City of Windsor and Larsen et al.
29 O.R. (2d) 669
114 D.L.R. (3d) 477
HIGH COURT OF JUSTICE
STEELE, SAUNDERS AND CALLAGHAN, JJ.
29TH AUGUST 1980.
Expropriation -- Injurious affection -- Compensation -- Municipality constructing median down centre of highway thereby partially denying access to motel -- Whether injurious affection -- Whether resulting from construction of works -- Expropriations Act, R.S.O. 1970, c. 154, s. 1(1)(e)(ii).
Section 1(1)(e)(ii) of the Expropriations Act, R.S.O. 1970, c. 154, defines "injurious affection", where an owner's land is not expropriated, as, inter alia, "such reduction in the market value of the land ... resulting from the construction and not the use of the works ... as the [expropriating] authority would be liable for if the expropriation were not under the authority of a statute ... ". Where a municipality constructs a solid median strip down the middle of a highway, thereby restricting access to and from a motel, a private right of access is interfered with which, to the extent that the market value is reduced by the construction, would be compensable at common law. The damages, although they must relate to construction only, need not be calculated as of the day the median was completed, nor are they restructed to the day-to-day construction works. Rather, they ought to be calculated on the basis of the work as finally constructed and the effect it has on the owner's right of access.
[R. v. Loiselle,  S.C.R. 624, 35 D.L.R. (2d) 274, folld; W.H. Chaplin & Co., Ltd. v. Westminster Corp.,  2 Ch. 329; Whaley v. Kelsey (1928), 61 O.L.R. 679,  2 D.L.R. 268, distd; Re Thomson Lumber & Building Materials Ltd. et al. and Minister of Highways,  2 O.R. 175, 44 D.L.R. (2d) 639, discd; City of Toronto v. J.F. Brown Co. (1917), 55 S.C.R. 153, D.L.R. 532, consd; Re Taylor and Belle River (1910), 2 O.W.N. 387; Re Tate and City of Toronto (1905), 10 O.L.R. 651; Winnipeg Supply & Fuel Co. Ltd. v. Metropolitan Corp. of Greater Winnipeg,  S.C.R. 336, 55 D.L.R. (2d) 600; Norway Pines Cabins Ltd. v. Ontario Minister of Highways,  1 O.R. 12, 59 D.L.R. (2d) 234, refd to]
APPEAL from a decision of the Land Compensation Board awarding compensation for injurious affection.
G. S. Nisbet, for appellant.
L. Paroian, Q.C., and R. G. Colautti, for respondents.
The judgment of the Court was delivered by
STEELE, J.:-- This is an appeal from the Land Compensation Board which award to the respondents (hereinafter referred to as the claimants) $80,000 as compensation for damages attributable to injurious affection due to the reduction in market value of the land of the owner. The Board also awards damages in the sum of $19,799 as compensation attributable to personal and business damages during the construction. The Board dismissed a claim for loss due to personal and business damages occasioned after the termination of the construction. There is no appeal from that dismissal. At the opening of the appeal, the appellant city abandoned its appeal with respect to the award relating to personal and business damages. Therefore, the only matter before the Court was the appeal with respect to the award relating to injurious affection with respect to the reduction in the market value of the land of the owner.
The issue revolves primarily around the interpretation of the provisions of s. 1(1)(e) of the Expropriations Act, R.S.O. 1970, c. 154, and amendments thereto, which provide as follows:
1(1) In this Act,
. . . . .
