In a previous post, we discussed the types of damages that may be available in an expropriation claim. This case shows how injurious affection damages for business interruption or other losses caused by a public project may be awarded despite there being no expropriation at all.

Background to R. Jordan Greenhouses Ltd v. Grimsby (Town)

This case involved a family-run garden centre located in a quiet residential area, and had been at the same location for 80 years. The Town of Grimsby planned a non-urgent sewer construction project that would begin simultaneously with the garden centre’s busy spring season. This project lasted for forty working days, and required closure of at least one lane of the two-lane street, with at least two weeks of complete closure to vehicular traffic.

The garden centre brought a claim against the town at the Ontario Municipal Board (OMB) for its business losses.

Awarding injurious affection damages without expropriation of land

Under the Expropriations Act, injurious affection without taking of land requires proof that:

• A damage resulted from the statutory authority’s action;
• A liability arising from the action would exist, but for that statutory authority; and
• The damage was the direct result of the construction, rather than the use of the works constructed.

The Board found that the garden centre had clearly suffered a business loss as the direct result of the construction project. It next considered whether the losses would have been actionable as a nuisance claim against a private actor. This required that the project in question caused a substantial and unreasonable interference in the garden centre’s use and enjoyment of the property.

Although temporary interference is not always grounds for a nuisance claim, prolonged interference is more likely to attract a remedy. Ultimately, the Board found that it was not reasonable for the garden centre to bear all of the costs of the Town’s project scheduling. The interference and inconvenience was, “well outside the normal give and take of life that should be properly accepted as an individual’s part of the cost as living in an organized society.” The garden centre was awarded $115,000 in damages.

Lawyers for municipal and planning disputes in Waterloo region

This case illustrates that injurious affection damages may be available to claimants that have suffered business or other losses as the result of actions taken by a Town or other authority. At Duncan Linton LLP, our municipal & planning lawyers regularly advise clients facing potential claims at the Land Planning Appeal Tribunal. Contact us online or call 519-886-3340 to make an appointment with one of our experienced lawyers.