Antrim and Antonakos: Similar facts, different outcome

Same project.  Similar facts.  Very different result. 

In the early 2000s, the Province of Ontario built a stretch of new highway outside of Ottawa. This became part of Highway 417 and runs parallel to, and in some cases effectively replaces, old Highway 17. This infrastructure project led to the Supreme Court of Canada's leading no-land taken injurious affection decision in Antrim Truck Centre Ltd. v. Ontario (Transportation) ("Antrim").^[1] Almost ten years later, the Ontario Land Tribunal decided another case resulting from this project: Antonakos v. Ontario (Transportation) ("Antonakos").^[2]

At first glance, it appeared that the outcome of Antonakos would be similar to that of Antrim. The facts of the two cases are strikingly similar:

• Both cases dealt with properties along the same stretch of old Highway 17.
• Both cases saw significant reductions in passing traffic as motorists were diverted along new Highway 417.
• Both cases dealt with service stations that closed down. 

Despite this, the two outcomes were quite different. Rather than obtaining substantial compensation as a result of the construction of Highway 417 (as occurred in Antrim), the claim in Antonakos was dismissed in its entirety.   

The proximity and similarity of the two properties is illustrated in following annotated aerial photo.

In cases where a property is affected by the construction of roadworks, but there is no expropriation, Ontario's Expropriations Act, R.S.O. 1990, c. E.26 (the "Expropriations Act") allows compensation for such injurious affection provided that the damages arose from the construction and not the use of the works. 

Antrim and Antonakos demonstrate how this provision can result in what may be considered unfair outcomes when it is interpreted on a strict or technical basis. The key difference between the two cases appears to be that, in Antrim, the construction altered the stretch of old Highway 17 abutting the affected property, while in Antonakos, the construction of Highway 417 created a new route for highway users, but did not significantly alter the existing road used to access the affected property. 

Accordingly, in Antrim, it was the construction that interfered with access to the land and resulted in compensable damages. In Antonakos, however, it was the use of the new highway, and not its construction, which affected the claimants' property, so no compensation was awarded. 

While this distinction offers a coherent explanation for the very different outcomes in Antrim and Antonakos, this may provide cold comfort to claimants viewing the results from a fairness or justice focused perspective. From such a perspective, the salient point is that two very similar properties and businesses were severely impacted by the creation of the same stretch of Highway 417 because the majority of motorists will no longer drive by either property. 

The outcome in Antonakos is reminiscent of the much maligned Wilson v. London (City) decision which imported the English "Edwards Rule" for injurious affection cases where land is taken. The "Edwards Rule" provides that compensation for injurious affection under section 1(1)(a)(i) of the Expropriations Act is limited to damages arising from construction on the land taken, and not from the project more generally.^[3] This rule, now overturned in England, is considered to be "contrary to the remedial spirit of the Act" and as noted in the words of the Divisional Court nor has it 'been subjected to the in depth analysis epitomized by Dell Holdings Ltd. v. Toronto Area Transit Authority (1997), 60 L.C.R. 81 (SCC).^[4]  Antonakos similarly suggests a standard which seems to strongly depart from the Act's remedial spirit.

Antrim: Injurious affection resulting from the construction of Highway 417

Antrim is one of the key decisions under Ontario's Expropriations Act. In Antrim, the Supreme Court of Canada clarified the legal framework and test for compensation in cases where no land is taken, but injurious affection still results from activities undertaken by a public authority. 

Section 21 of the Expropriations Act states that owners shall be compensated "for loss or damage caused by injurious affection." Section 1(1)(b) explains that in cases "where the statutory authority does not acquire part of the land of an owner" injurious affection means "(i) such reduction in the market value of the land of the owner, and (ii) such personal and business damages, resulting from the construction and not the use of the works by the statutory authority." Section 22(1) requires that claims for such compensation be made "within one year after the damage was sustained or after it became known to the person." 

As set out in Antrim, injurious affections occurs in no land taken cases when:^[5]

1. Damages result from an action taken under statutory authority.
2. The action would give rise to liability except for the fact that it was taken by a statutory authority.
3. The damage results from the construction rather than the ultimate use of the work.

