T-1778-83
Fulvia Acciaroli, Ezio Acciaroli, Iva Acciaroli and
Elaine Acciaroli (Plaintiffs)
v.
The Queen (Defendant)
T-1779-83
Emidio Masi, Rita Masi, Raymond Masi and
Louis Masi (Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS: ACCIAROLI V. CANADA
Trial Division, Martin J.—Hamilton, November 2,
3, 4, 5 and 6, 1987; Ottawa, March 31,1988.
Crown — Torts — Nuisance — Construction and operation
of airport extension next to residential properties — Whether
actionable nuisances due to noise, dust, dirt, foul smells,
alteration of neighbourhood and inconvenience due to closure
of road to city.
Crown — Torts — Injurious affection where claimants'
lands not taken — Construction and operation of airport
extension next to residential properties — No remedy for
injurious affection where not expressly or impliedly provided
for by statute.
The Hamilton Civic Airport had to be expanded to satisfy
increased demand. A new tower and a longer runway and
taxiway were built. Construction began in 1983 and was sub
stantially completed by July 1985. The new runway was not
used until May 1986. The plaintiffs resided in Ancaster which
is within the Regional Municipality of Hamilton-Wentworth.
Before the expansion, the Acciaroli house was 500 m from the
nearest airport boundary and 900 m from the nearest runway.
After the expansion, the distances were 9 m and 360 m respec
tively. The Masi house, before the expansion, was 400 m from
the nearest boundary and 750 m from the nearest runway.
After the expansion, the distances were 500m and 950 m
respectively. Also, the more direct road to Hamilton was closed
off resulting in a 6 km detour for the plaintiffs to get
downtown.
The plaintiffs seek damages in nuisance arising out of the
construction and operation of the extension to the airport or,
alternatively, for injurious affection to their properties resulting
from the construction and proposed use of the extension to the
airport on expropriated lands adjacent or close to the plaintiff's
houses.
Held, the action should be dismissed.
The claim in nuisance covers all actionable nuisances, includ
ing those arising out of the operation of the airport. The
nuisances complained of by the plaintiffs herein—increasec
noise, dust and dirt during construction, change in the charac
ter of the neighbourhood, loss of access due to road closure,
increased noise, vibrations and foul smells from aircraft—are
not actionable nuisances. If they were, they arose out of the
construction of the airport, which had been authorized by
statute, rendering lawful, and therefore not actionable, the acts
of which the plaintiffs complain. Furthermore, even if the noise
due to the operation of the airport were an actionable nuisance..
the defendant is not liable therefor because the operation of the
airport is not in the hands of the defendant. Finally, noise
impact studies conducted by Transport Canada at the airport
and at the plaintiffs' houses in accordance with widely recog
nized criteria, revealed that the noise disturbance level at the
Masi residence had actually decreased and only marginally
increased at the Acciaroli residence. Such a marginal increase
is not enough to constitute a nuisance.
The claim for injurious affection is limited to damages
flowing from the construction of the airport, and not from its
operation. However, this claim must also be dismissed: compen
sation for injurious affection could have been awarded only if it
had been provided for by legislation, but there was nothing to
that effect in any legislation applicable herein. While the
Federal Court Act does refer, in section 17, to claims for
injurious affection, that provision is purely jurisdictional.
Although it may have been otherwise in previous legislation,
now all the statutory provisions for compensation and for
determining value are contained in the Expropriation Act,
which does not provide for compensation for injurious affection.
The case of Imperial Oil Ltd. v. The Queen, a Supreme Court
of Canada decision, is of no assistance to the plaintiffs. It
stands for the proposition that a land owner is entitled to
compensation where his land is injuriously affected by the
construction of a public work if the legislation shows an inten
tion on the part of Parliament that he should be compensated in
such circumstances.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Aeronautics Act, R.S.C. 1970, c. 3, s. 3.
Exchequer Court Act, R.S.C. 1927, c. 34, s. 19.
Expropriation Act, R.S.C. 1927, c. 64, s. 23.
Expropriation Act, R.S.C. 1952, c. 106, s. 23.
Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16, ss. 23,
24.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17.
Navigable Waters Protection Act, R.S.C. 1952, c. 193.
St. Lawrence Seaway Authority Act, R.S.C. 1952, c. 242,
s. 18(3).
The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict.,
c. 18, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Loiselle, [1962] S.C.R. 624; St. Pierre et
al. v. Ministry of Transportation and Communications
(1983), 28 L.C.R. 1 (Ont. C.A.); St. Pierre v. Ontario
(Minister of Transportation and Communications),
[1987] 1 S.C.R. 906; (1987), 75 N.R. 291; Walker et al.
v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R.
(2d) 35 (H.C.); The King v. MacArthur (1904), 34
S.C.R. 570; The King v. Carrières De Beauport (1915),
17 Ex.C.R. 414; Sisters of Charity of Rockingham v.
The King, [1922] 2 A. C. 315; 67 D.L.R. 209; [1922] 3
W.W.R. 33 (P.C.).
DISTINGUISHED:
Hagel and Hagel v. Municipal District of Yellowknife
and Board of Trustees for Yellowknife and Board of
Trustees for Yellowknife Public School District No. I
(1962), 35 D.L.R. (2d) 110 (N.W.T.C.A.); Toronto
Transportation Commission v. Village of Swansea,
[1935] S.C.R. 455; [1935] 3 D.L.R. 619; Prentice v. City
of Sault Ste. Marie, [1928] S.C.R. 309; [1928] 3 D.L.R.
564; Forster v. City of Medicine Hat (1913), 9 D.L.R.
555 (Alta. S.C.); Windsor (City of) v. Larson et al.
(1980), 20 L.C.R. 344 (Ont. Div. Ct.); The King v.
Lawson & Sons Ltd., [1948] 3 D.L.R. 334 (Ex. Ct.); The
King v. Woods Mfg. Co. Ltd., [1949] Ex.C.R. 9; Jolliffe
v. Exeter Corpn., [1967] 1 W.L.R. 350 (Q.B.D.).
CONSIDERED:
Imperial Oil Ltd. v. The Queen, [1974] S.C.R. 623;
(1973), 35 D.L.R. (3d) 73.
COUNSEL:
Roger D. Yachetti, Q.C. and Aldo P. Berlin-
gieri for plaintiffs.
Charlotte A. Bell and Marlene Thomas for
defendant.
SOLICITORS:
Yachetti, Lanza & Restivo, Hamilton, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MARTIN J.: The plaintiffs in these actions con
sist of two families, the Acciarolis and the Masis,
who have taken action against the defendant for
damages in nuisance arising out of the construc
tion and operation of the extension to the Hamil-
ton Civic Airport or, alternatively, for damages for
injurious affection caused to their properties as a
result of the construction and proposed use of the
extension to the airport on expropriated lands
adjacent or close to the homes owned by the
plaintiffs.
The plaintiffs in cause No. T-1778-83 include
Iva and Elaine, the children of Fulvia and Ezio
Acciaroli, and in cause No. T-1779-83 include
Raymond and Louis, the children of Emidio and
Rita Masi. In his written argument counsel for the
plaintiffs advised that the claims by the children of
both families were being abandoned. Leave to do
so will be given with no order as to costs. The
remaining plaintiffs in each cause are the married
couples who have the beneficial ownership in the
properties claimed to be damaged or injuriously
affected by the defendant's activities.
