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Heyes’ win is good news for other Cambie merchants but will it stand?

May 28th, 2009 · 20 Comments

In my Globe  story today about the court ruling that Canada Line owes Susan Heyes $600,000 for the “nuisance” it caused, lawyer Joe Arvay says this is good news for the many other Cambie merchants he is representing in the class-action suit still to come.

But before everyone gets TOO jubilant, I should remind all that I talked to quite a few lawyers yesterday who, no matter which side they were rooting for, can’t imagine that this case won’t be appealed. There’s just too much at stake. It essentially means that any government or government agency building anything, from a trail to an airport, has to prove that it chose the construction method that caused the least amount of disruption to businesses or residents nearby.

That always risks being something of a subjective call. Although Judge Ian Pitfield did say in his ruling that the cut-and-cover method used for the Canada Line was more disruptive than a bored tunnel and that’s why Heyes deserved compensation, there are those (particularly Canada Line engineers) who will argue that a bored tunnel is just as disruptive.

It requires digger a much bigger “box” at each transit station where the equipment has to go down for the boring. That would essentially close down the street between each dug-up intersection.

Certainly the merchants on West Broadway, who are starting to mount their own campaign against any form of SkyTrain in their area, don’t believe that a bored tunnel would be any better. They want a streetcar-type line instead. So there’s an interesting dilemma. If this judgment stands, TransLink would have to make the argument, if it wanted a SkyTrain line, that it had a public duty to build SkyTrain rather than light rail. THAT would prompt quite the raging public debate. This blog’s typical comment war to the power of a nuclear blast, I would think.

The lawyers for TransLink/Canada Line are hunkered down at the moment going through the 72-page document with a cat-flea comb, but wait for news of the appeal next week is my bet.

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  • Does this mean that the city could be sued for repairing roads or digging up roads to replace old sewers? What about if they don’t dig up the old sewer and it bursts, then the city could be sued for that “nuissance” too.

    Infrastructure would collapse. There has to be a point where the functioning of an overall city takes precedence over the needs of individuals.

    I actually do think Heyes has a point in that the amount of disruption was down-played, such that she invested in more inventory and a higher-cost lease than she might otherwise have done. Not sure where the legal argument for her here is though as I’m not a lawyer.

  • fbula

    Hey Wendy,

    No, the city couldn’t be sued for any repairs. But, if this judgment stands, they could be sued if a resident/business can prove that they had a choice between a less-disruptive way to do it and a more-disruptive way and they chose the more-disruptive way. Pitfield did spend a lot of time explaining that governments have the statutory right to build infrastructure, sometimes to the discomfort of the public. But they don’t have the right to build the infrastructure in a way that causes a greater nuisance, just to save money, without compensating those who are being disrupted.

  • foo

    Wendy, the judge specifically said Hazel & Co had no case for her argument that the amount of disruption was down-played, or any claim for damages due to the lease/inventory purchases etc.

    Note that all her claims for negligence against all parties were dismissed. It was only the nuisance claim (which doesn’t assign blame) that succeeded.

    That claim only succeeded because a bored tunnel would have closed off Cambie & King Ed, not Cambie & 16th. This suggests that merchants close to King Ed will not succeed in a nuisance claim, because Translink et al can argue that the disruption would have been the same if a bored tunnel was used instead of cut and cover.

    As Frances said, the judge found that the govt has a right to build infrastructure without compensation, as long as they choose the least disruptive of the options available to them.

    IANAL, so don’t quote me.

  • Scott

    I find this decision extremely disturbing. How do we assess whether or not a choice really exists between more- and less-disruptive construction methods? There’s the problem of how to assess which of two construction methods really is less-disruptive.

    But besides that, there’s a problem of figuring out how costly a less-disruptive construction method can get relative to a more-disruptive method before we say it’s no longer really a financial possibility. So in the case of the Canada Line, in what sense was tunneling really an actual alternative to cut-and-cover, if tunneling would have made the project prohibitively expensive?

    To be clear, I’m not saying that’s a knock-down consideration here. I’m just disturbed that neither Pittfield’s decision, not the statutes he cites, seem to give any guidance for thinking about how financial realities affect what is and is not a real alternative construction method.

  • Darcy McGee

    Surface level grade separated transit with dedicated lanes is an excellent way to go. Love these types of systems. There is a speed trade off, but the cost savings are significant and the construction method is easier to keep on track.

