Canadian Lawyer

REAL ESTATE Assessing the merits of injurious affection The Supreme Court is poised to provide guidance on how to address the issue of balancing public and private interests in expropriation cases. BY KEVIN MARRON D rive from the small rural community of Antrim, Ont., along what was once a busy and noto- riously accident-prone section of the Trans-Canada Highway, and you'll end up on a dirt road. Along the way, you'll pass a recently closed flea market that used to be the site of a thriving truck stop before a new stretch of highway was built along a different route. It's a scenario that is familiar to anyone who has ever strayed off a super highway onto the old road it replaced. You will often find only a few rundown motels and derelict buildings, victims of progress and monuments to the shattered dreams of once prosperous business owners — peo- ple who may not feel comfortable with the notion that their properties and livelihoods have been sacrificed for the public good. Does society owe anything to those whose property has been devalued or their quality of life impaired by a new highway, transit line, airport, sewage plant, or any other public project? It is, as Toronto envi- ronmental lawyer Dianne Saxe puts it, "a very tough issue on which the courts have dithered for many years." The case of Antrim Truck Centre Ltd. v. Ontario (Transportation) is one of several recent and current cases that suggest it is getting harder than ever for property owners to succeed in suing government agencies when they have been adverse- ly affected by public projects. In 1978, when Gail Cameron and her husband Jack bought the truck stop property on the old Highway 17 from her mother, it consisted of a small restaurant and store with gas pumps serving local traffic. The couple lived in a trailer on the property for the 20 M A RCH 2012 www. CANADIAN Lawyermag.com first few years as they built up a booming business that, by 2003, included a restau- rant, bakery, gift shop, gas bar, truck sales, and a leasing and service centre, earning $15 million in revenues and employing more than 100 people. In 2004, the old highway, known locally as "the killer high- way," was replaced by a new four-lane section of Highway 417, constructed in the interest of public safety. In anticipation of this development, the Camerons had acquired land near the new highway and were able to move the truck stop opera- tion there. But the move involved a substantial business loss and a sharp drop in the market value of the original truck stop property. The Camerons sought compen- sation from the Ontario Municipal Board for "injurious affection," a term that refers to damages that can be assessed, under pETER mITchELL

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