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Susan Heyes wins $600,000 over Canada Line construction

May 27th, 2009 · 35 Comments

Decision just came down in the case of the indomitable Susan Heyes/Hazel & Co and her lawsuit for damages over the Canada Line construction’s impact on her store.

Decision is here.

canada-line-damages-decision

Categories: Uncategorized

  • DMJ

    The judgment was for nuisance and resulting loss of business.

    Now watch the floodgates open for more lawsuits, possibly up to 200 more! Gordo’s and TransLink’s worst nightmare. Adiós the Evergreen Line.

  • not running for mayor

    More like hello appeal.

  • spartikus

    Coupled with the great fudge-it budget of 2009…well…that goodness BC reelected responsible economic managers.

  • spartikus

    3. The claim in nuisance is dismissed as against the City, Canada, and the Attorney General.

    4. TransLink, CLRT and InTransit BC are jointly and severally liable to Hazel & Co. in nuisance.

    Interesting.

  • Frothingham

    Gordo should personally have to pay as well. he gave them their marching orders

  • Floodgate was exactly the word that came to my mind, as well, but it’s more than likely to go to appeal. If she wins there, as well, then watch out for Cambie’s Revenge.

  • When was the last time George Macintosh lost a case?

  • T W

    The various boards and directors that authorized the switch to cut and cover should have had some idea that there was a risk of litigation otherwise they were deficient as directors acting in the public interest. Did they or did they not factor that risk into the estimates ?

    How many other projects have had deficient governance ?

  • foo

    Read the judgement. Any appeal would be quite a tough case. On the other hand, it’s not clear that other merchants would have the same claim as Hazel & Co.

  • LP

    Frothingham is frothing over again.

    Please do show us all some proof that gordo directly gave them any marching orders.

    Much can and should be blamed on Campbell, I believe Spartikus has already started a list.

    However, there was a board of professionals that were fully capable to make a decision that didn’t include the premier.

    As for Spartikus’s comment on BC electing these guys, if there was another alternative perhaps we wouldn’t have elected them.

    There’s two ways to get the Liberals out. One is to split the center right vote. The other is for the NDP to complete the change that BC expected of them after their abismal effort in the 90’s.

    The NDP clearly have not done enough for the people to entrust them with governence again…so is that BCer’s fault for re-elecing the Libs, or is it the NDP’s fault for who they are….still?

    It was a plug your nose campaign Sparty.

  • tyee

    Not a good news week for the Gordon Campbell Liberals. Now if we could just get that BC Rail matter resolved.

  • Frothingham

    @LP – find out how the transit board was anointed 😉 …

  • LP

    Frothy,

    Just because they were anointed by Campbell doesn’t mean he specifically ordered them to go cut and cover over tunneling.

    They had a budget, they needed to find a solution to what they believed to be a problem, and a group of experienced adults came to a conclusion that they needed to go a different direction.

    Another groug of adults with the same set of information and charged with putting dollars ahead of “the little guy” would make exactly the same decision.

    On the other hand, perhaps they did a risk assessment and determined that they would have to pay “X” amount of money in potential lawsuits, and it was still less than tunneling.

    The business case wins every time regardless of who calls the shots.

  • Denis

    It seems the bleeding of tax dollars hasn’t yet stopped. This evening I read that Hydro will be paying 62 millions to buy out the owners of a bunch of homes located under the Hyro lines that Gordo insisted had to be put there rather than skirt the area around the homes. For a guy who is supposedly a great manager of our province, he and his merry band, sure manages to lose a lot of court cases.Best man for the economy! I think not.

  • not running for mayor

    The delta hydro issue did not go to court, BC hydro volunatarily bought those houses at a slight premium to appease those residents. In fact a large portiont of those houses have already been resold. Not sure how much Hydro will have lost on the deal once it’s all said and done, but it would probably be less then the legal costs of a lawsuit.

  • The case is a matter of the tort of nuisance. Negligence was not a factor. Nuisance refers to legal liability for acts that unreasonably and substantially interfere with the use of land. Basically, it’s the law that neighbours should be good to each other. Whatever you do on your land, make sure it doesn’t cause your neighbour too many problems. The law allows for balance and doesn’t apply to inconveniences.

    Choosing cut-and-cover saved TransLink money. But the savings weren’t without external impact — they caused an undue burden on Ms. Heyes’ business. Another construction method — i.e. tunneling — could’ve been used to minimize harm. To save $400-million, the project went ahead with cut-and-cover. TransLink’s thrift became Ms. Heyes’ burden. This is what the judge found unacceptable.

