Monday, February 21, 2011


The saga of shop owner Susan Heyes vs. Canada Line is sorry and shocking.

I have devoted the following very lengthy space to this story because I think it is important.

First, you will find Susan's Press Release of the other day, after the appeal favored Canada Line.

Then, an article by Gregor Robertson, before he was the mayor, supporting Susan's claims.

Followed by a similar piece by Christy Clark, also seeking redress on Susan's behalf.

Finally, a letter to the editor in the Globe contradicting the questionable science of the judges.

Please read this material thoroughly and do whatever you can to help and support a courageous local woman.

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

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


4255 Main Street

Vancouver, BC

Ravaged businesses on Cambie need our support

Last Friday I visited ground zero on Cambie Street. Toyo Sushi sits at the south end of the Cambie bridge, with a gaping canyon at its doorstep.

By: Gregor Robertson - June 13, 2007

Last Friday I visited ground zero on Cambie Street. Toyo Sushi sits at the south end of the Cambie bridge, with a gaping canyon at its doorstep.

Across the canyon, cars crawl by. Access is almost impossible, unless you know how to navigate the alleys.

Owner Yang Lee poured me a cup of green tea and shared her gut-wrenching story. The 160-seat restaurant, until recently a fixture for tour buses and the downtown lunch crowd, was empty. This was typical for afternoons since the digging started in February.

Her business has dropped almost 70 per cent, and she and her brother work day and night to minimize expenses. She has no idea how long it will be before the canyon is filled back in and customers can get to her door again. So the restaurant's survival is uncertain, despite her tenacity and tasty sushi.

A stone's throw away is the tunnel-boring machine, drilling north under False Creek while the digging proceeds to the south. Merchants on Cambie expected that machine to drill right up Cambie, leaving the street intact. The switch to cut-and-cover construction has turned Cambie into a war zone.

The Campbell government forced the Richmond-Airport-Vancouver project forward as a privatized contract, and TransLink chose SNC-Lavalin's bid, which included cut-and-cover to save more than $200 million in construction cost.

But it's now clear that some of these savings are direct costs to the small businesses along the Canada Line. Estimates are that merchants have lost more than $100 million in sales to date, and there's at least a year to go with major disruption.

These losses have taken their toll. Dozens of businesses have closed since construction began. Ten of these merchants averaged more than 20 years in business, so even the most stable and successful are vulnerable.

The average revenue drop is now about 50 per cent. Icons like the Tomato Cafe and Afghan Horseman can't withstand the loss of sales; both are moving west. Many more will be forced to shut down unless something is done soon.

Last month I introduced a bill in the legislature calling for property tax relief direct to these business owners, and emergency interest-free loans. The bill has broad support, both locally and from the 10,000-strong B.C. membership of Canadian Federation of Independent Business.

The Liberals chose to ignore this bill, repeatedly denying in the house that there's a serious problem here. Meanwhile they had no problem fast-tracking their fat pay raise before adjournment.

Neither the Small Business Minister Rick Thorpe nor Finance Minister Carole Taylor would stand up in the house and acknowledge the impact or support fair compensation. Half of these businesses are in Taylor's riding. But it was Transportation Minister Kevin Falcon's job to deny reality.

The Liberal rationale for refusing to consider compensation is that it will set a precedent. All the more reason to do the right thing! Doesn't it make sense to set a precedent that small businesses won't be wiped out by major public projects?

Seattle set up a program for businesses affected by the construction of its new rapid transit project. The city has approved $7.5 million in support for a project that affects about half the number of businesses as the Canada line. But the Liberals to date aren't willing to even consider a comparable "precedent."

Given the Canada Line's $1.9-billion budget, the initial cost of a tax relief and emergency loan program is less than one per cent of the total spending. Remember that we the taxpayers saved more than 10 per cent by going with the cut-and-cover method.

Word on the street is that if compensation doesn't happen soon, a class action law suit will result. Taxpayers could be on the hook for damages and legal costs, given the business owners had this massive disruption thrust on them without consultation or their approval.

Do the Liberals want to go to court against small businesses? How can you demonstrate support? Go have a meal and do some shopping on Cambie Street. Thank the merchants for their sacrifice. Ask to sign the petition to support the Small Business Fairness and Protection Act that I've tabled in Victoria. And spread the word -- it will be a tough summer for our Cambie merchants unless we all take action to support them.

Gregor Robertson is the NDP MLA for Vancouver-Fairview and Opposition critic for small business and revenue.

© (c) CanWest MediaWorks Publications Inc.

Vancouver Province news – June 10, 2007

By: Christy Clark

The BC Government must support shattered Canada Line storeowners

Back in the 1990s, I used to travel the province pointing to empty shop windows. Those were the days when you could walk down the main street of almost any town in B.C. and see empty shops with “for rent” signs plastered on the windows.

While the rest of North America experienced what was perhaps the biggest economic expansion in history, B.C.’s economy tanked.

And when the economy dips, it’s the little guys who struggle. Hundreds of small businesses drowned in red ink. It was fertile ground for politicians hoping to convince voters that it was time for a change in government.

The B.C. Liberals pitched themselves as the small-business party, and voters gave them a chance to prove it.

The economy isn’t in the stinker anymore. But if you want to remember what those bad old days were like, take a walk down Vancouver’s Cambie Street. It looks a lot like Campbell River’s battered main drag in 1995.

