A Brief Explanation of Damages for Injurious Affection in Ontario Expropriations

Owners, renters or mortgage holders of land that is expropriated in Ontario may have the right to claim four main types of compensation. These include fair market value, damages attributable to disturbances, damages for injurious affection and special damages related to relocation.

Of the different types of compensation, damages for injurious affection can be relatively difficult to understand and determine. If the property in which you are a stakeholder is expropriated, and you want full compensation, it is important for you to get a better appreciation for the damages you may be entitled to due to injurious affection.

Defining ‘Injurious Affection’

Considering that the word ‘injury’ can mean ‘damage’, the term injurious affection refers to the damage to a landowner’s property and/or the landowner’s ability to use the property. Stakeholders in a property can suffer injurious affection if only a portion of the land is expropriated or even if their property is not expropriated.

What are Damages for Injurious Affection?

Section 1 of the Ontario Expropriations Act (OEA) outlines the requirements that claimants must satisfy before being compensated for damages due to injurious affection.

The OEA states:

“injurious affection” means,

(a) where a statutory authority acquires part of the land of an owner,

(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,

(b) where the statutory authority does not acquire part of the land of an owner,

(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, as the statutory authority would be liable for if the construction were not under the authority of a statute,

and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired;

Examples of Damages for Injurious Affection

A practical example of damages that may be due to injurious affection, where part of a property is expropriated, is a case where the expropriated portion of the land interferes with the landowner’s ability to access the remaining portion of the land.

An example of damages for injurious affection where a landowner’s property is not expropriated is a case where the activities of an expropriating authority, like building a highway, interferes with the operation of a business on another property. In such a case, the business owner may be entitled to business losses suffered while the highway is under construction.

To learn more about your rights in an expropriation, including the compensation you can expect for damages for injurious affection, contact us here at Bisceglia & Associates to schedule a no-charge consultation.