Present: McIntyre, Chouinard*, Lamer, Wilson and Le Dain JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for ontario
Expropriation ‑‑ Injurious affection ‑‑ Compensation ‑‑ Land acquired for highway adjacent to appellants' property ‑‑ None of appellants' lands expropriated ‑‑ Whether or not damages resulting from construction of highway compensable ‑‑ Expropriations Act, R.S.0. 1970, c. 154, ss. 1, 21 (now R.S.O. 1980, c. 148).
In 1961 appellants bought land zoned "open space" in a quiet, rural neighbourhood near London and built their retirement home. Some time prior to 1976, respondent acquired a strip of land adjoining the eastern boundary of the appellants' land to construct a highway which was opened to traffic in 1977. No part of the appellants' lands was taken or acquired. Appellants brought a claim for injurious affection of their land. The decision of the Land Compensation Board, now the Ontario Municipal Board, to allow the claim for compensation was upheld by the Divisional Court but overturned by the Court of Appeal. At issue here was whether the construction of the highway with its resultant damage to the appellants' property was actionable at common law.
Held: The appeal should be dismissed.
Appellants' claim was for loss of amenities‑‑loss of prospect and elements of loss of privacy. The courts have consistently denied recovery for the loss of prospect. The use of the highway too, while probably a disruptive element, was not a field of damage which could be considered: any claim must be limited to loss caused by the construction. Respondent's use of the land, moreover, was not unreasonable. Highways are necessary and may cause disruption but in the balancing process inherent in the law of nuisance their utility for the public good far outweighs the disruption and injury visited upon adjoining lands. The law of nuisance will not extend to allow for compensation in this case.
Cases Cited
Distinguished: Re City of Windsor and Larson (1980), 29 O.R. (2d) 669; The Queen v. Loiselle, [1962] S.C.R. 624; Nor‑Video Services Ltd. v. Ontario Hydro (1978), 4 C.C.L.T. 244; T. H. Critelli Ltd. v. Lincoln Trust and Savings Co. (1978), 86 D.L.R. (3d) 724; Schenck v. The Queen in right of Ontario (1981), 34 O.R. (2d) 595; referred to: Canadian Pacific Railway Co. v. Albin (1919), 59 S.C.R. 151; Fried v. Minister of Transportation and Communications (1972), 3 L.C.R. 262; The King v. MacArthur (1904), S.C.R. 570; Pugliese v. National Capital Commission (1977), 17 O.R. (2d) 129; William Aldred's Case (1610), 9 Co. Rep. 57 b, 77 E.R. 816; Foli v. Devonshire Club (1887), 3 T.L.R. 706; Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R. (2d) 35; Muirhead v. Timbers Brothers Sand & Gravel Ltd. (l977), 3 C.C.L.T. 1.
Statutes and Regulations Cited
Expropriations Act, R.S.O. 1970, c. 154, ss. 1, 21, (now R.S.O. 1980, c. 148).
Authors Cited
Buckley, R. A. The Law of Nuisance. London: Butterworths, 1981.
Fleming, John G. The Law of Torts, 4th ed. Sydney: Law Book Co., 1971.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.
Linden, Allen M. Canadian Tort Law, 3rd ed. Toronto: Butterworths, 1982.
Street, Harry. The Law of Torts, 6th ed. London: Butterworths, 1976.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 43 O.R. (2d) 767, 2 D.L.R. (4th) 558, 28 L.C.R. 1, allowing an appeal from a judgment of the Divisional Court (1982), 38 O.R. (2d) 341, 25 L.C.R. 250, dismissing an appeal and cross‑appeal from a judgment of the Land Compensation Board (now the Ontario Municipal Board) (1981), 21 L.C.R. 68. Appeal dismissed.
Earl A. Cherniak, Q.C., and Mary Anne Sanderson, for the appellants.
R. Allan O'Donnell, Q.C., for the respondent.
The judgment of the Court was delivered by
1. McIntyre J.‑‑This appeal concerns a claim by property owners for compensation for injurious affection of their land, caused by the acquisition of adjoining land by the respondent Minister and the construction thereon of a public highway. No part of the claimants' lands was taken or acquired.
