June 27, 2011

Court upholds decision allowing Canada Line class action suit

RICHARD GILBERT

staff writer

The Court of Appeal for British Columbia has upheld a decision to allow a class-action lawsuit to proceed between a group of Cambie Street merchants and the consortium in charge of Canada Line construction in Vancouver.

“In my view, the chambers judge did not err when he concluded that the class proceeding would advance the litigation in a meaningful way,” said Justice Elizabeth Bennett.

“I would not interfere with his conclusion that the class action is the preferable procedure. I would dismiss the appeal.”

In a recent ruling, a team of three judges dismissed an appeal by Canada Line Rapid Transit Inc., InTransitBC and SNC-Lavalin Inc., which aimed to block Cambie Street merchants from obtaining class action certification.

The challenge focused on the questions of whether common issues exist within the merchants group and whether a class proceeding is the preferable approach.

Bennett said the current procedure in this case can only be changed if the chambers judge made an error or was clearly wrong.

Justice Ian Pitfield stated that he was satisfied that the action should be certified as a class proceeding under the Class Proceedings Act.

He said the merchants have several issues in common, such as the allegation that the cut and cover tunnel construction of the Canada Line substantially interfered with the use and enjoyment of property.

If the court rules that this allegation is true, the merchants have options.

They can waive damages and require the defendants to compensate them with the benefit that they derived by using the cut and cover, as opposed to the bored tunnel, method of construction.

The cut and cover construction method was used because it reduced cost by more than $400 million and had several advantages in terms of design, such as allowing stations to be closer to the surface.

The merchants can also seek compensation on the basis that their properties and businesses suffered economic loss, as a result of the construction.

The cut and cover excavation of the street went down to a depth of six storeys, which blocked and redirected traffic.

It created dust, noise and a nuisance that drove people away from businesses on Cambie Street.

The representative plaintiffs in the case are: Gary Gautam, who operates a small convenience store; 557856 B.C. Ltd. which operated a furniture store, but relocated in 2007, allegedly because of the Canada Line construction; and a couple described as Mr. and Mrs. King, who are property owners and run a business.

The consortium building the Canada Line did not publicly disclose that the cut and cover method of construction would be used instead of a bored tunnel.

In the early stages of planning, the general public was advised that the Canada Line would be located in a tunnel on Cambie Street between 2nd Avenue to at least 37th Avenue.

Public information indicated the tunnel would be bored or mined.

There was no reference in any of the material suggesting that a cut and cover method of tunnel construction would be employed on that portion of the line.

The possibility of cut and cover tunnel construction along Cambie Street was first raised by SNC-Lavalin/Serco in January 2004, when it responded to the Request for Proposal.

This proposal to use cut and cover construction was not disclosed to the public because confidentiality agreements prevented disclosure of design proposals and cost estimates under consideration.

The TransLink board approved the proposal based on a cut and cover trench on Dec. 1, 2004.

This information first entered the public domain in December 2004 by way of disclosure on the Environmental Assessment Office website.

TransLink and Canada Line Rapid Transit did not make a public announcement about the use of their method. Instead, reports of the proposal to use cut and cover construction appeared in the media in January 2005.

Canada Line is a $1.9-billion rapid transit line in between downtown Vancouver and the Vancouver International Airport in Richmond.

Construction began in October 2005 and the project was completed in August 2009.

Print | Comment