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Ontario's Expropriations Act and in simi- lar legislation in other provinces, for losses that result from an expropriation or other impacts of a public works project in situ- ations where the claimant's property has not actually been expropriated. Municipal government law specialist James Yardley, of Murdy & McAllister in Vancouver, describes injurious affection as "a basis for claiming compensation for loss or injury to land that arises from acts undertaken in the exercise of statutory authority." Claimants in such cases need to prove that their losses arose from acts that would have been considered a nuisance under common law if they had not been perpetrated by a public agency acting in the public interest. Unlike a claim of nuisance, which involves unreasonable use of land, an injurious affection claim "may arise from uses that have legitimate and perhaps essential public purposes, but produce negative impacts on other properties." But this complicated area of law con- tains what might seem to some like a catch-22. You can't claim injurious affec- tion without showing that the facts would support a claim of nuisance if a govern- ment agency had not been involved. And, since nuisance involves unreasonable con- duct, the government agency can defend itself on the grounds that its actions were useful, in the public interest, and, there- fore, reasonable. That is what happened in the Antrim truck stop case. The OMB awarded the Camerons $393,000 in damages, a deci- sion upheld by Ontario's Divisional Court. But it was reversed last year by the Ontario Court of Appeal. The claimants were granted leave to appeal to the Supreme Court of Canada in February. A key ele- ment in the appeal court's overturning of the compensation award was a find- ing that the OMB had not given enough weight to "the reasonableness of the public interest which was largely premised on the public safety aspects of the project," according to civil litigation lawyer John Doherty, a partner in Gowling Lafleur Henderson LLP's Waterloo, Ont., office. Doherty says the appeal court deci- sion has narrowed the test for assessing the merits of injurious affection claims by placing a greater emphasis on the use- ORDER # 804477-67804 $202 $181.80 Hardcover approx. 1100 pages December 2008 978-0-88804-477-8 SAVE 10%* *Offer vaild until March 30, 2012. Offer not valid in conjunction with any other offer from Carswell. fulness of the defendants' conduct. He says he's hoping the Supreme Court may provide some guidance on how to address the issue of balancing public and private interests in such cases. Since it can usually be argued that a highway project is justifi- able for upgrading and safety reasons, "what evidence would be necessary for the claimant to advance to tip the scales back on that issue," he asks. A large group of Toronto small busi- ness people whose enterprises failed during the prolonged construction of a light rapid transit line by the Toronto Transit Commission may well have rea- son to believe that they have the kind of case that should tip the scales back in favour of property owners. In a class action suit Curactive Organic Skin Care Ltd. v. Ontario, lawyers for the represen- tative plaintiff argue that 200 businesses failed during a lengthy, mismanaged, and POWERFUL GUIDANCE ON ALL ASPECTS OF COMMERCIAL LEASING SHOPPING CENTRE LEASES, SECOND EDITION EDITOR-IN-CHIEF: HARVEY M. HABER, Q.C., LSM Shopping Centre Leases has been considered the definitive resource on the subject since 1976. The expanded second edition brings you powerful guidance today. PRACTICAL SOLUTIONS TO COMPLEX ISSUES Take advantage of the expertise of Harvey Haber and 50 other top commercial leasing practitioners in Canada. This compendium of articles and precedents covers all aspects of commercial leasing including: • Technology and telecommunications concerns • Pandemic preparedness for building owners and managers • Insurance for shopping centres • Leasing aspects of the franchise relationship • Transfers of lease, assigning, subletting, and change of control • Operating costs and other additional rents in a commercial lease from a landlord's and tenant's perspective • Agreements to lease, letters of intent, and term sheets Shopping Centre Leases, Second Edition includes numerous precedents to help you draft your own agreements and a Table of Cases to help you locate the decisions you need. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® www.CANADIAN Lawyermag.com M A RCH 2012 21

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