Tri-C Management Limited v. Nova Scotia (Attorney General), 2021 NSCA 26

Nova Scotia Court of Appeal Citation: Tri-C Management Limited v. Nova Scotia (Attorney General) , 2021 NSCA 26 Date: 20210317 Docket: CA 497658 Registry: Halifax Between: Tri-C Management Limited, Justamere Café Limited, Pleasant Valley Nurseries Limited, Down to Earth Art Gallery Inc., and Dream Catcher's Deli & Treats Limited Appellants v. The Attorney General of Nova Scotia and The Nova Scotia Utility and Review Board Respondents Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: January 21, 2021, in Halifax, Nova Scotia Subject: Injurious affection without a taking of land; commencement of limitation period in context of continuing temporary nuisance

Summary: For many years the Trans-Canada Highway (Highway 104) ran through the Town of Antigonish. It posed a safety hazard, and the Province of Nova Scotia (the “Province”) undertook a two-phased project that resulted in Highway 104 being twinned and by-passing Antigonish. The portion of the old Highway 104 that went through the town remained unchanged, becoming a trunk highway. Work on the project commenced in 2009 and was completed in 2016.

In 2015, five businesses in Antigonish each notified the Province of their intent to bring a claim for injurious affection under the Expropriation Act , R.S.N.S. 1989, c. 156 (the “ Act ”) for damages sustained by virtue of the project. None of the businesses had lost land due to an expropriation. With agreement, all five claims were heard together by the Nova Scotia Utility and Review Board.

Further, the parties agreed that the proceeding would be bifurcated, with the issue of whether the businesses could establish “injurious affection” within the meaning of the Act being heard before proceeding to an assessment of damages. The hearing took place in October 2019. In addition to the businesses arguing a claim of injurious affection was made out, the Province submitted any such claims (which it denied) were statute-barred. In February 2020, the Board rendered five decisions that addressed each claim. They are identical in terms of the legal analysis and outcome.

In each, the Board rejected the Province’s assertion that the claim was statute-barred. It based this conclusion on the view that the limitation period for each claim did not begin to run until the conclusion of the project. In assessing the merits of the claim, the Board determined none of the businesses had established a claim of injurious affection. The businesses all filed appeals in which they asserted the Board erred in rejecting their claims for injurious affection. The Province cross-appealed, submitting the Board should have found each of the claims to be statute-barred.

The five appeals and cross-appeals were consolidated and heard together. Issues:

(1) Did the Board err in its analysis of when the limitation period for the claims would begin to run?

(2) Did the Board err in concluding the businesses had not established a claim for injurious affection?

Result: Appeal and cross-appeal dismissed. The Board reached a correct conclusion when it found that the claims were not statute-barred. However, its reasoning was faulty specifically in relation to when the limitation period began to run. In the case of a continuing temporary nuisance, the limitation period is not triggered by the conclusion of the nuisance, rather, every day the nuisance continues gives rise to a new cause of action. With respect to the injurious affection claims, the Board applied the correct legal principles to the facts before it.

The businesses failed to demonstrate the Board erred in a manner justifying or permitting appellate intervention. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 23 pages. Nova Scotia Court of Appeal Citation: Tri-C Management Limited v.

Nova Scotia (Attorney General) , 2021 NSCA 26 Date: 20210317 Docket: CA 497658 Registry: Halifax Between: Tri-C Management Limited, Justamere Café Limited, Pleasant Valley Nurseries Limited, Down to Earth Art Gallery Inc., and Dream Catcher's Deli & Treats Limited Appellants v. The Attorney General of Nova Scotia and The Nova Scotia Utility and Review Board Respondents Judges: Bryson, Scanlan and Bourgeois JJ.A.

Appeal Heard: January 21, 2021, in Halifax, Nova Scotia Held: Appeal and cross-appeal dismissed, per reasons for judgment of Bourgeois J.A.; Bryson and Scanlan JJ.A. concurring Counsel: Robert Pineo and Paul Wadden, for the appellants Sean Foreman Q.C. and Jack Townsend, for the AGNS S. Bruce Outhouse, Q.C. for the NSUARB, not appearing Reasons for judgment: [ 1 ] For many years the Trans-Canada Highway (Highway 104) ran through the Town of Antigonish.

It posed a safety hazard, and the Province of Nova Scotia (the “Province”) undertook a two-phased project that resulted in Highway 104 being twinned and by- passing Antigonish. The portion of the old Highway 104 that went through the town remained unchanged, becoming a trunk highway. Work on the project commenced in 2009 and was completed in 2016. [ 2 ] In 2015, five businesses in Antigonish each notified the Province of their intention to bring a claim for injurious affection under the Expropriation Act , R.S.N.S. 1989, c. 156 (the “ Act ”) for damages sustained by virtue of the project.

None of the businesses had lost land due to an expropriation. [ 3 ] With agreement, all five claims were heard together by the Nova Scotia Utility and Review Board, with member Richard J. Melanson presiding. Further, the parties agreed the proceeding would be bifurcated, with the issue of whether the businesses could establish “injurious affection” within the meaning of the Act being heard before proceeding to an assessment of damages. [ 4 ] The hearing took place in October 2019.

