Ontario’s Expropriations Act, 1990 (the “Act”) provides compensation for damages suffered by claimants due to any expropriations of land or construction of public works. If no land of the claimant is expropriated, the Act provides compensation for “injurious affection.”
What is Injurious Affection?
In section 1(1) of the Act, injurious affection is defined as:
“Injurious affection” means,
- where a statutory authority acquires part of the land of an owner,
- 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
- 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,
- where the statutory authority does not acquire part of the land of an owner,
- such reduction in the market value of the land of the owner, and
- 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 if the construction were not under the authority of a statute,
and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired.
The definition describes two forms of injurious affection (1) where land is taken; and (2) where no land has been taken.
Injurious Affection – Partial Takings
Where land is taken, injurious affection occurs when only a portion of the land is taken (opposed to the whole property).
The value of a partial taking for public use is measured in terms of the taken parcel’s contribution to the whole or larger parcel in its highest and best use, rather than its value as a separate parcel. Thus, viable and non-viable remainders. A piece of property that cannot be severed and sold on the open market for economic use is not a viable remainder. Compensation for a non-viable partial taking can be determined by estimating the difference between the market value of the larger parcel, including the non-viable remainder, and the market value of the larger parcel, without the non-viable remainder. The difference between the two estimates will reflect the contributory value of the non-viable remainder or the loss in value occasioned by the non-viable remainder.
Injurious Affection – No Land Taken
Where no land is taken, injurious affection occurs when the activities of an expropriating authority have a negative impact on the use or enjoyment of land in a manner that demands compensation.
Injurious Affection – Damages
This section of the Act is the basis for the three-part test that must be satisfied by a claimant when seeking compensation for injurious affection:
- The damage must result from an act rendered lawful by statutory powers of the person performing such act;
- The damage must be such as would have been actionable under the common law, but for the statutory powers;
- The damages must be occasioned by the construction of the public work, not by its user
That is, a claim for injurious affection is only valid if the action complained of is the construction of a work by a statutory authority for which the statutory authority would be liable, were it not for the statutory protection provided to the authority.
Part two of the test looks at the tort or nuisance, which requires a separate two-part test. First, the Court will consider the threshold test, which is whether the harm suffered by the claimant is sufficiently serious. If the threshold test is met, the Court will consider the reasonableness of the interference suffered by the claimant in all of the circumstances.
The Court will consider factors such as:
- Severity of interference
- Character of the neighborhood
- Sensitivity of the plaintiff
- Frequency of the interference
- Duration of the interference
- The utility of the public project
Ultimately, the Court must determine whether the interference has imposed a disproportionate burden on the claimant, outside of the normal give and take that can be expected.