In Antrim, the appellant landowner operated a truck stop complex on Highway 17 with a restaurant, gas station, bakery, gift shop, and truck centre (the "Antrim Truck Centre"). In September 2005, the Ministry of Transportation ("MTO") opened a new section of Highway 417 running parallel to Highway 17. As a result of significant changes to accommodate the new section of Highway 417, Highway 17 became a dirt road two kilometres east of the Antrim Truck Centre, severely and permanently reducing traffic passing the truck stop. Motorists travelling on Highway 417 no longer had direct access to the Antrim Truck Centre. Instead, they had to take a long and circuitous route along other roads. These changes effectively put the Antrim Truck Centre out of business.^[6]

The construction of Highway 417 severely restricted access to the Antrim Truck Centre,^[7] and the Supreme Court upheld an award of the then Ontario Municipal Board allowing compensation of $58,000 for business losses and $335,000 for loss in market value of the land. The Supreme Court found that it was reasonable to conclude that in all of the circumstances, the appellant should not have been expected to endure permanent interference with the use of its land that caused a significant diminution of its market value in order to serve the greater public good.

Antonakos: Impacts resulting from the use of Highway 417

Before the release of the Ontario Land Tribunal's decision, an observer may reasonably have predicted that Antonakos would be decided much like Antrim. Indeed, the property at issue in Antonakos is only a short distance down the road from the former Antrim Truck Centre and had a similar use.^[8] 

In Antonakos, the claimants owned two abutting parcels of land.  One parcel was leased to a gas station called Mr. Gas that serviced motorists using Highway 17. In April 2001, Mr. Gas informed the claimants that it would not renew its lease due to the planned construction of Highway 417.^[9] Using similar language to the Supreme Court in Antrim, the Tribunal observed that "as a result of the construction, Highway 17 was significantly altered with Highway 17 effectively turned into a dirt road a few kilometres from the two [Antonakos] properties."^[10]

While construction had not yet commenced, on June 12, 2002, the claimants sent a notice to the MTO stating that they would be making a claim regarding the reduced traffic as a result of the new highway.^[11]  The claimants provided further particulars of their claim on November 1, 2006. On July 9, 2008, the MTO informed the claimants that no compensation was owing. The parties then agreed to hold the matter in abeyance pending the outcome of Antrim.^[12] 

            (a)        The access issue

In a departure from Antrim, (and in a strategic move ultimately rejected by the Tribunal) the claimants in Antonakos sought compensation for injurious affection under section 1(1)(a) of the Expropriations Act, arguing that access to their property was an interest in land that had been taken.^[13] (Antrim, as noted above, was always treated as a no land taken case, and the claim therein fell under section 1(1)(b)).

The Tribunal found that access to the claimants' property had not been taken. While, after the construction of Highway 417, accessing the property required motorists to take a different route, this was not a barrier to access. Similarly, while the traffic that formerly travelled past the property will now likely travel along Highway 417, this does not amount to taking an interest in the claimants' land.  Accordingly this case properly fell under section 1(1)(b).^[14] 

Despite the striking factual similarities to Antrim, the Tribunal also found that the claimants did not meet the test for injurious affection under section 1(1)(b). The Tribunal reasoned that access to the claimants' property continued to exist, and that the reduction in traffic was a result of the use, rather than the construction, of the new highway.^[15] It seems trite to note here that without the construction of the new highway route, traffic levels were unlikely to be reduced. In making this finding, the Tribunal observed that the property in Antonakos was located two kilometres farther west of the Antrim Truck Centre, and that while old Highway 17 became a dirt road in Antrim (such that the Antrim Truck Centre fronted a dirt road), old Highway 17 remained paved in the vicinity of the property in Antonakos.^[16] 

The Tribunal also observed that Mr. Gas closed before the construction began, while the Antrim Truck Centre closed during the construction.^[17] While the Tribunal implies that this supports a finding that the damages were sustained due to the use of the work (i.e. due to the predicted decrease in traffic), it is not clear that this is the case, when the closure of Mr. Gas occurred years before motorists began using new Highway 417. 

In reaching this decision, the Tribunal was clearly concerned about protecting the public purse, observing that if the Claimant's position was adopted "then it could be argued that all property owners along old Highway 17 between Arnprior and County Road 20 would have had actionable claims as well. The costs to the public purse for such a finding, particularly as it might inform claims with respect to future road/highway projects, would be unmanageable."^[18] 

While the Tribunal did not identify this policy in its determination of the second, limitation period issue, it bears consideration whether the same policy lies behind the outcome on that issue as well.

