Montana Equipment Ltd. v Robert B. Somerville Company et al, 2017 ONSC 3092
NEWMARKET COURT FILE NO.: CV-16-125475-00 DATE: 20170518
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Montana Equipment Ltd. Plaintiff – and – Robert B. Somerville Company Limited, Bell Canada, Brennan Paving & Construction Ltd., Miller Group Inc., carrying on business as The Miller Group, City of Vaughan, York Regional Rapid Transit Corporation and the Regional Municipality of York Defendants
Counsel: Peter T.J. Danson, for the Plaintiff David W. Powrie, for the Defendants, City of Vaughan, York Regional Rapid Transit Corporation and the Regional Municipality of York (moving party defendants) Christina Kapelos, for the Defendants, Robert B. Somerville Company Limited and Bell Canada
Heard: April 5, 2017
DECISION FROM MOTION UNDER RULE 21
Sutherland J.:
Overview
[1] The plaintiff, Montana Equipment Ltd. (“Montana”), is the owner and operates a business located on Highway 7, in the City of Vaughan. Outside of its business premises, there was construction for the widening of Highway 7 to facilitate the installation of rapid transit. The plaintiff claims that, as a result of the construction, damages were sustained upon its building which houses the business through the pounding and the resulting vibration caused by the construction. The plaintiff further alleges that, post-construction, highway traffic creates ongoing vibrations which have resulted in further physical damage to its building, as well as a loss of Montana’s reasonable quiet use and enjoyment of its premises. The plaintiff alleges that the damage to the building is a direct result of the work performed and the negligence of the defendants.
[2] The moving party defendant, the Regional Municipality of York (“York Region”), brings this motion under r. 21 of the Rules of Civil Procedure [^1] seeking a stay of the plaintiff’s action for lack of jurisdiction and a declaration that this action is within the jurisdiction of the Ontario Municipal Board (“OMB”) and not this court. The moving party defendant argues that all of the plaintiff’s claim are, in substance, for “injurious affection” as defined under s. 1(1)(b) of the Expropriations Act [^2] (“the Act”), and are thus within the OMB’s exclusive jurisdiction.
[3] The plaintiff concedes that some of its claims for compensation for injuries incurred during the construction – namely, a reduction in the market value of its land, business losses, and the quiet use and enjoyment of its land – are within the exclusive jurisdiction of the OMB as against the following defendants: Brennan Paving & Construction Ltd. (“Brennan”), Miller Group Inc., carrying on a business as The Miller Group (“Miller”); City of Vaughan; York Regional Rapid Transit Corporation (“York Rapid Transit”); and York Region. The action in regards to these claims and against these defendants must be stayed.
[4] The plaintiff agrees that the work performed by the defendant Robert B. Somerville Company Limited (“Somerville”) for the defendant Bell Canada was “incidental” to the work performed by the other defendants; however, the plaintiff contends that all claims against these two defendants are outside the OMB’s jurisdiction because the work performed by them was not done under statutory authority.
[5] The plaintiff argues that its claims for damage to its buildings and walkways are outside the OMB’s jurisdiction, and should be adjudicated in this court.
Factual Background
[6] The plaintiff is a customized stainless steel and restaurant equipment supplier. The plaintiff has owned the building located at 1965 Highway 7, in Vaughan, Ontario since 2004. In 2011, the plaintiff constructed a substantial addition to the building.
[7] In October 2013, the York Rapid Transit and York Region commenced reconstruction and widening of Highway 7, a portion of which was in front of the plaintiff’s premises.
[8] Bell Canada retained the services of Somerville to relocate and bury the underground telecommunication cables parallel to or under the widened highway. This work was required before the reconstruction of the highway could commence.
[9] Between January 27 and February 20, 2015, Somerville carried out its work on behalf of Bell Canada. This work was carried out on land owned by York Rapid Transit and York Region.