Both couples are of Italian origin. They were
born and raised in rural Italian areas until they
immigrated to the Hamilton area in the mid
1950s. The two couples lived in the city of Hamil-
ton from the time of their arrival in Canada until
the 1970s. In 1970 the Acciarolis purchased
10.124 acres of vacant land in Ancaster, a part of
the Regional Municipality of Hamilton-Went-
worth. In the same year they constructed their
home on the land. The house is located on the east
side of the road and described as municipal
number 1208 Glancaster Road.
In 1969 the Masis purchased 2.79 acres of
vacant land in Glanbrook, on the same road but
about 500-600 m further south and on the west
side of the road. In 1974 the Masis constructed a
home on the land and moved into it in December
of 1975. The municipal address of the Masi home
is 1691 Glancaster Road.
Glancaster Road runs north and south and, at
the time the plaintiffs acquired their properties
and built their homes, there was direct access at its
northern termination to highway 53 and thence to
downtown Hamilton. The road also acted as the
dividing boundary between the areas of Ancaster
on its east side and Glanbrook to the west. Conse
quently, although the Acciarolis and Masis lived
on the same road, the Acciarolis lived in Ancaster
and the Masis in Glanbrook.
When the Acciarolis and Masis acquired their
properties on Glancaster Road they were aware of
the existence of the airport and that there would
be a certain amount of air traffic in the vicinity.
They said they were under the impression that it
was just a small airport catering to a flying school.
Mrs. Acciaroli said there were just little planes
flying around and that they did not worry her.
From 1970 when she moved to her new house until
1986 when the new runway opened she says that
the noise from the planes did not bother her. The
Masis' evidence in this respect was almost identi-
cal—that the noise from the planes gave rise to no
concern on their part until flying operations began
on the new runway in 1986. Prior to that time Mr.
Masi said he would only see the odd teaching
plane.
Notwithstanding the proximity of the airport
the plaintiffs characterized the area as a quiet
country setting. In this respect I accept their evi
dence that it was their intention, in establishing
their homes on Glancaster Road, to establish
themselves in a rural setting but in a setting which
was no more rural than one adjacent to a moder
ately sized airport serving the regional municipal
area of Hamilton-Wentworth.
At the time the parties bought their respective
pieces of land on Glancaster Road the Hamilton
Civic Airport was located to the west of both
properties. An examination of Exhibit 2 indicates
that the Acciaroli house was 500 m from the
nearest airport boundary and 900 m from the
nearest runway. The Masi house was 400 m from
the nearest boundary and 750 m from the nearest
runway. Although the runways could not be seen
from the plaintiffs' homes some of the airport
buildings and structures could.
The same exhibit shows that after the expansion
of the airport, by the addition of a runway to the
north of the previously existing facilities, the Masi
house was 500 m from the new boundary to the
north and 950 m distant from the new runway.
The Acciaroli house was, at that time, about 9 m
from the new boundary and 360 m from the new
runway.
Prior to the expansion of the airport by the
addition of a second east-west runway having a
length of 2400 m there were already two existing
runways, one east-west having a length of 1500 m
and one, more or less north-south, having a length
of 1800 m. It can thus be seen that both residences
were quite close to the airport and its original
runways prior to 1986.
The plaintiffs' claim that their quiet rural coun
try setting as it existed prior to 1986 drastically
changed for the worse by the increase in the noise,
fumes and vibrations which came from the opera
tion of the new runway is, in my view,
exaggerated.
Prior to 1986 the airport had been more than a
teaching airport from which there occasionally
rose a small propeller-driven plane. Mr. Joseph
Brister, the general manager for the expansion
project, gave evidence that, among other types of
aircraft using the Hamilton Civic Airport prior to
the opening of the new runway in 1986, Nordair
operated a scheduled Boeing-737 jet service with
about eight flights a day from 1979 until 1982.
As well a Mr. N. M. Standen gave acoustical
evidence (about which more will be said later) to
the effect that while the noise disturbance level
increased marginally in the area of the Acciaroli
residence between 1981 and 1987 it would not be
perceptible. He also indicated that between 1981
and 1987 the noise disturbance level at the loca
tion of the Masi residence had actually decreased.
The exaggeration of the change in conditions
brought about by the operation of the new runway
is particularly evident in the case of the Masis
whose house was some 400 m from the west end of
the southern east-west runway and is now located
more than twice that distance from the new north
ern east-west runway to which aircraft have been
diverted following the completion of its construc
tion in 1985.
Prior to the opening of the new runway the Masi
house was 400 m from and almost directly in line
with the western end of the old east-west runway
so that the flight path of any plane taking off in a
westerly direction from that runway would be,
immediately after takeoff, almost directly over the
Masi house. The diversion of such flights to the
northern east-west runway would necessarily
reduce the noise aggravation level at the location
of the Masi house to that extent. It is not surpris
ing that with the diversion of many flights from
the southern east-west runway to the new east-
west runway to the north that the measured noise
aggravation level at the Masi house would be less
in 1986-87 than it was prior to the completion of
the new runway.
However the disturbance caused to the plaintiffs
by the operation of the new runway is not the only
complaint which they have. The Acciarolis' com
plaints are summarized by counsel as follows:
(a) increased noise, dust and dirt coming from
machinery on the construction site itself;
(b) increased noise, dust and dirt coming from
heavy trucks travelling to and from the
construction site;
(c) interruptions at the home by people asking
for directions and in one instance by people
involved in an accident;
(d) trespasses onto their property by workers
and trucks;
(e) an attack on their dogs by a rabid fox;
(f) the actual physical existence of the new
runway, fences, towers, utility buildings,
service entrance and signs, all of which are
clearly visible;
(g) significant loss of access due to road
closures;
(h) change in character of the neighbourhood
including the creation of a quasi-industrial
type setting in sharp contrast to the serene,
pastoral setting which existed prior to the
expansion;
(i) the actual physical layout of the newly
expanded airport which surrounds the sub
ject property to the east and to the north,
leaving the property in an isolated pocket
on Glancaster Road;
(j) increased noise, vibrations and foul smells
from aircraft using the new airport facility
both during daytime and nighttime;
(k) a change in the character of the airport
presenting the prospect of increasing inter-
ferences;
(1) the psychological impact which the physical
existence of the airport will have on resi
dents and potential purchasers whether or
not the new runway is ever used.
With the exception of the complaints listed
under paragraphs (c), (d) and (e), about which the
Masis made no complaint, their complaints were
identical to those of the Acciarolis.
The source of all the complaints is the expansion
of the Hamilton Civic Airport. According to Mr.
Brister, a citizen's ad hoc committee was formed
in 1974 to consider the expansion of the airport.
Between 1974 and 1978 some 20 reports were
generated and some 20 possible sites were con
sidered. In 1978 the Minister of Transport
announced that the Federal Government was com
mitted to the expansion of the airport and that it
was to be a regional airport. Brister said the
original plan was for a $100 million expansion but
by June 3, 1982, when specific approval was given,
the amount had been reduced to $49 million.
Brister was responsible, not only for the con
struction of the expanded facility, but for the
assembly of the lands required for the project. In
this respect his instructions were to acquire only
such lands as were necessary for the physical
expansion of the airport. He had no instructions to
acquire any lands because they might be affected
by the operations which would take place on the
new runway. He said that in neither the case of the
$100 million proposed expansion plan or the actual
$49 million expansion plan were the properties of
either the Acciarolis or the Masis required.
