The City of Toronto v. J.F. Brown Co.

The City of Toronto v. J.F. Brown Co.
Collection
Supreme Court Judgments
Date
1917-05-02
Report
(1917) 55 SCR 153
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Ontario
Subjects
Municipal law
Decision Content
Supreme Court of Canada
The City of Toronto v. J.F. Brown Co., (1917) 55 S.C.R. 153
Date: 1917-05-02
The Corporation of The City of Toronto (Plaintiff) Appellant;
and
The J.F. Brown Company (Defendant) Respondent.
1917: March 7, 8, 9; 1917: May 2.
Present: Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Municipal corporation—Exercise of statutory powers—Erection of lavatories—User—Damage to adjoining land—Injurious affection—R.S.O., 1914, c. 192, s. 325—Cons. Mun. Act, 1908, s. 437.
Depreciation in the selling or leasing value of land caused by the construction and maintenance, by the Municipal Corporation in the exercise of its powers, of lavatories on the highway is “injurious affection” within the meaning of section 437 of “The Consolidated Municipal Act” of 1908 (Ont.), and the owner is entitled to compensation, though none of his land is taken and no right or privilege attached thereto interfered with. Davies J. dissenting.
Judgment of the Appellate Division (36 Ont. L.R. 189, 29 affirmed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario[1], affirming by an equal division the award of the Official Arbitrator.
This is an arbitration brought by the respondent to determine what compensation, if any, was payable to it by the appellant by reason of alleged damage to its property at the south-west corner of Queen and Parliament Streets, Toronto. The respondent owns a parcel of land on this corner having a frontage of 104 feet on Queen Street by a depth of 125 feet on Parlia- ment Street, a street of much less importance than Queen Street. On the easterly 40 feet of the parcel is erected a large three-storey brick store 40 feet by 100 feet wherein tenants of the respondent carry on a weekly payment business in furnishings, clothes, etc. The store’s only business entrance is on Queen Street, in the centre of the building, and there are large show windows on Queen Street and for some distance south on Parliament Street.
In the year 1912 the appellant, with a view of providing much-needed lavatory accommodation for the public, constructed a lavatory for men and women at this corner, it being a street car transfer point, and a place of public concourse, and, therefore, a logical situation for such a convenience. The lavatory was constructed underground and about fifty feet apart were stairways leading to the same, with metal hoods over them similar to those over a subway entrance in a large city. These entrances were distant eight feet from the building of the respondent, being midway between the curbing and the street line, which space was completely concreted so as to form an extended sidewalk. Half way between the entrances was a small structure of inconspicuous appearance used as a breather.
The claim of the respondent was mainly based upon the circumstance that a structure used as a lavatory had been placed near its property, causing a diminution in value thereof. In addition, however, some evidence was tendered that bad odours arose from the same. The learned arbitrator, however, found against this contention.
A claim was also made for damage from “seepage” based on a theory that the disturbance of the sub-soil during the construction of the lavatory caused the cellar walls of the respondent’s building to be damp.
The learned arbitrator found that the mere presence of a structure used as a lavatory in the vicinity of the respondent’s property was sufficient to depreciate it in value and that the appellant was legally responsible therefor, and awarded the respondent $9,000 in respect of such diminution in value. He found that such damage was confined to the property occupied by the building upon the lands and did not extend south or west thereof.
He also accepted the respondents’ theory of “seepage” into the cellar of the building in question and awarded it $1,200 in respect of the same.
The appellant appealed to an Appellate Division of the Supreme Court of Ontario, composed of Chief Justice R.M. Meredith, Mr. Justice Riddell, Mr. Justice Lennox and Mr. Justice Masten, upon the ground that it was not legally liable to pay either amount awarded. The respondent cross-appealed on several questions of fact.
On March 17th, 1916, the Appellate Division delivered judgment unanimously dismissing the cross-appeal, but dividing equally upon the main appeal, Chief Justice Meredith and Mr. Justice Riddell being in favour of allowing the same and setting aside the award and Mr. Justice Lennox and Mr. Justice Masten being opposed in opinion. As to the $1,200 item, Mr. Justice Masten thought it was properly awarded, but Mr. Justice Lennox says (p. 214): “It would better accord with the views I entertain as a matter of technical exactness to reduce the award to $9,000, leaving the company to sue for the $1,200 as damages. Counsel for the City does not ask for this.” The appellant submits that the learned judge misunderstood the position as to this item of its counsel in the lower court.
