B.C. Court of Appeal overturns Cambie Street property owners' victory in Canada Line case

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      The Canada Line was completed in 2009, but it looks like court fights will continue over the $2-billion project's impact on Vancouver business owners.

      On May 13, the B.C. Court of Appeal overturned an earlier B.C. Supreme Court victory won by Cambie Village entrepreneurs in a class action.

      The court fight related to the project proponents breaking a promise to develop a bored tunnel, which would have left the street undisturbed.

      Instead, they switched to a cut-and-cover trench.

      This construction project ripped up the roadway along Cambie Street between West 19th and West 16th streets from March to November 2007, severely impacting local businesses.

      Cambie Street was torn up in 2007 to make room for the Canada Line.
      Tafyrn Palecloud

      In a 2-1 ruling, Justices Harvey Groberman and Sunni Stromberg-Stein allowed TransLink's appeal, dismissing a claim by Gary Gautam, owner of the Cambie General Store. He had won $7,600 in the earlier ruling.

      The judges on B.C.'s highest court ordered a new trial in a case involving two other plaintiffs, Thai Away Home owner Dale Dubberly and Festival Cinemas, which was founded by former theatre owner and philanthropist Leonard Schein.

      Dubberly's business generated profits of between $108,000 to $135,000 from 2004 to 2006 before enduring losses in 2007 and 2008. Yet she still had to pay rent of $27,550 in 2007 and $28,150 in 2008.

      Festival Cinemas saw its net income plummet by 89.69 percent in 2007, 87.69 percent in 2008, and 74.74 percent in 2009 as compared to the $110,282 profit achieved in 2006.

      Rent on the Park Theatre was between $61,438.50 to $75,091.50 in each of the three years.

      Dubberly was previously awarded $44,560 and Festival Cinemas was previously awarded $128,880.

      It remains to be seen whether this decision will have any impact on the development of the $2.8-billion Millennium Line extension underneath Broadway or the $1.6-billion extension of the Expo Line to the Fleetwood area of Surrey.

      According to the ruling, the trial judge, Christopher Grauer, erred in his interpretation of the limitation period in the Expropriation Act. (Grauer was promoted to the B.C. Court of Appeal bench on December 20, 2019, and is now a colleague of Groberman and Stromberg-Stein.)

      In addition, Groberman and Stromberg-Stein found that there were "methodological weaknesses in the judge's approach to the assessment of damages".

      "In our view, the use of the cut and cover method instead of tunnel boring is a legally irrelevant factor in the context of these proceedings because the judge had already concluded in the Common Issues Judgment that tunnel boring was not a practically feasible alternative to the cut and cover method of construction: Common Issues Judgment at paras. 61, 94–95," Groberman and Stromberg-Stein wrote. "This finding was the foundation for his conclusion that the defence of statutory authority shielded the defendants against a claim in nuisance. It was therefore an error for the judge to rely on TransLink’s choice not to use tunnel boring as evidence that the interference was unreasonable.

      "The judge’s failure to conduct an individualized assessment of unreasonable interference for each plaintiff and to determine when such unreasonable interference began and ended, relying on the appropriate factors, is an error requiring a new trial."

      Profits at the Park Theatre on Cambie Street took a nosedive when the Canada Line was being built.
      Cambie Village Facebook

      The dissenting B.C. Court of Appeal justice, Susan Griffin, concluded that the trial judge did not err in inferring that construction of the Canada Line was unreasonable due to the length of time it took and the amount of lost business.

      "If, after a retrial on the limitation issue, it is determined that the running of time for the injurious affection claims was postponed until sometime after July 17, 2008, then I would not interfere with the judge’s assessment of damages," Griffin wrote. "I do not agree with the majority that there were flaws in the judge’s analysis of damages."

      TransLink is proceeding with the $2.8-billion Millennium Line extension underneath Broadway and the $1.6-billion extension of the Expo Line to the Fleetwood area of Surrey. It remains to be seen whether this week's ruling in the B.C. Court of Appeal will have any impact on any promises it made to property owners along either of these routes.