Perils of Proving Injurious Affection
Recovery of damages for injurious affection is a fundamental part of the basket of claims afforded to owners impacted by a partial taking. Conceptually, injurious affection seems straight-forward enough: the decrease in the value of remaining lands caused by a partial taking. However, as Frank Sperduti of BLG suggests and as recent case law demonstrates, it is dangerous to take claims for injurious affection for granted, and proving injurious affection presents a critical challenge.
In Re Ammouri (2008) 95 LCR 59, the Ontario Ministry of Transportation expropriated approximately 7 percent of a 2.25 hectare vacant parcel to facilitate the widening of Highway No. 10 from three lanes to five lanes betweenBrampton and Orangeville. The Board determined that the value of the taking was $15,000, and the owner claimed an additional $70,775 for injurious affection to the remaining property, as documented in two different appraisal reports. The Board scrutinized the appraisals and found that both reports were flawed in that they presumed there was injurious affection and then went on to calculate the extent of it rather than setting out to prove there was any damage at all.
The Board ultimately found that the taking had not altered the shape of the remaining property or significantly reduced its size, nor was future development of the property hindered by the taking. The Board could see no ongoing damage to the remaining property and thus denied the claim for damages, with Member J.R. McKenzie declaring: “Injurious affection is not axiomatic as a consequence of a taking.”
Similarly, in Henery v London (City) (2010), 100 LCR 297 (OMB), the Board rejected a claim for injurious affection allegedly resulting from the expropriation of a 990 square-foot temporary easement from a residential site to facilitate a road widening project. The easement persisted for 21 months, and upon expiration it was returned to the owners unaltered. In fact, it was not clear that the City had even used the temporary easement area at all. Nonetheless, the claimants asserted that the taking and the road project had permanently reduced the market value of their remaining property by $35,650.
The theory of the claimant’s case was that (a) there is little difference in the degree of injurious affection to the remaining lands whether the taking is a temporary easement or a fee simple strip widening; (b) the roadway in question was busier as a result of the improvements thereto; (c) the owners “bundle” of rights was diminished by virtue of the widening of the road – notwithstanding none of the claimant’s lands were required for the widening other than the TLI; and (d) the remaining lands would suffer from long-term stigma and a diminution in value arising as a “spill over” effect from the decrease in value caused to neighbouring properties that suffered fee simple takings. The Board categorically rejected each of the claimant’s arguments, distinguishing TLI takings from fee simple takings for the purposes of assessing injurious affection. The Board concluded there was simply not enough evidence of a decrease in value arising from the temporary taking, and that the increased traffic and its associated adversities “led to the expropriation and were not the result of the expropriation”. The Board did award the sum of $1,500 for injurious affection for personal damages during construction.
Interestingly, the Board stopped short of deciding whether the infamous “Edwards Rule” – which requires that a portion of the alleged offending works be constructed on the land taken – applied in the circumstances of the case. The Board held that:
“the onus is on the Claimants to prove that the value of the subject property has been permanently diminished by the acquisition of the easement… [T]he Claimants have not proven the loss and therefore the Board does not need to determine whether “Edward’s Rule” is applicable in this case.”.
Successful claims for damages for injurious affection in “no land taken” cases raise a completely separate and distinct set of challenges, as has been demonstrated by the Ontario Court of Appeal’s recent decision Antrim Truck Centre Ltd. v. Ontario (Transportation), (2011), 323 D.L.R. (4th) 641 (Ont. C.A.). A discussion of that case, and those leading up to it, is beyond the scope of this paper. What is critical to note for the present purposes is that, even in “land taken” cases, there is no presumed entitlement to damages for injurious affection. Both Henery and Ammouri demonstrate that the evidentiary burden to prove a permanent loss in value is not diminished simply because part of the claimant’s land was expropriated.