The court being equally divided, the award was confirmed and from this order both parties now appeal to this court.
Hellmuth K.C. and Fairty for the appellant. The respondents’ claim may be actionable, but is not a matter for arbitration. See Mudge v. Penge Urban Council[2].
The lavatories do not in themselves constitute a nuisance. British Canadian Securities Co. v. City of Vancouver[3].
Canadian Northern Ontario Railway Co. v. Holditch[4], Horton v. Colwyn Bay[5]; and Cripps on Compensation (5 ed.) 302, were also referred to.
Tilley K.C. and G.W. Mason for the respondents cited Griffith v. Clay[6], Lingke v. Christchurch[7], and Pastoral Finance Asso. v. The Minister[8].
DAVIES J. (dissenting)—The respondent in this appeal claimed compensation under the 325th section of “The Municipal Institutions Act,” R.S.O. 1914, c. 192, for alleged injuries to his premises, located at the southwest corner of Parliament and Queen Streets, caused by the erection and maintenance of public lavatories for men and women by the Corporation of Toronto under Parliament Street, which runs along the side of his shop fronting on Queen Street. The claim came before the Official Arbitrator, who, after hearing a great deal of evidence, awarded the claimant $10,200 in full satis- faction for the injuries complained of. Of this amount the arbitrator allowed $9,000 on account of the lavatories as such, and $1,200 caused by water, or seepage, claimed as having escaped from the lavatories into the cellar of plaintiff’s building.
The arbitrator in his written reasons for his award, finds as a fact that
no land of the claimant was taken
and that
he did not think it could be contended that access is really interfered with.
He seems mainly to base his conclusion as to claimants’ right to compensation under the statute upon the fact that a lavatory constructed under the street, and near to claimants’ store and premises, “injuriously affected” claimants’ premises within the meaning of section 325 of the Act above cited.
There was some evidence that bad odours arose from the lavatories, but the arbitrator found against this, and rested his conclusion upon the depreciation of the value of claimants’ shop and premises arising from the use of these lavatories as such.
He says:—
The outstanding feature of the whole claim is the user of the structures, the fact that they are lavatories. This is particularly emphasized by all the claimants’ witnesses.
It is clear, therefore, that the damage, exclusive of the seepage, was not caused by the construction of the lavatories but, if at all, by their subsequent use, and it seems equally clear upon the evidence, and the award, that it was this use which influenced the witnesses in estimating the damages and depreciation of the value of the claimants’ premises and the arbitrator in awarding the damages. The lavatories being under ground, and not interfering with access to claimants’ premises, would not as mere structures depreciate the value of those premises, however much they might injure his trade. The arbitrator did not find that the depreciation he awarded damages for arose apart from any injury to claimants’ trade.
On appeal from the award to the Second Division of the Supreme Court, that tribunal was equally divided, Chief Justice R. Meredith and Riddell J. holding that as no land of the plaintiff had been expropriated, and no legal right or easement therein interfered with, he had no claim enforceable by arbitration for injurious affection of his lands under the compensation clauses referred to, while Lennox and Masten JJ. were of a contrary opinion and sustained the award.
The Chief Justice and Riddell J. were both of the opinion that as under section 433 of the said “Municipal Institutions Act”
the soil and freehold of every highway were vested in the Corporation of the Municipality
such corporation had a common law right as owner to construct such lavatories in such places under the streets as they determined were necessary in the public interest, subject of course to the paramount rights of the public over the highway.
Chief Justice Meredith says:—
Is the injury, if any, made lawful only by the enactment which provides for compensation? My unhesitating answer is:—No. The construction of such conveniences would be lawful and proper under the rights and duties of municipal corporations respecting highways and traffic. The wide character of those rights and duties is not everywhere understood. In this Province not only does the duty to keep all highways in repair devolve upon the municipal corporation; and not only are they made answerable in damages for neglect of such duty; but they have complete jurisdiction over them and even the soil and freehold of them is vested in such corporations and they may sell for their own benefit the timber and minerals in them. They have these rights, subject of course to the paramount purposes of highways, as their duties respecting the repair of them make plain; but it would be idle to say that as conservators of such public ways their powers are not very extensive; that they may not do largely as they deem best with them as long as there is no curtailment of the right of way over them. No one will deny their right to turn a mud road into a paved street with sidewalks, kerbs and gutters, street lights and other needs and conveniences for traffic; can any one with any more reason deny their right to build in the soil under the highway, closets and urinals, such as the needs of man imperatively demand? Provided, of course, that there is no substantial obstruction of the rights of traffic which there need never be. The need of such conveniences is in a way greater than the need of raised sidewalks. No case has been referred to that conflicts with this view of the rights and duties of municipal corporations under the laws of this Province.
