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Curactive Organic Skin Care is starting a class action over the St. Clair streetcar. It wants to sue the Ontario government, Toronto and the TTC for $105 million in damages. Curactive says hundreds of small businesses lost money, due to delays in transit construction, and to changes in the design of the street, such as narrower sidewalks. Curactive says all three defendants were negligent in their management of the project and its environmental assessment. In addition, Curactive claims the defendants actively discriminated against the poorer ethnic communities west of Bathurst, and deliberately used the construction to drive them out of business.

There is no doubt that many things went wrong in the construction of the St. Clair streetcar.  According to a report commissioned by the TTC, these problems fell into four major groups:

  • failure to properly define the scope of the entire project before detailed design and construction. In other words, construction commenced in the absence of a comprehensive design, and suffered badly from scope ‘creep’, such as the late addition of underground hydro relocation.
  • Responsibility for managing all components of the project was distributed among several agencies, each with their own procedures for project management, procurement, budgeting, and schedule control.
  • Awarding many small individual contracts, often to small firms with insufficient resources.
  • A far too accommodating approach to Community Consultation:

Community consultation was carried out through the normal practices of the City of Toronto and the TTC in accordance with requirements of the day embedded in the Class Environmental Assessment process. Though well intended, these procedures led to a Ministerial order to step back and pay special attention to the objections of a group of individuals, the majority of whom were diametrically opposed to the very basic concept of an exclusive transit right-of-way on St. Clair Avenue.

The Ontario Minister of the Environment was simply far too accommodating of matters raised by those opposed to the project, matters that, with some degree of resolve, should have been addressed directly. As a result, inordinate attention and resources were devoted to dealing with individuals whose main interest was to ensure that the project would not proceed.

Curactive relies on this report as proof of the negligence for which it is suing. Ironically, the very opponents who caused some of the delay are likely to be suing for damages as a result of that delay.  Meanwhile, Judge Ted Matlow,  who exacerbated the cost and delay by striking down the environmental assessment, as part of his own private dispute with the city, has been disciplined, but will take no responsibility for the resulting damages.

It will be difficult for the plaintiffs to show that delayed construction alone (and not the economy, for example) was responsible for the approximately 200 businesses it alleges failed.  As well, proving that the City was guilty of malevolence and abused its authority will be a steep uphill path.

We will probably see significant changes in the pleadings before this case is certified as a class-action, if it ever is. But  by then, the case will likely to have cost all three defendants a great deal of money. The multiplication of lawsuits over neighbourhood complaints about infrastructure construction should be a source of concern to any  public or private body involved in such construction. This year, that will be a lot of people.

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