[10] Between June 2 and July 10, 2015, Brennan and Miller carried out work on behalf of York Rapid Transit and York Region on the same lands worked on by Somerville for the reconstruction and widening of the highway.
[11] The plaintiff alleges that the use of heavy equipment gave rise to repeated vibrations that caused the plaintiff’s building to shake. The plaintiff alleges that this work resulted in physical damage to the building, which includes damage to the foundation, floors, exterior walkways and stairways, joists, roof, and interior ceiling.
[12] The plaintiff alleges that after Somerville completed its work, further work was performed on behalf of York Rapid Transit and York Region utilizing heavy equipment which exasperated the damages caused by Somerville.
[13] The plaintiff also alleges that after completion of the construction, heavy traffic on Highway 7 causes ongoing vibration that is causing continual damages to its building.
[14] Consequently, the plaintiff has commenced this action requesting damages caused by the shaking and vibrations.
Issues
[15] The three legal issues before this court are as follows:
- Was the work done by the defendants Bell Canada and Somerville performed under “statutory authority”?
- Does the substance of the remaining claims, the damage to the building and walkways, the claims against Bell Canada and Somerville and claims of ongoing vibrations, fall within the meaning of “injurious affection” under s. 1(1)(b) of the Act?
- Is the relief sought by the plaintiff within the OMB’s scope of authority?
Legal Principles
Rule 21 Motion
[16] Rule 21.01 of the Rules of Civil Procedure permits a party, before trial, to move before a judge for a determination of a question of law raised by the pleadings. Rule 21.01(2) indicates that no evidence is permitted on such a motion without leave of the court or consent of all parties. On this motion, leave was not requested nor was consent given. Thus, no evidence was admissible.
[17] Rule 21.01(3)(a) permits a defendant to move before a judge to have an action dismissed or stayed on the ground that the court has no jurisdiction over “the subject matter of the action”.
The Superior Court’s Jurisdiction
[18] In examining the issue of the Superior Court’s jurisdiction, Stark J. in Re Michie Estate and City of Toronto et al. [^3] reasoned:
It appears clear that the Supreme Court of Ontario has broad universal jurisdiction over all matters of substantive law unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms…
[19] Stark J. then reviews the principle of broad universal jurisdiction and refers to the decision of the Privy Council in Broad v. Broad [^4], and quotes from the reasons of Viscount Haldane that stated the law:
…Their Lordships are of the opinion that, in the absence of any explicit and valid legislative declaration that the Court was not to exercise jurisdiction in divorce, that Court was bound to entertain and to give effect to proceedings for making that right operative… If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court… [^5]
[20] I will now turn to the legislative scheme in Ontario.
Injurious Affection
[21] At common law, injurious affection formed part of the law of private nuisance. The law dealt with a situation where a person’s activities interfered with an owner or occupant’s use or enjoyment of their land. Damages would be granted for physical damage to the land and for interference with the enjoyment of the land, being health, comforts or convenience of its occupants. [^6]
[22] However, at common law, it was recognized that public works were different. Public works had the effect of causing turmoil and nuisances. For policy reasons, every owner or occupier of land was expected to put up with a certain degree of temporary disruption and interference caused by essential public works. Accordingly, a public body could avail itself of the defence of statutory authority to any damages of nuisance that inevitably resulted from the public works. [^7]
[23] In Manchester v. Farnworth [^8], Viscount Dunedin described the requisite inevitability as follows:
When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation which cannot be rigidly defined, of practical feasibility in view of a situation and of expense. [^9]
[24] To militate against the effect of the common law defence of statutory authority, a legislative regime was created to provide a party affected by public authority works with certain statutory relief and compensation. This legislative regime is encompassed in the Act and the Ontario Municipal Board Act [^10] (“the OMB Act”).
