His Majesty the King v. Shawn Somerville Milne

(Federal) (Civil) (By Leave)


Expropriation — Whether railway expansion project increased noise level at respondent’s property following expropriation — Whether respondent entitled to compensation for disturbance damages or injurious affection due to noise level — Expropriation Act, R.S.C. 1985, c. E-21, ss. 25, 26.


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In 2012, the Crown expropriated a narrow strip of land at the edge of the respondent’s property to allow the expansion of a busy rail corridor. The expansion caused an increase in rail traffic and noise on the respondent’s remaining property. The value of the expropriated land is no longer controversial, but the respondent also claims that the increased noise has forced him to give up occupation of his remaining property. He claims compensation in addition to the value of the expropriated land under the Expropriations Act, R.S.C. 1985, c. E-21. This claim is for “disturbance damages”, being the costs associated with giving up occupation of the land and rendering it suitable for his return or, in the alternative, for “injurious affection”, being the decrease in the value of the remaining property as a result of the increased noise.

Both parties engaged experts who measured and modelled relevant noise levels and offered industrial guidelines for determining how much noise is considered acceptable.

The Federal Court determined that the increase in noise from the expanded railway was imperceptible. It therefore cannot have disturbed the respondent to a degree that justified giving up occupation of his land, and cannot have impacted the value of that land. The claim for additional compensation was dismissed.

The Federal Court of Appeal allowed the appeal. The trial judge made two palpable and overriding errors of fact. The first was the selection of an incorrect pre-expansion noise level, which caused her to underestimate the increase in noise arising from the expansion. The second was the misapplication of one of the relevant industrial guidelines, causing her to fail to recognize the severe impact of the increased noise. These erroneous findings were critical to the dismissal of the respondent’s claim for compensation. The matter was remitted to the Federal Court to determine the amount of the respondent’s compensation.

Lower Court Rulings

July 19, 2021
Federal Court

2021FC 765
Claims for disturbance damages and injurious affection dismissed.
June 13, 2023
Federal Court of Appeal

2023 FCA 138, A-44-22
Appeal allowed, matter remitted to Federal Court for determination of amount of compensation.