Injurious Affection

When part of a property is expropriated for a public project, most owners assume compensation is limited to the market value of the land being acquired. However, in situations where only a part of a property is acquired, owners may also be entitled to compensation for injurious affection. In some cases, a claim for injurious affection may arise even where no land is taken.

Injurious affection may be claimed where the value of an owner’s property has decreased because of the construction of a public project. The public project may alter the character, utility, or desirability of a property in ways that affect what a purchaser would be willing to pay for it. For example, a public project may result in increased traffic, noise, visual impacts, changes to access, reduced privacy, or the loss of landscaping and screening features. If those impacts diminish the market value of the remaining lands, the owner may have a claim for injurious affection.

The Supreme Court of Canada has recognized that property owners should not be left to bear an unfair share of the impacts associated with a public project.[1] When determining whether compensation for injurious affection is available, the question is whether the owner has experienced a greater impact than it would be reasonable to expect them to bear without compensation. The interference with the property must be both substantial and unreasonable. The threshold for determining whether an interference is substantial is relatively low, requiring more than a slight annoyance or trivial interference. The court must also determine whether the interference is unreasonable when weighed against the public benefit of the project. Impacts that unreasonably reduce a property’s value may give rise to compensation for injurious affection.

It is important to understand all potential heads of compensation available to you, and assessing a claim for injurious affection often requires careful legal analysis. If you have been contacted by an expropriating authority and you have questions about injurious affection or the expropriation process generally, contact Amy Salak, paralegal, at 604.580.7066 to schedule a free, no-obligation meeting with Doug Conolly to discuss your options.

This article is intended for general information only and does not constitute legal advice.

Article by: Tanya Motani and Douglas Conolly

[1] Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13.