Ontario Superior Court dismisses class action claim based on "injurious affection" due to lack of jurisdiction

April 11, 2011

A recent decision of Justice Perell in the Ontario Superior Court of Justice has dismissed a claim by Curative Organic Skin Care Ltd. (Curative), representative plaintiff on behalf of commercial enterprises including restaurants and retail and service businesses that carry on business on St. Clair Avenue West from Bathurst St. to Old Weston Rd.  

Curative claimed that the Toronto Transit Commission (TTC) and the City of Toronto were negligent in managing the construction of the St. Clair West streetcar project which began in 2003, resulting in cost overruns, substantial construction delays, and ongoing disruption to local business.  Curative also alleged abuse of public authority against the City.  Together, the TTC and the City of Toronto successfully brought a pre-certification motion before Justice Perell to have the action dismissed on the ground that the Ontario Municipal Board, and not the Court, had exclusive jurisdiction over the claim. 

Justice Perell agreed with the defendants’ argument that the substance of the plaintiff’s claim was for “injurious affection” because the alleged injury was an inevitable consequence of work which the TTC and the City of Toronto were authorized by statute to undertake.  Compensation for injurious affection is available under the Expropriations Act and falls within the exclusive jurisdiction of the Ontario Municipal Board. 

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