2. In 1961, the appellants purchased 125 acres of land some two miles east of downtown London, Ontario, and about one mile from the city limits. They considered the land, because of the quiet, rural nature of the neighbourhood, an ideal location for a retirement home which they constructed on the property. Zoning in the area was "open space" and remains so. Some time prior to 1976, the Minister acquired a strip of land for the purpose of highway construction, approximately 250 feet wide, adjoining the eastern boundary of the claimants' land. Construction commenced in June of 1976 and the highway was opened to traffic in 1977. These proceedings resulted.
3. The Land Compensation Board, now the Ontario Municipal Board, upheld the claim for compensation (1981), 21 L.C.R. 68. The Board (R. M. Grant, Q.C.) held that damages resulting from the construction of the highway were compensable. He relied on the Re City of Windsor and Larson (1980), 29 O.R. (2d) 669, and The Queen v. Loiselle, [1962] S.C.R. 624, which latter case listed the four conditions that must be met in order to maintain an action for injurious affection when no land is taken. The four conditions are expressed by Abbott J., at p. 627, in these words:
The conditions required to give rise to a claim for compensation for injurious affection to a property, when no land is taken, are now well established; Autographic Register Systems Ltd. v. Canadian National Railway Company [[1933] Ex. C.R. 152]; Challies "The Law of Expropriation", p. 136. These conditions are:
(1) the damage must result from an act rendered lawful by statutory powers of the person performing such act;
(2) the damage must be such as would have been actionable under the commonlaw, but for the statutory powers;
(3) the damage must be an injury to the land itself and not a personal injury or an injury to business or trade;
(4) the damage must be occasioned by the construction of the public work, not by its user.
The Board was of the view that all the above conditions were met. It held that the proper date for the establishment of the damages was the date upon which the highway construction was completed and opened to traffic. On conflicting evidence as to the effect of such construction on the value of the property, it was found that its value had been reduced to the extent of $35,000. The claim for personal damages under The Expropriations Act, R.S.O. 1970, c. 154, now R.S.O. 1980, c. l48, was dismissed on the basis that they were minimal.
4. An appeal to the Divisional Court by the Minister (1982), 38 O.R. (2d) 34l, was dismissed (Krever, Smith and Potts JJ.) Smith J., writing for the court, said that he was not convinced that the Board was wrong. The Board, in his view, had applied the correct principles and reached the correct result. While it is evident that Smith J. considered that the liability of the Minister depended on a finding that the Minister would be liable at common law, save for the defence of statutory authority, he said at p. 344:
The actionable rule can have reference to what the law historically recognized as being proper subjects of compensation. The common law, however, in this instance, as in any other, is not a frozen instrument. Any suggestion that the compensation will be confined to a violation of a specific right traditionally recognized by law is, with respect, erroneous.
In dealing with the Minister's question as to what right had been violated, he said at p. 344:
It appears to me that the emphasis must not be on "right", except in the very broad sense of user without interference as a right. An owner has a private right to the use of his property in all its aspects and it is the alleged violation of that user right that must be scrutinized in each case.
He suggested that such scrutiny will always boil down to "a question of substantial interference with enjoyment with all that enjoyment implies". Applying this approach, he supported the judgment of the Board.
5. The Minister's appeal to the Court of Appeal (1983), 43 O.R. (2d) 767, (Lacourcière, Houlden and Weatherston JJ.A.) was allowed. Weatherston J.A. wrote for himself and Lacourcière J.A. Houlden J.A. wrote a separate concurring judgment. Weatherston reviewed the case‑law on the subject of compensation for injurious affection, finding it against the claimants' position. Citing the words of Anglin J. in Canadian Pacific Railway Co. v. Albin (1919), 59 S.C.R. 151, at p. 159, he held that in order to succeed in such an action the claimants had to show " `a physical interference with a right which the owner was entitled to use in connection with his property' which substantially diminished its value". It was not sufficient to merely show an indefinable loss in the enjoyment of the property. He concluded with this statement, at p. 773:
The definition of injurious affection in the Expropriations Act uses the language of the case‑law, but it does not in express terms exclude a nuisance caused by the reasonable apprehension of the use (or misuse) of authorized works, where no land is acquired from an owner. The apprehension of the intended use of authorized works can be said to result from their construction, and not their use, but I think this is too fine a point. Where the Expropriations Act broadens the definition of injurious affection, it does so in clear terms; where, as in this case, it employs the language of the case‑law, it must be held that the Legislature intended that the words used would have the same meaning that they had before. The reduction in the market value of the claimants' lands, caused by the apprehension that the new highway would be used for its intended purpose, was not "injurious affection" within the meaning of the Act, and is not compensable.
