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
Helen Page is still distraught about the fight she lost with the Vancouver airport over the runway built in the 1990s.
"That runway spoiled my life. We woke up to a nightmare when the first plane came over. I couldn't work outside in my garden any more. And we had to sell at a loss," said the 92-year-old.
Like business owner Susan Heyes has done with the Canada Line, Mrs. Page and four other Richmond homeowners sued the airport over the nuisance caused by the project. Like Ms. Heyes, they appeared to win at first when a Supreme Court judge agreed in 1998 with their argument that the new construction was an unreasonable nuisance for which they should be compensated.
Then, four years later, they lost when a B.C. Court of Appeal judge ruled that the airport was providing a public good that exempted it from having to pay compensation to neighbours who felt their quality of life was damaged.
But lawyers for both Ms. Heyes and the long-defeated Richmond homeowners, as well as other Cambie Street merchants, hope that kind of reversal won't happen again. It's not that they think TransLink and its Canada Line subsidiary won't appeal. They're sure they will.
But they believe there are crucial differences, even though the Richmond case, known as Sutherland v. Vancouver International Airport Authority, is seen as the main Canadian precedent to Ms. Heyes' lawsuit.
"This is a better case," said Cameron Ward, the lawyer who took on Ms. Heyes' case and, against all apparent odds, won on Wednesday when Judge Ian Pitfield ruled that his client deserved $600,000 compensation for the unreasonable nuisance the construction caused.
Judge Pitfield's decision specified that Ms. Heyes deserved compensation because, although government agencies have the right to build necessary utilities for the public, they don't have the right to choose a cheaper but more disruptive one over a more expensive but less disruptive method without compensating those who are disrupted.
He noted that when TransLink and its private partner agreed to build the line using cut-and-cover construction, which resulted in a huge trench running down Cambie Street that was open for two to three years on different blocks, it made a choice to save money and create more of a nuisance than if it had stuck to the original plan of building the line by boring the tunnel underground.
"In the Sutherland case," Mr. Ward said on Thursday, "the new runway, no matter how it was built, was going to be a nuisance. But in this case, in order to cut costs, they made a choice to create a nuisance."
Leonard Schein, president of the Cambie Village Business Association, which has mounted a class-action lawsuit on the same issue as Ms. Heyes, said he sees another difference in the fact that a private company, SNC-Lavalin, is involved in building the SkyTrain line.
"This wasn't a nuisance for a public good. This was a private company that was making a profit by taking away profit from another private business," said Mr. Schein, who owns the Park Theatre on Cambie Street, which he said lost $200,000 during the construction of the line.
Both Mr. Ward and the lawyer who represented the Richmond homeowners against the Vancouver airport, Darrell Roberts, also believe the principle of protecting government agencies from lawsuits for damage over public projects has gone too far.
The principle of statutory authority was introduced in Britain during the period when it was building the railroad system and wanted to forestall lawsuits from farmers throughout the country claiming their livestock was being damaged.
"Statutory authority is supposed to be a limited defence. There's nothing in there saying you have a free hand to cause nuisance," said Mr. Roberts.
But George Macintosh, the lawyer who represented the TransLink agency managing the Canada Line, said it's in the public interest to prevent anyone near a public-works project from suing simply because they don't like the impact on them personally.
"The total cost to the public would go up greatly if compensation were awarded to everyone nearby."
Special to The Globe and Mail
Frances Bula