TransLink will no longer have to pay three businesses a combined total of about $181,000 to compensate their revenue losses during the disruptive cut-and-cover construction process for the Canada Line more than a decade ago.
The Supreme Court of British Columbia in September 2018 ordered TransLink to pay $44,560 to the owner of Thai Away Home at 3315 Cambie Street, $128,880 to the owner of Festival Cinemas at 3440 Cambie Street, and $7,600 to the owner of The Cambie General Store at 3399 Cambie Street.
At the time, a judge had sided with the businesses and their argument that the prolonged cut-and-cover tunnel construction method resulted in significant financial damages. The Canada Line was constructed between November 2005 and July 2009, with the trench dug at the location of the businesses in 2007.
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However, on Wednesday, in a 2-1 decision, the BC Court of Appeal overturned the 2018 ruling and sided with TransLink.
While the case made by The Cambie General Store has been dismissed, the decision will result in new trials for the owners of Thai Away Home and Festival Cinemas.
In their ruling, the two judges who sided with the public transit authority explained the trial judge “erred in his interpretation of the limitation period in s. 42(1) of the Expropriation Act and in his analysis of unreasonable interference” and that “there are methodological weaknesses in the judge’s approach to the assessment of damages.”
They further explained that they found error in the trial judge’s argument that centred on the builder’s choice of using cut-and-cover methodology over the project’s initial proposal for a bored tunnel between West 2nd Avenue and Marine Drive. Instead, this entire span was built with cut-and-cover construction.
“In our view, the use of the cut and cover method instead of tunnel boring is a legally irrelevant factor in the context of these proceedings because the judge had already concluded in the Common Issues Judgment that tunnel boring was not a practically feasible alternative to the cut and cover method of construction: Common Issues Judgment at paras. 61, 94–95,” continues the ruling.
“This finding was the foundation for his conclusion that the defence of statutory authority shielded the defendants against a claim in nuisance. It was therefore an error for the judge to rely on TransLink’s choice not to use tunnel boring as evidence that the interference was unreasonable.”
It is unclear whether this decision sets precedent for the future legal action that may be taken by other Cambie Street businesses impacted by Canada Line construction. The businesses are seeking damages for revenue losses and/or property value impacts.
But this controversy experienced by the City of Vancouver and TransLink is a key factor for the decision to use the less-impactful tunnel boring methodology for the planned $2.8-billion SkyTrain Millennium Line Broadway Extension to Arbutus Street. This project, which goes through retail areas and is set to begin construction in late 2020, will still require some localized cut-and-cover construction for each of the six new underground stations.
“The Court of Appeal has clarified the proper test for the application of the law of nuisance in these circumstances, the law of limitation periods as well as the method of determining the value of land claims in this specific context,” reads a statement from TransLink in response to the appeal decision.
“Canada Line is pleased with this result and is hopeful that the parties can move toward a final resolution of all claims related to the construction of Canada Line.”
Court decisions over the Cambie Street businesses that favour TransLink could potentially set some precedent for future disputes arising from other construction projects for new transit, road, and utility infrastructure.
Last year, businesses on Commercial Drive launched court action against FortisBC over the impact of the utility’s months-long road closures on East 1st Avenue in 2018 to replace a gas line.