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Injurious affection in the absence of a taking:
a historical analysis in the Canadian (B.C.) context
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Robert S. Cosburn
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PART 4: THE STATUTORY FOUNDATION |
| 33. |
The development of the concept of compensation for injurious affection with no taking in our jurisdiction turns on the judicial interpretation of the English Lands Clauses Consolidation Act of 1845 (8 & 9 Victoria. c. 18), which describes itself as an Act for consolidating in one Act certain provisions usually inserted in Acts authorizing the taking of lands for undertakings of a public nature. That Act performed a similar function in its context to that of the Expropriation Act, S.B.C. 1987 c. 23 in providing a statutory foundation for the heads of claim which are compensable, and the method of assessment of compensation, for a number of statutes authorizing public works by an authority with the power to expropriate.
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| 34. |
Section 63 of the Lands Clauses Consolidation Act (1845) states as follows:
In estimating the purchase money or compensation to be paid by the promoters of the undertaking...regard shall be had by the Justices, arbitrators or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act....
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| 35. |
Section 68 of the Lands Clauses Consolidation Act (1845) states as follows:
If any part shall be entitled to any compensation with respect of any lands, or of any interest therein which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this or the special Act, or any Act incorporated therewith, ... such party may have the same settled...
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| 36. |
Section 68 of the Lands Clauses Consolidation Act (1845), following judicial interpretation that it provides substantive rights to claim and is not simply procedural in nature may be treated as the basic statutory foundation for a claim for injurious affection where there has been no taking. The English courts have relied, in their interpretation, upon the the words "if any party shall be entitled to any compensation in respect of any lands...injuriously affected by the execution of the works..." in isolation from the rest of the Act.
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| 37. |
The issue of note in reviewing judicial interpretations of the English Act is the relationship between Sections 63 and 68 of the Lands Clauses Consolidation Act (1845). Section 63 would appear to provide for compensation for injurious affection only in the event of a taking -
in estimating the purchase money or compensation to be paid by the promoters of the undertaking ... regard shall be had by the Justices, arbitrators, or surveyors as the case may be not only to the value of the land to be purchased or taken ... but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of the owner, or otherwise injuriously affecting such other lands by the exercise....
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| 38. |
Section 68 may be comfortably read as a procedural section, not intended by the Legislature to expand compensation for injurious affection beyond those situations in which there has been a taking (see Hammersmith v. Brand [1869] 4 H.L. 171, English House of Lords, where the procedural interpretation was made). We know, however, that the development of the common law is subject to prevailing societal moods. Arguably what has occurred is that the English Courts which were called upon to interpret the Lands Clauses Consolidation Act (1845) at times (after 1869, clearly) when the societal mood supported private interests as against the public interest, found s. 68 to provide a substantive right of compensation for a party not expropriated-from but "injuriously affected" (see The Queen on the Prosecution of Thomas Flight v. The Vestry of St. Lukes Chelsea, [1871] 7 Q.B. 148, Court of Queen's Bench, where the substantive interpretation was made). The apparent artificiality of this interpretation is made clearer on a consideration of the definition of injurious affection discussed earlier in this brief.
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| 39. |
The Lands Clauses Act, R.S.B.C. 1960, c. 209, recites, as did its British Columbia predecessors, wording based on the English Lands Clauses Consolidation Act (1845). Sections 64 and 69 of the B.C. Act were substantially identical to sections 63 and 68 respectively of the English Act.
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| 40. |
The present British Columbia Expropriation Act, R.S.B.C. 1996, c. 125,
significantly altered the structure of the 1979 B.C. Expropriation Act
(which was essentially a restatement of the B.C. Lands Clauses Act under
a different name). The key phrase in Section 68 of the Lands Clauses
Consolidation Act (1845), and restated in Section 69 of the
Lands Clauses Act, 1960, and Section 67 of the Expropriation Act,
1979, is not set out expressly in the present B.C. Expropriation Act but
is referred to by implication in the wording of Section 41. Section 41 states:
| (1) |
..."injurious affection" means injurious affection caused by an expropriating authority in respect of a work or project for which the expropriating authority had the power to expropriate land.
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| (2) |
The repeal of the Expropriation Act, R.S.B.C. 1979, c. 117, and the amendments and repeals in sections 56 to 128 of the Expropriation Act, S.B.C. 1987, c. 23, are deemed not to change the law respecting injurious affection if no land of an owner is expropriated, and an owner whose land is not taken or acquired is, despite those amendments or repeals, entitled to compensation to the same extent, if any, that the owner would have been entitled to had those enactments not been amended or repealed.
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