Susan Heyes speaks to the media May 28, 2009 after winning a BC Supreme Court decision when a judge awarded the former Cambie Street merchant Susan Heyes $600,000 in damages for lost business because of Canada Line construction. John Lehmann/Globe and MailJOHN LEHMANN/The Globe and Mail
Characterizing herself as "little old me," embattled shop owner Susan Heyes is not throwing in the towel, despite the quashing of a landmark $600,000 court award for financial harm to her maternity wear business during construction of the Canada Line.
Ms. Heyes said Friday she hopes to take the issue to the Supreme Court of Canada for final judgment on a dispute many have characterized as a David against Goliath struggle, with significant implications for future, large public works projects.
"I think it's important that the precedent of this case be a positive one, and not negative," she said. "The powers against me are just massive, but this will have an impact on every small business in Canada.
"To give this up now would be to lose everything, and I'm not going to do that."
At issue is the prolonged disruption to Ms. Heyes's and other businesses on Cambie Street, after builders of the rapid transit line opted for the cheaper but more invasive, cut-and-cover method of construction over boring a tunnel.
Ms. Heyes, who had to mortgage her home to save her business, sued the builders and won.
Her business losses would not have been so heavy, if the Canada Line had opted to bore a tunnel under Cambie Street, Mr. Justice Ian Pitfield ruled. He awarded her compensation of $600,000.
But Friday, in a unanimous verdict, the B.C. Court of Appeal overturned Judge Pitfield's decision.
The three-judge panel found that there would have been "nuisances" along the Canada Line's route, no matter which method was used to lay the track.
And the judges determined that a bored tunnel was not a viable option to begin with, given cost and time constraints, with the Olympics set for 2010.
"The Canada Line could not be built without significant disturbance to many citizens' use and enjoyment of their property," wrote Madame Justice Kathryn Neilson.
"The impact of construction would be greater at Broadway if the bored tunnel method was used, and more significant in Cambie Village with cut-and-cover construction."
The builders, therefore, had a right to use the better option for constructing the line, and Ms. Heyes is not entitled to damages, the appeal court concluded.
The decision stunned the shop owner.
"It's brutal, absolutely brutal," she said. "The injustice is staggering. They are justifying the killing of businesses along Cambie Street. It's unbelievable."
Ms. Heyes's lawyer, John Hunter, said he was surprised by the appeal court's reasoning that tunnel boring and cut and cover were equally disruptive to merchants along the route.
"Where's the evidence of that? Did they take into account the length of time [the Cambie Street businesses]were affected, and how much?"
Mr. Hunter said Ms. Heyes's court battle has raised a significant issue.
"It deals with the ability of governments to do work in a city that will cause inconvenience. Where do you draw the line between the kind of work that just has to go on, and the scale of this project, the length of time it went on, and the fact there was an alternative construction method that would not have caused as much harm to her and her neighbours?"
Despite the court reversal, Ms. Heyes said she hopes TransLink and the Canada Line consortium will not come after her for the $600,000.
"It went right back into my business. It's gone," she said. "Things are starting to look better for me, but I am financially struggling still....I can't imagine they'll come after me for that money.
"In the courtroom, there was $13-billion in assets on their side, and on the other side just little old me."
TransLink spokesman Ken Hardie said authorities are reviewing the Court of Appeal judgment and would have no immediate comment.