In addition to the businesses arguing a claim of injurious affection was made out, the Province submitted any such claims (which it denied) were statute-barred. In February 2020, the Board rendered five decisions that addressed each claim. They are identical in terms of the legal analysis and outcome. In each, the Board rejected the Province’s assertion that the claim was statute-barred. However, in assessing the merits of the claim, the Board determined none of the businesses had

established a claim of injurious affection. [ 5 ] The businesses all filed appeals to this Court in which they assert the Board erred in rejecting their claims for injurious affection. The Province cross-appealed, submitting the Board should have found each of the claims to be statute-barred. The five appeals and cross-appeals were consolidated and heard together. [ 6 ] For the reasons that follow, I would dismiss the appeal.

Further, although I agree with the Province there was a fundamental error in the Board’s analysis regarding the limitation period, its ultimate conclusion that the claims were not statute-barred is correct. Statutory framework [ 7 ] Before considering the claims advanced and the Board’s decision, it is helpful to set out the governing statutory framework relevant to the appeal. The Act permits an owner of land to make a claim for compensation for injurious affection, albeit subject to limitation: 30(1) A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.

(2) No compensation is payable for the loss of access to land or egress from land, or both, where the loss is the result of a designation pursuant to the Public Highways Act of a highway or land as a controlled access highway, if other access to the land or egress from the land, as the case may be, is available as a result of a service or land access road being provided. [ 8 ] Injurious affection is defined in the Act . The Legislature chose to differentiate between situations where land is expropriated, and situations where injury may arise without a taking: 3(1) In this Act , … (h) “injurious affection” means (

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

A) 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 (

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

A) such reduction in the market value of the land of the owner, and (

B) 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 subclause (i), part of the land of an owner shall be deemed to have been acquired where the owner from whom land is acquired retains land contiguous to that acquired or retains land on which the use is enhanced by unified ownership with that acquired; [ 9 ] The Act contains a limitation period for the bringing of a claim for injurious affection.

It provides: 31(1) Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to him, and, if not so made, the right to compensation is forever barred. [1] [ 10 ] Before the Board the businesses asserted their claims should be considered in accordance with the analytical framework set out by the Supreme Court of Canada in Antrim Truck Centre Ltd. v. Ontario (Transportation) , 2013 SCC 13 .

There is no dispute that Antrim is applicable to the matter at hand. [ 11 ] Antrim involved a claim for injurious affection without a taking of land under the Ontario Expropriations Act . The claimant had operated a truck stop complex for a number of years on a rural highway. The Province undertook the construction of a new highway, running parallel to the pre-existing route. The access to the complex was severely restricted after completion of the new highway and the business was forced to close. The Ontario Municipal Board found a claim for injurious affection had been established.

On appeal, that determination was set aside. However, the Board’s decision was re-instated by the Supreme Court. [ 12 ] Writing for the Court, Cromwell J. explained the nature of injurious affection: [4] The legal framework for the appeal is found in the law concerning injurious affection. Injurious affection occurs when the defendant’s activities interfere with the claimant’s use or enjoyment of land. Such interference may occur where a portion of an owner’s land is expropriated with negative effects on the value of the remaining property.

Alternatively, it may arise where, although no land is expropriated, the lawful activities of a statutory authority on one piece of land interfere with the use or enjoyment of another property: E. C. E. Todd, The Law of Expropriation and Compensation in Canada (2nd ed. 1992), at pp. 331-33. In this case, the appellant claimed compensation for injurious affection where no land is taken because the highway construction had significantly impeded access to its land.

[13] Further, the statutory requirements to establish an injurious affection without a taking of land were articulated as follows: [5] The Ontario Expropriations Act, R.S.O. 1990, c. E.26, provides a right to compensation for injurious affection on certainconditions: s. 21.

Where none of the claimant’s land is expropriated, the Act provides a right to compensation for “such reduction in themarket value of the land of the owner, and . . . such personal and business damages, resulting from the construction and not the use of theworks by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of astatute”: s. 1(1).

Thus, in order to recover under the Act, the claimant has to meet these three statutory requirements, which are oftenreferred to as the requirements of “statutory authority”, “actionability” and “construction and not the use”. These requirements mean that(

i) the damage must result from action taken under statutory authority; (ii) the action would give rise to liability but for that statutoryauthority; and (iii) the damage must result from the construction and not the use of the works.

Where these conditions are present, theAct requires that the complainant be compensated for the amount by which the affected land’s market value was reduced because of theinterference, and for personal and business damages: ss. 1(1) and 21. [14] The parties and Board, correctly in my view, acknowledged the provisions of the Nova Scotia Act are indistinguishable fromthose considered by the Court in Antrim. As in the present case, the claimant in Antrim argued the injurious affection had its genesis inprivate nuisance.

Cromwell J. set out the elements for establishing such a claim as follows: [19] The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support aclaim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. Asubstantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonablenessanalysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.

This two-partapproach found favour with this Court in its most recent discussion of private nuisance and was adopted by the Court of Appeal in thiscase, at para. 80. (Citations omitted; emphasis in original) [15] With respect to establishing a substantial interference, Cromwell J. explained: [22] What does this threshold require? In St. Lawrence Cement, the Court noted that the requirement of substantial harm “means thatcompensation will not be awarded for trivial annoyances”: para. 77. In St.

Pierre, while the Court was careful to say that the categories ofnuisance are not closed, it also noted that only interferences that “substantially alte[r] the nature of the claimant’s property itself” orinterfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim in nuisance: p. 915(emphasis added). One can ascertain from these authorities that a substantial injury to the complainant’s property interest is one thatamounts to more than a slight annoyance or trifling interference. As La Forest J. put it in Tock v. St.

