Monday, February 21, 2011

Outrageous Appeal Court decision overturns victory of merchant Susan Heyes over devastating Canada Line construction on Cambie Street

My good friend Susan Heyes received terrible news last week - the BC Court of Appeal overturned her milestone victory awarding her $600,000 in damages for the incredible disruption her business suffered during construction of the Canada Line rapid transit project up Cambie Street.

Susan was part of the DO RAV RIGHT coalition of businesses and residents who demanded the Canada Line be built by underground tunnel boring instead of what actually happened - "cut and cover" construction that made Cambie a traffic and pedestrian disaster for years.  I was a consultant to DO RAV RIGHT for part of that fight.

When "cut and cover" was finished, dozens of businesses had gone bankrupt or closed shop as a result of the disruption.

Sue did the near-impossible - beating the giant multinational conglomerate that built the Canada Line in BC Supreme Court.

But now that victory has been overturned and the only recourse is a further lengthy and expensive appeal to the Supreme Court of Canada. She has 60 days to decide.

I don't know what Sue will decide to do - but I do know that I will be there to help as much as I can if she fights this travesty.

Here is Sue's full news release - I will update you as the situation develops.

* * * *
We have a Legal System here in BC – but do we have Justice?

Friday February 18, 2011

On May 27th, 2009, after four years of litigation, BC Supreme Court Justice, Ian Pitfield, awarded $600,000 in damages to my company Susan Heyes Inc. as compensation for business losses caused by the construction of the Canada Line. The appeal of this ruling in my favour was heard April 15th, 2010.

Today, the decision was finally announced contradicting the findings of the lower court.

In upholding this appeal, the legal system has supported the confiscation of individual citizen’s livelihoods by government funded private, for profit ventures. This shocking ruling has failed to protect the rights of citizens, and has failed to uphold justice and fairness in a democratic society.

The Canada Line project was built on the backs of hundreds of blindsided small business people along the Cambie corridor.

The project chose the most disruptive of several methods of construction. This discretionary and confidential decision alone should have negated the defence of Statutory Authority which the Appeal Court Justices used today as the basis for their ruling.

Under the law, the defence of Statutory Authority can only be used when it is proven in court that no other less disruptive method of construction was available. Instead of the devastating cut-and-cover construction, a bored tunnel method was not only available, but it was the basis of all public consultations and years of engineering reports and studies.

This project was enabled by the strategic use of confidentiality agreements at every stage, leaving citizens and even municipal officials misinformed and out of meaningful consultation. The last minute secret switch from underground bored tunnel to cut-and-cover, was never approved by Vancouver City Council, as a decision making body. They had authorized the City’s Engineering Department to negotiate the agreement that provided access to Vancouver’s streets for the project in a vacuum. The engineers were forced to sign confidentiality agreements that prohibited them from informing their bosses – City Council – of this critical switch.

I question the validity of any contract or agreement that allowed this project to proceed, that was obtained in the absence of the whole truth about the project and its impacts on citizens and small businesses. Compensation should have been factored into the business plan.

I am appalled that our legal system has failed to support the rights of citizens, and has attempted to provide a legal justification for the excessive harm caused by this P3 project. I further wonder how many tens of millions of dollars have been spent to legally defend the project, instead of fairly compensating the victims.

The May 27th 2009 ruling from Justice Pitfield must be upheld by the Supreme Court of Canada. The outcome of this litigation will set a precedent for all small businesses across Canada. The precedent that it sets should be just and fair, and reasonable.

When governments use their powers to confiscate value for the common good – individuals must be compensated.

Susan Heyes
HAZEL&CO
4280 Main Street
Vancouver, BC


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21 comments:

Anonymous said...

Sets a dangerous precedent.

Did the NDP government compensate businesses that were affected by the M-Lime building along the Loughheed Highway in Burnaby?

Zweisystem said...

The real story behind Susan Heyes fiasco is that the RAV/Canada line's construction costs were that of pixie dust. As the reality of the real cost of construction set in, drastic measures were taken to reduce costs.

From a wildly optimistic cost of about $1.3 billion in 2001, the Canada Line's costs soared to about $2.5 to $2.8 billion! Yet for at least $1.5 billion less we could have had a light rail line that would have carried more people to more destinations!

What we have is a $2.8 billion white elephant that is too expensive to extend, too little capacity, and will never obtain the 300,000 plus riders a day that would justify construction.