Because the proposed runway ran east and west
and crossed Glancaster Road, land upon which the
road was located was also acquired. This affected
about 600 m of the road commencing immediately
to the north of the Acciaroli property. The road
was severed and closed off in July of 1983 shortly
after construction started. As a consequence of the
closure of Glancaster Road the plaintiffs were
required to take a more indirect route to downtown
Hamilton which added about 6 km to the journey.
In 1983 construction consisted of land clearing,
fencing and drainage. Material movement was
confined to the site of the new runway where it
was moved from the high ground at the centre to
the low points at both ends of the new runway.
There was no continuous heavy construction traf
fic over Glancaster Road in 1983. Brister says
1983 was a wet summer and that dust was not a
problem. He confirms that Mrs. Acciaroli, during
the summer of 1983, complained about the closing
of Glancaster Road, noise, dust and an attack by a
fox on her dogs and he refused her request to build
pens for her dogs. Her main complaint, according
to Brister, was with respect to the closure of
Glancaster Road.
Construction operations closed down in Novem-
ber of 1983 and did not begin again until May of
1984. At that time granular material was trucked
from the south over Glancaster Road to the con
struction site. At its peak there would be 280 trips
(140 full to the runway and 140 empty from the
runway) passing the Acciaroli and Masi resi
dences. In order to control the dust Brister
employed six water trucks. Notwithstanding his
efforts he admits that on several occasions due to
dry weather and high winds the dust was really
bad and that he received complaints from down
wind residents as far as a mile away.
Once again the operations were shut down in
November 1984 and recommenced in May of
1985. By July of 1985 the new 2400 m runway and
taxiway to it were paved. Although, in the summer
of 1985, the materials required for a new tower
were trucked in over Glancaster Road the amount
of traffic was considerably reduced from that
which took place during the 1984 construction
season and was probably more than offset by a
reduction in through traffic which was no longer
possible because of the severance of Glancaster
Road.
Although substantially completed by July. of
1985, according to Henry Merling, the Chairman
of the Airport Committee of the Regional Council,
the new runway was not used until May of 1986.
Brister also tendered (Exhibits 37 and 38) leases
from the Federal Government to the Regional
Municipality of Hamilton-Wentworth under the
terms of which the management and control of the
airport was turned over to the municipality for a
period of about 50 years commencing September
1, 1985. The Regional Municipality appoints the
manager of the airport who is responsible for
controlling all air traffic, including the designation
of noise sensitive runways and the hours of day
during which no landings or takeoffs will be per
mitted from designated runways.
The plaintiffs' claims are founded on the tort of
nuisance or, in the alternative, for compensation
for injurious affection. If the plaintiffs can success
fully ground their claim in nuisance then they can
claim damages for all actionable nuisances of the
defendant including any which may arise out of
the operation of the airport. If the plaintiffs cannot
succeed in nuisance because the nuisances com
plained of must be taken to have been authorized
by statute, they are restricted to claiming compen
sation for injurious affection.
The rules governing claims for compensation for
injurious affection where, as in the case of both
sets of plaintiffs in this matter, none of the claim
ant's lands have been taken are set out by Abbott
J. in The Queen v. Loiselle, [1962] S.C.R. 624 and
are:
(a) the damage must result from an act ren
dered lawful by statutory powers of the
person performing such act;
(b) the damage must be such as would have
been actionable under the common law, but
for the statutory powers;
(c) the damage must be an injury to the land
itself and not a personal injury or an injury
to business or trade;
(d) the damage must be occasioned by the con
struction of the public work, not by its user.
It can be immediately seen, and counsel for the
plaintiffs concedes, that if the plaintiffs can only
proceed with the claim for injurious affection they
are limited to claiming for those damages which
flow from the construction of the airport and not
from its operation or use.
Apart from the more restrictive claim for com
pensation for injurious affection the basis of the
plaintiffs' claim under that heading is also in
nuisance, that is to say, damages for the nuisance
as would have been actionable but for its statutory
authorization.
Even if the plaintiffs are restricted to making
out their claim for compensation for injurious
affection they have a further problem. Where a
claim is made in such cases the right to do so must
be found in legislation. The right to compensation
in such circumstances is not a common law right
but a statutory right and unless the right to com
pensation is given by statute then a person whose
property is damaged by a statutorily authorized
nuisance has no right to compensation. (St. Pierre
et al. v. Ministry of Transportation and Com
munications (1983), 28 L.C.R. 1 (Ont. C.A.) per
Weatherston J.A., at page 3.)
In this case, then, the plaintiffs must show that
the actions complained of amount to actionable
nuisances. If the Crown successfully raises the
defence of statutory authorization the plaintiffs
must then show that there is a legislative provision
providing for compensation for damages caused by
the statutorily authorized nuisances. If the legisla
tion provides for compensation for injurious affec
tion caused to lands which have not been severed
by expropriation the plaintiffs will be entitled to
recover but only for damages caused by nuisances
arising out of the construction of the work and not
by its operation.
In my view the plaintiffs' actions must be dis
missed. A number of the actions of which they
complain are not actionable nuisances. If they
were nuisances they arose out of the construction
of an airport, the construction of which has been
authorized by statute which must be taken to
render lawful the acts of which the plaintiffs com
plain and which would otherwise be actionable.
Finally, because there is nothing in the legisla
tion which provides for compensation for injurious
affection to their properties, the plaintiffs have no
claim for compensation for injurious affection.
Furthermore if the noise emanating from the oper
ation of the airport after 1985 does amount to an
actionable nuisance the defendant has no responsi
bility for that nuisance because the operation of
the airport is not in the hands of the defendant.
I will deal first with the three complaints made
by the Acciarolis which were not made by the
Masis. These are the disturbances caused by per
sons asking for directions, trespasses on the prop
erty by workers and trucks and an attack on their
dogs by a rabid fox. None of these complaints in
my view amount to a substantial interference with
the use of the Acciarolis of their property. The fact
that occasionally people knocked at their door to
ask directions and on one occasion they were
awakened in the night as a result of a motor
vehicle accident cannot by any standard be seen to
amount to an actionable nuisance and I know of no
authority which would permit me to find that an
attack by a rabid fox on the Acciaroli dogs would
amount to one. The damages alleged to have been
caused by the attack are, in any event, too remote.
The defendant could not have been expected to
have been able to foresee that the construction
work would cause a rabid fox to attack the
Acciarolis' dogs.
Although the Acciarolis claim that there had
been trespasses to their property by workers and
trucks during the period of construction I do not
recall any evidence having been led to support that
allegation nor has counsel for the Acciarolis drawn
my attention to any such evidence in argument.
However because the northern boundary of the
Acciaroli property adjoins the southern boundary
of the airport property and a fence was erected by
the defendant along the common boundary there
was, no doubt, during the erection of the fence a
number of trespasses. In my view these are insig
nificant in nature and do not amount to a
nuisance.
With the exception of the three Acciaroli com
plaints already referred to all the other complaints
are common. These may be conveniently divided
into four categories:
(i) Noise and dust during construction—
complaints (a) and (b).
(ii) Change of view and loss of amenities—
complaints (f), (h), (i) and (1).
(iii) Inconvenience resulting from the closure
of Glancaster Road—complaint (g).
(iv) Increased noise, vibrations and smells
from the operation of the airport and the
prospect of these increasing still further
in the future—complaints (j) and (k).