[25] Section 1(1) of the Act defines injurious affection as follows:
“injurious affection” means,
(a) where a statutory authority acquires part of the land of an owner,
(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and
(ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute,
(b) where the statutory authority does not acquire part of the land of an owner,
(i) such reduction in the market value of the land of the owner, and
(ii) such personal and business damages,
resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,
and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired; (“effet préjudiciable”)…
[26] Section 2 of the Act describes the application of the Act, references to other Acts, and stipulates that the Act prevails if any of its provisions conflict with any other Act.
[27] Section 2 makes it clear that “where land is expropriated or injurious affection is cause by a statutory authority”, the Act applies.
[28] Section 21 of the Act provides that a “statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.”
[29] Section 26 of the Act provides that, where the statutory authority and the land owner have not agreed upon the compensation payable, either party may serve a notice of negotiation upon the other and upon the Board of Negotiation indicating that the compensation is to be negotiated under s. 27 of the Act or, if the parties agree, serve notice of arbitration and move directly to arbitration.
[30] Section 27 of the Act provides that if negotiation before the Board of Negotiation does not result in a settlement, either party may serve notice of arbitration.
[31] Section 29 of the Act provides that the OMB shall determine any compensation in respect of which a notice of arbitration has been served.
[32] Section 36 of the OMB Act provides the OMB with exclusive jurisdiction in all cases and in respect in which jurisdiction is conferred on it by the OMB Act or any other general or special Act.
[33] Notwithstanding the inherent jurisdiction of the Superior Courts, the Ontario Legislature has enacted legislation that has created an exclusive jurisdictional regime granting authority to the OMB to adjudicate compensation for claims of injurious affection, as defined by the Act. [^11]
Analysis
1. Was the work done by the defendants Bell Canada and Somerville performed under “statutory authority”?
Positions of the Parties
[34] The moving defendant submits that the work performed by Bell Canada and its contractor, Somerville, were authorized by statutory authority under the Act. The moving defendant submits that the allegations contained in the statement of claim clearly indicate that the work performed by Somerville was “incidental” to the widening of Highway 7. Consequently, the moving defendants argue, the substance of the action and the relief claimed by the plaintiff are within the exclusive jurisdiction of the OMB and the action must be stayed. The plaintiff directs the court to the decision of Curactive Organic Skin Care Ltd., which was affirmed at the Court of Appeal. [^12]
[35] The plaintiff responds that the factual matrix of this case, as pleaded, is different than the facts in Curactive Organic Skin Care Ltd. The plaintiff submits that the decision in Curactive Organic Care Ltd. did not deal with a situation where, as here, a third party non-public entity has been sued for damages resulting from their work. The plaintiff argues that the work of Somerville, on behalf of Bell Canada, was separate from the work performed by the public entity, namely the widening of Highway 7. Further, the plaintiff submits that there is no judicial pronouncement of whether the ongoing damage caused by the work falls within injurious affection or that the damages claimed fall within the jurisdiction of the OMB. The plaintiff forcefully argues that neither the ongoing damages pleaded nor the damages claimed fall within the jurisdiction of the OMB.
Analysis
[36] The starting point is the legislation and the statement of claim. Given that the statutory authority did not acquire the plaintiff’s land, s. 1(1)(b) of the Act provides the pertinent definition of injurious affection. Paragraphs 9, 13, 14, 19, 27, and 32 of the statement of claim are the relevant allegations against Bell Canada and Somerville.
[37] Paragraph 9 pleads that the work performed by Bell Canada was “[i]ncidental” to the reconstruction and widening of Highway 7.
[38] Paragraph 13 pleads that “at all material times, Bell, Somerville, Brennan and Miller owed Montana a duty of care to carry out the relocation and installation work…”
[39] The thrust of the allegations against Somerville and Bell Canada is contained in para. 19, which reads as follows:
- By April 2015, it became apparent that as a result of the aforesaid work and the related vibrations, Montana’s premises sustained substantial physical damage to its foundation, floors, and exterior walkways and stairway. The physical damage included cracks in the concrete basement floor slab, and where the floor slab cracks were pre-existing, their length and width increased significantly. The exterior walkways sustained chips and cracks, while an exterior stairway separated from the foundation and exterior wall.
