Jason Neyers and Diacur wrote an excellent piece on Antrim at (2011) 90 Can Bar Rev. 215 on the Court of Appeal judgment. They explain the history of the litigation, and the errors which they believe the Court of Appeal had made. They discuss the "rights" analysis, but this was not taken up by the Supreme Court of Canada. The Supreme Court essentially restricted its judgment to discussing whether the construction of the highway unreasonably interfered with the claimant's use and enjoyment of its land, and affirmed that it did. The key point they made was that merely because a use of land is highly beneficial to the community the this does not necessarily trump the rights of a private owner - not a novel or surprising finding.
Lewis
On Sun, Mar 10, 2013 at 1:32 AM, Neil Foster
<Neil.Foster@newcastle.edu.au> wrote:
Dear Colleagues;
Those interested in the area of private nuisance may find the recent decision of the SCC in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 http://www.canlii.org/en/ca/scc/doc/2013/2013scc13/2013scc13.html of interest. Legislation allowed compensation for "injurious affection" (that sounds like a failed love affair to me, but it seems to be a common form of the older "injurious affectation") resulting from public works. The re-routing of a road removed customers from the plaintiff. The legislation allowed compensation to be paid only if it would have been payable "if the construction were not under the authority of a statute". In other words, the question of whether there was an actionable private nuisance had to be resolved. It strikes me as a particularly artificial test: in this sort of case, who other than a government acting under statute would be building a public road these days? But the SCC decided that in the circumstances there was actionable private nuisance because (I think) the plaintiff should not have to bear an unfair burden of the cost of this public activity.
One might query, on a rights-based analysis, whether a landowner has a right against another person that that person not divert traffic from their business. Only if that were true should the court's decision have been this way, I think. But it is an odd way to structure legislation giving compensation for public works.
Regards
Neil
Neil Foster
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