    The only problem is everybody whines about taking lanes away from cars.

  • DMJ

    I think an appeal would be fraught with danger for the defendants. I think judge Pittfield ,cut to the chase’ with civil law and awarded damages based on income lost due to construction.

    An appeal will look at the case in its entirety and the appeal court may not only rule in Heyes favour but increase the compensation paid and may look at other aspects of the case.

    I think TransLink should be chastened by this decision and do the right thing; an appeal may really open up a hornets nest like BC Rail!

    Pitfield did call the RAV P-3 a charade; does Translink and Gordo want that avenue explored?

  • DMJ

    Note to D’Arcy M.

    Surface transit can’t be grade separated its an oxymoron. I think the term you want is “reserved rights-of-ways” where the transit is separated from other traffic using bollards, hedging, grass, or even a white line.

    The capacity of one traffic lane is about 1,400 persons per hour pr direction, operating tram/or LRT on a RROW, using a traffic lane increases capacity to over 20,000 pphpd! That’s how the French justify LRT on-street.

    Lots of info here:

    http://railforthevalley.wordpress.com/

  • Dawn Steele

    Is the principle that they have a duty to choose the least disruptive option (which would arguably pose extreme restrictions on govt and be hell on earth to prove, as you note). Or is it that they have an obligation to provide compensation when pursuit of a broader public benefit results in undue harm to certain individuals.

    I’m not a lawyer, but if it’s the latter, wouldn’t there be some precedent for this? And we’re talking significant, undue harm, not the annoyance of sitting in a traffic jam due to road construction.

    I don’t see how the courts could uphold that it’s fair and reasonable for a government to bankrupt some businesses to build public infrastructure. That’s really no different from uncompensated expropriation.

  • foo

    Dawn, that’s exactly what the judge found:

    “Consideration of the relevant factors supports the finding that the extent of the
    interference was sufficiently unreasonable to constitute a nuisance. ”
    ” I find that the nature, severity and duration of the impact on Hazel & Co.
    resulting from cut and cover construction outweigh the social or public utility
    associated with the creation of the Canada Line to a degree that warrants
    compensation for nuisance”

  • Steve

    Hey Frances,

    I don’t think the Cambie Street lawsuit should be appealed. There is no precedent except that governments should act reasonably when they change decisions on megaprojects arbitrarily and without warning to disrupt peoples’ lives.

    For Cambie, the about-face decision to save hundreds of millions of dollars on the construction should have been accompanied by a reasonable decision to allocate some of the savings to compensate merchants who they misled.

    For Broadway merchants, however, there is no golden pot at the end of the Skytrain rainbow. They’ve had plenty of reasonable notice on the upcoming disruption and should not expect compensation.

  • Darcy McGee

    > Surface transit can’t be grade
    > separated its an oxymoron.

    No it’s not.

    Sidewalks are surface transit, and they’re grade separated from the road.

    The grade may be modest, but it’s still separated. It helps define where cars (and bikes) belong and don’t belong.

    Appropriate car vehicle crossings can be created that allow vehicles across tracks when needed.

  • Chris

    There was a lawyer talking about the ruling this morning on CBC Radio. I may have misunderstood, but he implied that the reason Heyes was able to sue the Canada Line because it was a public-private partnership (P3). Normally the government is shielded from these lawsuits, but because a private company was set to profit from Canada Line, her lawsuit was successful.

    I think this really puts into question the merits of P3 projects.

  • Darcy McGee

    > I think this really puts into question
    > the merits of P3 projects.

    THAT’S what makes you question the merits of public private partnerships?

    That would be about number 500 on my list of concerns.

  • Darcy McGee

    Incidentally, the Arbutus Corridor would be another excellent example of grade separated surface transit.

  • There should be some provision for ensuring the impact of residents and businesses to any sort of construction, whether government or private, is controlled to a reasonable level.

    The Cambie line construction was exceedingly long in duration, not a summer or a few months of sewer work, but YEARS. That is enough I would think to cause undue hardship and commensurate compensation. I don’t see how marginal businesses can be expected to survive 2 years in those conditions.

  • Keith

    The issue that hasn’t arisen here is that the people building the line made no effort in good faith to mitigate the problem. I’ll bet if they had spent 5% of the money saved, say $20 million, compensating the merchants the Judge would have said they had made all reasonable efforts. If this case stands I suspect this is how things will go in the future.