[40] From my review of the statement of claim, the plaintiff seems to have bundled together the damages caused by the work performed by all the defendants. There is no separation between the work done by Somerville as it relates to damages and that of Brennan and Miller. The plaintiff has conceded that the work done by Brennan and Miller was performed under statutory authority.
[41] Moreover, according to the plaintiff’s own pleading and concession, the work was “incidental” to the widening of Highway 7. It seems to me that the work performed by Somerville, “the relocation and burying of telecommunication cables”, was a necessary first step. It makes logical sense to me that Somerville’s work formed part of the conceded statutory authority work – the widening of Highway 7. If Highway 7 was not intended to be widened, the logical inference, from the wording of the pleading, is that the work by Somerville would not have been necessary.
[42] Consequently, I do not accept the able argument of the plaintiff that the work performed by Somerville does not fall within the statutory authority. Notwithstanding that Curactive Organic Skin Care Ltd. did not directly deal with third party non-public entities, the thrust of the allegations in the statement of claim indicates that the work performed by Somerville formed part of the statutory authorized work of the widening of Highway 7.
[43] I therefore come to the conclusion that the substance of Somerville’s work performed on behalf of Bell Canada falls within the meaning of statutory authority under the Act.
2. Does the substance of the remaining claims, the damage to the building and walkways the claims against Bell Canada and Somerville and the claims of ongoing vibrations, fall within the meaning of “injurious affection” under s. 1(1)(b) of the Act?
[44] For the plaintiff’s claim to fall within the OMB’s exclusive jurisdiction, the parties agree that the claim must fall within the definition of injurious affection under s. 1(1)(b) of the Act. If the claim falls outside this definition, the default jurisdiction of the Superior Court is not ousted, and the action may properly proceed before this court.
[45] In interpreting the scope of s. 1(1)(b), I am mindful of the guidance provided by the Supreme Court of Canada in Toronto Area Transit Operating Authority v. Dell Holdings Ltd. [^13] and Laidlaw v. Municipality of Metropolitan Toronto [^14]. Writing for the Court in Dell Holdings Ltd., Cory J. said that “since the Expropriations Act is a remedial statute, it must be given a broad and liberal interpretation consistent with its purpose. Substance, not form, is the governing factor.” In Laidlaw, for the Court, Spence J. wrote that “a remedial statute should not be interpreted, in the event of an ambiguity, to deprive one of common law rights unless that is the plain provision of the statute”. [^15]
[46] The statutory requirements for injurious affection under s. 1(1)(b) were defined by Cromwell J. in Antrim Truck Centre Ltd. [^16] as follows:
(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.
[47] In the present circumstances, determining whether the plaintiff’s claims meet these statutory criteria requires answering five questions:
i. Was the work performed under statutory authority? ii. Is the alleged injury substantial enough to give rise to liability? [^17] iii. Was the injury claimed an inevitable consequence of the statutorily authorized action? iv. Is the injury claimed contemplated under the definition of injurious affection under s. 1(1)(b)? v. Does the injury claimed arise from the construction and not the use of the works by the statutory authority?
For a claim to fall within the definition of injurious affection under the Act, each of these questions must be answered in the affirmative.
[48] Given my findings above and the plaintiff’s concessions, the first question has been answered affirmatively.
[49] On the second issue, it was not argued that the alleged damage to the plaintiff’s building was not significant enough to meet the threshold for an actionable tort. Therefore, for the purpose of this motion, the second issue is also answered in the affirmative.
[50] The latter three issues require further analysis, which is discussed below.
iii. Was the injury claimed an inevitable consequence of the statutorily authorized action?
Positions of the Parties
[51] The plaintiff argues that the damage to its property was not inevitable, but arose from the defendants’ negligence. As the statutory authority defence only protects against claims for injuries that inevitably arise from state authorized action, the plaintiff contends that its claims fall outside the definition of injurious affection under the Act.
