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Is transit construction a nuisance? The British Columbia Court of Appeal has released its decision in Heyes v. Vancouver, now called Susan Heyes Inc. v. South Coast BC Transportation Authority. The court overturned a $600,000 judgment awarded to a local store owner, who was driven out of business by prolonged traffic closures during construction of the Canada Line subway. Ms. Heyes argued that the closures would not have been necessary if the Canada Line consortium had used the more expensive tunneling method, instead of cut and cover. Since the consortium saved themselves money by imposing crippling costs on local businesses, shouldn’t they have to compensate those businesses for their losses?

The Court of Appeal agreed that the long traffic closures amounted to a nuisance. However, they also ruled that the defendants were entitled to use cut and cover construction, because it better served the public interest. Traffic disruptions were an inevitable consequence of cut and cover construction, and therefore did not give rise to tort liability. The defence of statutory authority therefore applied, and Ms. Heyes’ nuisance claim was dismissed and the damage award set aside.

The Court found that clear cut & cover construction was the only feasible method of constructing the Canada Line in Cambie Village. The trial judge had erred in finding that bored tunnel construction was a viable alternative. It wasn’t, as it would have cost the public an extra half a billion dollars and would not accommodate delays as well as the cut&cover method – important, as the line had to be built in time for the Olympics. As well, cut & cover made shallower tunnels, resulting in more attractive, accessible stations, favouring higher ridership, and the method also preserved mature ornamental trees in the area.

The Court adopted the Supreme Court’s tests in Tock and Ryan. Where there is only one practically feasible method of doing something, which a defendant has statutory authority to do, there is no liability if it was practically impossible not to cause a nuisance using that method. In this case, nuisance was inevitable during the construction. The defence of statutory authority applied.

The Authority has already paid Ms. Heyes the $600,000 awarded by the trial judge. In 2009, the Authority argued that it was unclear it would ever get the money back, even if it were successful on appeal.

Upon reflection, I am puzzled by the whole case. Maybe someone who knows can explain why Ms. Heyes sued for nuisance, instead of for injurious affection, the traditional claim for losses caused by construction of a public work?

With assistance from Jackie Campbell.

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