  • Darcy McGee

    Good for Susan. That construction screwed that neighbourhood, and fairly directly contributed to the death of several businesses. There should have been a better compensation system in place, measured against committed deadlines.

    (Aside: the Tomato Cafe was _not_ one of the businesses affected, from what I understand. They had planned to move some time before the construction started. It certainly made for a good story…)

  • JY

    It’s about time that Cambie merchants steamrolled by the cold-hearted beauracrats got their compensation. Looking back at what Translink and the governments had been telling the public about the project’s impact on the businesses along Cambie, you have to conclude there was a lot of lying and misinformation. Put yourself in the shoes of the merchants who lost so much through no fault of their own. I am happy the judge granted Ms. Heyes $600,000.

  • LP

    So in business terms, $400 Million was saved, meaning even if $100 Million is paid in settlements, they save $300M.

    Frankly any competent manager would sign that deal, meaning it’s very likely Gordon Campbell didn’t influence anything. Put the conspiracy theories to rest Frothy.

    The only thing they lost was the PR battle, but it didn’t cost them an election. So is that really a loss? After this is up and running everyone will forget about the pain these people suffered in the long run .

    Good for her. Frothingham, you and should Denis schedule coffee together to keep the tab running on your beef with the Gordo and his band of merry Liberals.

    The rest of us will move on to the next scandal. With the election over there should be a new one each week.

  • DMJ

    I doubt that cut-and cover construction was $400 million cheaper, more likely $100 million.

    An appeal of the judgment is fraught with peril because the Court of Appeals will look at the case in its entirety. This means there is a chance of the defendants being found negligent or an increase in compensation, or even a call for a police investigation (Pittfield called the RAV P-3 a charade).

  • Patti Bacchus

    Congratulations to Susan for her perseverance and courage in standing up for justice. I know this has taken an incredible toll on every aspect of Susan’s life, and could have all been avoided.

    Susan, you set an inspiring example for your daughter, and best wishes for her graduation celebration.

    Congratulations.

  • A. G. Tsakumis

    Yes, I agree with Patti.

    Huge congratulations to Susan who fought a very brave fight.

    Too bad the award wasn’t higher.

    Susan Hayes is a heroine! Fantastic result.

  • Darcy McGee

    > Frankly any competent manager would sign that deal

    Frankly, any competent manager would have planned for the requirement for meaningful compensation up front.

    It probably would have cost less than the value of this and any other potential settlements.

    On the other hand, the “competent managers” who failed to plan for this may have bankrupted the former business owners to such an extent that other suits are unlikely.

    Reminds me of how the pro-business NPA shut down a bunch of long standing Gastown stores in order to create the opportunity for “Storyeum” to be created. (An oversimplification, and perhaps a bit biased…but people lost their livelihoods and now we have an empty shell down there.)

  • A Reader

    Wow.Cameron Ward is my hero.
    Does that guy ever get any sleep?

  • foo

    I sit on the fence with this. Sure, the businesses were severely disrupted during the construction, but they’re going to make significantly larger profits now that the line will bring more customers their way.

    I don’t see any push for them to pay special taxes to compensate for that….

    I think some form of bridge financing (ie some low/no interest loan) during the construction would have been appropriate. Then the merchants would have to pay it back once their businesses are operating normally again.

    While this might be a nice win for a few merchants on Cambie, if it stands, it’s going to be a big loss for the taxpayers of Canada. Any future infrastructure development anywhere in the country is going to cost more, that’s for sure…

  • D. Brooks

    foo – FYI,
    Many Cambie St. merchants will never benefit from the Canada Line, particularly those around 16th Ave. – the nearest stations are located 8 – 9 blocks away – @ Broadway (9th) and King Ed (25th). The train will pass them by, prospective customers never knowing they exist.

  • WW

    foo, above –

    Cambie canyon was no public works project – it was a for-profit PRIVATE enterprise, built with our tax dollars on the backs of a small number of blind-sided citizens.

    The precedent is not about public works infrastructure – it’s about large corporations and government forces lined up together to destroy small busines interests in order for the project to profit.

    wrong at every level.

    meaningful consultation – respect – adequate mitigation are the least that these several BILLION dollar projects should be required to provide.

    This 600,000 dollars is a drop in the back-hoe bucket compared to what the project ‘saved’ out of the merchants pockets, and what the army of lawyers were paid to fight doing what was the right thing to do from the beginning.