  • michael geller

    Frances, a particular consideration in this case may be the fact that it was a private company acting as ‘developer’ under a P3 structure, rather than a Public Agency. Therefore, one company was making a profit, at another company’s expense.

    That being said, I do hope this case prompts a more thorough review of the appropriateness and costs of a tunnelled rapid transit line out to UBC. I am not a transportation expert, but given limited public funds, I seriously question whether this is the most appropriate technology for this line. I would prefer to see either a rapid bus system, similar to Curitiba, where the fare is paid on the platform before entering the bus, (don’t worry, staffing is not required), or a light rail system, although I don’t think the street is wide enough for dedicated lanes.

    At any rate, I suspect that regardless of the outcome of any appeal of this case, there will be a new line item in the budget to cushion the impacts of nuisance for whatever is built, especially if it is undertaken as a P3 project.

  • Steve

    If the other Cambie Street merchants win, I hope they will allocate some of their winnings to Susan Heyes because it sounds like she is still out of pocket $300,ooo to $500,000.

  • MB

    There are merits and pitfalls with both surface light rail and subways. Neither are perfect.

    But no matter which mode is chosen for Broadway, there must be a serious demonstration by the decision makers and engineers to a) minimize disruption to existing businesses and residents, b) have a compensation package ready for the inevitable disruption, and c) examine the long-term financial effects of p3s.

    Regarding making a choice on mode, the planning studies should not be limited to transit alone, but must inlcude land use, both existing and potential.

    A City engineer published a letter in today’s Sun reiterating that the Broadway corridor is the second largest employer in the province but has only a 20% transit use rating (poor service and overcrowding are two of several limiting factors). In addition, transit use to UBC has doubled since the late 90s. Both cases have real and significant potential future demand that must be considered. I would add that the Broadway corridor already has a significant residential density with a large potential for more.

    http://www.vancouversun.com/opinion/letters/Buses+along+Broadway+aren+meeting+demand/1641889/story.html

    DMJ and I have debated this issue ad nauseum on another blog, which I left because of an overabundance of circular arguements and glib pronouncements.

    Though I see great potential for surface light rail on many, many Metro Vancouver arterials, and I fully recognize their potential contribution to quality urbanism through adjacent land use intiatives (especially with those great Euro trams), I don’t believe that one size fits all in every case, and I question surface LRT on Broadway for several reasons:

    – if it’s in a dedicated fenced median, it would sever most of the secondary cross street pedestrian-activated crossings; almost every cross street in Central Broadway is signalized, and several are for important bike / ped / commercial vehicle crossings.

    – if it’s not in a dedicated median, then you have slower milk run trains that would not improve service over the existing B-Line by much, if at all; why spend 1.5 billion for little or no service improvements?; save our money in this case and improve the B-Line instead

    – pedestrian safety is key on pretty much the entire length of Broadway. That is one reason whay they signalized almost all of the 40+ intersections from Main St to Alma over the last couple of decades — pedestrian and bike traffic demand is high. A rapid transit service on Broadway must not just improve transit, but also enhance the pedestrian realm.

    But that may not be possible in Central Broadway where the road allowance is a scant 30m to accommodate stations and 300 dis/embarking people; another 5m wouild make a big difference

    Should a subway be chosen, then thanks to the Heyes case it will be twin bored tunnels. But the station boxes will also have to be covered with a temporary steel roof and buig ventilation shafts for the construction equipment exhaust. That will push the cost to over 3 billion.

    Is it worth it? Maybe, maybe not. Defintely yes if land use policy is tied to the project, service is vastly improved, Broadway becomes a grand pedestrian realm on the surface, and the project does not remove funds from other much-needed transit improvements throughout the Lower Mainland.

    In my mind, that calls for much greater participation by the feds.

  • John Q Public

    Hey City “Defenders”,

    There’s a BIG difference between a month or two of disruption (ex. sidewalk/street/sewer/pipe maintenance) versus THREE YEARS of severe disruption. It’s VERY reasonable that IF the city needs to effectively shutdown the surrounding roads/streets/sidewalks to your business for such an EXTENDED PERIOD OF TIME, then there would be some kind of compensation. There was NO COMPENSATION (tax breaks or otherwise) to the merchants. Any and all property tax breaks were taken by the greedy LAND OWNERS who would have had guaranteed gains in the long run anyway. The businesses that leased the land got screwed and many went out of business. I know this from personal experience. To provide you specifics, I am now 6 figures into further debt because of this specific situation.

    John