John’s Metropolitan Area Board, (SCC), [1989] 2 S.C.R. 1181, actionable nuisances include “only those inconveniences that materially interfere withordinary comfort as defined according to the standards held by those of plain and sober tastes”, and not claims based “on the promptingof excessive ‘delicacy and fastidiousness’”: p. 1191.

Claims that are clearly of this latter nature do not engage the reasonablenessanalysis. (Emphasis in original) [16] Regarding the second element, unreasonableness, Cromwell J. noted: [25] The main question here is how reasonableness should be assessed when the activity causing the interference is carried out by apublic authority for the greater public good. As in other private nuisance cases, the reasonableness of the interference must be assessed inlight of all of the relevant circumstances.

The focus of that balancing exercise, however, is on whether the interference is such that itwould be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. [17] I will now turn to a consideration of the claims advanced before the Board. Background and Decision under Appeal [18] In June and August 2015, the businesses, through their counsel Mr. Pineo, separately gave the Province written notice of theirintentions to bring claims for injurious affection. On March 8, 2017, each business filed a Notice of Hearing and Statement of Claimwith the Board.

All were substantially identical in terms of the bases upon which the claims were being advanced. They asserted: 3. The Respondent is undertaking construction to twin highway 104 in the vicinity of the Town of Antigonish (“Antigonish By-Pass”). 4. The Claimants claim compensation for injurious affection to the Business as a result of the construction of the first portion of theAntigonish By-Pass and the resulting physical changes to the pre-existing highway 104 which impaired access to the Business propertyand reduced the market value of the premises. 5.

The Claimant also claims compensation for owner’s time and the costs incurred in the mitigation of his losses. [19] The Province filed a response to each of the Notices of Hearing, the common elements of which included that: • The construction of the highway project did not cause the diversion of traffic away from the businesses, a deprivation ofaccess to the businesses, nor did it cause losses to the business operations or a reduction in market value; • The claims were not compensable as injurious affection within the meaning of s. 3(1)(h)(ii) the Act; • Any losses sustained (which were denied) arose by virtue of the designation of Highway 104 as a controlled accesshighway and, as such, s. 30(2) of the Act made any damages non-compensable; and • The businesses had not given notice to the Province within one year after their alleged damages were sustained or becameknown to them, thus s. 31(1) of the Act served to bar their claims.

[ 20 ] On February 11, 2020, the Board rendered separate reasons in relation to each of the claims. Although the decisions vary in relation to the circumstances of the particular business, the legal principles and analysis undertaken by the Board were consistent in each. For the purpose of these reasons, when referencing specific passages, I will utilize the decision in Re Curry and Tri-C Management , 2020 NSUARB 15 . [2] [ 21 ] The Board described the history and result of the By-Pass project as follows: [27] During Phase 1, except for temporary lane closures, the Old Highway 104 remained open to traffic.

No other local or regional roads were closed during this construction. [28] When Phase 1 of the Antigonish By-Pass opened to traffic in September 2012, a portion of the Old Highway 104 was closed from the Beech Hill Road intersection to just west of what is now the South River Road. The Board notes the South River Road is also described as the "Old Trunk 4" in some of the testimony… . [29] While the above-described

section of the Old Highway 104 was closed, westbound traffic could access the Town of Antigonish as follows: ● Take the South River Road which leads to the Town center; ● Move onto Phase 1 of the Antigonish By-Pass, via a temporary short dirt transition road, and take one of three exits (33, 32 or 31), using the associated interchanges and roundabouts. [30] Phase 2 of the Antigonish By-Pass was completed in approximately September, 2016. The portion of Old Highway 104 (now Trunk 4) which had been closed was re-opened.

The temporary transition between Old Highway 104 and the Antigonish By-Pass was removed. [31] With the completion and opening of both phases of the Antigonish By-Pass, the Old Highway 104, which had intersections at grade with Antigonish streets, was essentially in the same state as it had been prior to the start of the project. [32] The intersection between the Old Highway 104 and Church Street, which is relevant to this matter, maintained the same configuration as it had prior to the start of the Antigonish By-Pass project.

However, the Old Highway 104 (now Trunk 4) was no longer an intra-provincial highway. [ 22 ] In its reasons, the Board identified two broad issues for determination: [8] The Board will determine two issues in this proceeding:

i) Was notice of this claim provided to the Province within the one-year statutory notice period? ii) Did the re-configuration of the Trans-Canada Highway, by the creation of the Antigonish By-Pass in the Antigonish area, give rise to a claim by the Claimants for injurious affection? [ 23 ] With respect to the first issue, the Province argued the businesses had failed to give notice of their claims as required by s. 31(1) of the Act .

The notices were provided in June (Tri-C Management, Pleasant Valley Nurseries Limited and Dream Catcher’s Deli & Treats Limited) and August (Justamere Café Limited and Down to Earth Art Gallery Inc.) of 2015.

The Province asserted the businesses had been aware of the circumstances giving rise to their claims more than 12 months prior to the notices being given and, as a result, they were statute-barred. [ 24 ] The Board rejected this argument and concluded the limitation period only began to run once the temporary blockade of the old Highway 104 was removed at the completion of Phase 2: [87] Therefore, for the legislative scheme to operate effectively, the activities which constitute the nuisance, in the case where at least part of the claim is based on a temporary, continuing nuisance, should at least be completed before the limitation period begins to run.