I must say that I am strongly inclined to take the same view of the corporation rights in the streets of which the soil and freehold is vested in them with respect to the construction of lavatories and urinals as expressed by the Chief Justice, and more shortly by Riddell J.
But I prefer to assume that these lavatories were constructed, and are used under the statutory powers of the corporation contained in the “Municipal Institutions Act,” and to deal with the award on that assumption.
In the last analysis it seems to me that the question of the claimants’ right to recover damages depends upon the true construction of section 325 (1) before referred to. It reads as follows:—
Where the land is expropriated for the purposes of a corporation, or is injuriously affected by the exercise of any of the powers of a corporation or of the council thereof, under the authority of this Act or under the authority of any general or special Act, unless it is otherwise expressly provided by such general or special Act, the corporation shall make due compensation to the owner for the land expropriated or, where it is injuriously affected by the exercise of such powers, for the damages necessarily resulting therefrom, beyond any advantage which the owner may derive from any work, for the purposes of, or in connection with which the land is injuriously affected.
These compensation clauses for land taken and injuriously affected have been present in many statutes passed by the Parliament of Great Britain, and very many decisions of the courts have been given as to their true meaning and extent. There is some difference in the language used in the different Acts, but I think after reading all of those referred to in the argument, and the cases cited at bar, and in the judgments below as to their proper construction, I am justified in saying that while there were at first great differences of judicial opinion even in the cases carried to the House of Lords as to what damages could be awarded under the compensatory clauses for “injurious affection” only, where no land was taken and no legal right, or easement appurtenant to the land was interfered with or obstructed, these differences were finally set at rest. It was held as the recognized rule of law applicable to compensation sections such as that now before us that such compensation can only be awarded where some physical interference is caused to the lands of the claimant or to some legal right or attribute attaching to these lands such as access or ancient lights, etc. Where no lands have been taken and no such legal rights or attributes or easement attached to land interfered with, no compensation can be given even though a man’s property may be greatly depreciated in value by the exercise of the statutory rights granted to a company or a corporation. If part of an owner’s lands have been taken, however, an entirely different result follows and damages are allowed not only for the lands taken, but for the remainder of claimant’s lands connected with or belonging to the lands actually taken and for injuries thereto. The taking of any part of claimant’s lands opens the door for the right to claim all damages actually sustained by the owner for the lands taken, and also for all his other lands connected with those taken. It has, for instance, long been settled by the decision of the House of Lords in Hammersmith v. Brand, 1869[9], that an owner of land, no part of which has been taken by a railway company and no right connected with which interfered with, cannot recover damages for “vibration” arising from the running of the railway without negligence, no matter what extent such damages may extend to. The headnote reads:—
The “Lands Clauses Consolidation Act” and the “Railway Clauses Consolidation Act” do not contain any provisions under which a person, whose land has not-been taken for the purposes of a railway, can recover statutory compensation from the railway company in respect of damage or annoyance arising from vibration occasioned (without negligence) by the passing of trains, after the railway is brought into use, even though the value of the property has been actually depreciated thereby. (Diss. Lord Cairns.)
The right of action for such damage is taken away.
Rex v. Pease[10], and Vaughan v. The Taff Vale Railway Co[11], approved.
When I speak of damages I do so, however, with the well understood limitation that they must be an injury to lands and not a personal injury or an injury to trade, and also that they must be occasioned by the construction of the authorized works and not by their user, and must be of such a character as would have made them actionable, but for the statutory power.
Wherever a legal right has been interfered with by the exercise of statutory powers, all the damages done to the owner as a consequence of that interference is the subject of compensation. Cripps on Compensation, (5th ed.) p. 140, and the cases there cited.
In the present case it appears to me that the finding of the arbitrator, that there has been no physical interference with the claimants’ property or with the access to and from their premises, is conclusive. It is the use of the structure as a lavatory that causes damage in the opinion of the arbitrator, based upon the evidence given before him, in which I fully concur, and statutory compensation cannot be awarded for damages caused him by the use of works constructed in accordance with statutory powers, and without negligence, unless expressly given by statute.
