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Torts - Injurious Affection. 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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