And further: [95] It is the completion of the activities giving rise to a claim, the knowledge of the facts underlying the injurious affection claim, and, sufficient knowledge of the extent of the damages, which trigger the limitation period.

If the foregoing criteria are followed, the concerns with respect to certainty, preservation of evidence, and, the timely pursuit of claims, are addressed. [ 25 ] The Board determined the businesses had provided notice of their intended claims in 2015, prior to the limitation period starting to run and, as such, they were not statute-barred. [ 26 ] The Board then turned to the second broad issue—whether a claim for injurious affection had been made out.

It began by considering how the businesses had framed their claims: [103] The Claimants allege the construction of the Antigonish By-Pass and associated roundabouts impaired access to the Property, thereby giving rise to a claim for injurious affection. They say the situation is similar to the facts in Antrim Truck Centre Ltd. v. Ontario (Transportation) , 2013 SCC 13 , [2013] 1 S.C.R. 594. In Antrim, a claim for injurious affection was upheld in circumstances where new highway construction by​ passed a truck stop.

This construction was determined to have significantly and permanently impaired access to the business. [104] The Claimants say their claim is based on impairment to access and not on traffic diversion. They submit that visibility is an element of access in this case, since previous visibility from the Old Highway 104 contributed to access to their business. It is not based on the aesthetics of visibility.

[105] The Claimants also argue that Antrim has changed the law of nuisance from closed categories of nuisance, where visibility was not compensable, to a situation where nuisance must always be determined on a case by case basis. [ 27 ] Turning its mind to the application of Antrim , the Board wrote: [113] In Antrim, the Supreme Court of Canada was able to provide a detailed analysis, based on the wording of a provision virtually identical to that found in the Act , without recourse to strict construction. [114] In Antrim, the Supreme Court of Canada discussed the three statutory requirements in the Ontario expropriation legislation, which are the same as in the Act : [5] … Thus, in order to recover under the Act , the claimant has to meet these three statutory requirements, which are often referred to as the requirements of "statutory authority", "actionability" and "construction and not the use".

These requirements mean that (

i) the damage must result from action taken under statutory authority; (ii) the action would give rise to liability but for that statutory authority; and (iii) the damage must result from the construction and not the use of the works.

Where these conditions are present, the Act requires that the complainant be compensated for the amount by which the affected land's market value was reduced because of the interference, and for personal and business damages: ... [115] In this case, the Province says the damages, if any, which the Claimants have suffered are the result of traffic diversion and loss of visibility from the highway, which will be addressed separately. The Province says the foregoing are not actionable in nuisance at common law.

Therefore, the Province says, the claim must fail based on the second statutory requirement. [ 28 ] Relying on the Antrim framework, the Board then considered whether the By-Pass project created a substantial and unreasonable interference with the businesses’ use and enjoyment of their properties. It concluded they had not established the interference with their properties arising from either phase of the project was substantial. The Board found in particular that access to each of the properties had not been significantly impacted.

In reaching this conclusion the Board noted none of the businesses gained access to their properties by virtue of the old Highway. [ 29 ] In the alternative, the Board concluded if there had been an interference, it was reasonable in the circumstances. [ 30 ] Notwithstanding the Board’s Antrim analysis was fatal to the claims being advanced, it went on to consider whether, as alleged by the Province, s. 30(2) of the Act also served to defeat the claims. After undertaking an interpretive analysis of the Act and the Public Highways Act , R.S.N.S. 1989, c. 371 the Board agreed with the Province.

It concluded: [197] The clear intent of s.30(2) of the Act and s.24(3) of the PHA is to limit compensation for injurious affection where a controlled access highway is involved, and access and egress are provided to affected lands. [198] This

interpretation is consistent with the scheme of the Act , which allows for, but imposes limitations on, injurious affection damages where there is no taking, by ensuring the limitations in the PHA extend to lands beyond "adjoining" lands. [199] The legislative text supports the

interpretation that where alternative means of access and egress are provided, no compensation for injurious affection is available. [ 31 ] Although the Board found they were not statute-barred, it dismissed all five claims for injurious affection. The businesses appeal to this Court, alleging the Board erred in dismissing their claims. The Province’s cross-appeal challenges the Board’s determination respecting the commencement of the limitation period. Issues [ 32 ] As noted earlier, the businesses had claimed injurious affection in relation to both phases of the By-Pass project.

It is important to note the businesses specifically narrowed the scope of their appeal to the injurious affection they allege occurred during Phase 2 of the project. This time frame saw the temporary closure of a portion of the old Highway 104 from the autumn of 2012 to the autumn of 2016. On appeal, the businesses did not pursue the arguments advanced to the Board that the loss of visibility and loss of access from the new Highway constituted injurious affection.

The arguments before us relate solely to the injurious affection they assert arose due to the temporary blockade of a portion of old Highway 104. [ 33 ] In their factum, the businesses set out the issues for determination as follows: 1. Did the Board Member err in law by failing to reasonably apply the legal test for the threshold of whether or not the construction of the By-Pass caused a substantial interference with the Appellants’ property rights? 2.

Did the Board Member err in law by failing to reasonably apply the legal test for reasonableness of the Respondent’s interference with the Appellant’s property rights? 3. That the Board Member failed to render a decision regarding s. 30(2) of the Expropriation Act . [ 34 ] In its written submissions the Province raises concern with the Board’s

interpretation of s. 31(1) and specifically its finding of when the limitation period began to run. It argues the Board erred in law to the extent it found the limitation period only began to run when the temporary continuing nuisance had ended. The Province asked that its cross-appeal be allowed on that basis and this Court find the claims to be statute-barred. [ 35 ] After the conclusion of the hearing, the panel requested additional submissions from the parties. They were invited to address whether a recent decision of the British Columbia Court of Appeal, Gautum v.