Analysis
[52] As put by Perell J. in Curactive Organic Skin Care Ltd., injurious affection under the Act “ is a nuisance claim in tort that would otherwise be barred by the common law defence of statutory authority because the alleged injury is an inevitable consequence of construction of a work authorized by statute and done without negligence. ” [^18]
[53] I am not convinced that the physical damage alleged in this case was the inevitable consequence of a work authorized by statute, nor that it was done without negligence. Without evidence on this r. 21 motion, a finding of inevitability must be grounded solely in common sense. [^19] Applying common sense, I would be prepared to find that some degree of vibrations were the inevitable consequence of Highway 7’s reconstruction, [^20] but I cannot not find, based the allegations pleaded, that it was inevitable that the degree of vibrations was to the extent to cause the significant physical damage alleged. It may be later proven that the damages were indeed inevitable, but I cannot find as such at this time.
[54] Since I cannot accept that the plaintiff’s claim arises from the inevitable consequence of construction work performed under statutory authority, the claim does not fit the definition of injurious affection under the Act. Because the claim may fall outside the injurious affection definition, so too does it fall outside the OMB’s exclusive jurisdiction. Therefore, the action may properly proceed in this court.
[55] Given my answer to this question, it is unnecessary to consider the final two sub-issues. However, on the chance that I am in error, I will provide some comments on each.
iv. Is the injury claimed contemplated under the definition of injurious affection under s. 1(1)(b)?
Positions of the Parties
[56] The plaintiff’s primary claim is for the physical damage caused to its building and walkways around the building. The plaintiff contends that “land” under the Act’s definition of “injurious affection” does not expressly include the building situated on the land or the walkways around the building.
[57] The moving defendant submits that “land” includes the building situated on the land and that the claimed damages to the building falls within the meaning of “such personal and business damages” described in the definition of “injurious affection” under the Act. The moving defendant additionally argues that the scope of authority given to the OMB under the OMB Act is wide enough to encompass all claims for damages claimed by the plaintiff including damages to the building and surrounding walkways.
[58] The moving defendant suggests that this situation is similar to that in Curactive Organic Skin Care Ltd. The damages sought in that case included claims for structural damages. The Court found that the genuine legal and factual nature of the claims was for injurious affection and, thus, within the OMB’s exclusive jurisdiction.
Analysis
[59] The Act is not explicit that physical damage to buildings affixed to land is included under the heads of damages enumerated under s. 1(1)(b). Counsel could not provide me a case where it was held that such damage is captured by the section. [^21]
[60] I disagree with the moving defendant’s position that the present situation is analogous to that in Curactive Organic Skin Care Ltd. Though some structural damage may have been pleaded in that case, the substance of the claim derived from disruptions of access to businesses. At the Court of Appeal, the Court summarized the allegations as follows: “[A]ll of the claims made against the TTC come down to the allegation that the construction of the St. Clair Project took too long and unreasonably impacted on the businesses of the potential class members.” [^22] Loss of revenue from disrupted access to businesses is a typical example of “business damages”. [^23] By contrast, the plaintiff’s allegations here primarily stem from the physical damage and disturbance to its property, not its impact on revenues.
[61] Nevertheless, in view of the Act’s remedial nature, I would be inclined to find that property affixed to land, like walkways and buildings, would properly fall within the definition of “land” under s. 1(1)(b)(i) of the Act. However, considering my finding on the inevitability issue, I need not make a conclusive finding one way or the other.
v. Does the injury claimed arise from the construction and not the use of the works by the statutory authority?
Position of the Parties
[62] The plaintiff acknowledges that some of its claims arise from damage done during the construction, but submit that its claims for ongoing vibrations stem from the use of the works.
[63] The defendant argues that the majority of the plaintiff’s claims are for damages during the construction, and that the claims should not be split to avoid a multiplicity of proceedings.
