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Municipal, Land Use and Development – Art Linton

The Supreme Court of Canada recently clarified the law of injurious affection where no land is taken in its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Unfortunately, the compound test set out by the Court has left many public sector professionals feeling uncomfortable about their ability to efficiently detect and assess potential claims without extensive legal assistance. Lawyers representing property owners in such cases often apply a simplified first pass test looking for construction that permanentlysubstantially, and disproportionately affects property values or causes personal or business damage. There is no reason that expropriating authorities can’t apply the same test to identify and mitigate the risk of unanticipated litigation expense.

The Expropriations Act (Ontario) requires an expropriating authority to compensate a landowner for reduction in market value as well as personal and business damages even where none of the owner’s land is taken. Before having an entitlement to compensation, claimants are required to prove any damage was caused by action taken under statutory authority, the damage would have given rise to liability in common law if not for the statutory authority, and the damage was caused by the construction, not the subsequent use of a public project. In most cases, it will be known whether the work was performed under statutory authority, and it will be reasonably clear whether a potential claim will arise from construction and not the use of a public work.

The legal test is complicated in practice because the Court requires that damage must be substantial and unreasonable. These terms are intentionally broad to permit consideration of the particular circumstances of each public project. The determination of what is substantial and unreasonable is subject to the moving target of Ontario Municipal Board and court decisions on various fact sets that come before them over time. Further, the legal test considers whether any damage to a property is, or is not, the kind of damage a property owner should be prepared to accept without compensation. An experienced expropriation lawyer is the best choice to conduct this legal analysis.

Public officials should diligently apply the simplified first pass test early in each project to identify potential claims and refer them for legal analysis. An experienced expropriation lawyer can then apply the full legal test set out by the Supreme Court to advise whether a potential claim is likely to materially affect the cost of a project. If serious potential claims are identified before construction begins, more time and options are available to mitigate liability and manage cost.

One illustration is a single business located on a short dead end side street off a main traffic artery. Vehicles travelling in either direction on the main road are able to reach the business using a left or right hand turn. Access to that business would clearly be affected by any permanent obstacle, such as a concrete safety barrier or a raised LRT service in the median of the main road. All customers who previously accessed that business by making a left hand turn off the main road would be prevented from doing so. An application of the simplified test would show likely permanent, substantial, and disproportionate affect from the construction, visited upon this single business. Early recognition of this problem might allow solutions like a left hand turn lane with permitted U-turns at the next intersection or opening a new access at the other end of the short dead end street.

The simplified first pass test is no replacement for a thorough strategic review of every project prior to construction. However, early detection of potential claims provides time to offer remedies that may not be available once a plan is approved and to make other reasonable efforts to reduce the impact of the project on affected property owners.

Art Linton is a lawyer with Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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In October, 2013, the Supreme Court of Canada dismissed an appeal from a SorbaraLaw victory at the Court of Appeal of Ontario marking the successful end of a long process for our client’s family.

Back in February, 2011, Greg Murdoch, a partner in charge of Sorbara Law’s litigation Group, and Steve Kenney, counsel to the firm, obtained a significant Judgment in a medical malpractice action involving the misdiagnosis of an aortic dissection in a pregnant woman. The trial took place over five weeks in the fall of 2010. The Supreme Court’s decision affirmed the win at trial.

Our client, Christine Manary, was 28 years old and 32 weeks pregnant with her first child when she attended Grand River Hospital in August of 2003 with significant radiating chest pain. On admission, her symptoms in addition to the severe chest pain included an unusual heart murmur and were considered to be consistent with either a pulmonary embolism (blood clot) or an aortic dissection (a tearing of the inner lining of the artery). The doctors caring for Christine downplayed the possibility of a dissection because of her age. Christine died nine days later when the dissection ruptured on the day she was to be discharged. Fortunately, her daughter was delivered by caesarian section and survived without any adverse consequences.

During her admission, Christine had numerous diagnostic tests which suggested a pulmonary embolism was not the cause of her symptoms. Diagnostic imaging in fact disclosed that Christine had a dangerously large aortic aneurysm which is a bulging of an artery. The significance of this symptom and the danger it imposed and how it might relate to Christine’s symptoms was not acknowledged.

The Court reviewed Grand River Hospital’s policy of assigning a most responsible physician for each admitted patient.

For obstetrical patients, the obstetrician is the most responsible physician. The MRP is responsible for writing and clarifying orders, providing a plan of care, obtaining consultations as appropriate and coordinating the care of the patient.

The Court agreed with SorbaraLaw’s submissions that the obstetrician in this case failed to discharge his duties as most responsible physician because he focused only on Christine’s obstetrical issues and let other non-cardiac specialists deal with Christine’s cardiac issues. The obstetrician failed to exercise independent critical judgment when an alternative diagnosis to pulmonary embolism should have been pursued.

The Court preferred the evidence of the vascular surgeon called on behalf of Christine who testified that if Christine’s condition had been recognized for its seriousness, she could have had surgery within hours.

The obstetrician appealed the decision to the Ontario Court of Appeal which affirmed the trial Judge’s decision noting that an MRP must exercise independent critical judgment when assessing a patient and consulting with other specialists.

A motion seeking leave for a further appeal to the Supreme Court of Canada was denied.

Medical malpractice cases are extremely challenging and always hard fought battles. This is a significant achievement for our client. Congratulations to the SorbaraLaw litigation team!

Article written by
Cynthia Davis,
B.A. (Hons), LL.B. was called to the Bar in 2007 and is a member of SorbaraLaw’s litigation group. Cynthia works out of the Waterloo office.

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