(e) "injurious affection" means,
(i) where a statutory authority acquires part of the land of an owner,
a. 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
b. 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,
(ii) where the statutory authority does not acquire part of the land of an owner,
a. such reduction in the market value of the land of the owner, and
b. 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 for 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 city has constructed a controlled access expressway (known as the E.C. Row Expressway), which includes a four-lane vehicular overpass over an existing four-lane highway known as Dougall Ave. A high earth embankment was constructed to carry the expressway over Dougall Ave. immediately adjacent to the north limit of the respondents' lands which front on the east side of Dougall Ave. Located on the lands is a motel business, as well as the two-storey dwelling of the claimants, part of which is used for the motel business. Prior to the construction of the expressway, Dougall Ave. was a four-lane highway with no median or other obstructions, which would prevent vehicular traffic, travelling either northerly or southerly, from entering the claimants' lands. As part of the construction, the travelled portion of Dougall Ave. was widened, although no additional lands were acquired from the claimants. In addition, a solid concrete raised median strip was constructed down the centre of the road, commencing at a point considerably to the north of the claimants' lands and ending at a point considerably to the south thereof. Although there are some breaks in this median, to permit traffic to turn at signalized intersections, the effect of the median and traffic signs effectively prevents traffic on Dougall Ave. from turning across the southbound lanes and southbound traffic on Dougall Ave. from turning across the northbound lanes. In effect, traffic can only enter and leave the claimants' lands in the northbound lane and cannot enter the lands from the southbound lane. If a vehicle approaches from a different direction and wishes to enter or leave the claimants' lands, it must make extensive detours so that it reaches the northbound lane of Dougall Ave. Obviously, a motel business is dependent upon motor vehicle access.
The construction of the entire project, which included the earth embankment, the overpass, the ramps and interchanges, as well as the traffic-control median strip, commenced in July of 1970 and was completed in July of 1973. It is acknowledged that the claimants have suffered damages as a result of the works and the issues are whether or not the damages are compensable under the provisions of the Expropriations Act and, if they are, what is the proper quantum thereof, and whether there was evidence before the Board to justify its award.
While the construction of the expressway was a joint project of the city and the then Minister of Highways, it is agreed, for the purpose of this appeal, that the proper statutory authority undertook the works within the meaning of s. 1(1)(e).
The city abandoned its appeal with respect to the business damages without prejudice to its position on the interpretation of the balance of the section because it admitted that there was evidence that there were business losses during the period of construction.
The first ground of appeal is that the claimants had no right of action at common law for the damages suffered. The city submits that the damages complained of occurred as a result of an interference with a public right and not a private right; in other words, the damages suffered are no greater than would be sustained by any member of the general public, and therefore there is no private cause of action. The city states that there has been no obstruction build at the limit of the highway abutting the claimants' lands and relies on W.H. Chaplin & Co., Ltd. v. Westminster Corp.,  2 Ch. 329 at p. 334, as follows:
A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right.
In Whaley v. Kelsey (1928), 61 O.L.R. 679,  2 D.L.R. 268, which related to the encroachment of a neighbour's veranda and steps on the street which caused the plaintiff to go into the travelled portion of the street to gain access to his own house further down the street, the Court adopted the above statement as a principle of law, but, at p. 682 O.L.R., p. 270 D.L.R., the Court further stated as follows:
I see no reason for not applying this principle to a case where the obstruction is one of long-standing and the person aggrieved has come to live near it though not so near as to be affected in his access to and egress from his property.
The city also relies on a statement in Nichols on Eminent Domain, revised 3rd ed. (1972), s. 14.244(4), vol. 4A, as follows:
A person who owns premises abutting on a highway enjoys, as a private right, the right of stepping from his own premises onto a highway; but immediately he has stepped onto the highway and is using it, what he is using is not a private right but a public right.
I agree with the above principles of law but do not agree that they are applicable to the present case. The facts of the present case indicate that there is a private right interfered with. While there are no reported decisions dealing with the case of a median strip or barrier down the middle of a highway, there are numerous cases relating to cul-de-sacs and other interference with access to a property.
The leading case with respect to injurious affection is R. v. Loiselle,  S.C.R. 624, 35 D.L.R. (2d) 274. In that case, none of the claimants' property was taken but damages for injurious affection were awarded where the public authority diverted a highway which resulted in the property being located on a cul-de-sac, 1,500 feet from the intersection of the relocated highway. The Court set out, in its reasons, the conditions required to give rise to a claim for compensation for injurious affection as follows, at p. 627 S.C.R., p. 276 D.L.R.:
The conditions required to give rise to a claim for compensation for injurious affection to a property, when no land is taken, are now well established; Autographic Register Systems Ltd. v. Canadian National Railway Company,  Ex. C.R. 152; Challies "The Law of Expropriation", p. 136. These conditions are:
"(1) the damage must result from an act rendered lawful by statutory powers of the person performing such act;
"(2) the damage must be such as would have been actionable under the commonlaw, but for the statutory powers;
"(3) the damage must be an injury to the land itself and not a personal injury or an injury to business of trade;
"(4) the damage must be occasioned by the construction of the public work, not by its user."