South Coast British Columbia Transportation Authority , 2020 BCCA 135 (leave to appeal denied) was relevant to the limitation issue raised in the cross-appeal. Having considered all of the

submissions, I would reframe and re-order the issues for determination as follows: 1. Did the Board err in its analysis of when the limitation period for the claims would begin to run? 2. Did the Board err in concluding the businesses had not established a claim for injurious affection? [36] To resolve the appeal and cross-appeal, it is not necessary to determine whether the claims for injurious affection in the presentinstance were defeated by s. 30(2) of the Act.

Standard of Review [37] Contrary to the businesses’ assertion, the standard of review in this matter is not reasonableness, nor does the framework inDunsmuir v. New Brunswick, 2008 SCC 9, apply. The proper standard of review is now as set out by the Supreme Court of Canada inCanada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [38] Vavilov establishes that on a statutory appeal from an administrative tribunal, the regular appellate standards of review apply.

Questions of law will attract a standard of correctness, whereas questions of fact or questions of mixed fact and law without anextractable legal issue will be reviewed for palpable and overriding error. [39] In the present instance, this Court’s review is limited to issues of law and jurisdiction by virtue of s. 30(1) of the Utility andReview Board Act, S.N.S. 1992 c. 11. Unless the businesses, or Province on its cross-appeal, demonstrate the Board’s alleged errorswere grounded in an error of law, this Court cannot intervene.

Analysis Did the Board err in its analysis of when the limitation period for the claims would begin to run? [40] The Act sets out the limitation period as follows: 31(1) Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage orloss in writing with particulars of the claim within one year after the damage was sustained or after it became known to him, and, if notso made, the right to compensation is forever barred. [41] In interpreting the above provision, the Board found that due to the claims being founded upon a temporary continuingnuisance, the limitation period only began to run when the nuisance—here the removal of the blockade on a portion of old Highway 104—ceased.

In their post-hearing submissions, the businesses and the Province, relying on Gautum, say the Board’s conclusion was wrongin law. I agree. [42] The Board did not have the benefit of Gautum in undertaking its

interpretation of s. 31(1) and applying it to the matter at hand. Rather, the Board relied upon this Court’s decision in Research Island A.G. v. Nova Scotia (Attorney General), 1994 NSCA 126 , [1994] 115 D.L.R. (4th) 397 and Dartmouth Crossing Ltd. (Re), 2015 NSUARB 48.

In my view, Gautum is directly relevant towhen a limitation period begins to run where a claim for injurious affection arises from a temporary continuing nuisance. [43] Gautum involved claims for injurious affection brought under the British Columbia Expropriation Act, R.S.B.C. 1996, c. 125arising from subway construction in a Vancouver neighbourhood. Discontented with the impact of the construction, several businessesbrought a class action for damages arising in nuisance. An amendment to the pleadings later added claims for injurious affection underthe B.C. Act.

This was followed by an amended defence that alleged that the claims were statute-barred by virtue of s. 42(1) of that Act. It provides: 42(1) A claim for compensation under section 41(3)[3] must be made in writing to the court by the person suffering the damage, withparticulars of the claim, within one year after the damage (

a) was sustained, or (

b) became known to the person.

(2) If a claim referred to in subsection (1) is not made in accordance with that subsection, the right to compensation is foreverbarred. [44] Following certification of the class proceeding, a test case was conducted to address the validity of the limitation defence. Thetrial judge concluded the claims were not barred. On appeal, a majority of the British Columbia Court of Appeal disagreed. Thecontinuing nature of the nuisance was of particular relevance to the majority: [45] The challenge in analyzing this case arises from the fact that the damage was of a continuing nature.

The value of the plaintiffs’lands was temporarily diminished by virtue of activities that continued over an extended period of time. [46] Torts that cause damage on a continuing basis are not unusual. Nuisances, trespasses, and wrongful imprisonments, for example,may continue over extended periods of time, and a plaintiff may sustain fresh damage for as long as the defendant continues to acttortiously.

Injurious affection damage may, similarly, be sustained on a continuing basis, for so long as a defendant engages in acts thatserve to devalue the plaintiff’s interest in land. [47] Courts have, on many occasions, had to apply statutory limitation periods to civil wrongs of a continuing nature. They have beenfaced with arguments from defendants that the limitation period should be measured from the day that the civil wrong commenced, andarguments from plaintiffs that the limitation period should be measured from the day that the civil wrong ceased to be committed. They

have, uniformly, rejected both positions. Instead, they have treated each day on which a civil wrong continues as the starting point for alimitation period applying to damages suffered on that day … . [45] The majority’s review of the relevant case authorities is particularly helpful: [50] In Roberts v. Portage La Prairie, (SCC), [1971] S.C.R. 481, the municipality had constructed a sewage lagoonin 1958. In 1965, the plaintiff filed a claim, alleging that polluted water had escaped from the lagoon. His claim covered the years 1960through 1968.

The statutory limitation provision required an action to be brought “within six calendar months next after the actcommitted; or in case there shall be a continuation of damages, then within one year after the original cause of such action arising.” Theplaintiff contended that no part of his action was statute barred, while the defendant asserted that, because the cause of action arose in1960, at the latest, it was barred in its entirety. [51] The trial judge rejected both arguments, stating “In the instant case an original cause of action arose each day the nuisanceremained unabated.

