One thing politicians are paid to do is to balance interests. When the City constructs a bike lane, demolishes a viaduct, licenses a food cart, blocks off a street, holds a street party, or authorizes a next door chicken coop, to come to a decision it balances the public's interest in having the thing against the private interests of those who may be adversely affected by it.
Vancouver’s left wing party, VISION, has the advantage of being certain of its own infallibility. They make one controversial decision after another, secure in the belief that whatever they do is in the public interest by definition, because they did it. They know that to make an omelet they have to break eggs. The eggs have no say. The great do what they will and the rest suffer what they must.
Not so fast
The Supreme Court of Canada has finally applied the brakes to the notion that the public interest always trumps private rights. In the unanimous decision of Antrim Truck Centre Ltd. v. Ontario (Transportation), the Supreme Court held that even where a thing is constructed for the public good, the government may have to pay those who are injuriously affected by it. It is treated as an expropriation even if no land has actually been taken. [Some things like property value changes brought about by zoning can not be the basis for compensation.] The court has put more balancing back in the required balancing of interests.
Antrim Trucking had a truck stop that was easily accessible by the road upon which it fronted. The Province of Ontario decided to widen the road and in doing so rerouted it. Antrim’s Truck Stop ended up far from the highway and was effectively put out of business.
Ontario has an Expropriation Act that provides that where the government builds something that it is expressly authorized to build, and the construction causes damage to another, the injured party can force the government to pay. Although there are subtle differences in our legislation including in our Transportation Act, British Columbia has the equivalent provision in s. 41 of its own Expropriation Act RSBC 1996, c. 125.
The Court said that interests are to be balanced by considering on one hand, interferences that constitute the give and take expected of everyone and, on the other, interferences that impose a disproportionate burden on individuals. The fact that council acted in the public interest and for the public good did not end the matter.
The question is whether the interference is greater than the individual should be expected to bear in the public interest without compensation… the focus in nuisance is on whether the interference suffered is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable.
It seems then that the legal meaning of the word “unreasonableness” has been redefined. The court does not look into whether the interference was unreasonable in light of the community standard and duration. It says now that something is unreasonable if it would be unreasonable in all the circumstances to require a person to suffer the loss without compensation.
Plaintiffs will not in every case win a claim for injurious affection to their properties. When, however, our councilors demolish the viaducts or limit access with bike lanes, it may want to think about this: If a person can show that he has suffered more than he should be expected to bear he or she may very well force the city to pay. Councilors now need to make a realistic assessment of the City's exposure in carrying out their statutory mandate.
An action would be brought in the B.C. Supreme Court under the Expropriation Act. The appraisers would battle it out. Each case will be decided on its own facts. Lawyers will argue about whether the facts in the Antrim case are the same as, or distinguishable from the law and facts in a Vancouver case, but the door is now open to a series of successful claims.