In February, 2010, I wrote about a much anticipated decision of the Ontario Divisional Court on appeal from the Ontario Municipal Board: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation). The facts of the original OMB case were as follows:
- Antrim owned a truck stop in the Hamlet of Antrim on Highway 17, formerly part of the Trans-Canada Highway;
- In September, 2004, a new section of Highway 417 was finished and re-routed the former Trans-Canada Highway (away from the truck stop);
- The Antrim property comprised 13.66 acres and included 947 feet fronting on Highway 17;
- Antrim alleged that the closure of Highway 17 substantially interfered with its use and enjoyment of its property and made a claim for injurious affection - the change in the Highway basically put Antrim out of business (Antrim took steps to mitigate its loss and relocated);
- The business had been generating gross annual revenues of more than $15 million and had employed about 100 people;
- The claim for injurious affection was for over $8.2 million, including the cost of relocation and construction of new business premises;
- The OMB awarded Antrim $393,000 - the MTO appealed the decision - Antrim cross-appealed seeking the additional $7.6 million or so it had originally claimed.
No lands were taken from Antrim. The Divisional Court agreed with the decision of the OMB and upheld the award of compensation on the basis that the diversion of the highway constituted an actionable nuisance in the form of interference with access.
The Ontario Court of Appeal disagreed with both the OMB and the Divisional Court. In its June, 2011 decision, the Court found errors in the Divisional Court's analysis of the tort of nuisance. The Court of Appeal said that the OMB was required to consider two elements of the test for nuisance: was the interference with Antrim's property (access) substantial and, if so, was the interference unreasonable? The Court of Appeal agreed with the OMB's finding (upheld by the Divisional Court) that the interference was substantial. However, it found that the interference was also reasonable. In its view, the Divisional Court had failed to analyze this issue. The Court of Appeal concluded:
When the board’s factual findings are properly applied to the various elements of the reasonableness analysis, I would conclude, based on the observations made above, that the interference caused by the MTO’s conduct was not unreasonable. As the board reasonably concluded, the interference amounted to a “serious impairment in nuisance”. However, the interference was such that it fell within the boundaries of what the reasonable property owner in the area should be expected to tolerate and was the result of a project that served the public interest – more, was actually essential to public safety. Simply put, the highway was built to save lives. In the light of the substantial weight to be given to this factor in the circumstances, it is difficult to see how this change in the access to the Antrim property, particularly given the fact that it actually brought the Antrim truck stop in line with the access typical of Ontario truck stops, can be viewed as unreasonable.
In failing to properly carry out the reasonableness analysis, the board failed to give effect to the fundamental purpose of the law of nuisance: balancing the competing rights of property owners to use their land as they wish.On this basis, the Court of Appeal found there was no nuisance and, therefore, no basis for an award of compensation. Based on agreement between the parties, the Court awarded the MTO its costs of the appeal in the amount of $20,000 and its costs of the unsuccessful cross-appeal by Antrim (seeking higher compensation) in the amount of $20,000.
Read the decision at: Antrim Truck Centre Ltd. v. Ontario (Transportation).