Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), 2010 ONSC 304

• Judge: J. Wilson, Hill and Lax, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 14, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 304;(2010), 258 O.A.C. 1 (DC)

Antrim Truck v. Ont. (2010), 258 O.A.C. 1 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JA.056

Antrim Truck Centre Ltd. (claimant/respondent and appellant by cross- appeal) v. Her Majesty the Queen in Right of Ontario, as Represented by The Minister of Transportation (respondent/appellant)

(84/09; 2010 ONSC 304)

Indexed As: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation)

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Hill and Lax, JJ.

January 14, 2010.

Summary:

A truck stop owner sued the Minister of Transportation for damages for injurious affection under the Expropriations Act as a result of the construction of Highway 417 which rerouted the Trans-Canada Highway and allegedly put the truck stop out of business. The truck stop owner claimed damages of $8,224,671.00 which included the costs of relocation and construction of new premises. The Ontario Municipal Board awarded $393,000 for injurious affection to the property. The Minster of Transportation appealed, seeking dismissal of the truck stop owner's claim. The truck stop owner cross-appealed the quantum of damages.

The Ontario Divisional Court dismissed the appeal and cross-appeal.

Administrative Law - Topic 9064

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Municipal Board - [See fifth Expropriation - Topic 185 ].

Expropriation - Topic 185

Right to compensation - Injurious affection - Where none of claimant's land taken - The Ontario Divisional Court reviewed the provisions of the Expropriations Act and principles of law applicable in assessing a claim for damages for injurious affection where land was not taken - Such a claimant had to prove on a balance of probabilities that "1. The damage resulted from an act rendered lawful by statutory powers of the person performing the act (the statutory authority rule); 2. The damage was such as would have been actionable under the common law, but for the statutory power (the actionable rule); 3. the damage must be occasioned by the construction of the public work, not its use (the construction and not the use rule)" - The court stated that the second part of the test (the actionable rule), could be satisfied by demonstrating a claim in nuisance - The court noted that interference with access had been confirmed in the common law as an actionable nuisance - However, the interference would have to be proximate and substantial, but there did not need to be a direct, physical interference with the claimant's property or a complete obstruction of access for a claim to be established - The court stated that it was clear from a review of the case law that where a change in access following the construction of a public work amounted to a substantial interference with a landowner's right to reasonable use and enjoyment of their property, an actionable claim in nuisance could be founded - See paragraphs 20 to 87.

Expropriation - Topic 185

Right to compensation - Injurious affection - Where none of claimant's land taken - A truck stop owner sought damages for injurious affection (Expropriations Act) after the construction of Highway 417 rerouted the Trans-Canada Highway and allegedly put the truck stop out of business - There was interchange access from Highway 417, but the truck stop was two kilometres from the interchange - The Ontario Municipal Board (OMB) held that the statutory test for injurious affection was established, including the requirement that the claimant have a claim that was actionable at common law (i.e., a common law action for nuisance because of interference with access to its property) - The Minister of Transportation appealed, arguing that the OMB erred in concluding that the test for actionable nuisance had been met because, in this case, there was no physical interference with the property, the interference was not proximate to the property and the interference was not substantial - The Ontario Divisional Court held that the Minister's arguments were not persuasive - Access need not be completely obstructed to satisfy the actionable rule - The OMB's conclusion that the interference was sufficiently proximate to support an actionable claim was reasonable - See paragraphs 20 to 100.

Expropriation - Topic 185

Right to compensation - Injurious affection - Where none of claimant's land taken - A truck stop owner sought damages for injurious affection (Expropriations Act) after the construction of Highway 417 rerouted the Trans-Canada Highway and allegedly put the truck stop out of business - There was interchange access from Highway 417, but the truck stop was two kilometres from the interchange - The Ontario Municipal Board (OMB) held that the statutory test for injurious affection was established, including the requirement that the claimant have a claim that was actionable at common law (i.e., a common law action for nuisance because of interference with access to its property) - The OMB held that the law of nuisance required a balancing between the private interest and the public interest - The OMB acknowledged that while the public interest required that the highway be changed for safety reasons, the inadequate access constituted a serious impairment which established an actionable claim in nuisance - The Minister of Transportation appealed, claiming that he OMB failed to adequately balance the public and private interests - The Ontario Divisional Court rejected this ground of appeal, holding that the OMB applied the correct test and conducted the appropriate weighing of the public and private interest and its findings were reasonable and supported by the evidence - See paragraphs 101 to 110.