Other instances where compensation has been awarded in case where direct access has not been totally taken away but detours or cul-de-sacs were created, are Re Taylor and Belle River (1910), 2 O.W.N. 387 (Ont. C.A.); Re Tate and City of Toronto (1905), 10 O.L.R. 651, and Winnipeg Supply & Fuel Co. Ltd. v. Metropolitan Corp. of Greater Winnipeg,  S.C.R. 336, 55 D.L.R. (2d) 600. I do not rely on Re Thomson Lumber & Building Materials Ltd. et al. and Minister of Highways,  2 O.R. 175, 44 D.L.R. (2d) 639 (Ont. C.A.), or Norway Pines Cabins Ltd. v. Ontario Minister of Highways, [1967 1 O.R. 12, 59 D.L.R. (2d) 234 (Ont. C.A.), because either the facts differed or the question before the Court did not necessitate an answer which directly reflects on the issue before us.
In the present case, where the median strip has been referred to as interfering with turning access to the same extent as if it were a 20-foot wall in height, a private right of access has been interfered with. I see no difference in principle between a barrier that allows access for traffic from one direction only and the creation of a cul-de-sac road that has substantially the same effect. The present claim is one in which the city would be liable if the construction were not under the authority of the statute. Needless to say, in each case a claimant must prove damages as a result of the intereference with the private right.
Counsel for the city further contends that the Expropriations Act, first enacted in 1968, by 1968-69 (Ont.), c. 36, not only amended the law by granting damages for personal and business damages, but also by taking away any claim for damages arising out of the use of the works after construction. He submits that, prior to the Act, in Ontario damages could be awarded for both construction and continuing use of works under the authority of City of Toronto v. J.F. Brown Co. (1917), 55 S.C.R. 153, 37 D.L.R. 532 (S.C.C.). He submits that s. 1(1)(e) (i), para. a refers to reduction in market value caused by the construction or the use of the works, while subcl. (ii), dealing with injurious affection where no land is taken, specifically excludes any damages resulting from the use of the works. He submits that the decision in Toronto v. J.F. Brown Co. is no longer applicable in Ontario. In support of his argument, he referred to the recommendations in the report of the Ontario Law Reform Commission on "The Basis for Compensation on Expropriation" (1967). I have reviewed this report and its recommendation in this regard was as follows:
The Commission recommends that, "In cases where there is no taking, expropriating authorities should remain liable for damages caused by the construction of the work and remain exempt from liability where damage is caused by the use of the work."
In my opinion, it is clear that the Commission recommended no change from the existing law in this respect. I am also of the opinion that s. 1(1)(e) did no more than codify the law in R. v. Loiselle with respect to the issue in question.
The city also argued that the qualifying words that appear in the statute after para. b of subcl. (ii) refer only to "such personal and business damages" in para. b and not to para. a of the same subclause. I do not agree. I believe that the statute clearly sets out that they apply to both the paras. a and b in this subclause.
The city's final ground of appeal is that there was no proper evidence before the Board upon which it could come to its finding that the reduction in market value was attributable to the construction of the works only and not their subsequent use and that the matter must be referred back to the Board to hear further evidence. This presupposes that some of the damages suffered were as a result of the use of the works as opposed to their construction. The city's theory is that there could be damages arising out of the physical construction of the work and that those must be assessed at the date that they were completed and before any use was made. In other words, that date to be considered should have been July, 1973, and that anything subsequent to that date related to the use of the works as opposed to their construction. In passing, I might say that the city also argued that the damages should be attributable only to the day-to-day construction work and not to the works as finally constructed. I cannot read the section in this way and reject that argument entirely. Returning to the issue as to whether or not the valuation should be made as of the date of completion of construction, as opposed to the subsequent use, it is clear that no such distinction was made in R. v. Loiselle. I adopt, as the proper test, the statement in Challies on The Law of Expropriation, 2nd ed. (1963) at p. 138 as folows:
The test of whether the property is actually damaged by operation ior use is to consider whether the works as constructed, if left unused, would interfere with the actual enjoyment of the property; if not, no compensation is payable.