The plaintiff is entitled to recover damages for the one-year period immediately prior to the issuance of thestatement of claim, i.e., from September 20, 1964.” The judgment was upheld by the Manitoba Court of Appeal. The Supreme Court of Canada agreed, citing at 491, a passage from Salmond on Torts (15th edition), at p. 791: … An injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly past.

Thus the wrong offalse imprisonment continues so long as the plaintiff is kept in confinement; a nuisance continues so long as the state of things causingthe nuisance is suffered by the defendant to remain upon his land; and a trespass continues so long as the defendant remains present uponthe plaintiff’s land.

In the case of such continuing injury an action may be brought during its continuance, but damages are recoverableonly down to the time of their assessment in the action. [52] While the Court accepted that the plaintiff was entitled to commence an action in 1965 because the tort was a continuing one, italso held that damages that were incurred more than one year before the claim was brought could not be recovered, as they were barredby the limitation provision. [53] This Court reached a similar conclusion in Kerlenmar Holdings Ltd. v.

Matsqui (District) (1991), (BC CA), 81 D.L.R. (4th) 334, holding that flooding of the plaintiff’s land caused by the urbanization of the defendant’s lands constituted a continuingtort. Although the urbanization occurred before 1971, the municipality continued to maintain its property in an urbanized condition, andwas liable for damages caused by flooding so long as those damages were suffered within the limitation period (in that case, up to 6years prior to the filing of the claim). [54] In ML Plaza Holdings Ltd. v.

Imperial Oil Limited, 2006 BCCA 564, Justice Donald further clarified the law in this area, statingat para. 12 that, in the case of a continuing tort, only “fresh damage” suffered within the limitation period is recoverable. [55] The respondents rely on R. v. Research Island A.G. (1994), 1994 NSCA 126 , 132 N.S.R. (2d) 156 (C.A.) and MichaelZygocki Ltd. v. Whitby (Town) (2002), (ON SCDC), 169 O.A.C. 149 (Div. Ct.) for the proposition that the limitationperiod for injurious affection does not begin to run until the project causing the damage is completed.

Those cases do not stand for thatproposition, nor are they on point. Both cases involved permanent, rather than continuing, injury to the value of the plaintiff’s lands. Thecases were not concerned with when the injury occurred. The issue, instead, was when the plaintiff ought reasonably to have been awarethat the value of their lands had been diminished, an issue that does not arise in this case.

Neither Research Island nor Michael Zygockicasts any doubt on the proposition that, when a civil wrong is of a continuing nature, the limitation period runs from each date on whichdamage is incurred. [56] In accordance with the established law on the application of limitation periods to continuing civil wrongs, it is clear that theplaintiffs are entitled to claim damages only where those damages were actually suffered within one year of the filing of the claim.

Forthat reason, the respondents are permitted to claim only in respect of the diminution in the value of their leasehold interests from July 17,2008, onward. [46] I agree with and adopt the position set out above, including the view that the reasoning in Research Island is not applicable inthe case of a continuing nuisance. In such cases, every day a civil wrong continues provides a new opportunity to bring a claim forinjurious affection.

The Board was wrong to conclude the limitation period for the businesses to give notice of a claim only began to runonce the temporary blockade ended. [47] There is another aspect of Gautum that is relevant to claims for injurious affection arising from a continuing temporarynuisance under the Act—that the limitation period serves to constrain the commencement of the calculation of damages to the 12 monthspreceding the giving of notice of the claim.

Both the Province and businesses agree with this proposition. [48] Notwithstanding the error contained in the Board’s analysis, its ultimate conclusion that the claims were not statute-barred iscorrect. The businesses all gave notice of their intent to bring a claim in 2015 when any alleged damages were still ongoing. Therefore,the notices were contemplated by s. 31(1). I would dismiss the cross-appeal. 2. Did the Board err in concluding the businesses had not established a claim for injurious affection? [49] The businesses do not take issue with the Board’s identification of the proper law as set out in Antrim.

They say the Boarderred in its application of the law to the circumstances before it. Specifically, the businesses assert the Board erred in concluding thetemporary partial blockade of old Highway 104 was not a substantial interference with their proprietary rights of access.

Similarly, thebusinesses argue the Board’s conclusion that any interference with their property interests was reasonable, cannot survive appellatescrutiny. [50] In response the Province says this Court should not entertain either of these complaints as the businesses have failed todemonstrate an extricable legal error in the Board’s reasoning. It asserts the Board’s conclusions, both factually-infused, should not be

re-assessed by this Court. [ 51 ] In its reasons, the Board first considered whether the By-Pass project caused a substantial interference with the businesses’ proprietary rights. At the outset, the Board noted the businesses were not advancing claims based on a diversion of traffic but on the basis of an alleged impairment of access to their properties. The Board further noted: [132] As well, the law of expropriation is based on interference with interests in property.

The underlying rationale why diversion of traffic was historically not actionable was because there is no common law proprietary right to have traffic flow directed towards the front of a business. This is highlighted in the following passage in Inglis: [56] The following passage appears in Nichols on Eminent Domain, revised 3rd Edition, 1972, as cited by the Ontario Land Compensation Board in Zadworski v.