The plaintiffs' complaints with respect to noise
and dust during the period of construction were
supported by their evidence that their houses
required more frequent cleanings and that the
truck drivers occasionally made cat calls at their
daughters. The evidence of the project manager,
Joseph Brister, which I accept, is that there was no
dust problem in 1983 and that major trucking had
been completed by July of 1985. Brister admitted
that he had the occasional problem with dust
during the 1984 construction season. In employing
several water trucks to control the problem he took
what I consider reasonable steps to avoid it.
In the result, and by Brister's own admission,
there were occasions during the construction
season from May to November of 1984 when, in
high winds and dry weather, the dust problem got
out of control. No doubt the plaintiffs, like all the
other residents along the road over which the
granular material for the runway was hauled, were
upset and aggravated by the noise and dust caused
by the trucks and construction equipment. Their
disturbance, however, was only of a temporary
nature, caused no permanent diminution in the
value of their properties and was, in my view, not
more than would reasonably be expected to result
from the construction of a runway.
Whenever construction takes place there is
bound to be a degree of disturbance to those
situated near the site. In this case the disturbance
was of a temporary nature and, given the size of
the project, not an unreasonable degree. It did not,
in my view, amount to an actionable nuisance and
thus the plaintiffs cannot recover damages against
the defendant on account of the matters raised in
complaints (a) and (b).
A recent decision of the Supreme Court of
Canada dealt with the question of whether a loss
of view, loss of amenities or alterations in the
characteristics of a neighbourhood could amount
to an actionable nuisance. In St. Pierre v. Ontario
(Minister of Transportation and Communica
tions), [1987] 1 S.C.R. 906; (1987), 75 N.R. 291,
McIntyre J. found that they did not.
In that case a four-lane divided highway was
built not more than 32 ft. from the plaintiffs'
bedroom window and all along the eastern bound
ary of the plaintiffs' property. Previously the plain
tiffs' land had been in a completely quiet setting
which was destroyed by the highway.
McIntyre J. dealt with the matter in the follow
ing terms [pages 914 and 916 S.C.R.; 300 and 302
N.R.]:
The sole question for determination then is whether the con
struction of the highway with its resultant damage to the
property of the appellants would have been actionable at
common law.
The only basis for an action to recover damages in the
circumstances of this case would be the tort of nuisance.
I agree with the Court of Appeal that what the appellants
complain of here is the loss of prospect or the loss of view.
There are as well the elements of loss of privacy, but in essence
the complaint is that once they dwelt in a rural setting with a
pleasing prospect and now they are confronted on one side of
their land at least with a modern highway. It is a claim for loss
of amenities. That the use of the highway will constitute a
disruptive element is probably true but that is a field of damage
which may not be considered. The claim is limited to loss
occasioned by the construction.
From the very earliest times, the courts have consistently
held that there can be no recovery for the loss of prospect ....
Quite apart from the fact that the airport was a
public work the St. Pierre case is authority for the
proposition that to the extent that the airport
facilities changed the view, changed the character
of the neighbourhood or impacted psychologically
on the plaintiffs it does not amount to an action
able nuisance.
Morden J. put it differently when, in Walker et
al. v. Pioneer Construction Co. (1967) Ltd. (1975),
8 O.R. (2d) 35 (H.C.), at page 39, he considered
the plaintiffs' claim in nuisance against the opera
tor of a gravel pit because of its unsightly appear
ance and observed:
Whatever the facts, I do not think that the defendant owed a
duty to the plaintiffs to preserve the appearance of its lands for
the plaintiffs' benefit ....
No doubt in the minds of the plaintiffs, and
probably in the minds of most people, their homes
would have been more valuable had, apart from its
operation entirely, the new runway not been con
structed near their properties. The view of an
asphalt runway, control and radio towers and
chain link fencing can properly be considered as
being less desirable than a view of a quiet pastoral
countryside. However the substitution of the
former for the latter is a claim for loss of ameni
ties, prospect or view for which there is no recov
ery at law even though the result is a diminution in
the value of the property affected. Accordingly I
conclude that the plaintiffs are not entitled to
damages against the defendant on account of the
matters raised in complaints (f), (h), (i) and (1).
A major complaint on the part of the plaintiffs
is the effect which the closure of Glancaster Road
has had on them and on their properties. As
already indicated this road was intersected by the
new runway to the north of the plaintiffs' proper
ties. Prior to the closure of the road the plaintiffs'
normal route to downtown Hamilton was along
Glancaster Road. This route is no longer possible
for the plaintiffs. In order to reach downtown
Hamilton they must now take a more circuitous
route which adds a distance of about 6 km or 10 to
15 minutes to the trip.
The closure of Glancaster Road resulting from
the expansion of the airport did not interfere in
any way with the plaintiffs' access from their
properties to Glancaster Road. That is to say it
had no effect upon the right or ability or ease with
which the plaintiffs could step or drive onto the
road from their properties. What is claimed by the
plaintiffs as a nuisance is the interference with
their accustomed passage along Glancaster Road
in a northerly direction after they are on the road.
In this respect they are affected by the road clo
sure in the same way as any other person who
wants to drive from south to north along Glancast-
er Road. Everyone is obliged to take the more
circuitous route.
In The King v. MacArthur (1904), 34 S.C.R.
570 Nesbitt J. dealt with the matter of compensa
tion in such circumstances at pages 576-577:
It was never intended that where the execution of works,
authorized by Acts of Parliament, sentimentally affected values
in the neighbourhood, all such property owners could have a
claim for damages. In most of our large cities values are
continually changing by reason of necessary public improve
ments made, and if, although no lands are taken, everybody
owning lands in the locality could, by reason of the changed
character of the neighbourhood or interference with certain
convenient highways, claim compensation by reason of a sup
posed falling of the previous market value of property in the
neighbourhood, it would render practically impossible the
obtaining of such improvements.
Audette J. reached a similar conclusion in The
King v. Carrières De Beauport (1915), 17 Ex.C.R.
414, at page 428:
At the date of the expropriation these streets were by dedica
tion vested in the public, the defendants having neither fee nor
predial rights of any kind therein, but merely enjoying in
common with others of the public, the privilege of travelling
upon the same and nothing more. Therefore, the right alleged
to be interfered with must be found to be a right common to the
public generally and for which an individual, affected by such
interference, even in a greater degree than that sustained by
other subjects of the Crown, is not entitled to any compensa
tion. Archibald v. The Queen (3 Can. Ex. 251; 23 Can. S.C.R.
147); The King v. MacArthur (34 Can. S.C.R. 570).
Counsel for the plaintiffs cites four cases for the
proposition that interference with an individual's
access to and from his property amounts to an
actionable nuisance (Hagel and Hagel v. Munic
ipal District of Yellowknife and Board of Trustees
for Yellowknife and Board of Trustees for Yel-
lowknife Public School District No. 1 (1962), 35
D.L.R. (2d) 110 (N.W.T.C.A.); Toronto Trans
portation Commission v. Village of Swansea,
[1935] S.C.R. 455; [1935] 3 D.L.R. 619; Prentice
v. City of Sault Ste. Marie, [1928] S.C.R. 309;
[1928] 3 D.L.R. 564, Duff J. at pages 318 S.C.R.;
570 D.L.R. and Forster v. City of Medicine Hat
(1913), 9 D.L.R. 555 (Alta. S.C.). Counsel for the
defendant submits, and I agree, that apart from
Prentice v. City of Sault Ste. Marie (supra) which
has no bearing on this case, the other three cases
deal with access to the plaintiffs' lands in the sense
of ingress and egress rather than the type of
interference about which the plaintiffs complain in
this matter.