I also refer to the following statement in Re Thomson Lumber Ltd. and Minister of Highways, supra, at p. 177 O.R., p. 641 D.L.R.:
Before proceeding to a discussion of provisions of the Act itself I make reference to a cardinal principle of statutory interpretation, namely, that there is a presumption against the invasion and destruction of private rights without compensation; and that no such intention is to be imputed to the Legislature unless expressed in unequivocal terms. I refer to the words of Grant, J.A. (for the Court), in R. v. Stromach,  3 D.L.R. 216 at p. 219, 49 C.C.C. 336 at p. 339, 61 O.L.R. 636 at p. 640:
"The law is also well established that common law rights are not held to have been taken away or affected by a statute, or by-law passed under its authority, unless it is so expressed in clear language, or must follow by necessary implication, and in such cases only to such an extent as may be necessary to give effect to the intention of the legislature thus clearly manifested."
In its decision, the Board accepted and preferred the evidence of one Lambert, the appraiser for the claimants. In its report, the Board quoted from the opinion as follows:
The median separating the north-south lanes is considered to be the major detriment with the proximity of the overpass and related noise factor noted for record purposes but disregarded in any estimate of loss of value.
At p. 51 of the Board's report, the Board stated as follows:
We therefore find that the loss in market value is $80,000, caused by the construction of the works herein referred to, and not by the subsequent use of the same.
The Court was advised that counsel had argued the issue relating to the distinction between damages resulting from construction and use before the Board and I am of the opinion that the Board clearly understood this distinction and made its ruling accordingly. The evidence before the Board was with respect to loss in market value and was given by three expert appraisers, two of whom had many reports for the city and one for the claimant. All these reports referred to dates of appraisal subsequent ot July, 1973, although the witness whose evidence was preferred by the Board stated that the loss suffered was the same in 1973. No objection was raised by the city before the Board that the appraisals referred to the wrong dates, nor was there any issue raised by the city that there was no evidence before the Board with respect to cnostruction as opposed to evidence with respect to the use. The Board used the best evidence before it. I am of the opinion, bearing in mind the facts and decision in R. v. Loiselle, that the Board had both the jurisdiction and the right to come to the finding that it did. In Loiselle there was no reference to any distinction between the final date of construction and subsequent use, and the evidence related generally to the loss due to construction, as did the evidence in the present case. I am of the opinion that the Board was correct in its conclusion and there are no grounds upon which the matter should be referred back. It is clear from the evidence that the actual loss or reduction in market value was as a result of the construction of the barrier and, to a lesser degree, the construction of the overpass and embankment, and not loss as a result of the traffic using those roadways after their construction. In the present case, the motel property suffered its loss in value by reason of the construction of the work. It is not a case where the public authority may have constructed a building that had no effect upon the values of adjacent properties, and subsequently made an obnoxious use of such building.
Throughout these reasons, primary reference has been made to the median strip and not to the overpass and related noise factors, because it is clear that the Board accepted the valuation of Lambert which was based primarily on damage caused by the median.
On an appeal as to quantum, the onus is on the appellant to show that the Board erred in failing to properly construe the evidence or failed to take into account relevant or crucial evidence or misapprehended the evidence, or reached its conclusion on no evidence. In my opinion, the Board had before it evidence upon which it could reach its conclusion and that its conclusion is supportable. It has not been demonstrated that the Board proceeded on any wrong principle which would warrant interference by this Court.
I am of the opinion that the appeal should be dismissed with costs to the respondents on a solicitor-and-client basis. Costs are awarded on this basis in accordance with the intent of s. 33 [rep. & sub. 1971, Vol. 2, c. 12, s. 2] of the Act because no offer of compensation was made and no moneys have been paid into Court.