Analysis
[64] The test for determining whether damage was caused by construction or use under s. 1(1)(b) of the Act was laid out by George S. Challies in The Law of Expropriation, 2nd Ed. [^24] and subsequently adopted by the Divisional Court in Re City of Windsor and Larsen et al. [^25]:
The test of whether the property is actually damaged by operation or use is to consider whether the works as constructed, if left unused, would interfere with the actual enjoyment of the property; if not, no compensation is payable. [^26]
[65] Applying this test to the facts as pleaded in the statement of claim, it is clear that the alleged damage caused while the defendants worked on Highway 7 arose from the construction and not the use. Even if nobody was driving on the highway during the construction, the use of heavy construction would have caused damage to the plaintiff’s premises.
[66] The claims stemming from the subsequent and ongoing vibrations, however, relate to the “use” of the work. If no automobiles were using the road, there would be no ongoing vibrations.
[67] Therefore, if I am wrong on the inevitability issue, I find that some of the plaintiff’s claims are outside the OMB’s exclusive jurisdiction because they stem from the use of the work.
[68] The next issue, then, is with multiplicity of proceedings. On my reasoning, there are claims of the plaintiff that fall within and outside the jurisdiction of the OMB. Can this court impose upon the OMB to hear claims that are outside its jurisdiction for the benefit of avoiding multiplicity of proceeding? On the basis of the facts of this case as presented on this motion, I find this court cannot. It may very well be that there is a “gap” in the legislative scheme as submitted by plaintiff’s counsel. It may also may be available to the court to refer matters outside of the legislative scheme to the OMB for efficiency and to avoid multiplicity of proceedings. [^27] I make no finding either way.
3. Is the relief sought by the plaintiff within the OMB’s scope of authority?
[69] Again, as I have found that the plaintiff’s remaining claims do not fall within the s. 1(1)(b) definition of injurious affection, this question need not be answered. But, again, for the sake of completeness, I will address the parties’ arguments.
Positions of the Parties
[70] The plaintiff argues that its request for a mandatory order falls outside the authority given to the OMB under the Act and the OMB Act.
[71] Regarding the mandatory order sought, the moving defendant directs the court to Pusateri’s Yorkville Limited v. City of Toronto [^28] for the proposition that the relief claimed is in substance a claim for “injurious affection” and is therefore within the jurisdiction of the OMB.
Analysis
[72] The OMB has a narrow jurisdiction to grant a mandatory order when such relief is incidental to the administration of the acts over which it has jurisdiction. The OMB’s power to remedy injurious affection is defined by s. 21, which provides that the Board may require a statutory authority to “compensate” the private owner. There is no broader remedy suggested. Therefore, I agree with Corbett J.’s conclusions in Pusateri’s Yorkville Limited that (i) “compensation” is limited to a claim in damages, and (ii) the Act provides a comprehensive scheme of relief available for injurious affection claims. [^29] In other words, if the plaintiff’s claims could be properly characterized as being for injurious affection under the Act, the only relief available would be damages.
Conclusion
[73] For the reasons given, I find that the substance of the plaintiff’s claims not conceded fall outside the definition of injurious affection under the Act, and thus, are outside the jurisdiction of the OMB.
Disposition
[74] I order that the plaintiff’s claim be stayed against all defendants insofar as the claims seek compensation for a reduction in the market value of its land, business losses, and the quiet use and enjoyment of its land during the construction.
[75] On the basis of the limited evidentiary record on this Rule 21 motion, I do not find the other claims of the plaintiff against Somerville, Bell Canada, or the moving defendants are to be stayed.