If the works are not so constructed, then the injured party may have an action for damages caused either by reason of excess beyond the powers, or from bad or improper construction of the works, but has no right of compensation under the compensating clause.
Nothing of the kind is suggested here except with regard to seepage damages with respect to which, if any, (on which I express no opinion) are the subject matter of an action, and not damages under the compensation clause for injurious affection. They are caused, if at all, by the improper or negligent exercise of the statutory powers, and do not necessarily result from their proper exercise.
The expression “injuriously affected by the exercise of the powers” given by the Act now under discussion or of any general or special Act, is copied from the English Acts to which reference has been made. They are technical words to which a legal meaning has been attached by the courts, and when used by the legislature as in this compensation section, should have that meaning given them by our courts.
I need hardly say that if any more extensive meaning was intended to be given to them when used in this “Municipal Institutions Act,” one would have found language expressive of that intention. I fail to find any such language.
In the absence of any such words shewing a different meaning, I feel myself compelled to follow the English authorities, and I may say that I do so without any reluctance, because I share with Chief Justice Meredith the feeling that any such extension or enlargement might, and probably would, have results which would prevent the construction of these necessary public utilities altogether. If the claimants in this case can recover $9,000 or $10,000 damages because a urinal for men and women is placed beneath the surface of the street on which their business premises abuts where no part of their land is taken, and no easement or right in or attached to it is affected, then it follows that every other land owner in the vicinity would have a similar right to damages, greater or lesser than the amount awarded in this case, depending upon the facts of each case with the further result that the exercise of these powers would have to be discontinued because of the excessive cost of their exercise.
It cannot be contended that because the other land owners have not plate glass windows in their buildings fronting on the street, and because their business or trade is not injured by the turning away of the tide of customers, which might flow to them, but for the construction and maintenance of the lavatories, that their claims would be different.
The loss of trade is not a damage which can be allowed under the compensation clause, and it appears to me that is just what has been allowed in this case.
The principle that the use of the lavatory causes depreciation in the value of the adjoining lands is applicable in a more or less degree to all neighbouring land owners, and they certainly would all make claims. As was said in Ricket v. Metropolitan Railway Co.[12], at page 199, by Lord Cranworth:— The loss occasioned by the obstruction now under consideration may be greater to the plaintiff than to others, but if it affects more or less all the neighbourhood. He has no ground of complaint differing, save in degree, from that which might be made by all the inhabitants of houses in the part of the town where the works for forming the railway were carried on.
The cases of Corporation of Parkdale v. West[13], and North Shore Railway Co. v. Pion[14], were relied upon in the Court of Appeal largely by Mr. Justice Masten. I cannot see what application these cases can have to the one before us. In each of them the owner’s right of access to and from their land, to the street in the Parkdale Case13 and to a navigable river in the Pion Case13 was obstructed and interfered with, and “in both cases alike,” as the Lord Chancellor said, p. 626 of the report of the Pion Case13:
the damage to the plaintiff’s property was a necessary, patent and obvious consequence of the execution of the work.
The actions were held properly brought to recover damages on the ground that the company in the one case, and the corporation in the other, did not take the steps necessary under the respective statutes under which they professed to act to
vest in them the power to exercise the right or do the thing
for which if those steps had been duly taken compensation would have been due to the respondents (owners) under the Act.
But the thing done which in each of these cases made the works of the company and the corporation actionable was the depriving of the owners of their right of access to and from their lands.
Both of the learned judges who decided the case in the Divisional Appeal Court quoted at length from the judgment of the learned judge who decided the cases of Vernon v. Vestry of St. James[15], and Cowper-Essex v. Local Board for Acton[16], and speak of them as “illuminative” and “instructive” and no doubt they are with respect to facts at all similar to those dealt with in those cases. I fail, however, to find that they afford any assistance to such cases as we have now before us. The Court of Appeal in the Vernon Case15 simply held that as the erection of an urinal was not necessarily a nuisance, the statute authorizing its erection did not empower the Vestry to erect one where it would be a nuisance to the owners of adjoining property and that on the facts of that case the Vestry had exceeded their powers in placing the urinal where they did and the court granted the injunction asked for accordingly.