Ontario (Minister of Transportation and Communications) , (1972) 4 LCR 100 : In diverting traffic from in front of an owners' building to a new route, there is no invasion of the rights of the owner, nor is there any legal injury to the land remaining... The state, however, owes no duty to the owner in regard to sending public travel past his door. Our trunk line highways are built and maintained to meet public necessity and convenience in travel, and not for the enhancement of property of occasional land owners along the route... The owner is not entitled to receive any compensation for diversion of traffic.

This principle was expressed in one case as follows: The owner of land abutting on a highway established by the public has no property or other vested right in the continuance of it as a highway at public expense, and, at least in the absence of depreciation of ingress and egress, cannot claim damages for its mere discontinuance, although, such discontinuance diverts traffic from his door and diminishes his trade and thus depreciates the value of his land. [133] If a property owner has no right to have traffic directed by his door, there is no interference with proprietary rights associated with the use and enjoyment of property when traffic is diverted elsewhere, provided the diversion is not caused by impairment of access.

Access is an incident of property ownership. Therefore, the distinction in treatment between the two situations is not based on categorizing forms of interference, but on the fact that, in one case, there is no interference with proprietary rights, in a common law legal sense, at all. [134] No rationale was provided for extending the bundle of rights associated with property ownership to include a right to have traffic directed towards a particular owner's business. The Claimants did not advance such a proposition at all.

The main thrust of the Claimants’ argument was that access had been impaired. [135] The Board must therefore consider whether, from a factual standpoint, access to the Claymore Inn was impaired. If so, does this impairment meet the test set out in Antrim for actionable nuisance? [ 52 ] On appeal, the businesses have not challenged the Board’s characterization of their claims, or its view that a diversion of traffic, without an impairment of access was fatal to a claim for injurious affection.

As noted earlier, the businesses do not take issue with the Board identifying the test in Antrim as being applicable. [ 53 ] The Board reviewed the evidence and made a number of factual findings, including: • After all the construction was completed, Trunk 4 through Antigonish, in the vicinity of the Church Street/Church Street Extension intersection, remained the same as it was prior to the construction of the By-Pass. What changed was the access points to Trunk 4, and ultimately the town and its businesses; • During Phase 2, a portion of old Highway 104 was closed.

During that time there was a temporary transition to the recently opened Phase 1 consisting of a short direct road; • None of the businesses were located near the blockade, nor did any, prior to or after the By-Pass project, have direct access to old Highway 104; • While a portion of old Highway 104 was closed, there continued to be access and egress points to it, along with Church Street and beyond, where the businesses were located, including for westbound traffic. [ 54 ] The Board then, applying Antrim , found the impairment of access to the businesses was not substantial.

It is this conclusion that is challenged by the businesses on appeal. They argue the Board erred in concluding the blockade did not cause a substantial impairment particularly for westbound traffic, and further that it failed to consider the businesses’ loss of profits as part of its substantial interference analysis. [ 55 ] Having carefully considered the record, the Board’s reasons and the submissions of the parties, I am satisfied the businesses have not identified a clear error of principle in the Board’s reasoning.

Rather, the businesses’ submissions seek to challenge the Board’s determination, fundamentally factual in nature, that the businesses did not suffer a substantial interference with their rights of access. Further, the businesses have not provided authority to support their assertion the Board erred by failing to consider their financial losses as a factor relevant to whether there had been a substantial interference with their proprietary right of access. [ 56 ] The Board could have ended its analysis of the businesses’ claims at this point.

It proceeded to consider whether, if a substantial interference had been established, it was unreasonable in the circumstances: [165] There is no doubt that the construction of the Antigonish By-Pass was a matter of significant public utility. The primary driver for the construction was not convenience, or enhanced efficiency for business and the public at large. The primary reason for the construction was public safety. The Claimants fully acknowledge the public utility of the project.

As discussed in Antrim, while this is not irrelevant, it cannot be weighed in such a manner as to overshadow the interests of property owners.

[166] The reasons for proceeding with the project; the design that was chosen; the location that was chosen; and, the manner of proceeding with the construction are detailed in the Board's findings of fact. The Board finds there is no evidence to support that the manner in which the Antigonish By-Pass project was undertaken by the Province was defective. Reasonable alternatives were considered and addressed.

The Board finds nothing untoward in the conduct of the Province in executing the project. [167] The Claimants have no particular sensitivity to nuisance, except to the extent the business is dependent on its location. The impact of the Antigonish By-Pass on the Claimants is permanent. The traffic patterns which have developed since the construction of the By-Pass are likely to remain, unless further work is done in the future. The reduction in revenue experienced by the Claimants since the opening of the Antigonish By-Pass appears significant.

The Board is of the view the extent of the financial impact caused by any limited impairment of access is likely also limited. [168] With respect to the severity of the interference, the Board has done a detailed analysis earlier in this Decision. The interference with access is minor. This factor weighs heavily in the Province's favour. [169] One must consider the temporary traffic lane closures, and the installation of a safe and well-designed by-pass, in the context of a setting near a town. The inconveniences created are minor, in the overall context of the situation.

This is especially so when the existing situation, prior to the construction of the Antigonish By-Pass, was a very dangerous one. It created its own challenges with respect to left- hand turns on a busy highway. [170] From a public policy perspective, if the Claimants' position were to prevail, one could anticipate that almost any business in Antigonish would have a claim for injurious affection based on impairment of access from the construction of the Antigonish By-Pass.

