Commercial Litigation and Dispute Resolution Blog

For many people, Susan Heyes is something of a folk hero.  Ms. Heyes is the proprietor of Hazel & Co., a woman’s clothing store formerly located at the corner of 16th Avenue and Cambie Street in Vancouver.  Like many other businesses located along the Cambie Street corridor, Ms. Heyes’ business was adversely affected by the construction of the rapid transit Canada Line which was built in advance of the 2010 Olympics to connect the City of Richmond and the Vancouver International Airport with downtown Vancouver.

While many of the business owners complained publicly about the construction and advocated for compensation, Ms. Heyes launched a lawsuit claiming damages in nuisance from Translink, the public transit authority, and the public private partnership chosen to design, construct and operate the project.  In May 2009, Mr. Justice Pitfield of the B.C. Supreme Court found in favour of Ms. Heyes and awarded her $600,000.00 in damages (2009 BCSC 651).  The Court held that the nuisance stemmed not from the decision to construct the Canada Line but rather the construction method chosen which involved “cut and cover” rather than a bored tunnel which was a viable alternative and which would have caused less disruption.  The decision was hailed by many as a victory for the “little person”.

Unfortunately for Ms. Heyes, her victory was short-lived.  Following the trial decision, Ms. Heyes had a public falling out with her original lawyer over the issue of fees (see Vancouver Sun January 14, 2011).  More recently, on February 18, 2011, the B.C. Court of Appeal allowed Translink’s appeal and set aside the decision in favour of Ms. Heyes (2011 BCCA 77).  While the Court of Appeal agreed with the trial judge that the construction caused a nuisance, it found that the nuisance was authorized by the governing legislation and that therefore the defence of statutory authority applied.  The Court of Appeal disagreed that bored tunnel construction was a viable alternative given that it would have cost approximately one-half billion dollars more than the cut and cover method and that the additional cost exceeded the available funding.  The Court also noted that while the use of bored tunnel construction might have lessened the impacts on Ms. Heyes’ business, it would have had a significant impact elsewhere along the construction line.  As the Court of Appeal noted, some disruption or nuisance was the inevitable result of constructing the Canada Line as authorized by the South Coast British Columbia Transportation Authority Act (previously known as the Greater Vancouver Transportation Authority Act).

It is interesting to note that in concurring reasons, Madam Justice Prowse questioned whether in fact the construction constituted a nuisance at law.  As she noted, traffic disruption is a way of life in an urban setting:

"While it seems, perhaps, harsh that a person or business may lose accustomed access or traffic, an urban dweller will be well familiar with traffic changes affected by the City, both major and minor, permanent and temporary.  The creation of the former Granville Street Mall and recent bicycle lanes, full and partial street stoppages to facilitate construction projects, and permanent street closures intended to enhance neighbourhoods or simply to divert traffic to another corridor, are all within the experience of the City and its citizens, and are properly the subject of public discourse."

While Madam Justice Prowse was in the minority, she expressed a view that underlies the Court of Appeal decision, even if the majority did not say so expressly.  Governments must be free to pursue public infrastructure projects for the benefit of the community as a whole.  Such projects invariably give rise to disruption to the lives and businesses of people in the area.  While fairness and even good politics might favour some form of compensation for those affected by the project, it is a very rare case in which a legal entitlement to such compensation will arise.

Ms. Heyes has indicated that she intends to seek leave to appeal the Supreme Court of Canada.