[76] If the parties cannot agree on costs of this motion, the moving defendants, Somerville and Bell Canada to serve and file their respective submissions of costs within 21 days from the date of this decision, and the plaintiff will have 14 days thereafter to serve and file its submissions. The submission to be no more than three pages, double spaced, exclusive of any bill of costs, case law and offers to settle. There is no right for reply. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Justice P.W. Sutherland Released: May 18, 2017
Footnotes
[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. E.26. [^3]: Re Michie Estate and City of Toronto et al., 1967 ONSC 202. [^4]: (1919), 1919 UKPC 546, 48 D.L.R. 13 (U.K. P.C.). [^5]: Ibid at pp. 17-18. [^6]: Antrim Truck Centre v. Ontario (Transportation), 2013 SCC 13, at para. 23. [^7]: Ibid; Manchester v. Farnworth, [1930] A.C. 171, at p. 183 (H.L.); and Schenck v. R. (1981), 1981 ONSC 2919, 131 D.L.R. (3d) 310, at para. 30 (Ont. H.C.), supplementary reasons 1982 ONSC 3185, 23 C.C.L.T. 147, affirmed (1984), 1984 ONCA 1950, 15 D.L.R. (4th) 320 (Ont. C.A.), affirmed 1987 SCC 21, [1987] 2 S.C.R. 289. [^8]: Supra note 7, at p. 183. [^9]: Ibid. [^10]: R.S.O. 1990, c. O.28. [^11]: Curactive Organic Skin Care Ltd., 2011 ONSC 2041, affirmed 2012 ONCA 81; and Casa Luna Furniture v. Ottawa (City), 2009 ONSC 9414. [^12]: Supra note 14. [^13]: Toronto Area Transit Operating Authority v. Dell Holdings Ltd., 1997 SCC 400. [^14]: Laidlaw v. Municipality of Metropolitan Toronto, 1978 SCC 32. [^15]: Laidlaw, supra note 14. [^16]: Antrim Truck Centre Ltd., supra note 6, at para. 5. [^17]: See Antrim Truck Centre Ltd., supra note 6, at para. 23: “The point is not that there is a typology of actionable interferences; the point is rather that there is a threshold of seriousness that must be met before an interference is actionable.” [^18]: Curactive Organic Skin Care Ltd., supra note 11, at para. 29. See also, Antrim Truck Centre Ltd. v. Ontario (Transportation), supra note 6, at para. 5. [^19]: Manchester, supra note 7, at p. 183. [^20]: For example, in Re St. Pierre v. Ontario (Minister of Transportation & Communications), 1983 ONCA 1890, affirmed 1987 S.C.C. No. 27, the Court mentioned that “the noise, vibration, smell, fumes and smoke which are the inevitable concomitants of a modern highway.” [^21]: In Wilson et al. v. City of London, (1997), 63 L.C.R. 294, at para. 18, (Ontario Municipal Board), varied on other grounds, (1999), 73 L.C.R. 255, (Ont. S.C. [Div. Ct.]), the Divisional Court held that structural damage to a building can qualify as “personal damages”. In that case, however, the claim arose following partial expropriation, and thus, the definition of injurious affection under s. 1(1)(a) applied, not s. 1(1)(b). The OMB found that the scope of the claimants’ claim was given meaning through ss. 13 and 14 (at para. 8). These sections define the compensation available when land has been expropriated, considerations which are inapplicable to this case. Thus, given the factual matrix of Wilson et al., I do not think that the decision is helpful here. [^22]: 2012 ONCA 81. [^23]: See, for example, R. Jordan Greenhouses Ltd. v. Grimsby (Town) (2015), 114 L.C.R. 249 (Ontario Municipal Board). [^24]: (Montreal: Wilson & Lafleur, Limited, 1963), at p. 138. [^25]: Re City of Windsor and Larsen et al., 1980 ONSC 1573. [^26]: This test was also subsequently adopted by the Court of Appeal in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2011 ONCA 419, at paras. 28 and 147. This decision was reversed by the Supreme Court; however, the “construction and not the use” requirement was not an issue on appeal at the Supreme Court: Antrim Truck Centre Ltd., supra note 6, at para. 6. [^27]: The reference rules under the Rules of Civil Procedure, rr. 54 and 55, may be appropriate. [^28]: Pusateri’s Yorkville Limited v. City of Toronto, 2013 ONSC 6860. [^29]: Ibid, at para. 18.