Expropriation - Topic 185

Right to compensation - Injurious affection - Where none of claimant's land taken - A truck stop owner sought damages for injurious affection (Expropriations Act) after the construction of Highway 417 rerouted the Trans-Canada Highway and allegedly put the truck stop out of business - There was interchange access from Highway 417, but the truck stop was two kilometres from the interchange - The Ontario Municipal Board (OMB) held that the statutory test for injurious affection was established and awarded compensation - The Minister of Transportation appealed, arguing that the OMB erred in applying the "construction and not use" test in s. 1(1) of the Expropriations Act - The provision provided that, where no property was taken by the statutory authority, damages could be awarded for injurious affection resulting from the construction and not the use of the works by the statutory authority - The Ontario Divisional Court held that the OMB'S finding that the damages to the property were caused by construction not use engaged the expertise of the tribunal - The conclusion was reasonable and fully supported by the evidence - See paragraphs 111 to 120.

Expropriation - Topic 185

Right to compensation - Injurious affection - Where none of claimant's land taken - A truck stop owner sought damages for injurious affection (Expropriations Act) after the construction of Highway 417 rerouted the Trans-Canada Highway and allegedly put the truck stop out of business - The Ontario Municipal Board (OMB) awarded $393,000 for injurious affection to the property, but refused to award damages for relocation or construction costs of a new premises - The OMB concluded that it was without jurisdiction in the context of the definition of injurious affection in s. 1(1) of the Expropriations Act to apply the common law principle of restitutio in integrum and to broaden the claimant's entitlement to disturbance damages and relocation costs - The truck stop owner appealed - The Ontario Divisional Court agreed with the conclusions reached by the OMB - The court stated that there was a world of difference between a claimant's entitlement to damages when a public authority took an individual's land, as compared to the situation in this case where land was not taken - For public policy reasons the right to damages for injurious affection had to be limited in accordance with the terms of the Act, to allow statutory authorities to complete works for the general public good - The OMB's decision that it did not have jurisdiction to award the damages claimed was correct - See paragraphs 121 to 127.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The Ontario Municipal Board (OMB) awarded a truck stop owner $393,000 for damages for injurious affection under the Expropriations Act where the rerouting of a highway allegedly caused the truck stop to go out of business (i.e., there was no taking of the owner's property) - The Minister appealed, seeking dismissal of the truck stop owner's claim - The Minister asserted the OMB failed to apply the correct test for actionable nuisance - The parties disagreed on the standard of review - The Ontario Divisional Court held that the standard of correctness applied to the OMB's articulation of common law principles outside its particular expertise; however, the application of those principles fell within the expertise of the tribunal engaging the standard of reasonableness - Therefore, the OMB's articulation of the law of nuisance engaged the standard of correctness - The OMB's application of the law of nuisance in the context of injurious affection was a question of mixed fact and law which engaged the expertise of the tribunal and the standard of reasonableness applied - See paragraphs 9 to 16.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The Ontario Municipal Board (OMB) awarded a truck stop owner $393,000 for damages for injurious affection under the Expropriations Act where the rerouting of a highway allegedly caused the truck stop to go out of business (i.e., there was no taking of the owner's property) - The Minister of Transportation appealed, seeking dismissal of the truck stop owner's claim - The Minister argued that the OMB failed to adequately balance the public and private interests in determining whether an actionable claim in nuisance had been established - The parties disagreed on the standard of review - The Ontario Divisional Court held that with this issue the OMB was required to determine whether there was a requirement to balance the public interest against the individual interest in determining whether an actionable claim in nuisance had been established - That question of law was outside the expertise of the tribunal and engaged the standard of correctness - However, the balancing of the public and the private interest in the facts of each case squarely engaged the expertise of the OMB, was an exercise of discretion, and engaged the standard of reasonableness - See paragraph 17.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The Ontario Municipal Board (OMB) awarded a truck stop owner $393,000 for damages for injurious affection under the Expropriations Act where the rerouting of a highway allegedly caused the truck stop to go out of business (i.e., there was no taking of the owner's property) - The Minister of Transportation appealed, seeking dismissal of the truck stop owner's claim - The Minister questioned whether the OMB correctly applied the "construction not the use" test stipulated in s. 1(1) of the Act - The parties disagreed on the standard of review - The Ontario Divisional Court held that the issue of the meaning and application of the "construction not the use test" was unique to the law of injurious affection and was codified in the Act - While the enunciation of the test was a question of law, it was not a question of law that was of general application in the legal system - Consideration of the meaning of that statutory provision was within the OMB's specialized expertise - The application of the test was a question of mixed fact and law - The OMB's interpretation and application of the "construction not the use test" engaged the expertise of the tribunal, and the standard of review was reasonableness - See paragraph 18.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The Ontario Municipal Board (OMB) awarded a truck stop owner $393,000 for damages for injurious affection under the Expropriations Act where the rerouting of a highway allegedly caused the truck stop to go out of business (i.e., there was no taking of the owner's property) - The truck stop owner appealed on quantum - At issue was whether the principle of restituo in integrum applied in determining the scope of business damages contemplated by s. 1(1)(b)(ii) of the Act, where land had not been expropriated - The parties disagreed on the standard of review - The Ontario Divisional Court held that this question of law was outside the expertise of the OMB, and therefore the standard of correctness applied - See paragraph 19.

