B.C. Court of Appeal overturns Susan Heyes’s $600,000 award for Canada Line losses

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      The B.C. Court of Appeal has overturned a ruling that awarded $600,000 in damages to a former Cambie Street merchant for losses incurred due to the construction of the Canada Line.

      In 2009, Susan Heyes, owner of the maternity-wear store Hazel & Co., had won a B.C. Supreme Court decision that held TransLink, Canada Line Rapid Transit Inc., and InTransit B.C. Limited Partnership liable for nuisance.

      In an unanimous decision today (February 18), three appeals court justices found that the appellants had the legal authority to build the rapid-transit line using cut-and-cover construction.

      “Nuisance was an inevitable result of exercising that authority because there was no practically feasible alternative to the SNC-Lavalin/Serco proposal, which included cut and cover construction, and, in any event, because there was no construction method that provided a non-nuisance alternative in building the Canada Line,” Justice Kathryn Neilson wrote in the ruling.

      In a statement today, Heyes blasted the appeals court's decision, saying it "failed to protect the rights of citizens, and has failed to uphold justice and fairness in a democratic society".

      "The Canada Line project was built on the backs of hundreds of blindsided small business people along the Cambie corridor," Heyes wrote.

      "The project chose the most disruptive of several methods of construction. This discretionary and confidential decision alone should have negated the defence of Statutory Authority which the Appeal Court Justices used today as the basis for their ruling."

      Heyes's statement suggested that she would try to take her case to the Supreme Court of Canada.

      "The outcome of this litigation will set a precedent for all small businesses across Canada," Heyes stated. "The precedent that it sets should be just and fair, and reasonable. When governments use their powers to confiscate value for the common good – individuals must be compensated."

      You can follow Stephen Hui on Twitter at twitter.com/stephenhui.

      Comments

      8 Comments

      John Maxin

      Feb 18, 2011 at 3:20pm

      It's ok Susan, this is the same government that paid the legal fees for the "BC Rail" fiasco. Justice bs, that's all I can say.

      9 11Rating: -2

      SW

      Feb 18, 2011 at 3:45pm

      If those three appeals court justices had not taken 1 year after the hearing to come up with this decision, one may have called it justice.

      Reference:

      Place and Date of Hearing: Vancouver, British Columbia / April 15 and 16, 2010

      http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0077.htm

      Mark Fornataro

      Feb 18, 2011 at 3:52pm

      Re: the overpaid judges declaring "Nuisance was an inevitable result ..."- this was no mere nuisance, this was many people's livelihood being completely turned upside down through the fault of others. Hopefully the Supreme Court of Canada will not be supremely stupid like these judges.

      11 9Rating: +2

      SW

      Feb 18, 2011 at 3:58pm

      Reading the appeals court decision to the very end, the "Reasons for Judgment of the The Honourable Madam Justice Saunders" sound pretty vague.

      "this latter question is less clear ", "not well defined" , "it seems", " It is not clear to me", "This approach, however, seems", "I prefer to rest my decision", ...

      13 7Rating: +6

      Pariahs do as Pariahs do

      Feb 18, 2011 at 4:07pm

      Firstly, I’m very sorry to read about this. Secondly, TransLink, really the ones running TransLink deserve to be in jail for the way that they ran roughshod over merchants on Cambie Street, and the COV engineers who allowed it are most to blame for not standing up to TransLink. Falcon was culpable as well and won’t be getting my vote next election.

      Thirdly, if TransLink wasn’t guilty neither was OJ, and if you have enough money in this world you can get away with murder. Finally, like OJ, TransLink won the case but is now a pariah and this will haunt TransLink to put the nail in the coffin for TransLink in the end.

      10 7Rating: +3

      monty/that's me

      Feb 18, 2011 at 11:55pm

      I hope someone with BIG BUCKS will come along and finance a Supreme Court of Canada appeal of this travesty.

      Congrats, Susan, on maintaining your dignity during interviews today.

      11 9Rating: +2

      glen p robbins

      Feb 19, 2011 at 11:34am

      ROBBINS Reasons for Plain and True Disclosure (abridged version).

      This quick analysis of the Judgement follows a blog I wrote without reading the Reasons and I have absolutely no reason to change that opinion.

      Here it what you need to know from the Court of Appeal: "Planning proceeded on the basis that a significant portion of the Canada Line would be constructed under Cambie Street project definition phase."

      {13} "CLRT" (Canada Line) "envisioned bored or mixed tunnel construction because an older sewer main could not be moved."
      {14} "Funding commitments were approved (BASED ON MORE EXPENSIVE BORED-MINED)----now here is where the scam begins:

      It was determined that even after commitments for the more expensive "tunnel" method of construction -- THERE WASN'T ENOUGH $$ AND A P3 (private public partnership--no accountability - which I will reveal in next stage of this scam) would be required.

      OK - so the P3 makes the whole gig a secret (bear in mind an election is due in May 2005).

      {18} "By January 24, 2004 3 of 4 construction companies had proposals in --- one for cut and cover from SNC-Lavelin. OK we're at the beginning of January 2004 - next stage of the scam:

      {19} "CONFIDENTIALITY AGREEMENTS PROHIBITED DISCLOSURE - CUT AND COVER WAS NEVER KNOWN (TO THE PUBLIC).

      The prospect of cut and cover did not come to public light until the end of 2004. In July 2005 SNC-Lavelin was retained for cut and cover.

      The rest of the Reasons go on and on about whether government has the authority to do what it does with capital works -- none of the Judges remotely deals with the missing year of disclosure to the public and hence the small businesses -- none of whom have any idea whatsoever that cut and cover is a possibility.

      Government promises beneath ground construction - grabs the extra loot for the extra cost - goes ooops need more money -- goes P3 - no disclosure built in -- last minute says oh folks we've decided cut and cover.

      Susan and the public got scammed by government - no matter how many cases are cited dealing with this and that authority ---- the Court of Appeal enabled the scam imo