Counsel for the plaintiffs cites, among others,
The Queen v. Loiselle, [1962] S.C.R. 624 and
Windsor (City of) v. Larson et al. (1980), 20
L.C.R. 344 (Ont. Div. Ct.) as authorities for the
proposition that compensation should be paid for
loss of access as opposed to interference with
ingress and egress. In Loiselle (supra) the claim
ant's service station was left at the dead end of a
cul-de-sac as a result of a diversion of a highway in
order to accommodate the construction of the St.
Lawrence Seaway. In Larson (supra) a concrete
median was built in the middle of the highway
running in front of the claimant's motel thereby
severely restricting access with the resultant loss in
value of the property.
In the St. Pierre case (supra), at pages 915
S.C.R.; 302 N.R., McIntyre J. referred to both
cases and observed:
In both cases, the construction of the public works in close
proximity to the lands so changed their situation as to greatly
reduce if not eliminate their value for the uses to which they
had been put prior to the construction and could, therefore, be
classed as nuisances.
He also observed that the action of the public
authority had at least interfered to a significant
extent with the actual use being made of the
property with the resultant loss of value of the
property.
In my view the loss of the ability to approach
their properties from the north along Glancaster
Road resulting from the expansion of the airport
did not interfere to a significant extent with the
actual use being made by the plaintiffs of their
properties. The use which was being made of their
properties was a residential use. In my view, to
alter the location of a residence from one being on
a through street to one being on a cul-de-sac
should not significantly reduce the value of a
residential property. Indeed some would argue that
the reduction in traffic resulting from such a
change might enhance the value of the property. It
is true, and I accept the plaintiffs' evidence, that
access to Hamilton was rendered more inconve
nient but this is more a personal inconvenience
than one which would diminish to a significant
extent, the value of the plaintiffs' properties for
residential purposes. The plaintiffs cannot recover
damages against the defendant on account of the
matters raised in complaint (g).
The final complaints of the plaintiffs relate to
the increase in noise, vibrations and smell arising
out of the operation of the airport. As well there is
the complaint of a change in the character of the
airport presenting the prospect of increasing
interferences.
In order to constitute a nuisance on those
grounds there must be a real interference with the
comfort and convenience of the plaintiffs. The
possibility of increasing future interferences does
not amount to a nuisance even though, as one of
the appraisers found, this might have been a major
source of the alleged diminution in value of the
plaintiffs' properties i.e. the fact of the existence of
the runway whether or not it was ever used.
The evidence of the plaintiffs was that from the
time they took up residence on Glancaster Road in
the 1970s until flight operations commenced from
the new worked runway in 1986 they were not at
all bothered by the operations at the airport.
Mrs. Acciaroli claims that the operations
became intolerable with the introduction of jet
aircraft which she said did not begin to use the
airport before 1987, although there were a few
flights in 1986.
Mr. Masi also complained that there was a big
increase in the noise coming from the airport after
the completion of the new runway. He said that
after the addition of the new runway he considered
himself as living in the middle of an airport.
Both Mrs. Acciaroli and Mr. Masi had heard
and understandably believed that air traffic, and
thus the noise, vibrations and smell from the air
port, would increase in the future.
The plaintiffs' claims are for the alleged nui
sance caused by reason of the operations on the
new runway. They make no claim in respect of any
noise, smell or vibration caused by operations prior
to 1986. The evidence of both plaintiffs is that
prior to the commencement of operations on the
new runway the area in which they lived could be
classified as being in a quiet rural setting.
Because the disturbance or irritation caused by
noise from airports is such a subjective thing there
has been developed a fairly sophisticated method
of preparing Noise Exposure Forecast (NEF) con
tours for lands surrounding airports. The measure
ment is not simply a decibel count at any given
time but a weighted calculation where, for exam
ple, a much larger weight is given to the noise
created by an after midnight flight than to a
daytime flight by the same aircraft. This method,
or a variation of it, is now the standard for accept
ability in Canada and is widely used in the United
States and in several European countries.
Mr. Neil M. Standen, a professional engineer
with Transport Canada, described the method in
his October 2, 1987 report as follows:
AIRCRAFT NOISE IMPACT
HAMILTON (MT. HOPE) AIRPORT
The task of quantifying the impact of aircraft noise on people is
implicitly difficult. The loudness and character of aircraft
sounds can be measured or predicted with some precision, but
the noise attribute of sound (the judgment of the quality and
acceptability of the sound) is dependent upon the perception
and interpretation of the sound by people. As with any judg
ment process, opinion about the noisiness of a sound varies
between individuals. Therefore, guidelines relating to noise
level standards are typically based on the collective judgment of
large populations, and hence constitute community standards.
Such community standards should not be interpreted as being
acceptable to every individual in the community. Some
individuals will regard the standard as too lax while an approxi
mately equal number will consider the standard to be too
severe, even unnecessary.
Because of the variability of individual judgments of noisiness,
the development of acceptability criteria for noise has concen
trated on achieving community standards. These standards
reflect the degree of annoyance expressed by the community
and the willingness of the political powers to accept such
annoyance levels in the electorate. However, work has also been
done to understand the manner in which noise creates annoy
ance, and this has led to a limited ability to predict the reaction
of individuals, rather than larger communities, to a given noise.
The development of community standards of acceptability for
aircraft noise in Canada was underway about 15 years ago,
following work done in the U.S. and Europe. This work
involved two tasks. The first task was to develop a method of
calculating aircraft noise levels in such a way as to represent
the long term aircraft noise climate in the vicinity of an airport.
That effort resulted in computer programs which contained
measured aircraft noise and flight performance data, and
which, when supplied with numbers and types of aircraft
operating at an airport as well as the airport runway configura
tion and usage, produced contours of equal noise level around
the airport.
It is important to recognize that these contours did not usually
represent the noise levels which could be actually measured on
any specific day. The intent of these noise level models was to
represent the long term aircraft noise climate. Research at that
time had shown that the noise climate, as perceived by residents
in an area, was best represented by occasions when aircraft
traffic was heavier than average, but not the heaviest
experienced in the time period under consideration. The noise
contours produced by these programs therefore represent a
statistical measure of the noise climate, which is approximated
by the actual noise levels during one of the busiest traffic
periods at the airport, but is not exactly the same.
The second task in the development of the community stand
ards was the calibration of the noise contours produced by the
computer programs in terms of community annoyance level.
Surveys were conducted in residential areas around several
airports, and the attitudes expressed concerning aircraft noise
were related to a scale of annoyance. This scale was then
related to the noise contours in the survey areas and a relation
ship between community reaction and the statistical model of
long term noise climate was thereby established. Over the
years, this relationship, or calibration, has shown little
variation.
The contours of equal noise level are estimates of a long-term
noise climate. The noise climate being estimated is of course
the climate created by the aircraft traffic and airport configu
ration provided to the computer program by the user. Thus, if
anticipated future traffic levels and airport configurations are
provided to the program, the contours reflect a future, forecast
noise climate. If present or past traffic levels and airport
configurations are used, the contours represent the actual noise
climate of that time. The former contours, as generated by the
Transport Canada program, are referred to as Noise Exposure
Forecast (NEF) or Noise Exposure Projection (NEP) contours.
