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The rush to construct rapid transit in Vancouver will occupy the courts long after the Olympics wind down. It was inevitable that once Susan Heyes was awarded $600,000 for her losses, incurred when the Canada line was constructed by cut and cover instead of by tunnel, other merchants would seek similar compensation. Now, in Gautam v. Canada Line Rapid Transit, the BC  Supreme Court has authorized 216 merchants and 67 property owners to bring a class action against Canada Line Rapid Transit Inc., Intransit BC Limited Partnership, Intransit British Columbia G.P. Ltd. and SNC-Lavalin Inc.

As documented in the Heyes litigation, now under appeal, the transit builders switched from tunneling to cut and cover when the cost of tunneling ballooned, an additional cost that federal and provincial funders refused to cover. Exacerbated by the poor soil conditions, cut and cover caused significant disruption to neighborhood businesses for far longer than had been predicted in the environmental assessment. None of this, of course, is unusual. What is unusual is that Ms. Hayes was awarded $600,000 for nuisance, in the absence of any evidence that they transit builders had been negligent, and even though cut and cover had been specifically approved through a federal and provincial environmental assessment.

While I sympathize with the losses of the Cambie Village merchants, I am very concerned about the impact of the class action on the future development of transit in Canada. Everyone suffers from the absence of adequate transit in our urban areas, but the courts can rarely do anything about government inaction. If we make it even more difficult and expensive to build transit, we will have less of it, resulting in more gridlock, more pollution and a poorer economy for all. Governments across the country have already passed laws blocking lawsuits in nuisance against municipalities for sewer and water overflows; perhaps it is time to expand those laws to cover the construction of transit.

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