            (b)       The limitations issue

Ultimately, the Tribunal drove a final nail into the coffin of this claim by finding that the claim was statute barred for failing to meet the section 22(1) one year limitation period for providing notice of an injurious affection claim. The Tribunal's reasoning on this point lacks clarity, and highlights the difficulty for landowners in determining when notice should be given. 

Section 22(1) of the Expropriation Acts provides that "a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person" failing which "the right to compensation is forever barred"^[19] [emphasis added]. 

In its decision, the Tribunal references the explanation in Calgas Investments Ltd. v. York (Regional Municipality) ("Calgas") that "known" in section 22(1) refers to a "real apprehension of the damages flowing from the construction" and that section 22(1) does not refer to knowledge of the construction itself but to knowledge that the construction "had caused or would cause damage to the remaining lands."^[20]

Construction of new Highway 417 started after June 12, 2002 and was completed in September 2004.  As mentioned above, the claimants provided notice of their claim on June 12, 2002. They also provided further particulars of their claim on November 1, 2006. The claimants submitted that they became aware of damages flowing from the construction on October 1, 2001, the day after Mr. Gas's lease came to an end and the property was no longer tenanted.^[21]

In a cursory analysis of the limitation period issue, the Tribunal found that neither of the claimants' communications provided notice as required by s. 22(1). First, the Tribunal rejected the June 2002 letter finding that because it pre-dated the construction and any damages related to the construction it could not be written notice thereof.^[22] Second, the Tribunal rejected the November 1, 2006 letter because it was provided more than one year after the completion of construction.^[23]

This reasoning suggests that there is a bright-line test under section 22(1) such that any notices sent before construction commences and any notices sent more than one year after construction ends can never be a proper notice. This simplified view is inconsistent with the reasoning that the Tribunal quoted from the Calgas decision. 

For example, it is possible for damages to arise due to the construction, and for a claimant to know of this damage over a year before the construction commences (and thus be required by section 22(1) to provide notice before construction commences). It is also possible that a claimant might not know that it has sustained damage until after the construction has ceased (which would enable a notice to be provided more than one year from the date construction ends). 

It appears that the Tribunal was alive to the first possibility, as it went on to consider when the claimants "ought to have known of any potential damages" caused by the construction.^[24] The Tribunal determined that the claimants became aware of the damages that they would sustain on April 4, 2001, when Mr. Gas gave notice that it did not intend to renew its lease due to the planned construction of the new highway. The June 12, 2002 letter was sent more than a year after April 2001, so the one year deadline was also missed in this regard. 

The first issue with this approach is that the application of a "knew or ought to have known" test (the general test for civil claims under the Limitations Act, 2002)^[25] is potentially inconsistent with the "real apprehension" test set out in Calgas, which seems to aim at actual knowledge, not inferred knowledge.  Indeed, the authors have found only one other case where a "knew or ought to have known" test has been applied under section 22(1).^[26] Similarly, the authors have not seen the "real apprehension" test employed in decisions under section 5 of the Limitations Act, 2002.

The second issue is that there is a lack of analysis supporting the Tribunal's choice of Mr. Gas's April 4, 2001 letter as the point at which the test was satisfied. There are a number of points in time when the claimants might have first formed a real apprehension that the construction would cause them damages:

1. When the construction was announced.
2. When Mr. Gas informed the claimants that it would not renew its lease.
3. When Mr. Gas's lease expired and the claimants had not found a new tenant.
4. When, after a certain period had elapsed after the lease expiry, no new tenant had been found.
5. When the claimants received legal advice that they had a potential claim.
6. When the construction commenced.
7. When the construction concluded. 

Despite this long list, there was no analysis in the Tribunal's decision as to why the second event on this list, rather than any of the others, was the moment when the claimants knew that the construction would cause them to suffer damage. This is a striking omission given the principle that "if any doubt exists as to when the fact of injurious affection became known to a claimant, such doubt must be resolved in favour of the claimant."^[27]

(Interestingly, there is also a lack of consideration as to whether the MTO suffered any prejudice as a result of the timing of the claimant's communications).

It is possible that in other cases the "real apprehension" will not arise until much later, perhaps not until construction is completed and the road opened. 

