Injurious Affection Where No Land Taken – Part 1
Part 1 - Background
Right now the hottest topic in expropriation law is the scope of compensation available when no land has been taken. Perhaps this ought to be no surprise: after decades of deferred infrastructure funding the recession that started in 2008 (and is still, to some extent at least, plaguing us) prompted renewed enthusiasm for government spending on concrete improvements, so to speak.
The idea seems to have been reminiscent of that prevailing in the 1930’s. Construction puts people to work and creates lasting tangible results. And in no sphere of government endeavour than transportation projects is that more true. The results of such projects for those waiting for suburban buses and sitting in traffic jams in major cities across the country would presumably be substantial and generate corresponding gratitude on the part of the voting public. And so governments of various levels began casting about looking for suitable projects. Fortunately, there were many.
But as construction began and then continued on these projects some people started to notice something else about them: they could have severe negative impacts on those impacted by the construction. Loss of access, noise, loss of customers and the sheer uncertainty of construction schedules meant that many businesses suffered real, and in some cases severe, losses.
The purpose of this series is to explore some of the more significant case law that has resulted from these events and to consider how the law might be evolving. We begin by reviewing some of the more important applicable statutory provisions.
Ontario Expropriations Act
Section 21 of the Expropriations Act states that a claim is available for loss or damage caused by injurious affection.
Section 1 of the Expropriations Act, which contains the definitions of terms used in that Act, provides that there are two types of injurious affection.
Section 1 (1) (a) addresses claims that may be made when part of an owner’s land is acquired by an authority. It does not directly apply to the issue at hand but, as will be seen, is instructive in achieving an understanding of the entire context of the issue.
Section 1 (1) (b) does apply to the issue at hand: it defines the scope of injurious affection in the situation in which an authority does not acquire part of the owner’s land.