For the real story:

http://www.railforthevalley.com/latest-news/zweisystem/susan-heyes-and-the-canada-line-fiasco-justice-denied/

Anonymous said...

Here is the Court of Appeal's decision: http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0077.htm

Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority
2011 BCCA 77

Date: 20110218
Docket: CA037217

terrence said...

Canada, and especially BC, does NOT have a justice system. We have a lawyer system, that benefits lawyers and the ruling elite - it does NOT benefit the peasants - like this woman.

Anonymous said...

Justice hehehehehehehe

lolololollolololl

Its just us baby... just us.

Anonymous said...

terrence, I believe that may be called or can soon be called, a dictatorship. Welcome to the NEW Canada!

e.a.f. said...

So much for the lieberals supporting "small Business". The only business they support is their own.
As to the justice sytem in B.C., it went out a long time ago. These judges owe their positions to the lieberals and they want to keep their jobs. IF they didn't, they would not be making the decisions they are.
what the lieberals have brought us is poverty, crime, money laundering in casinos, and an end of justice.
At least the gangs are open about what they are about and what they are doing. The lieberals just bleed people to death one day at a time.

Jillian said...

The judgement handed down by the BC Appeal Court is not only unjust,it is legally flawed.

The Appeal Court justices ruled that the project had Statutory Authority and was therefore untouchable.

Under the law, the defence of Statutory Authority is only applicable when you can "negative" (i.e. prove) that there were no other options that would have prevented the disruption or nuisance. Arguing that one option is cheaper than another is not a legal defence.

In the case of the Canada Line, not only WAS there another less disruptive option (underground bored tunnel), but it WAS the project until the last minute secret switch to cut-and-cover construction.

For the justices to assert that underground bored tunnelling would have been equally disruptive is ludicrous in the extreme, and flies in the face of more than a decade of engineering work done on the project.

Sometime ago, I determined that our legal system had little to do with justice and everything to do with arguing the technicalities of "the law". In light of this latest ruling, it appears that something else is at play.

A healthy democracy requires a healthy and independent judiciary that seeks fairness and justice for its citizens, and is accessible to them. Our current legal system is failing on all counts, and is in dire need of an overhaul.

Anonymous said...

Well people, we have seen the rot and corruption, within our judicial system, how many times? I have lost count. What ever earthly good are the BC judicial courts anyway? Such as the trial of, Campbell's corrupt sale of the BCR, what a farce. Or the judicial decisions, that lets the RCMP off, with their crimes, video taped and all. I hope when the next party is in office...They fire everyone in the judicial system, and start over with new members. However, I guess if we cleaned out all of the corruption, there wouldn't be any government agencies left in BC.

I hope if Susan goes onwards with her fight, someone will set up a fund for her. Because, she will be fighting for all of us.

Anonymous said...

We do need to elect statesmen who have genuine professional ethics and also who have the courage and strength to dismiss and replace bad judges. Moreover, the entire system needs a major radical ("radix"="root") overhaul.

Anonymous said...

"The judgement handed down by the BC Appeal Court is not only unjust,it is legally flawed. "

Is this person a lawyer to make that judgement?

"The Appeal Court justices ruled that the project had Statutory Authority and was therefore untouchable. "

Correct. The project was completed for the Public Good which does hold in law.


"Under the law, the defence of Statutory Authority is only applicable when you can "negative" (i.e. prove) that there were no other options that would have prevented the disruption or nuisance. Arguing that one option is cheaper than another is not a legal defence."

There were no other alternatives, a tunnel would have added a huge amount to the cost, the cut and cover option was the least expensive.

"In the case of the Canada Line, not only WAS there another less disruptive option (underground bored tunnel), but it WAS the project until the last minute secret switch to cut-and-cover construction."

So what was this less disruptive option?? A tunnel yes, but it would have added hugely to the cost of the project.

"Sometime ago, I determined that our legal system had little to do with justice and everything to do with arguing the technicalities of "the law". In light of this latest ruling, it appears that something else is at play."

According to you.

"A healthy democracy requires a healthy and independent judiciary that seeks fairness and justice for its citizens, and is accessible to them."

So where does this exist?

Where was the compensation by the NDP goverment for businesses disrupted by the M-Line??

Anonymous said...

