• Injurious affection to land value;
• Impact of highway interchange;
• Reduced visibility;
• Increased access; and
• Highest and best use of lands.

In 1992 Ontario's Ministry of Transportation expropriated 4.4 acres of the plaintiff's 19.5-acre site at the northwest corner of an existing partial interchange at Highway 400 and Rutherford Road in the City of Vaughan. A full interchange was constructed, and the adjacent section of Rutherford Road was widened to four lanes. The plaintiff claimed the construction injuriously affected the value and use of its remaining lands for retail commercial purposes, largely because of reduced visibility from Highway 400.

The Ministry's lawyers, Paul R. Henry and Diane M. Carter of Chappell, Bushell, Stewart, needed a respected expert witness to assess the site's development potential and the claim of injurious affection. Knowing Clayton Research's 25 years of experience as Canada's foremost experts in real estate economics, valuation and development impacts, they called on Dr. Frank Clayton.

After performing a full assessment of the site and the impacts of construction, he gave evidence that:

• Since the lands were not the subject of a development application at the time of construction, it was not clear whether they would ultimately be developed for residential use or for commercial use;
• If the lands were slated for retail commercial development, the highest potential use would have been for neighbourhood commercial use;
• Both the new interchange and road widening would contribute to increased traffic flows past the site;
• Market viability for retail commercial use for this site has been enhanced by the new construction; and
• Major retail concentrations would occur 3 miles to the south (around Highway 7).

Mr. T. Yao, chair of the Ontario Municipal Board panel which heard this case, found against the claimant on the issue of injurious affection. Dr. Clayton's evidence that the increased traffic flows more than compensated for the reduced visibility for commercial retail potential was a significant factor cited by Mr. Yao.

OMB File No. L960026