and

4. Costs. An owner who has suffered a partial taking is usually entitled to have his reasonable costs actually incurred paid by the authority (Section 32 of the Expropriations Act). The situation is not so clear when no land has been taken.