The contours representing the actual noise climate are termed
Actual Noise Exposure (ANE) contours.
Standen prepared Actual Noise Exposure con
tours for the Hamilton Airport for 1981 and 1986.
He also prepared Noise Exposure contours in 1987
using the actual movements for 1986 but adding to
the 1987 calculations night movements of DC8-50
jet transports which had occurred during the first
half of 1987 but not in 1986. Standen gave the
results of these calculations in his written report in
the following terms:
HAMILTON AIRPORT NOISE ANALYSIS
In the assessment of noise impact relating to the two cases of
noise nuisance at Hamilton (Mt. Hope) Airport, Actual Noise
Exposure contours were used. These contours represent the
long-term aircraft noise climate in 1981 (before the north
parallel runway was constructed), in 1986 (the latest year for
which complete traffic statistics are available) and an estimate
for 1987. The 1987 traffic estimate is identical to the 1986
traffic, except for the addition in 1987 of night movements of
DC8-50 jet transports which occurred during the first half of
1987, but not in 1986. The 1981 noise climate is typical of the
airport operation in the latter part of the previous decade.
The change in long-term noise climate from 1981 to 1986
shown by these contour sets is toward increasing noise levels in
most areas, and decreasing levels in some areas. The noise level
is increasing at the Acciaroli residence but the magnitude of
the increase is small. The change in the noise climate is toward
decreasing levels at the Masi residence. The magnitude of the
change at the Acciaroli residence as shown by the contours is
within the uncertainty limits of the calculation procedure, and
should therefore be considered as insignificant. The 1987 con
tour set shows a further marginal increase in noise climate at
the Acciaroli residence, due to the night flights. This change
from 1986 to 1987 is also small, but may be statistically
significant, that is, greater than the uncertainty in the calcula
tion of the contours. At the Masi house location, the noise
climate as indicated by the contours shows a continual decrease
over this same period. This is largely due to aircraft departures
being diverted to the new runway 30R from the original
runway 30L.
In all three contour sets, the Acciaroli residence lies outside
(farther from the airport than) the 30 contour. Based on the
calibration of the contours in terms of community response, the
30 contour is taken to represent an acceptable community
exposure to aircraft noise according to Transport Canada (1),
CMHC (2) and Ontario Ministry of Housing (3) noise guide
lines. Thus, the Acciaroli residence has at all times since 1981
been exposed to a long-term aircraft noise climate which is
considered to be acceptable by prevailing community standards.
The Masi residence in 1981 was located between the NEF 30
and 35 contours according to the 1981 contour set produced in
this study. This is an area which is acceptable for housing
development by prevailing community standards, provided the
housing construction provides adequate acoustical insulation.
Since 1981, the aircraft noise levels at the Masi residence have
decreased, as shown by the 1986 and 1987 contours. This
residence is currently located at the NEF 30 (within margins of
uncertainty of the calculation) and therefore is considered
acceptable by prevailing community standards.
I realize that to some extent the method
employed is an attempt to establish the answer to
the legal question of "At what point does an
airport operation become an actionable nuisance?"
and that the answer to that question is ultimately
one which has to be answered by the Court and
not the computers of Transport Canada.
However I find the report helpful for several
reasons. Firstly, it represents a studied approach to
the problem and gives some indication of when, by
any standards, a noise climate is unacceptable.
Secondly, the methodology is the standard accept
ed in Canada and is widely accepted elsewhere.
Finally, it has provided a measurement of the
actual noise climate at the location of each of the
residences of the plaintiffs during a period when,
by their own admission, the noise from the airport
created no problem for them and at a time when
both sets of plaintiffs complained that the noise
was intolerable.
In the result the measurements showed that the
noise disturbance level was decreasing at the Masi
residence and had marginally increased at the
Acciaroli residence. I am prepared to accept the
accuracy of these measurements and conclude that
with respect with the Masi residence there has
been no increase in the noise disturbance level as
result of the use of the new runway and, with
respect to the Acciaroli residence, there has been a
marginal increase in the noise disturbance level as
the result of the new runway but not such an
increase as would constitute a nuisance. It follows
that the plaintiffs' claim for damages against the
defendant on account of the matters raised in
complaints (j) and (k) will not be allowed.
Even if the disturbances arising during the con
struction of the expansion to the airport, the clo
sure of a portion of Glancaster Road and the loss
of prospect or loss of amenities amount to actual
nuisances the defence of statutory authority is
available to the Crown to bar recovery by the
plaintiffs of damages against the Crown because,
in my view, these nuisances, if such they be, arose
as a result of the inevitable and reasonable
performance of the statutory duty of the defendant
to construct the airport.
The work was undertaken by the defendant
under a duty imposed pursuant to section 3 of the
Aeronautics Act, R.S.C. 1970 c. 3, in the following
terms:
3. It is the duty of the Minister
(c) to construct and maintain all government aerodromes
and air stations, including all plant, machinery and buildings
necessary for their efficient equipment and upkeep;
The choice of the site for the airport, or rather
its expansion, was not arbitrarily or capriciously
made. Rather it was made after several years of
considering various studies and reports. Once the
choice was made I am satisfied that the expansion
was carried out in a reasonable manner without
negligence on the part of the Crown and without
any more disturbance or inconvenience being
caused to the plaintiffs than one would ordinarily
expect to arise out of a project of that magnitude.
In my view the following observations of McIn-
tyre J. in the St. Pierre case (supra) at pages 916
S.C.R.; 303 N.R. are particularly applicable to the
present matter:
The Minister is authorized—indeed he is charged with the
duty—to construct highways. All highway construction will
cause disruption. Sometimes it will damage property, some
times it will enhance its value. To fix the Minister with liability
for damages to every landowner whose property interest is
damaged, by reason only of the construction of a highway on
neighbouring lands, would place an intolerable burden on the
public purse. Highways are necessary: they cause disruption. In
the balancing process inherent in the law of nuisance, their
utility for the public good far outweighs the disruption and
injury which is visited upon some adjoining lands. The law of
nuisance will not extend to allow for compensation in this case.
Just as McIntyre J. was unable to find anything
unreasonable in the Minister's use of the land
adjacent to the appellants' property for the con
struction of a highway in the St. Pierre case, I am
unable to find anything unreasonable in the
defendant's use of the land adjacent to the plain
tiffs' lands for the construction of an airport in this
case and find, as McIntyre J. found, that the law
of nuisance will not allow for compensation in this
case.
Counsel for the plaintiffs submits that should I
conclude the defence of statutory authority pro
vides a complete defence to the plaintiffs' claims,
the plaintiffs may nevertheless resort to the
remedy of seeking damages for injurious affection
provided that such remedy is expressly or implied-
ly granted by statute.
The requirement that a claim for injurious
affection, as opposed to a claim in nuisance in a
common law action, must be based on some statu
tory provisions is well established. Lord Parmoor
in Sisters of Charity of Rockingham v. The King,
[ 1922] 2 A. C. 315, at page 322; 67 D.L.R. 209, at
page 211; [1922] 3 W.W.R. 33 (P.C.), at page 35
stated it as follows:
No owner of lands expropriated by statute for public purposes
is entitled to compensation, either for the value of land taken,
or for damage, on the ground that his land is "injuriously
affected", unless he can establish a statutory right.
