On Feb. 18, 2011 the British Columbia Court of Appeal delivered its reasons for judgment in the Cambie Street / Canada Line case of Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority.
This case stemmed from the Canada Line Construction along Cambie Street and in particular the Cambie Village area. Susan Heyes was successful on her claim at trial that the cut and cover method of construction (which was a departure from the anticipated bored tunnel method) constituted a compensable legal nuisance, for which she was awarded $600,000.00 in damages for loss of business.
South Coast B.C (Translink) appealed both on the correctness of the finding of nuisance at trial and the trial judge’s failure to accept its defence of statutory authority.
The court found that the cost savings by using the cut and cover method made it the only reasonable option. Either method would have caused a nuisance and while a bored tunnel would have caused less interference for the Cambie St. businesses, it would have been at the expense of businesses at Broadway.
The court upheld the defence of statutory authority because relocating the nuisance down the line would not have been a viable alternative.
The Court also found that the defence of statutory authority for regulating traffic and closing streets was also available to Translink under the Vancouver Charter.
It is significant to note that the Court found that the cost differential was an important consideration in this case. In doing so, it would seem that the Court gave due deference to the policy considerations of Translink in preference to the possible impact on individual rights. This policy position seems to support a common sense approach that the public’s appetite to absorb the costs for these types of projects is limited and that it is not the courts’ role to unduly “second guess” the fiscal limitations on governmental bodies in doing these types of large projects.