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Torts - Injurious Affection. Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent
In Erie Shore Drive Property Owners Association et al. v. The Corporation of the Municipality of Chatham-Kent (Ont Div Ct, 2025) the Ontario Divisional Court considered 'injurious affection' as a statutory tort:[76] Subsection 79(1) of the Act establishes a statutory right to compensation. When a person is affected by the condition of a drainage works arising from a municipality’s failure to maintain or repair that drainage works, then the “municipality is liable in damages to the owner whose property is so injuriously affected.”
[77] The Applicants submit that the phrase “injuriously affected” in s. 79 has no relationship to the legal principle of “injurious affection”. Instead, the Applicants submit that the phrase “injuriously affected” refers to the harm to a property attributable to the condition of a municipal drain that has not been maintained in good repair as specified in the applicable most recent engineer’s report. The Applicants’ view that a municipality is strictly liable for damages under s. 79 of the Act is supported by Ward v. Southwest Middlesex (Municipality), 2013 ONSC 4975, at paras. 134-135.
[78] The Municipality submits that:Property owners along the shoreline of Lake Erie have no actionable tort claim (nuisance, negligence, trespass) for damages against anyone for damage caused by Lake Erie flooding from rising water levels, storm surge and wave uprush or from the action of Lake ice or from erosion, all of which have been and are exacerbated by climate change. It is not the purpose of Section 79 to create an actionable claim for damages for injurious affection where no common law tort claim would otherwise exist but for the statutory authority of the Act; and section 79 of the Act should be interpreted accordingly. [79] The Municipality submits that “injuriously affected” has the same meaning as “injurious affection” as was the case in R. v. Loiselle, 1962 CanLII 72 (SCC), [1962] S.C.R. 624. In Loiselle, s. 18(3) of the St. Lawrence Seaway Authority Act, R.S.C. 1952, c. 242, required that the Authority “pay compensation for … lands injuriously affected by construction of works erected by it”. Like the Act, the St. Lawrence Seaway Authority Act does not define the phrase “injuriously affected”. However, the Supreme Court of Canada found that the following conditions are required to give rise to a claim for injurious affection to a property when no land is taken applied to determine when land was “injuriously affected”:(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 common law, but for the statutory powers (the “Actionability Requirement);
(3) the damage must be an injury to the land itself and not a personal injury or an injury to business or trade; and
(4) the damage must be occasioned by the construction of the public work, not by its user. [80] A claim for injurious affection when no land is taken is meant to provide a remedy for a nuisance claim in tort that “would otherwise be barred by the common law defence of statutory authority because the alleged injury is an inevitable consequence of construction of a work authorized by statute and done without negligence”: see Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, at para. 29, aff’d 2012 ONCA 81; Wildtree Hotels v. Harrow London Borough Council [2000] 3 All ER 289, at p. 294 (H.L.).
[81] However, unlike the St. Lawrence Seaway Authority Act which establishes a right to compensation for damages arising from the construction of a seaway, liability under s. 79 of the Act is in respect of damages arising from the failure to maintain or repair a drainage works. As noted above, the defence of statutory authority only applies to damages occasioned by the construction of a public work and not by its user. The Actionability Requirement cannot be incorporated as one of the requirements for establishing a claim under s. 79 of the Act when all other requirements to establish a claim for injurious affection are not satisfied.
[82] The phrase “injuriously affected” is not used elsewhere in the Act. However, the phrase “injuriously affect” is used in s. 49 of the Act, which reads:Where the proposed drainage works is to be undertaken within a watershed in which a conservation authority has jurisdiction, the authority may appeal from the report of the engineer to the Tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under subsection 46 (2). [Emphasis added.] [83] As used in s. 49 of the Act, the phrase “injuriously affected” has no relationship to the law of injurious affection. This phrase should be interpreted consistently in the Act. In my view, having reference to the Concise Oxford dictionary definition of “injurious”, the phrase “injuriously affected” as used in s. 79(1) of the Act means to hurtfully impact.
[84] I conclude that the Referee did not err in finding that liability under s. 79 of the Act is strict. . The Corporation of the City of Windsor v. Paciorka Leasehold Limited
In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court sets out some basics of Ontario expropriation law, including the right to 'injurious affection':Expropriations Act
[6] The Expropriations Act governs the expropriation of private property in Ontario. Public authorities are required to compensate landowners in accordance with the provisions of the Act.
[7] Section 3(2) of the Expropriations Act provides that landowners are entitled to compensation for, amongst other things, the market value of the land, damages attributable to disturbance and damages for injurious affection.
[8] Section 14(1) of the Act defines “market value” as “the amount the land might be expected to realize if sold in the open market by a willing seller to a willing buyer”. When determining the market value of the lands, section 14(4)(b) of the Act prohibits accounting for “any increase or decrease in the value of the land resulting from the development or the imminence of the development in respect of which the expropriation is made or from any expropriation or imminent prospect of expropriation”. This principle is typically referred to as “screening out” the expropriation scheme.
[9] Damages for injurious affection may be available where the public authority only acquires part of a landowner’s lands. Section 1(1) defines “injurious affection” as follows:(i) 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
(ii) 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… [10] Section 33(1) of the Expropriations Act provides that a 6% interest rate is payable on the market value of the expropriated property and the amount of damages for injurious affection “calculated from the date the owner ceases to reside on or make productive use of the lands”.
[11] Where the public authority and the landowner do not agree on the compensation for an expropriation, the LPAT has authority to determine the amount of compensation.[1]
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