BCCA Overturns Award in Nuisance Claim Case

On February 18, 2011, the BC Court of Appeal overturned the trial judgment in Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77.

The case concerned the construction of the Canada Line subway along Vancouver's Cambie Street. That section of the Canada Line was constructed through a method called “cut and cover,” in which a trench is built, the tunnel constructed, and then the trench is recovered. Cut and cover stands in contrast to boring the tunnel underground with a boring machine, which was used to construct some other portions of the line.

The plaintiff, a clothing business on Cambie Street, claimed that the use of cut and cover construction caused a nuisance that could have been avoided had that section of the line been built by boring. The plaintiff claimed for loss of income caused by the reduction in customer volume, which was in turn caused by the construction's interference with public access to the store.

The plaintiff succeeded at trial. The trial judge found that the cut and cover construction caused a nuisance and rejected the defendants' defence that the construction was statutorily authorized. The defendants had advanced three grounds of statutory authorization: legislation that authorized the regional transportation authority (now called TransLink) to construct rail transportation systems; an Environmental Assessment Certificate, which had been authorized after public consultation period specifically addressing the social and economic effects of the cut and cover construction on Cambie Street; and traffic plans authorized by the City of Vancouver that put in place road closures and other traffic changes. A major reason the trial judge rejected these grounds of statutory authorization was that he found that boring the tunnel under Cambie Street had been a reasonable alternative, such that the nuisance was not the “inevitable consequence” of these authorizations.

The Court of Appeal held otherwise. Although she did not overturn the trial judge's finding of nuisance, Justice Kathryn Neilson (writing for the court on this point) held that the cut and cover construction was statutorily authorized. Specifically, she found that boring the tunnel was not a reasonable alternative that would have avoided causing a nuisance. She found that there was only one viable proposal for constructing the Canada Line – the proposal which included cut and cover construction. The cost of the tunnel boring proposal rendered it impossible to construct because there simply weren't the necessary funds available.

Moreover, even if it had been financially feasible, the court found that the tunnel boring proposal was not a non-nuisance alternative because the project had to be considered as a whole, and the tunnel boring proposal would have caused a nuisance itself at different places along the route. For example, boring the tunnel would have more dramatically impacted the line in the area of the entrance “portal” and at the stations.

The Court of Appeal also found the nuisance caused by the construction to be authorized by the City of Vancouver's approval of the traffic changes, such as the closure of two of the four Cambie Street traffic lanes.

Significantly, however, the Court of Appeal did not accept that an Environmental Assessment Certificate (“EAC”) could provide statutory authorization. That EAC had also been the subject of separate litigation brought by Cambie Street merchants seeking to set aside the certificate for lack of consultation. Both the BC Supreme Court and the Court of Appeal dismissed that challenge.

In the Heyes case, the Attorney General of British Columbia intervened in support of the contention that an EAC provides statutory authorization, while Ecojustice Canada intervened in opposition to that position.

In April, Susan Heyes filed for leave to appeal to the SCC as a self-represented litigant.

At trial and on appeal the defendants were represented by George Macintosh, QC, Robert McDonell, Sean Hern and Tim Dickson of Farris, Vaughan, Wills & Murphy LLP.

At trial, the plaintiff was represented by Cameron Ward of A. Cameron Ward & Company, and, on appeal, by John Hunter, QC, and Christine Joseph of Hunter Litigation Chambers LLP.

Intervening on the appeal, Ted Gouge, QC, and Karen Horsman represented the Attorney General of British Columbia. Also intervening was Randy Christensen, who represented Ecojustice Canada.