Is transit construction a nuisance? The British Columbia Court
of Appeal has released its decision in Heyes v. Vancouver, now called
Susan Heyes Inc. v. South Coast BC Transportation
Authority. The court overturned a $600,000 judgment awarded to
a local store owner, who was driven out of business by prolonged
traffic closures during construction of the Canada Line subway. Ms.
Heyes argued that the closures would not have been necessary if the
Canada Line consortium had used the more expensive tunneling
method, instead of cut and cover. Since the consortium saved
themselves money by imposing crippling costs on local businesses,
shouldn't they have to compensate those businesses for
The Court of Appeal agreed that the long traffic closures
amounted to a nuisance. However, they also ruled that the
defendants were entitled to use cut and cover construction, because
it better served the public interest. Traffic disruptions were an
inevitable consequence of cut and cover construction, and therefore
did not give rise to tort liability. The defence of statutory
authority therefore applied, and Ms. Heyes' nuisance claim
was dismissed and the damage award set aside.
The Court found that clear cut & cover construction was
the only feasible method of constructing the Canada Line in Cambie
Village. The trial judge had erred in finding that bored tunnel
construction was a viable alternative. It wasn't, as it
would have cost the public an extra half a billion dollars and
would not accommodate delays as well as the cut&cover
method – important, as the line had to be built in time
for the Olympics. As well, cut & cover made shallower
tunnels, resulting in more attractive, accessible stations,
favouring higher ridership, and the method also preserved mature
ornamental trees in the area.
The Court adopted the Supreme Court's tests in
Tock and Ryan. Where there is only one
practically feasible method of doing something, which a defendant
has statutory authority to do, there is no liability if it was
practically impossible not to cause a nuisance using that
method. In this case, nuisance was inevitable during the
construction. The defence of statutory authority applied.
The Authority has already paid Ms. Heyes the $600,000 awarded by
the trial judge. In 2009, the Authority argued that it was unclear it
would ever get the money back, even if it were successful on
Upon reflection, I am puzzled by the whole case. Maybe someone
who knows can explain why Ms. Heyes sued for nuisance, instead of
for injurious affection, the traditional claim for losses caused by
construction of a public work?
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