No contention is made here, or could be made, of any excess in the exercise of the powers of the Corporation of Toronto in placing the lavatory and urinal where they did. On the contrary, the claimants’ submission in the appeal is based entirely upon the exercise by the Corporation of its legal right under the statute, and the claimed correlative right of the claimants to damages under the 325th section of the Act because their lands were “injuriously affected” by the exercise of the Corporation’s statutory powers.
The Cowper-Essex Case17 decided that part of the plaintiff’s land having been taken for sewage works compensation might be awarded for damage by reason of it injuriously affecting his “other lands” connected with those taken not only by the construction of the sewage works but by their use.
These “other lands” of the plaintiffs were divided from the lands taken by a railway, but the court held that notwithstanding the division they were “other lands” within the meaning of the compensation clause of the statute they were considering, the “ Lands Clauses Consolidation Act, 1845.”
In that Cowper-Essex Case[17], the Lord Chancellor Halsbury said, with reference to the different principles of compensation applicable, where part of the owner’s land has been taken from cases where no part has been taken, but where it is claimed the lands have nevertheless been “injuriously affected:”
With reference to the main question I have had less difficulty since I take it that two propositions have now been conclusively established. One is, that land taken under the powers of the “Lands Clauses Act” and applied to any use authorized by the statute, cannot by its mere use, as distinguished from the construction of works upon it, give rise to a claim for compensation. But a second proposition is, it appears to me, not less conclusively established, and that is that where part of a proprietor’s land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor’s land, then such damage may be an injurious affecting of the proprietor’s other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing had been taken for the purpose of the intended works.
It may seem at first sight a little strange that what is injurious affecting in one should not be in the other. But it is possible to explain that apparent contradiction by the consideration that the injurious affecting by the use, as distinguished from the construction, is a particular injury suffered by the proprietor from whom some portion of his land is taken different in kind from that which is suffered by the rest of Her Majesty’s subjects.
And Lord Watson said (p. 164):—
In the case of a proprietor from whom nothing has been taken by the promoters, it has been settled by a series of decisions in this House, that, although his lands in the vicinity will necessarily be injured by the use of their works, yet it is not thereby “injuriously affected” within the meaning of the Act of 1845; and that he is not entitled to statutory compensation for injury so occasioned,
and on p. 165 His Lordship goes on to point out the distinction between cases where “land has been taken” and those where it has not, but is claimed as having been injuriously affected. He says:—
In Buccleuch v. Metropolitan Board of Works[18], Lord Chelmsford, in whose judgment Lord Colonsay concurred, said[19], with reference to Brand’s Case[20], and the subsequent case of City of Glasgow Union Railway Co. v. Hunter[21]: “In neither of these cases was any land taken by the railway company connected with the lands which were alleged to have been so injured, and the claim for compensation was for damage caused by the use, and not by the construction of the railway. But if, in each of the cases, lands of the parties had been taken for the railway, I do not see why a claim for compensation in respect of injury to adjoining premises might not have been successfully made on account of their probable depreciation by reason of vibration, or smoke, or noise, occasioned by passing trains.”
After citing other cases he says:—
It appears to me to be the result of these authorities, which are binding upon this House, that a proprietor is entitled to compensation for depreciation of the value of his other lands, in so far as such depreciation is due to the anticipated legal use of works to be constructed upon the land which has been taken from him under compulsory powers.
I am quite unable to see how the judgment in this case appealed from can in any way be sustained by the Cowper-Essex Case[22] or by the reasons given therefor by their Lordships. The principle laid down in that case as having been “finally settled” respecting the broad distinction between the compensation which can be awarded for injurious affection in cases where part of an owner’s land has been taken and cases where no part has been taken seems to me strongly against the judgment now in appeal.
Metropolitan Board of Works v. McCarthy[23], is an authority referred to in many cases not only because of its peculiar facts but because of the adoption by the House of Lords of that test submitted by Mr. Thesiger, as one which would explain and reconcile apparently conflicting cases, viz.:— That where by the construction of works there is a physical interference with any right, public or private, which an owner is entitled to use in connection with his property, he is entitled to compensation if, by reason of such interference, his own property is injured.
In that case there was a “special case” submitted to the court in which it was stated:—
That by reason of the dock adjoining the River Thames, and the destruction thereby of the access to, and from the Thames, the plaintiff’s premises became and were as premises either to sell or occupy permanently damaged and diminished in value.