This is also a striking omission given that the loss complained of (loss of access rather than the loss of Mr. Gas as a tenant) did not become permanent until the completion of the construction. Until that point, the claimant's complaint regarding loss of access was merely anticipatory, and did not crystalize until the new highway opened and the traffic passing by was permanently reduced. Ironically, the Tribunal decided the merits of the case based on the loss of access issue, but seems to have decided the limitations issue based on the loss of the tenant. 

Of greater interest, the Tribunal's approach seems to be inconsistent with the test for discoverability under section 5(1) of the Limitations Act, 2002, which provides that a claim is discovered on the earlier of the day that the person with the claim first knew, or ought to have known:^[28]

(i) That the injury, loss or damage had occurred.

(ii) That the injury, loss or damage was caused by or contributed to by an act or omission.

(iii) That the act or omission was that of the person against whom the claim is made.

(iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

Notably, the general limitation period under the Limitations Act, 2002 does not begin to run until the injury, loss, or damage has occurred and this occurrence was known (or ought to have been known) by the injured party.^[29] The use of the word "had" in section 5(1)(a)(i) indicates that for the limitation period to run, the injury must have occurred. Mere anticipation of damages does not appear to be sufficient to trigger the limitation period in the civil context. 

Contrary to the approach taken in the Limitations Act, 2002, the Tribunal's decision in Antonakos suggests a disjunctive test asking whether the claim "was made within one year after the damage was sustained or after it became known to the person" [emphasis added]^[30] such that damage may become known (and the limitation period begin to run) before it was sustained.

This is borne out in the Tribunal's reasoning that:

1. The damage could only have been sustained while construction was ongoing.^[31]
2. That the claimants ought to have known of the "potential damages" when they received Mr. Gas's letter dated April 24, 2021
3. Therefore the limitation period began to run (and indeed expired) before construction commenced.^[32] 

This application of section 22(1) imposes an unduly onerous standard, and subverts the intention of the "or after it became known" language. The authors suggest that this language is intended to start the limitation period later in cases where claimants do not apprehend the injury until after it is sustained, and not to start the limitation period earlier when an injury is apprehended but before it is sustained. 

This suggested interpretation is in keeping with the principle from Dell Holdings Ltd. v. Toronto Area Transit Operating Authority that "the Expropriations Act is a remedial statute" that "must be given a broad and liberal interpretation consistent with its purpose."^[33]

Overall, the Tribunal's approach appears to be a departure from the once prevailing view "that section 22 should only be invoked to bar a claim in the clearest of circumstances."^[34] While we note that the Tribunal is not bound by stare decisis, the authors suggest that Antonakos must be read with caution as a precedent on the interpretation of section 22(1).

Conclusion

Contrary to the Tribunal's initial analysis relating to the construction period, the reasoning from the Calgas decision suggests that there is no bright line for the start of the one year limitation period and that the section 22(1) analysis is highly dependent on the facts of each case. In some cases, there will be a "real apprehension" that the construction will cause damage as soon as the construction is announced, even if construction does not take place for some time.  

This possibility pushes landowners with potential claims to provide notice earlier rather than later. However, the Tribunal's comment, in Antonakos, that the June 12, 2002 letter was both too early and too late puts even further pressure on potential claimants to carefully time their section 22(1) notices. 

For property owners and practitioners alike this presents a problematic situation where, despite the potential inconsistency of such an approach with the wording of the section 22(1) test, an authority may attempt to avoid liability by attacking a section 22(1) notice from both sides. 

While the limitation period issue decided the Antonakos case, the Tribunal determined that, in any event, no compensation would have been owing for injurious affection (for the reasons outlined above). 

The key fact distinguishing Antonakos from the very similar case of Antrim appears to be that the portion of Highway 17 abutting the property in Antrim was altered while the portion of Highway 17 abutting the property in Antonakos was not. While this may justify the very different results on a strict reading of the injurious affection test, it may fail to duly consider what, at root, occurred in both cases: two gas stations closed because traffic was re-routed along a new highway, but only one closure resulted in compensation. 

One is left to wonder: was this a fair outcome and was the indemnity principle which underlies the Expropriations Act followed, as set out by the Supreme Court of Canada in Dell Holdings? As no appeal was taken from the decision, the question remains open for debate.