Torts - Topic 1250

Nuisance - Particular nuisances - Highways - Construction and maintenance - [See first, second and third Expropriation - Topic 185 ].

Cases Noticed:

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 11].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 12].

Henery v. London (City) (2007), 231 O.A.C. 210 (Div. Ct.), refd to. [para. 13].

Toronto and Region Conservation Authority v. Gadzala et al. (2009), 252 O.A.C. 142 (Div. Ct.), refd to. [para. 14].

Toronto and Region Conservation Authority v. Gadzala et al. (2006), 211 O.A.C. 29 (Div. Ct.), refd to. [para. 14].

Ottawa (City) v. Wright et al. (2007), 228 O.A.C. 101 (Div. Ct.), refd to. [para. 14].

Lee Brothers Ltd. v. Windsor (City) (2005), 45 R.P.R.(4th) 177 (Div. Ct.), dist. [para. 19].

St. Pierre v. Ontario (Minister of Transportation and Communications), [1987] 1 S.C.R. 906; 75 N.R. 291; 22 O.A.C. 63, refd to. [para. 24].

R. v. Loiselle, [1962] S.C.R. 624, refd to. [para. 29].

Windsor (City) v. Larson et al. (1980), 29 O.R.(2d) 669 (Div. Ct.), refd to. [para. 29].

Toronto Transit Commission v. Swansea, [1935] S.C.R. 455, refd to. [para. 29].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 73].

340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd. (1990), 73 O.R.(2d) 641 (H.C.), affd. (1992), 10 O.R.(3d) 95 (C.A.), refd to. [para. 73].

Iveson v. Moore (1692), 1 Ld. Raym. 486 (K.B.C.P.D.), refd to. [para. 77].

Chichester v. Lethbridge (1738), Willes 71 (C.P.D.), refd to. [para. 77].

Chamberlain v. West End of London and Crystal Palace Railway Co. (1863), 2 B. & S. 617 (Q.B.), refd to. [para. 77].

Windsor (City) v. Larson et al. (1980), 29 O.R.(2d) 669 (Div. Ct.), refd to. [para. 78].

Chilliwack (District) v. Jesperson's Brake & Muffler Ltd. et al. (1994), 40 B.C.A.C. 279; 65 W.A.C. 279 (C.A.), leave to appeal refused (1994), 178 N.R. 77; 55 B.C.A.C. 320; 90 W.A.C. 320 (S.C.C.), refd to. [para. 78].

Newfoundland (Minister of Works, Services and Transportation) v. Airport Realty Ltd. (2001), 205 Nfld. & P.E.I.R. 95; 615 A.P.R. 95 (Nfld. C.A.), refd to. [para. 78].

Autographic Registrar Systems Ltd. v. Canadian National Railway Co., [1933] Ex. C.R. 152, refd to. [para. 78].

Empringham Catering Services Ltd. v. Regina (City) (2002), 217 Sask.R. 138; 265 W.A.C. 138 (C.A.), refd to. [para. 78].

Caledonian Railway Co. v. Walker's Trustees (1882), 7 App. Cas. 259 (H.L.), refd to. [para. 93].

Statutes Noticed:

Expropriations Act, R.S.O. 1990, c. E-26, sect. 1(1)(b) [para. 22]; sect. 21 [para. 20].

Authors and Works Noticed:

Coates, John A., and Waqué, Stephen F., The New Law of Expropriation (1986), pp. 10-154.19 [para. 76]; 10-154.26 to 10.154.27 [para. 113].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 568 [paras. 28, 72]; 569 [para. 101].

Ontario, Law Reform Commission, Report on the Basis for Compensation on Expropriation (1967), generally [para. 68].

Counsel:

Douglas R. Adams, for the respondent;

Leonard Marsello and William MacLarkey, for the appellant.

This appeal and cross-appeal were heard in Toronto, Ontario, on November 12-13, 2009, by J. Wilson, Hill and Lax, JJ., of the Ontario Divisional Court. The following decision of the court was delivered by J. Wilson, J., on January 14, 2010.