6. In concurring reasons, Houlden J.A. expressed the view that the statement of Anglin J. in Albin, supra, was too restrictive. The court's duty, in his view, was simply to construe the relevant statutory provisions. Under the Act, the claimants were required to establish that they did have a cause of action at common law. He acknowledged that on rare occasions a landowner could recover damages in a case of this nature, referring to Re City of Windsor and Larson, supra, (interference with access to the claimants' property); The Queen v. Loiselle, supra, (closing or relocating an existing road); and Fried v. Minister of Transportation and Communications (1972), 3 L.C.R. 262, (altering the course of a creek bed). He did not, however, consider that the appellants' claim fell into that category. The appellants' claim, in his view, was simply based upon the fact that the neighbourhood had changed. They have lost the privacy they once enjoyed and they have lost their good view. In his opinion, the Minister in constructing the highway did not make unreasonable use of his lands and, accordingly, no action could lie. He quoted with approval the following passage from the judgment of Nesbitt J., speaking for this Court, in The King v. MacArthur (1904), 34 S.C.R. 570, at pp. 576‑77:
It was never intended that where the execution of works, authorized by Acts of Parliament, sentimentally affected values in the neighbourhood, all such property owners could have a claim for damages. In most of our large cities values are continually changing by reason of necessary public improvements made, and if, although no lands are taken, everybody owning lands in the locality could, by reason of the changed character of the neighbourhood or interference with certain convenient highways, claim compensation by reason of a supposed falling of the previous market value of property in the neighbourhood, it would render practically impossible the obtaining of such improvements.
7. The appellants argued that the Ontario Court of Appeal had erred in ignoring the test of nuisance set out in Fleming, The Law of Torts (4th ed. 1971), at p. 346. This test had been approved by that court in Pugliese v. National Capital Commission (1977), 17 O.R. (2d) 129, and is reproduced below (p. 154):
The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise and the basis for adjustment is reasonable user. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two‑sided affair. It is viewed not only from the standpoint of the defendant's convenience, but must also take into account the interest of the surrounding occu‑ piers. It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?
In their submission, this is the only realistic test in the modern world and to require physical interference with a definable or ascertainable right, in order to establish the existence of a nuisance, is contrary to recent authority and would hinder the development of the law of nuisance. The appellants argue that recent authority has extended the concept of nuisance and opened up a new range of matters which, in accordance with the Fleming test, would justify a finding of nuisance outside of traditional categories established by the courts. As an example, the appellants refer to Nor‑Video Services Ltd. v. Ontario Hydro (1978), 4 C.C.L.T. 244, where Robins J., of the Ontario Supreme Court, held that the inability to receive television signals or an unreasonable interference with them would detract from the beneficial ownership of property. He stated, at p. 256:
The notion of nuisance is a broad and comprehensive one which has been held to encompass a wide variety of interferences considered harmful and actionable because of their infringement upon or diminution of an occupier's interest in the undisturbed enjoyment of his property. I can see no warrant for refinements in approach which would preclude from protection the interest in TV reception even assuming it to be a recreational amenity. In this day and age it is simply one of the benefits and pleasures commonly derived from domestic occupancy of property; its social value and utility to a community, perhaps even more so to a remote community such as the one in this case, cannot be doubted. The category of interests covered by the tort of nuisance ought not to be and need not be closed, in my opinion, to new or changing developments associated from time to time with normal usage and enjoyment of land. Accordingly I would reject the defendant's submission and hold that television reception is an interest worthy of protection and entitled to vindication in law.
The appellants cite a number of other cases in which actions in nuisance have been maintained, such as T. H. Critelli Ltd. v. Lincoln Trust and Savings Co. (1978), 86 D.L.R. (3d) 724 (Ont. H.C.) (construction of a tall building in the city causing accumulation of snow on the roof of an existing building), and Schenck v. The Queen in right of Ontario (1981), 34 O.R. (2d) 595 (H.C.) (damage to fruit‑growing land adjoining highway by salt from highway maintenance).
8. I am in agreement with Houlden J.A. in the Court of Appeal, when he said: "Our task is to interpret the language of the Expropriations Act". Section 21 of that Act provides that a statutory authority shall compensate the owner of land for loss or damage caused by injurious affection. Injurious affection is defined in s. 1 of the Act in the following terms:
1. ...
