Board rules province owes compensation for damages to property, land in precedent-setting case

Published on September 10, 2013

SUTHERLANDS RIVER – For the 15 months that the late Johannes Visser was confined to a hospital bed in his Sutherlands River home, he’d ask how the case was going.

“Every day he’d ask me, ‘Did you hear anything?’” said Faye Visser, his wife. “He’d ask, ‘Do you think we’ll hear anything today?’”

Two days ago, Visser and her family heard some good news about the case from their lawyer. The application for compensation regarding damage to their property and house was successful.

“As early as last week, we were almost ready to give up because we hadn’t heard anything,” said Jonathan Visser, Faye’s son.

Sadly, Johannes, who passed away during this process, will never receive the good news that justice had been done. 

The Nova Scotia Utility and Review Board posted an 86-page report on Sept. 9 indicating a decision had been made in the Vissers’ favour.

While there are a few details to be worked out, the compensation so far is awarded for property damages, business loss, special damages and loss of use totalling $102,539.99

The Visser home is located next to the roundabout and eastbound exit ramp at Exit 27 on the TransCanada Highway. Two years ago, the family found themselves living in a construction zone. 

In April 2011, the project moved to their side of the highway at which time the construction occurred to the north, south and east of their home. 

“(The Department of Infrastructure Renewal) moved in with trucks, excavators and a generator with lights to let people know construction is going on, they ran 24/7,” said Faye. “They’d start at 5 a.m. every morning.”

She said the house vibrated and shook as the construction progressed. 

“Pictures fell off the wall so I put them behind the couch,” she said. “I had pieces of crystal and it was shaken off the mantlepiece.”

Jonathan recalls the pool in their yard that eventually had to be put away because of the construction.

“There was so much dust in the air that we had to keep adding chemicals to the pool just to keep it clean,” he said.

Faye couldn’t do any gardening without having a headache because of the noise. Some in the family, including the dogs, became ill from the well water, now contaminated with e-coli. 

“They didn’t take responsibility, but began bringing in water and put in an ultraviolet light that needs to be replaced once a year for $189,” said Jonathan.

The construction project included a two-lane twin road along the TransCanada Highway 104, a bridge over these twinned highways, a roundabout at each end of the bridge with four ramps entering or exiting each roundabout, a realignment and construction of Trunk 4 connecting it to the north roundabout and a new driveway connecting the Vissers’ property to Trunk 4.  

The Vissers claimed that the construction caused earth vibrations, dust, noise and light from which they have suffered physical damage to their land, house, well and pool and the loss of use and enjoyment of their property.

In the house the damage includes cracks in the foundations, chimney, kitchen ceiling, the separation of kitchen cabinets from the ceiling and separation of crown mouldings in the family room.

While the Vissers’ lawyer is happy with the decision, he cautioned that the compensation may not be enough.

“The property is continuing to deteriorate and is in worse shape than when the hearings started,” said Robert Pineo of Patterson Law. “Even the compensation awarded may not be enough to complete repairs to the property.”

The case, the first to successfully see that the public good of this project didn’t outweigh private landowners’ damages, and will set a precedent in Nova Scotia law. 

“Previous to this, government agents have sometimes been quick to dismiss people who’ve sought help for property damage or pain and suffering,” said Pineo. “Hopefully, they’ll take landowners more seriously.”

Pineo noted that during the application, the Supreme Court of Canada heard a case involving Antrim trucking in Ontario, which presented a similar situation to the Vissers’.

“[That case] basically set the test for what amount of interference is reasonable and unreasonable.”

For the Vissers, it’s a bittersweet victory because Johannes isn’t around to celebrate the decision with them.

“He’d be dancing and jigging in heaven over this because between his sickness and what was going on, (he wondered) how I was going to survive with what they had done to us,” she said. 

It’s also bittersweet because Faye isn’t sure if she’ll be staying in the place she’s called home for 40 years.

“I’ll probably move because I’m only one person trying to maintain this house. I don’t need a five to six bedroom house with just me here.” 

Her advice to anyone taking the province to court is to first take off the rose-coloured glasses. 

“If something is going on that you feel is wrong, step up to the plate and say something.”

On Twitter: @NGNewsJohn

Jonathan Visser, left, stands with his mother Faye near the family home in Sutherlands River Tuesday. Behind them is the Exit 27 roundabout, a Department of Infrastructure and Renewal project that the Nova Scotia Utility and Review Board ruled caused the Vissers ‘injurious affection,’ awarding over $100,000 to the family. JOHN BRANNEN – THE NEWS