The same proposition was expressed by Weath-
erston J.A. of the Ontario Court of Appeal in St.
Pierre et al. v. Ministry of Transportation and
Communications (1983), 28 L.C.R. 1, at page 3:
The right to compensation is a statutory right, and no claim
for compensation may be made for damages resulting from
works authorized by statute unless the same or another statute
makes provision for compensation ....
It follows, of course, that where compensation is provided
for, one must look to the specific terms of the statute to see
what claims are compensable, and the persons so entitled.
Counsel for the plaintiffs submits that the right
to compensation for injurious affection where none
of the plaintiff's land is taken is granted by section
17 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] which provides as follows:
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown and, except
where otherwise provided, the Trial Division has exclusive
original jurisdiction in all such cases.
(2) Without restricting the generality of subsection (1), the
Trial Division has exclusive original jurisdiction, except where
otherwise provided, in all cases in which the land, goods or
money of any person are in the possession of the Crown or in
which the claim arises out of a contract entered into by or on
behalf of the Crown, and in all cases in which there is a claim
against the Crown for injurious affection.
Counsel for the plaintiffs has cited two Exche
quer Court cases decided by Thorson P. in which
he decided that the predecessor of section 17 of the
Federal Court Act, section 19 of the Exchequer
Court Act, R.S.C. 1927, c. 34 created a right of
action for injurious affection as opposed to merely
giving the Court jurisdiction to hear cases where
claims for damages resulting from injurious affec
tion were made pursuant to some other statute.
The cases cited are: The King v. Lawson &
Sons, [1948] 3 D.L.R. 334 (Ex. Ct.) and The King
v. Woods Mfg. Co. Ltd., [1949] Ex.C.R. 9. In
those cases Thorson P. decided that section 19 of
the Exchequer Court Act did more than merely
give jurisdiction to the Court to hear claims for
compensation in respect of injurious affection. He
found that paragraphs 19(1) (a) and (b) conferred
statutory rights upon the claimant to compensation
where his property has been expropriated or
damaged by being injuriously affected.
In The King v. Lawson & Sons the Court
referred to subsection 19(1) of the Exchequer
Court Act as the source of the claimant's right to
compensation as well as the Court's jurisdiction to
hear and determine the claim in the following
terms at page 351:
"19(1) The Exchequer Court shall also have exclusive origi
nal jurisdiction to hear and determine the following matters:—
"(a) Every claim against the Crown for property taken for
any public purpose;
"(b) Every claim against the Crown for damage to property
injuriously affected by the construction of any public work."
These provisions do more, in my view, than merely give
jurisdiction to the Court. They also confer statutory rights upon
the claimants. That the claimant's statutory right to compensa
tion when his property has been expropriated or damaged by
being injuriously affected is established by these sections, and
not by the provisions of the Expropriation Act, can be demon
strated by reference to the legislative origin of the two enact
ments, as will be done later. Then s. 47 of the Exchequer Court
Act prescribes the standards by which the statutory rights
accorded by s. 19(1) (a) and (b) respectively must be mea
sured. It appears in the Act under the heading, "Rules for
Adjudicating upon Claims", and reads as follows:
"47. The Court, in determining the amount to be paid to any
claimant for any land or property taken for the purpose of any
public work, or for injury done to any land or property, shall
estimate or assess the value or amount thereof at the time when
the land or property was taken, or the injury complained of was
occasioned."
The Court is hereby given specific directions that in deter
mining the amount of compensation to be paid to claimants
under s. 19(1) (a) and (b), it must follow certain rules. The
first direction is that where the claim is under s. 19(1) (a) for
any land or property taken for the purpose of any public work
the Court must estimate the value thereof. This is the statutory
authority for saying that the amount of compensation to which
the owner is entitled is the value of the land or property as
estimated by the Court. The second direction is that where the
claim is for injury done to any land or property the Court must
assess the amount thereof. This must refer to a claim under s.
19(1) (b) for damage to property injuriously affected by the
construction of any public work.
At page 352, Thorson P. went on to say:
There is nothing in the Expropriation Act that runs counter
to this statement. Nowhere in that Act can any provisions be
found for conferring a right of compensation for property
expropriated under it or prescribing any rules for the ascertain-
ment of its amount, when it cannot be agreed upon. The
explanation of this seeming lack is a simple one, namely, that
since such provisions are contained in the Exchequer Court Act
they are not necessary in the Expropriation Act.
The learned Judge reiterated this position in
Woods Mfg. Co. Ltd. (supra) at pages 13-14:
The Canadian statute upon which the defendant must rely
for his right to compensation for his expropriated properties is
not the Expropriation Act, under which they were taken, but
the Exchequer Court Act, R.S.C. 1927, chap. 34. In the
Thomas Lawson & Sons Limited case (supra) I dealt at
considerable length with the legislative origin and history of
these two enactments and am satisfied that nowhere in the
Expropriation Act can any provision be found conferring the
right to compensation upon the owner of property expropriated
under it. Undoubtedly, there are several sections in it that
assume the existence of such a right but the actual statutory
right to compensation for property taken under the Expropria
tion Act or damage to property injuriously affected thereby can
be found only in sections 19(a) and 19(b) of the Exchequer
Court Act which provide as follows:
19. The Exchequer Court shall also have exclusive original
jurisdiction to hear and determine the following matters:—
(a) Every claim against the Crown for property taken for
any public purpose;
(b) Every claim against the Crown for damage to prop
erty injuriously affected by the construction of any
public work;
A review of the legislative origin and history of these sections
shows that they not only confer jurisdiction upon the Court to
hear and determine claims for compensation in respect of
expropriated property but also establish rights to such compen
sation that would not otherwise exist. Furthermore, while sec-
tions 19(a) and 19(b) of the Exchequer Court Act establish the
owner's rights to compensation, section 47 of that Act pre
scribes the standard by which the Court must measure the
amount of compensation to which such owner is entitled. Its
direction to the Court is as follows:
47. The Court, in determining the amount to be paid to
any claimant for any land or property taken for the purpose
of any public work, or for injury done to any land or
property, shall estimate or assess the value or amount thereof
at the time when the land or property was taken, or the
injury complained of was occasioned.
These decisions interpret the provisions of the
Exchequer Court Act and the Expropriation Act,
R.S.C. 1927, c. 64. At the time the two decisions
were made the Expropriation Act did not have any
provisions allowing for compensation either where
land was expropriated or when no land was expro
priated and other lands were injuriously affected.
However certain sections of the Expropriation Act
contemplated a right to compensation. For exam
ple section 23 provided as follows:
23. The Compensation money agreed upon or adjudged for
any land or property acquired or taken for or injuriously
affected by the construction of any public work shall stand in
the stead of such land or property.
Thorson P. noted that the Expropriation Act
contained no rules for the ascertainment of the
amount of compensation to be paid to the expro
priated owner for his property if the amount could
not be agreed upon. He concluded that rules pro
viding for compensation and rules for ascertaining
the amount of compensation were not required in
the Expropriation Act because they were con
tained in the Exchequer Court Act. In particular
he found that section 47 of the Exchequer Court
Act provided that the expropriated owner should
be entitled, by way of compensation, to the value
of the land.
For these reasons Thorson P. found that the two
Acts had to be read together. He found that
section 23 of the Expropriation Act was auxiliary
to paragraphs 19(1)(a) and (b) of the Exchequer
Court Act and that the statutory scheme relating
to the expropriation of property which was origi
nally contained in one Act was now embodied
_ partly in the Expropriation Act and partly in the
Exchequer Court Act.
