Much anticipated Ontario expropriation decision released

When I attended the Ontario Expropriation Association's Fall Conference last year, a fair amount of time was spent discussing the decision of the Ontario Municipal Board (OMB) in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation). Now the Divisional Court has released its decision in the appeal from the OMB, fully endorsing the OMB's decision.

Here are the facts:

• 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.

In Antrim's case, no lands were taken from it. The MTO did not expropriate any part of its property. The Divisional Court restated the test to prove a claim for injurious affection where no land is taken from the 1987 Supreme Court of Canada decision in St. Pierre v. Ontario. The claimant must prove on a balance of probabilities that:

1. the damage resulted from an act that was made lawful by statutory authority;
2. but for the statutory authority, the act would have been "unlawful" (i.e. it would have given rise to a cause of action against the person performing the act at Common Law);
3. the damage must have been caused by the CONSTRUCTION of the public work, NOT its use.

The Divisional Court dismissed the MTO appeal and dismissed Antrim's cross-appeal. The Divisional Court agreed with the OMB that the actions of the MTO in diverting the highway constituted an actionable nuisance (which it had statutory authority to do) in the form of interference with access, and that the interference with access was the result of the construction of the highway (including detours) and not the use of the expanded Highway 417. The Divisional Court did not agree with Antrim, however, that the compensable loss could include relocation costs or disturbance damages. These were not available to Antrim because no land was taken (expropriated).

Read the decision at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc304/2010onsc304.html