BC Supreme Court Permits $1.7B Rapid Transit Project to Proceed

On June 30, 2005, Justice Robert Bauman of the British Columbia Supreme Court dismissed an attempt to derail the $1.7 billion rapid transit “RAV” line that will connect Richmond, Vancouver and the Vancouver International Airport in time for the 2010 Winter Olympic Games.

The petitioner, Do RAV Right Coalition, claimed that the public had been promised the underground portions of the RAV line would be constructed by tunnel boring machines, but when the project emerged in December 2004 from its procurement phase the tunnel was to be constructed by way of “cut and cover”: digging down from the surface and laying pre-cast tunnel segments into the trench. The Coalition argued that the change to cut and cover construction was a material change to the project and that as a result, the provincial environmental assessment that was completed on June 8, 2005, and in particular, the public consultation component of that assessment, was fundamentally flawed and had to “go back to square one”. Success for the petitioner would have potentially dealt a fatal blow to the massive, time-constrained project.

The primary respondents, RAV Project Management Ltd. and the Attorney General of British Columbia, argued that the Coalition's legitimate expectations of public consultation were confined to the public consultation components of the statutory regime for the environmental assessment process. The respondents submitted that full public consultation over the cut and cover construction method had been achieved within the environmental assessment process and argued that the respondents had always made it known in the early stages of public consultation over the RAV line that the project was subject to change and refinement following the final stages of its procurement process.

The Court agreed. Justice Bauman held that the conduct of the environmental assessment was a matter in the discretion of the Executive Director of the British Columbia Environmental Assessment Office, and that the Executive Director's decisions were reviewable on a “patent unreasonableness” test. The Court held further that the conduct of the environmental assessment was sound and that even if there were defects in the assessment process, they were cured by an additional three-week period of review by the responsible Ministers, specifically over the issue of cut and cover construction, prior to their issuance of the environmental assessment certificate for the RAV line.

Do RAV Right Coalition was represented by Joyce Thayer and Cameron Ward.

RAV Project Management Ltd. was represented by George Macintosh, Q.C., Robert McDonell and Sean Hern of Farris, Vaughan, Wills & Murphy LLP.

The Attorney General of British Columbia was represented by George Copley, Q.C., and Jonathan Penner. The Attorney General of Canada was represented by Paul Partridge.
The Greater Vancouver Transportation Authority was represented by Brad Armstrong, Q.C., of Lawson Lundell LLP.