Ex-Cambie merchant's court victory linked to defendants' failure to mitigate effects of Canada Line
B.C. Supreme Court Justice Ian Pitfield’s decision to award $600,000 to a Vancouver businesswoman was based, in part, on the fact that three of the six defendants didn’t take sufficient action to mitigate the effects of Canada Line construction.
Susan Heyes, owner of Hazel & Co., will also be entitled to prejudgment interest and legal costs after she won a lawsuit against TransLink, a TransLink subsidiary called Canada Line Rapid Transit Inc., and InTransit BC Limited Partnership.
Pitfield noted the defendants claimed they took all possible steps outside of direct payments to offset the impact of a cut-and-cover construction project.
These measures included an advertising program to lure shoppers to the area. As well, there were frequent public announcements concerning changes in traffic patterns and the timing and duration of construction along the line.
“With respect,” Pitfield wrote, “the defendants’ submissions are not persuasive.”
Hazel & Co., which was near the corner of 16th Avenue and Cambie Street for 10 years, posted a gross annual profit averaging $329,424 between 2000 and 2004, according to the decision.
It fell to an annual average of $171,258 in the following four years—a drop of 48 percent—while Canada Line construction was taking place. Heyes has since moved her store to 4280 Main Street.
“The loss of business income in the period from mid-2005 through December 2008, a period of just over three years, exceeded $500,000, and was wholly attributable to cut and cover construction on Cambie Street north of King Edward Avenue,” Pitfield wrote.
Heyes's claims of misrepresentation and negligence were dismissed against all defendants, including the City of Vancouver and the provincial and federal governments.
She succeeded with a tort of nuisance—which is concerned with the effect of the use of one’s land on the use and enjoyment of land owned or occupied by another—against TransLink, CLRT, and InTransit BC, This claim was dismissed against the three levels of government.
In 2003, Vancouver city council approved a resolution supporting the project subject to several conditions.
Pitfield wrote that one of those conditions was that the line would be in a tunnel from Waterfront Station south to 46th Street, at the least.
At the time, the COPE-controlled council did not stipulate that this should be a bored tunnel, which would have created minimal disruption to businesses along Cambie Street.
Pitfield wrote that a February 2003 "final draft" of the project-definition report listed 10 options for placement of the Canada Line.
“Each contemplated a bored tunnel under Cambie Street between 6th Avenue and King Edward or 25th Avenue to the south,” he wrote, noting that cut-and-cover construction was not considered north of King Edward Avenue.
“Neither the bored nor mined methods of tunnel construction disrupt the surface except in the vicinity of a portal or a shaft,” Pitfield wrote. “Cut and cover tunnel construction, by contrast, requires the excavation of a trench from the surface to the depth of the tunnel floor, the placing of pre-cast tunnel sections in the open trench, and the return of excavated material to cover the tunnel structure and restore the land to its original surface grade.”
CLRT's request for proposals did not mention the possibility of cut-and-cover construction.
However, one SNC-Lavalin/Serco proposal called for cut-and-cover construction from 2nd Avenue to 37th Avenue. The other bidder, the RAVexpress consortium, did not propose a cut-and-cover project.
“The indisputable fact which I find evidence in this case is that the use of cut and cover construction was endorsed because it was cheaper and, in combination with some other aspects of the SNC-Lavalin/Serco proposal, reduced cost by more than $400 million so as to permit construction within the range of public funding commitments,” Pitfield wrote. “The reduction in cost was achieved by imposing an unacceptable burden on Hazel & Co.”
After the decision was made to proceed with a cut-and-cover project, CLRT CEO Jane Bird told Cambie Street merchants at a public meeting that the open-trench construction would last for three months.
"I find, in any event, that the statement that the tunnel trench would be open in front of a particular location on Cambie Street for a period of three months was a gross over-simplification of the impact that cut-and-cover construction would have on Cambie Street," Pitfield wrote.
However, he dismissed the claim of misrepresentation, suggesting that Bird's comment was based on "reliable information presented to her in January 2005".
"The representation became inaccurate when conditions encountered in the course of construction necessitated change," Pitfield wrote.