Their Lordships held that the plaintiff was entitled to compensation because his right of access to his premises to and from the River Thames had been destroyed, and his lands consequently depreciated in value, but that the damage or injury which is to be the subject of compensation must not be of a personal character, but must be a damage or injury to the land of the claimant considered independently of any particular trade that the claimant may have carried on upon it.
The recent case of Grand Trunk Pacific Ry. Co. v. Fort William Land Co.[24], determined by the Judicial Committee of the Privy Council on the proper construction of the “Dominion Railway Act, 1906,” secs. 47, 15 and 237(3), seems to me to apply the same principles to the construction of our Railway Act as have been applied by the House of Lords to the various English Acts as to lands taken or injuriously affected under statutory powers. That case should go a long way to govern the one before us. In delivering the judgment of their Lordships, Lord Shaw says:—
These respondents are frontagers, that is to say, owners of properties in the streets named, and it is not difficult to understand how they are, and possibly also how the municipality itself is, seriously affected by the location of the railway as proposed and sanctioned. It appears, however, that many of the properties in question are neither taken or injuriously affected in the sense of the English railway law as interpreted by The Hammersmith, etc., Ry. Co. v. Brand, 1869[25], a decision which has been followed in Canada in Re Devlin and the Hamilton and Lake Erie Ry. Co. 1876[26]. It is in no way surprising to find that the Board, giving a sanction for the construction of a railway through the municipality, should make the condition that the compensation to be paid for that privilege should fully equate with the injury done “to all persons interested’’; that is to say, that the compensation should be recoverable in respect not only of the construction of the railway as settled by Brand’s Case[27], but also for all damage sustained in respect of its “location.”
The pith of the judgment, as I understand it, is that the power given by the statute to award damages was in respect of construction only, and not to damages arising from location, and that the power to award compensation is limited to matters specifically referred to in the statute, and could not be extended by the Board of Railway Commissioners as was attempted to be done in their order approving the location of the railway conditionally on the company
making full compensation to all parties interested for all damage sustained by reason thereof.
In other words, the Board could not by an order authorizing the location of the road along certain streets in the City of Fort William extend the compensation clauses beyond the matters specifically referred to in the statute, and that the “location” of the road was not one of those matters.
The case of The King v. McArthur[28], decided by this court in 1904, appears to me applicable in principle to the one now before us. I was one of the judges by whom that case was decided, and I know it received, owing to the apparent conflict between several of the English cases, a great deal of consideration. The conclusions there reached unanimously by this court apply with great force to the one now before us.
I have compared carefully the compensation clause 325 of the Act, respecting municipal institutions, with those in the English Acts on which the decisions I have above referred to in the courts were given. I am not able to find any substantial differences between this clause (325) and the compensation clauses of the “Lands Clauses Act, 1845,” sec. 68; the “Railway Clauses Act, 1845,” secs. 6 and 16; the “Waterworks Clauses Act, 1847,” secs. 6-12, and the “Public Health Act, 1875,” sec. 308. I say substantial differences, because, of course, there are verbal ones, but for all purposes of this appeal I construe the compensation clause of the “Municipal Institutions Act” now before us as having the same meaning and object as the compensation clauses in the various English Acts I have referred to. These decisions in the House of Lords are, of course, binding upon us and with great respect I cannot see the use of quoting from the judgments of the dissenting law lords, however distinguished, as to this meaning and object, as has been done by the learned judges who gave the judgment in the courts below.
These decisions lay down a clear and definite rule with respect to the damages allowable for injurious affection where no land of the claimants or right or interest therein has been taken or obstructed. Being unable to distinguish between the section we are dealing with and those of the English Acts referred to, I feel bound to apply that rule to this case, and doing so, have reached the conclusion that the damages awarded cannot be sustained and that the appeal should be allowed with costs in all the courts, including the arbitrator’s, and the claim of the respondents dismissed. IDINGTON J.—The appellant in 1912 erected two lavatories, urinals and water-closets on Parliament Street, Toronto, in the exercise of the powers conferred by sec. 552, sub-sec. 1, of the “Consolidated Municipal Act,” 3 Ed. VII., ch. 18, which is as follows:—
552 (1) The Councils of cities or towns may provide and maintain lavatories, urinals and water-closets, and like conveniences, in situations where they deem such accommodation to be required, either upon the public streets or elsewhere, and may supply the same with water, and may defray the expenses thereof, and of keeping the same in repair and good order.
