On March 7, 2013, the Supreme Court of Canada issued a unanimous decision with respect to the law of nuisance and the balancing of competing interests.
Antrim Truck Centre Ltd. (“Antrim”) had owned a truckstop along Highway 17, which had formed part of the Trans-Canada Highway System. As a result of the Province of Ontario’s construction of a new section of Highway 417, motorists no longer had direct access to Antrim’s truckstop, which Antrim claimed was effectively put out of business. Antrim successfully brought a claim before the Ontario Municipal Board for injurious affection under the Expropriations Act, RSO 1990, c E.26, which decision was upheld by an Ontario Divisional Court, but overturned by the Ontario Court of Appeal, which held that the Ontario Municipal Board had erred in its application of the law of nuisance to the facts, and concluded that that the interference suffered by Antrim was not unreasonable given the public benefit of the newly constructed highway.
In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, the Supreme Court of Canada unanimously set aside the decision of the Ontario Court of Appeal and restored the decision of the Ontario Municipal Board. A claim for injurious affection must meet three requirements –namely, that (1) the damage to the claimant must result from action taken under statutory authority, (2) the action would give rise to liability but for the statutory authority, and (3) the damage must result from the construction and not the use of the works. Only the second requirement was in dispute before the Supreme Court of Canada.
The Court made the following findings with respect to the law of nuisance:
- A nuisance consists of an interference with a claimant’s use or enjoyment of land that is both substantial and unreasonable.
- An interference is substantial where it is non-trivial, and if this threshold has been met, it becomes a question whether the interference was reasonable. Although the two-part test may introduce duplication in analysis, it is necessary to maintain the threshold of a “substantial interference” in order to highlight the fact that a certain amount of nuisance must be accepted as a part of life.
- To justify compensation, a nuisance must not only be substantial but also unreasonable. Whether an interference is unreasonable must be determined in light of the relevant circumstances.
- The jurisprudence has identified a number of factors that may be considered when determining whether an interference is unreasonable, including the severity, frequency and duration of the interference; the character of the neighbourhood and sensitivity of the claimant; and whether the Defendant’s conduct was malicious or careless. These do not form an exhaustive list or a checklist, and as long as a court or board reasonably carries out its analysis, it is not necessary for it to enumerate the factors it has considered.
- While the utility or public good of the acts of a public authority should be taken into consideration, this public good will not trump all interferences with a claimant’s land.
- Compensation is to be awarded where the harm suffered is greater than the claimant should be expected to bear in the circumstances without being appropriately compensated.
The Supreme Court of Canada also clearly rejected a line of jurisprudence that found it unnecessary to consider the question of reasonableness where the interference was physical and material. The Supreme Court acknowledged that although the test for reasonableness may be very brief in cases where there is substantial and permanent damage, the reasonableness analysis was nonetheless to be applied regardless of the type of harm.