"We do need to elect statesmen who have genuine professional ethics and also who have the courage and strength to dismiss and replace bad judges. Moreover, the entire system needs a major radical ("radix"="root") overhaul."

Well, put yourself out there and run in the next election, bud.

Paul said...

When Gordon Campbell ripped up the hospital worker's contract (after promising not to in the HEU Guardian newsletter - November/December 2000), the Hospital Employees' Union took their case to the B.C. Supreme Court.

The B.C. Supreme Court ruled against the hospital workers.

The Hospital Employees' Union took their case to the Appeal Court of B.C.

The Appeal Court of B.C. ruled against the hospital workers.

The Hospital Employees' Union took their case to the Supreme Court of Canada.

Not only did the Supreme Court of Canada grant the hospital workers leave to appeal the rulings of the BC courts, it also ruled that sections of Gordon Campbell's Bill 29, the Health and Social Services Delivery Improvement Act, violated the Canadian Charter of Rights and Freedoms.

VIOLATED THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Resulting in the largest mass layoff of women in Canadian history.
-----
HEU Guardian newsletter - November/December 2000 - Gordon Campbell interview. (when he was opposition leader)

[HEU Guardian editor Stephen Howard]: "Monitoring the pulse of HEU members, their sense of a Gordon Campbell government would be the privatization of health care services and their jobs."

[Gordon Campbell]: "I don't think they have to worry about it."

"Their sense should be that Gordon Campbell and the B. C. Liberals recognize the importance of HEU workers to the public health care system."

"They are frontline workers who are necessary."

"You can't talk to anyone in the health care system who doesn't recognize that and I want HEU workers, like all other workers in the public health care system or in the public service to recognize their value and we will value them."

we will value them he said then.

Gordon Campbell wasn't even born with the basic human decency to be ashamed of himself.

Jillian said...

To the anonymous person who responded to my earlier comment - the defence of Statutory Authority only holds if there WAS NO less disruptive option that would have prevented the disruption.

As I stated in my first posting, arguing that the more disruptive option WAS CHEAPER is not a legal defence. The existence of a less disruptive option negates the defence of Statutory Authority.

Anonymous said...

"To the anonymous person who responded to my earlier comment - the defence of Statutory Authority only holds if there WAS NO less disruptive option that would have prevented the disruption."

There wasnt any lesser cheaper option available. The tunnel option would have been too expensive.

As I stated in my first posting, arguing that the more disruptive option WAS CHEAPER is not a legal defence.

Correct, and never has been. There is also precedent, since the M-Line construction was disruptive to businesses along the Lougheed Hwy and none of them were compensated for loss of business income. Same goes for the ALRT line along Columbia Street in New Westminster.

One can also make argument about the disruption caused by construction of the Inland Island Highway through Nanaimo, but the largest case there was expropiation of property on the right of way.

Jillian said...

Ironically, I lived a block away from the Millenium Line construction near Lougheed Mall while it was being constructed, and then half a block away from the Canada Line while it was being constructed. (I didn't follow them, they followed me...)

I can assure you that there is ABSOLUTELY NO COMPARISON WHATSOEVER between the building of an elevated skytrain and the cut and cover construction nightmare that we lived through along the Cambie corridor.

Anonymous said...

put your money where your mouth is Tieleman. If you beleive so strongly, you should help pay for the settlement. I will not have my tax dollar pay for some poor business women. Bankruptcy is what she deserve. Terrible products and poor business decision should not mean a $600K windfall. I know a great bankruptcy lawyer if she needs one.

Anonymous said...

Dear 9:26 pm Public Affairs Mole

There is nothing you can do from your little dark cave that will convince anyone that what happened to victims of the Canada Line was just or fair. I and everyone I have spoken with about this will support Ms. Heyes in her courageous fight for justice.

Anonymous said...

dream on if you think the majority of people thinks this lady should get taxpayers dollars. Finally some good news for taxpayers. She deserves zilch

Anonymous said...

With $600K and she has burned it all. WOW. She deserves to be bankrupt. With or without the Canada Line, this broad was gonna lose money. What a loser. Maybe she should invest in a red tent and squat somewhere.

Bill Tieleman said...

I am not allowing someone to take make further personal attacks on Susan Heyes - I've rejected some comments that are gratuitous cheap shots. You can politely disagree with her legal position - which I believe a strong majority of British Columbians would support - without being mean spirited and hurtful.