The Canada Line construction through Cambie Village has made it next to impossible to get to those businesses, much less find a parking spot. And if you can find one within walking distance, good luck figuring out how to get around all the fencing!

If you do manage to get inside, you’ll find a shop owner who greets you with a look of both desperation and gratitude. You’ll quickly realize that’s because you’re the only customer they have.

The government says that’s the price of progress. It’s impossible to build a mammoth infrastructure project right through the middle of the urban core without disrupting local businesses. They say it’s too bad if some businesses go broke, but that’s the breaks.

Hold on a second here. That’s not the way it was supposed to work, at least not under the B.C. Liberals. They were supposed to be the people who understood the trials of keeping a small business open on slim margins.

The government is right that once construction is done, business will be brisk along Cambie. Unfortunately, most of the existing business owners won’t be there to reap the benefits. Rents will go up and new tenants will move in. But most of today’s operators will have moved or gone broke.

For anyone who owns one, a small business isn’t just a job, it’s a life’s dream. They risk their life savings, sometimes their homes, on the hope that, if they work hard enough, they’ll make a decent income.

Surely none of them thought that, despite their hard work, it would be a B.C. Liberal government that drove them out of business.

The NDP are championing some relief, and local MLA Gregor Robertson is proposing a tax holiday. It’s a start.

The government should go further. They should offer no- interest loans to bridge the businesses through the many months of construction.

Change always means disruption; you can’t build the biggest infrastructure project in B.C. history without it. But what is disruption for us is the death of a life’s dream for many of those business owners along the line.

former nuclear person

9:13 PM on February 20, 2011

The quotations from the ruling by the BC Court of Appeals regrettably show that, not only did the Honourable Judges not know anything about engineering, but did not take the time to seek expert engineering advice either....a very sad day for Canadian engineers indeed.

Both methods of construction would have been disruptive, but the level of disruption and destruction of the open-cut method was infinitely greater than that of bored tunnels. The proof was right in front of the Honourable Judges (no kidding!!!). The downtown portion of the tunnel (North of False Creek up to Dunsmuir and Granville) was done by bored tunnels with minimal disturbance except in the areas of stations shafts. Between Dunsmuir and Waterfront, where Granville Street was gutted open as in South Cambie the disruption was monumental and lasted for a long time.

If my memory of the geography of Vancouver is correct the tunnel and open-cut portions along Granville were not too far from the Honourable Judges Chambers.....maybe they had blinds in their windows......?

The one, and only reason why South Cambie was
brutally ripped open with the loss of livelihood to scores of small business and business losses in the millions (as accurately estimated at the time by the Canadian Federation of Small Business) was the Olympic deadline. Translink goofed around and wasted valuable time during the pre-tendering process that took years. When they finally got their act together with the P3 scheme it was too late to bore tunnels along Cambie, so at the instigation of their P3 partner they went for the only option that got the line finished in time for the Olympics, to rip the living guts out of South Cambie and its merchants.

The deadline was politically imposed, very likely directly from the highest level of authority in BC. A more fundamental issue in this judgement is whether, or not governments have the right to destroy people's lives for the purpose of meeting artificial political completion deadlines.

The Canada Line was not an Olympic commitment, nor would it have meant anything whether the line was completed in November 2009 or a year later if tunnels had been used.

Any socially-conscious engineer knows that project timetables should be set by engineering and construction requirements and constraints, not by artificial political deadlines. When such deadlines are imposed harm occurs. Curiously the representatives of BC engineers remained conveniently silent in this case.


diverdarren said...

Why is it that when a court decides against a plaintiff they always say they haven't gotten justice. When the decision was in favor of Mrs. Hayes she was satisfied with the justice system. It's hypocritical to only applaud the justice system when they make decisions in your favor.

The system works, not perfectly every time, but better than most others. Mrs Hayes has a last opportunity to appeal. However Mrs Hayes, the BC Appeals Court UNANIMOUSLY stuck down the lower court decision, so good luck at the big court in Ottawa.

Zweisystem said...

The RAV/Canada line was so full of political chicanery that I find it outrageous that the Court of Appeal did not uphold the lower courts judgment.

The RAV/Canada line cut-and-cover subway projects was the only subway project in North America not to have a compensation package for adjacent businesses affected by such construction!

The political chicanery with the Canada Line started at the beginning, with a totally unrealistic price of $1.3 billion for the 19 km. subway line and as costs spiraled out of control the scope of the metro project was greatly reduced to contain costs.

■ Stations were designed to accept only three car trains.

■ The switch from SkyTrain to a conventional metro was made to save money on the reaction rail, made necessary by the Linear Induction (LIM) motors used by the proprietary SkyTrain system.

The terminal stations in Richmond and YVR are single track stubs that can handle only one train at a time and there is no runaway tunnel in Vancouver with a cement wall only metres away from where the train stops.

■ The switch was made from bored tunnel to cut and cover construction, with savings made from not paying any compensation to businesses affected by a great trench in front of their place of business.

For the full Rail for the Valley take on this, another dismal chapter of the BC Court System -

Read and weep, Campbell & Co. took Heyes and the rest of the Cambie St. merchants on a one way ride to financial oblivion, abetted by judges who did not have a clue on the difference of a bored tunnel and a cut-and-cover tunnel or anything else for that matter!