The respondent then owned a parcel of land on the north-west corner of Queen and Parliament Streets, on which was erected a large building suitable and used for carrying on therein the business of dealing in furniture and house furnishings, and also clothing, millinery and furs.
These urinals and a separate structure called a breather, occupied a considerable part of the side of Parliament Street, next to said building and about only seven feet distant therefrom.
They were separated from each other so that the entire space so occupied was not continuous, but permitted public travel between them.
I assume that no allowance could be made for damage to the business, as such, and it is only the depreciation in the market value of this property of the respondent for which he can claim compensation under sec. 437 of said Act, which is as follows:—
Every Council shall make to the owners or occupiers of, or other persons interested in, real property entered upon, taken or used by the corporation in the exercise of any of its powers or injuriously affected by the exercise of its powers, due compensation for any damages (including cost of fencing when required) necessarily resulting from the exercise of such powers, beyond any advantage which the claimant may derive from the contemplated work; and any claim for such compensation, if not mutually agreed upon, shall be determined by arbitration under this Act. This section being that in force when proceedings began, must be held to govern what is here in dispute.
And let us clear our minds by realizing that the construction put upon another Act, less simple than this, and very differently worded, in any single section, and conceived in another atmosphere, when modern England had got born again, as it were, and was grappling with new problems, may not fit the situation confronting our legislatures. I submit that we better eliminate from the section all that is superfluous in relation to the facts and claims in question herein and read the section as follows:—
Every Council shall make to the owners * * * of * * * real property * * * injuriously affected by the exercise of its powers, due compensation for any damages * * * necessarily resulting from the exercise of such powers.
We have long been told by eminent judges and others, that when the language used by the legislature is precise and unambiguous, a court of law at the present day has only to expound the words in their natural and ordinary sense.
There is no ambiguity about this legislative expression.
Nor is there any ambiguity in the language of the power I have quoted above, which enabled the appellant’s council
to provide and maintain lavatories, urinals and water-closets,
etc., on Parliament Street alongside respondent’s building.
Nor do I feel that there is the slightest doubt as to the probable conception which the average business man seeking a corner such as the one in question, would have, relative to the market value of such a property, before and after the exercise of power, that provided and maintained such conveniences. The plain ordinary meaning of the language used seems to me expressly to require that the owner should be compensated according to the conception of such business men relative to such values before and after the execution of the power.
Then comes the difficulty and to my mind the only difficulty in the problem presented to those concerned.
But the solution of that problem is by the statute dealing therewith, expressly relegated to the judgment of an officer with which, unless he clearly has proceeded upon an erroneous apprehension of the principles which should have governed him, we have no right to interfere, or upon the evidence properly adduced his allowance has been so grossly excessive or inadequate as to call for a review thereof.
Excess of damages is not made a ground of this appeal and hence we are relieved from an analysis of the evidence and careful consideration of the results derivable therefrom.
Assuming he proceeded upon the plain unambiguous nature of the language used in the statute, I see no ground for interference.
All that has been urged as to the cases decided in England under the “Lands Clauses Consolidation Act,” and the cases resting thereon, so much relied upon, seems to me beside the question.
That Act is so entirely different from the Act upon which we must proceed, that it seems a waste of time to dwell thereon.
The decision in Brand v. Hammersmith[29], needed the consideration of four clauses of the “Lands Clauses Consolidation Act,” together with two of the “Railway Act,” to be expressly linked up with it, and the frame of the former Act, in order to be able to arrive at it.
And the substance of the whole matter turned upon the supposed necessity of shewing that some part of the owner’s land had been taken in order to permit of injurious affection being considered at all, despite the weighty opinions to the contrary effect of Lord Cairns and three of the four judges to whom the question had been submitted.
That mode of thought dominated many later cases even under other statutes, when the condition precedent thus established as necessary to relief under that particular statute existed no longer as a barrier. Thus, indirectly, it seems to have come about that in later times some imagined the word “injuriously” must be held to import something technical as injuria as a condition precedent to the allowance of damages for injurious affection.
Later than the Hammersmith Case[30], Lord Blackburn, the dissenting judge of the four to whom the question had been submitted in that case, saw his way in the case of Buccleuch v. Metropolitan Board of Works[31], 1870, at page 244, to hold that
a part of the premises being taken it let in the claimant to have damages assessed for everything.
We have no such condition imposed in the Act now in question, and I see no reason why we should eng