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Injurious Affection

DAMAGES UNDER THE EXPROPRIATION ACT ARE COMPLEX

An injurious affection can occur where the government does or does not acquire the land of the property owner.  The traditional law of injurious affection developed where the government expropriated a portion of a property which caused a reduction in value to the remainder.

WHERE IS INJURIOUS AFFECTION FOUND IN THE EXPROPRIATIONS ACT?

Clause 13(2)(c) of the Expropriations Act provides for compensation for damages for injurious affection, but is limited to a partial taking. For example, where a hydro transmission line was installed on a residential property, the government expropriated a partial interest in that property, and the transmission line caused a reduction in the value of the remainder; as such, injurious affection damages were awarded. Nobody wants to buy a property with a hydro transmission line on it. 

Section 21 of the Act provides for compensation for injurious affection where no land is acquired. In a seminal case heard by the Supreme Court of Canada, injurious affection damages were awarded where no land was taken. In this case, access to a truck stop was completely eliminated due to a reorienting of a 400 series Highway in Ontario; as a result, the business essentially closed down as truckers were no longer able to reach the premises. The claimant was found to be entitled to injurious affection damages under the Act.

IF CONSTRUCTION WORK IS A NUISANCE TO YOUR LAND, CONTACT LEGAL COUNSEL

If the authorities do not take your land, but their public works substantially interfere with your use and enjoyment of your property, you may be entitled to compensation through an injurious affection claim under the Expropriations Act in Ontario.

Injurious affection claims are premised on the law of nuisance in Ontario. In determining whether there has been a nuisance, the Court must assess whether there has been a substantial and unreasonable interference with your property. The following factors are assessed:

  • The severity of interference;
  • The character of the neighborhood;
  • The utility of the defendant’s conduct;
  • The sensitivity of the plaintiff; and
  • The duration of the interference.

Other factors are considered to determine whether an injurious affection has occurred at your land where no land has been taken. Typically, these claims are advanced by commercial business owners who have lost revenues as a result of public construction works.  The Eglinton Crosstown LRT transit project has resulted in numerous business closures and injurious affection claims.

The Local Planning Appeals Tribunal (LPAT), formerly the Ontario Municipal Board (OMB). has the exclusive jurisdiction for expropriations claims in Ontario. Though an emerging area of law, the LPAT has granted several awards to affected landowners and businesses for injurious affection expropriation claims

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