Empringham (E.) owned and operated a restaurant and catering business on eight lots (Lots 1 – 7, 10) on Pasqua Street in Regina. Pasqua Street was a north/south street parallel to, and immediately east of, Lewvan Drive. The defendant City constructed Lewvan, an expressway, in the early 1980’s, after E.’s business was established. E.’s existing access on to Pasqua was changed after the expressway’s construction – one end of Pasqua was dead-ended to the north and indirect access was available to the south. No access was permitted on to Lewvan.

After several years of negotiation, the parties arrived at agreement on access to Lewvan. They entered into two agreements (lease and access) which covered all but Lots 1 - 4. The access contract provided that the City had no obligation to provide access, and that it could be withdrawn at any time. Under a third agreement, the City sold other land between E.’s property and Lewvan to E. This agreement specifically precluded access to Lewvan other than through Lots 5 –7 and 10.

E. exercised access to Lewvan for eleven years. In 1997, the City terminated the access and refused E.’s request for alternate access on to Lewvan.

E. claimed damages for injurious affection based on the relocation of, and refusal of access to, Lewvan. The claim was brought under s. 321 (1) of the Urban Municipality Act, 1984, S.S. 1983-84, c. U-11, which provides:

At trial, [1999] EXLAW 13, [1999] S.J. No. 42, 181 Sask. R. 108 (Sask. Q.B.), the judge dismissed the claim, based on the terms of the contracts between the parties – specifically that the City had no obligation to provide access and had a right to terminate access unilaterally.

The Court of Appeal unanimously reversed the trial judgment and ruled that:

• E.’s common law right of access was not restricted by concerns of public safety or substantial nuisance;
• the statutory provisions that support the City’s right to interfere with access do not preclude a claim for compensation;
• E. did not contractually waive its access rights as the contracts did not apply to Lots 1 – 4; Lot 1 abutted Lewvan;
• secondary, alternate access to Pasqua did not displace the City’s obligation to provide access to Lewvan;
• E. satisfied the four-step test set out in Canada v. Loiselle, [1962] S.C.R. 624, 35 D.L.R. (2d) 274 (S.C.C.), and had a claim for injurious affection; and
• damages were based on the diminution in value to all of E.’s land, and were not limited to Lots 1 – 4; $200,000 was the final award.

The Supreme Court of Canada refused leave to appeal on October 24, 2002, [2002] EXLAW 14, [2002] S.C.C.A. No. 138.

Evidence, or lack of it, was critical to the case’s outcome. The City’s reasons for removing access were traffic speed, difference in elevation between E.’s property and Lewvan, and cost. In the court’s view, none of these reasons established concerns of public safety or the comfort and health of other expressway users. Quaere: are speed concerns not based on safety?

Section 321 of the Urban Municipality Act, 1984 was also pivotal. It specifically preserves the right to claim compensation for injurious affection caused by the exercise of municipal powers (similar provisions may be found in other provinces, e.g. Community Charter, S.B.C. 2003, c. 26, s. 33).

The Court of Appeal’s approach to quantification of damages is interesting and unusual. The Court considered evidence of the sale of E.’s property after the trial. This was not before the trial judge and not available to an informed purchaser at the time access was lost. The Court assessed and rejected the credibility of one appraiser’s conclusion and substituted the Court’s finding.

Bob P. Hrycan appeared for Empringham Catering Services Ltd.

Barry W. Windsor appeared for the City of Regina