(e) "injurious affection" means,
(i) where a statutory authority acquires part of the land of an owner,
a. 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
b. 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,
(ii) where the statutory authority does not acquire part of the land of an owner,
a. such reduction in the market value of the land of the owner, and
b. 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,
9. As none of the appellants' land was acquired in this case, the matter falls to be determined under para. (ii). The reduction in market value of the land is accepted at $35,000 and the statutory authority for the work has not been questioned. The sole question for determination then is whether the construction of the highway with its resultant damage to the property of the appellants would have been actionable at common law.
10. The only basis for an action to recover damages in the circumstances of this case would be the tort of nuisance. Nuisance has been variously described. In this case both parties have suggested definitions and there seems to be little if any dispute between them on the general description of the concept of nuisance. Reference has already been made to the comprehensive definition in Fleming, The Law of Torts. I would add the definition expressed in Street, The Law of Torts (6th ed. 1976), at p. 219:
A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.
I am far from suggesting that there are not other definitions, and I do not suggest that the categories of nuisance are or ought to be closed. The above definitions, however, cover the general concept and we must now seek to apply it in the circumstances of this case.
11. The principal cases relied on by the appellants‑‑Nor‑Video Services Ltd., supra; T. H. Critelli Ltd., supra; and Schenck, supra‑‑are said to take a broader approach to the question of nuisance than did the earlier cases. In my view, however, they are distinguishable from the circumstances which face the Court here. In each of those cases the action of the public authority substantially altered the nature of the claimant's property itself or at least interfered to a significant extent with the actual use being made of the property, with a resultant loss of value of the property. The same is true of the cases cited by Houlden J.A. in the Court of Appeal and relied on by the Land Compensation Board as instances in which recovery for injurious affection has been allowed. For example, in Loiselle, supra, the claimant's service station was left at the dead end of a cul‑de‑sac as a result of a diversion of a highway in order to accommodate the construction of the St. Lawrence Seaway. Similarly, in Larson, supra, a concrete median was built in the middle of the highway running in front of the claimant's motel, thereby severely restricting access with a resultant loss of value of the property. In both cases, the construction of the public works in close proximity to the lands so changed their situation as to greatly reduce if not eliminate their value for the uses to which they had been put prior to the construction and could, therefore, be classed as nuisances.
12. No such interference is to be found in the circumstances of this case. I agree with the Court of Appeal that what the appellants complain of here is the loss of prospect or the loss of view. There are as well the elements of loss of privacy, but in essence the complaint is that once they dwelt in a rural setting with a pleasing prospect and now they are confronted on one side of their land at least with a modern highway. It is a claim for loss of amenities. That the use of the highway will constitute a disruptive element is probably true but that is a field of damage which may not be considered. The claim is limited to loss occasioned by the construction.
13. From the very earliest times, the courts have consistently held that there can be no recovery for the loss of prospect, (William Aldred's Case (1610), 9 Co. Rep. 57 b, 77 E.R. 816; Foli v. Devonshire Club (1887), 3 T.L.R. 706; Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R. (2d) 35 (H.C.); Muirhead v. Timbers Brothers Sand & Gravel Ltd. (1977), 3 C.C.L.T. 1 (Ont. H.C.); see also Linden, Canadian Tort Law (3rd ed. 1982), at pp. 539‑40; Buckley, The Law of Nuisance (1981), at p. 34; Fleming, The Law of Torts (6th ed. 1983), at p. 385). Moreover, I am unable to say that there is anything unreasonable in the Minister's use of the land. The Minister is authorized‑‑indeed he is charged with the duty‑‑to construct highways. All highway construction will cause disruption. Sometimes it will damage property, sometimes it will enhance its value. To fix the Minister with liability for damages to every landowner whose property interest is damaged, by reason only of the construction of a highway on neighbouring lands, would place an intolerable burden on the public purse. Highways are necessary: they cause disruption. In the balancing process inherent in the law of nuisance, their utility for the public good far outweighs the disruption and injury which is visited upon some adjoining lands. The law of nuisance will not extend to allow for compensation in this case.
14. The appeal is dismissed without costs.
Appeal dismissed.
Solicitors for the appellants: Lerner & Associates, London.
Solicitors for the respondent: O'Donnell & Frank, Toronto.
Email this Content