Businesses and property-owners that are negatively impacted by public construction works may be entitled to damages for injurious affection. Injurious affection occurs where an owner or occupant’s activities are interfered with in a substantial and unreasonable manner by a public construction project.
The impact of the public work on the business or property-owner has to be substantial and unreasonable in order establish a successful claim for damages. Trivial or minor disturbances are not compensable. Given that public works are necessary in order to enhance the functioning of our City, a balance between the public interest in improving our municipal infrastructure and the private interest to operate businesses free and clear of government intrusion is required. There is no bright-line test that clearly demarcates when the scales are tipped in favour of the public or private interest. Each case is unique on its facts.
There are a series of factors that a Court will consider in determining whether a claimant has made out a successful claim for injurious affection:
- the severity of the interference;
- the character of the neighbourhood;
- the duration of the interference;
- the utility of the defendant’s conduct; and
- the plaintiff’s sensitivity.
Does it make sense to reduce streetcar travel times for commuters across King Street at the expense of business-owners? Is it fair and reasonable for these businesses to suffer losses, lay-offs, and store closures as a direct result of the pilot project, without compensation?
Opinions on the efficacy of the King St. Pilot Project run the spectrum from ardent support to vehement opposition. Data suggests that it is working at certain times for certain people. However, is there a less intrusive way to enhance transit efficiency along King St. that does not hemorrhage business owners? Is there another practically feasible option that can reduce travel times on King Street while ensuring robust local business? There very well may be. And if such an alternative can be established, precedents would suggest that your claim may be successful.
Authority has been granted in the Ontario Municipal Board (OMB) to adjudicate claims of injurious affection. Some scenarios where damages for injurious affection have been awarded by the OMB, include but are not limited to the following:
- Restrictions on access;
- Road closures and diversions;
- Median installations;
- Bike lanes;
- Pedestrian closures.
Jeff Goldstein is experienced in settling claims against public authorities in the context of infrastructure projects that cause disruption to businesses. Please contact him for an initial consultation.