Since these two decisions the Exchequer Court
Act and the Expropriation Act have been replaced
by the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10 and the Expropriation Act, R.S.C.
1970 (1st Supp.), c. 16.
Contrary to the position prior to 1970 the new
Expropriation Act contains in sections 23 and 24
rules providing for compensation and rules for
determining the value of the expropriated interest.
In my view, now that all the statutory provisions
for compensation and for determining value are
contained in the Expropriation Act, the provisions
of section 17 of the Federal Court Act are purely
jurisdictional.
Going back to the original principle that the
right to compensation for land expropriated or
land injuriously affected by an expropriation must
be found in some statute and if not there is no
right to compensation, I cannot find any statutory
right to compensation given by the current Expro
priation Act for injurious affection to land caused
by an expropriation where the land has not been
severed by the expropriation. As no right to com
pensation is given to the plaintiffs for any injurious
affection to their lands by reason of the expropria
tion of other lands and the construction upon them
of public works the plaintiffs' claims for damages
for injurious affection to their properties must be
dismissed.
One might question why, if there is no right to
claim under the Expropriation Act for injurious
affection to property, the Federal Court is given
jurisdiction to hear claims for injurious affection
under subsection 17(2) of the Federal Court Act.
In my view the jurisdiction to hear claims against
the Crown for injurious affection is given so that
the Federal Court may hear them if the substan
tive right to claim against the Crown for injurious
affection is given by some statute whether it be the
Expropriation Act, as it may be amended in the
future, or some other Act. For example in the St.
Lawrence Seaway Authority Act, R.S.C. 1952, c.
242, subsection 18(3) provided for a right to com
pensation for injurious affection where no lands
were taken.
The plaintiffs also rely upon a comparison of
section 68 of the United Kingdom's The Lands
Clauses Consolidation Act, 1845, [8 & 9 Vict.,
c. 18] with subsection 17(2) of the Federal Court
Act, both of which are procedural, to urge that
subsection 17(2) confers an express right to com
pensation where no land is taken.
Counsel submits that the courts of England have
consistently held that section 68, which provides in
part as follows:
LXVIII. If any Party shall be entitled to any Compensation
in respect of any Lands . . . injuriously affected by the
Execution of the Works ... such Party may have the same
settled either by Arbitration ....
creates the statutory right to compensation for
injurious affection notwithstanding the fact that it
appears to be procedural in nature.
Counsel cited Jolliffe v. Exeter Corpn., [1967]
1 W.L.R. 350 (Q.B.D.) as authority for that
proposition. In my view the case cited does not
support the principle urged by counsel. At page
355 Lawton J. concluded that the responsibility to
pay compensation to those whose premises had
been injuriously affected was:
placed on the defendants by reason of the provisions of the
Highways Act, 1959, s. 222, and the Acquisition of Land
(Authorisation Procedure) Act, 1946, the combined effect of
which is to apply section 68 of the Lands Clauses Consolidation
Act, 1845.
It appears to me that the right to compensation
for injurious affection arose not from the applica
tion of section 68 alone but by reason of the effects
of the provisions of two other statutes. Even if the
submission by counsel were correct it would not in
my view advance his claimants' cause. His submis
sion might have relevance to the position prior to
1970 when Thorson P. decided the Woods Manu
facturing and Lawson cases (supra) but in my
view it has no relevance to the current legislative
position where the rules providing for compensa
tion and ascertaining the amount of compensation
are clearly set out in the Expropriation Act alone.
Counsel has also cited the Supreme Court of
Canada decision in Imperial Oil Ltd. v. The
Queen, [1974] S.C.R. 623; (1973), 35 D.L.R. (3d)
73, at page 79, as authority for the proposition
that unless Parliament gives a clear unambiguous
expression of its intention to allow a claimant's
land to be injuriously affected without compensa
tion a claimant is entitled to be compensated for
lands injuriously affected. In that decision Mr.
Justice Ritchie was commenting on section 23 of
the Expropriation Act, R.S.C. 1952, c. 106, which
section was not re-enacted in the present Expro
priation Act, and under which section Mr. Justice
Ritchie found the manifest intention of Parliament
to compensate a land owner for injurious affection
created by the construction of any public work.
In my view that case does not stand for the
proposition cited by counsel for the plaintiffs. Rit-
chie J. simply observed that there was nothing in
the provisions of the Expropriation Act or the
Navigable Waters Protection Act, R.S.C. 1952, c.
193 making it clear that Parliament intended that
the plaintiff's land could be injuriously affected
without compensation and that in fact section 23
of the Expropriation Act made it clear that the
plaintiff was to be compensated if his land was
injuriously affected by the construction of any
public work.
In my view the Imperial Oil case stands for the
proposition that a land owner is entitled to com
pensation where his land is injuriously affected by
the construction of a public work if the legislation
shows an intention on the part of Parliament that
he should be compensated in such circumstances.
The fact that the legislation referred to did not
indicate an intention on the part of Parliament
that the plaintiffs' land could be injuriously affect
ed without compensation only served to buttress
the interpretation given by the Court to section 23
of the Expropriation Act.
The proposition put forward by counsel for the
plaintiffs is, of course, contrary to the principle
stated by Lord Parmoor in the Sisters of Charity
of Rockingham case already referred to and
applied continually by Canadian courts since that
time; most recently by the Ontario Court of
Appeal in the St. Pierre case (supra) upheld by
the Supreme Court of Canada on appeal. In my
view that principle is still valid and in this matter,
as Parliament did not make any statutory provi
sion for compensation for injurious affection where
land of the plaintiffs was not taken the plaintiffs
cannot succeed against the defendant on that
ground.
I have a great deal of sympathy for the plain
tiffs, particularly the Acciarolis. Their property,
like that of the St. Pierres', has been adversely
affected by the expansion of the airport. They too
have a less desirable view and are subject to
marginally more disturbance than they were prior
to the establishment of the new runway. Mrs.
Acciaroli says she wanted to have her home expro
priated so that she could relocate away from the
airport. Now she looks out on control towers and a
new runway and every time she sees or hears a
plane she is reminded of what she considers to be a
grave injustice that has been done to her. Under
the circumstances I am not surprised that she
would honestly believe that the noise climate has
substantially increased to an intolerable level.
Indeed I would not find it difficult to believe that
she would be of the same opinion even though the
noise level had in fact decreased.
Similarly Mr. Acciaroli, who was obviously fond
of what he considered to be a quiet rural setting
for his home, is now faced with a chain link fence
and a runway whenever he steps out of his house.
In his mind the defendant has destroyed, without
compensating him, his view, prospect and ambi
ence of the former neighbourhood. Under these
circumstances I would expect him to be disturbed
by anything connected with the airport.
One has only to glance at Exhibit 2 and see how
the Acciaroli property has been left jutting out
into the airport property. It is obvious why the
Acciarolis would be disturbed and why they would
want to have their property expropriated. While I
can sympathize with the unfortunate plight of the
Acciarolis and, to a lesser extent, with the Masis, I
am unable to find that they are entitled to recover
damages against the defendant in respect of the
claims they have advanced.
Although the defendant has been successful in
this matter it is not one in which, in my view, costs
should be awarded to the successful party. Accord
ingly the plaintiffs' claims against the defendant
will be dismissed with no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.