  • Frothingham

    @LP “The business case wins every time regardless of who calls the shots.” Agreed … but this whole thing arose because they were all talking one plan, but once the work began they went to their “real” plan. And i bet there is a reason why Ms taylor was a witness and why she resigned from Gordo’s cabinet. he is a control freak and he has to bear some of the blame on this one.

  • foo

    WW, enough with the propaganda. There aren’t any (local) elections due for 2.5 years. You can bring up evil Gordo and his grasping minions in the next campaign.

    The fact of the matter (as the Judge acknowledged) is that the bids for a bored tunnel was ~$400m more than for cut’n’cover.

    What would you be saying if the govt had said there would be a special extra levy assessed on citizens of BC to pay the $400m, so that the merchants on Cambie would not be inconvenienced?

    Given that the RAV line was approved by everyone (and you can argue the political arm-twisting that went on to get there), Translink et al had a duty to build it the most cost-effective way. Note that the Judge acknowledged even that.

    As I said above, compensation of some kind was probably a good thing to do. The question is what was really the most appropriate compensation?

    D Brooks, I lived in the neighbourhood before and during the construction. The area around 16th has been significantly improved as a result of the construction. Merchants will see benefits just from that alone.

    Further, parking was always a pain in around there, and now there is the opportunity for people to get there without having to use a car. That’s a benefit to the merchants too.

    The character of the neighbourhood will (has) also change, since it’s desirable to live near the transit line, so merchants will get the benefit of more, richer people moving in.

  • LP

    Agreed he is a control freak. However I believe Carole Taylor resigned because she knew a deficit was coming, as well as some bad policy and she wanted to distance herself from it.

    Also, my take has always been that she was lured into provincial politics under the belief that Gordo wouldn’t run for a third term. If you recall there was some talk years ago that she was the heir apparent.

    So fast forward a couple years and Campbell decides to stay. If you’re Carole Taylor, you’d leave too – what if he decides to run for a fourth. Finance is the WORST post to hold in any administration unless you really are balancing the books year after year.

    Why take the heat for an unbalanced budget for your resume that you had no control over. Not too mention the grief coming in 2010 when all those union contracts run and and shit hits the fan.

    Frothy, you’re also forgetting that Art (Carole’s husband, you know the former mayor whom gave GC his start) and Gordon go back many years and are quite close. Your conspiracy theory about her testifying is off, as are your thoughts on his involvement.

    Lots to blame him on, this isn’t one of them.

  • Frothingham

    Good points. it may well be that Ms Taylor did not want to wait in the wings with Finance mantle round her neck. But I still would wager that Mr Phillips and Ms Taylor are rather cool on gordo… as are many folks

  • BLPG

    Foo – what improvements are you talking about? The city finally got around to re-paving Cambie – was there something else I missed? D. Brooks is right – the nearest stations are at least 6 blocks from the commercial area most impacted by the construction, and I think that it’s a little disingenuous for the RAV folks to suggest that all businesses along the line will benefit equally. Also why did the city install parking meters on the side streets between 16th and 19th during the construction? This parking used to be free – hard to see how this was a benefit to those businesses when they were already struggling.

  • I have to agree that hanging this on Campbell alone reaches too far. If anyone from the provincial level has to wear egg, it should be Kevin Falcon.

  • foo

    BLPG,
    Umm, pedestrian lights at every intersection, sidewalk bulges, new non-broken sidewalks, benches.
    I lived in the neighbourhood for 10 years, the improvements are obvious.

    As to benefits from the line – previously the clientele walked or arrived by car at the stores. Now they will walk, arrive by car or arrive by rapid transit. You might complain that the stations are 6 blocks from the village, but the fact is that there are now 2 rapid transit stations within 6 blocks of the village.

    For non-residents, the parking around there was always a hassle. Now they can get to the stores without worrying about parking.

    If you don’t think there’s any benefit, then you are in disagreement with the merchants -take the example of Hazel&co’s ex-landlord. The new lease at Cambie was going to be significantly more expensive because of the presence of the Canada line, hence the move to Main.

  • BLPG

    foo – I don’t follow your logic. There has always been a convenient bus option to get to the businesses on Cambie. There USED to be free parking on all the side streets, not sure how metered parking has improved on that. Had the RAV line provided more clarity up front I think the merchants could have weighed the costs/benefits of two years of disruption and made their own decisions. As it stands they bore the brunt of the costs for as-yet unproven benefits.