The Board is of the view this was not the type of door Antrim intended to open, when it addressed a significant and permanent impairment of access to one business, in a rural setting, where access had been severely altered and limited. [171] Considering all these factors in the balance, the Board finds any interference with the Claymore Inn is reasonable, in the circumstances of this case.

Simply put, in order to be able to take advantage of the amenities and financial opportunities available in a university town setting, the type of interference which occurred in this matter, providing safety for both the travelling public, and the residents and visitors to Antigonish, is not greater than the Claimants should be expected to bear, without compensation. [ 57 ] The businesses challenge the Board’s finding that any interference with their proprietary right to access was reasonable on the following grounds: • The Board unreasonably considered the possibility of indeterminate liability as a factor to justify the reasonableness of the impairment to the access to their lands; • The Board gave undue consideration to the safety objective of the By-Pass construction; and • The Board used its flawed analysis of the severity of the interference to the lands in the balancing of the reasonableness of the construction project. [ 58 ] As I have already found the Board did not undertake a flawed analysis relating to the nature of the interference, I will only address the first two complaints. [ 59 ] To respond to the businesses’ allegations of error, it is helpful to return to Antrim , and the guidance provided regarding the assessment of reasonableness.

Justice Cromwell wrote: [25] The main question here is how reasonableness should be assessed when the activity causing the interference is carried out by a public authority for the greater public good. As in other private nuisance cases, the reasonableness of the interference must be assessed in light of all of the relevant circumstances.

The focus of that balancing exercise, however, is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. [26] In the traditional law of private nuisance, the courts assess, in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances: see, e.g., A. M. Linden and B. Feldthusen, Canadian Tort Law (9th ed. 2011), at p. 580.

The Divisional Court and the Court of Appeal identified several factors that have often been referred to in assessing whether a substantial interference is also unreasonable. In relation to the gravity of the harm, the courts have considered factors such as the severity of the interference, the character of the neighbourhood and the sensitivity of the plaintiff: see, e.g., Tock , at p. 1191. The frequency and duration of an interference may also be relevant in some cases: Royal Anne Hotel , at pp. 760-61.

A number of other factors, which I will turn to shortly, are relevant to consideration of the utility of the defendant’s conduct. The point for now is that these factors are not a checklist; they are simply “[a]mong the criteria employed by the courts in delimiting the ambit of the tort of nuisance”: Tock , at p. 1191; J. P. S. McLaren, “Nuisance in Canada”, in A. M. Linden, ed., Studies In Canadian Tort Law (1968), 320, at pp. 346-47. Courts and tribunals are not bound to, or limited by, any specific list of factors.

Rather, they should consider the substance of the balancing exercise in light of the factors relevant in the particular case. (Emphasis added) [ 60 ] Relevant to the businesses’ second concern, Justice Cromwell cautioned against placing too much weight on the utility of a defendant’s conduct in the reasonableness assessment: [30] The second point is that the utility of the defendant’s conduct is especially significant in claims against public authorities.

Even where a public authority is involved, however, the utility of its conduct is always considered in light of the other relevant factors in the reasonableness analysis; it is not, by itself, an answer to the reasonableness inquiry. Moreover, in the reasonableness analysis, the severity of the harm and the public utility of the impugned activity are not equally weighted considerations. If they were, an important public purpose would always override even very significant harm caused by carrying it out.

As the editors of Fleming’s The Law of Torts put it, the utility consideration “must not be pushed too far. . . . [A] defendant cannot simply justify his infliction of great harm upon the

plaintiff by urging that a greater benefit to the public at large has accrued from his conduct”: s. 21.110. The words of McIntyre J.A. in Royal Anne Hotel are apposite: There is no reason why a disproportionate share of the cost of such a beneficial service should be visited upon one member of the community by leaving him uncompensated for damage caused by the existence of that which benefits the community at large. [p. 761] [ 61 ] I see no merit to either of the businesses’ complaints.

As is clear from Antrim , a reasonableness assessment is not intended to be confined to specified criteria, rather a court must balance the relevant factors that arise in the particular circumstances. I do not read Antrim as precluding a consideration of indeterminate liability in an appropriate case, and the businesses have presented no authority to support their view that doing so would constitute legal error. [ 62 ] Further, I am not satisfied the Board placed undue weight on the utility of the Province creating the By-Pass and the resulting safety improvements.

To the contrary, the Board was alive to the caution given in Antrim . It wrote: [165] There is no doubt that the construction of the Antigonish By-Pass was a matter of significant public utility. The primary driver for the construction was not convenience, or enhanced efficiency for business and the public at large. The primary reason for the construction was public safety. The Claimants fully acknowledge the public utility of the project.

As discussed in Antrim, while this is not irrelevant, it cannot be weighed in such a manner as to overshadow the interests of property owners. (Emphasis added) [ 63 ] The Board, as per Antrim , considered a number of factors, cautioned itself appropriately, and reached a conclusion with respect to the reasonableness of any alleged interference with the businesses’ proprietary right of access. With respect, the businesses have not demonstrated an extricable error of law. They appear to want this Court to re-weigh the evidence and reach a different conclusion.

As explained earlier herein, that is not this Court’s function. [ 64 ] For the reasons outlined above, I would dismiss the appeal and uphold the Board’s finding that the businesses failed to establish claims of injurious affection under the Act . Disposition [ 65 ] I would dismiss the appeal brought by the businesses and the cross-appeal of the Province. I am of the view each party should bear their own costs on appeal. Bourgeois J.A. Concurred in: Bryson J.A. Scanlan J.A.