2011 BCCA 77 Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Tran... http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0077cor1.htm
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 Date: 20110218 Docket: CA037217 Between: Susan Heyes Inc. dba Hazel & Co. Respondent (Plaintiff) And South Coast British Columbia Transportation Authority, Canada Line Rapid Transit Inc. and InTransit BC Limited Partnership Appellants (Defendants) And Ecojustice Canada Intervenor And The Attorney General of British Columbia Intervenor
Corrected Judgment: The text of the judgment was corrected at para. 181 on February 24, 2011
Before: The Honourable Madam Justice Prowse The Honourable Madam Justice Saunders The Honourable Madam Justice Neilson
On appeal from: Supreme Court of British Columbia, May 27, 2009 (Heyes v. City of Vancouver, 2009 BCSC 651, Vancouver Docket S054152)
Counsel for the Appellants: G. Macintosh, Q.C. T. Dickson S. Hern
Counsel for the Respondent: J. Hunter, Q.C. C. Joseph
Counsel for the Intervenor, R. Christensen EcoJustice Canada:
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Counsel for the Intervenor, J. Gouge, Q.C. Attorney General of British Columbia: K. Horsman
Place and Date of Hearing: Vancouver, British Columbia April 15 and 16, 2010 Place and Date of Judgment: Vancouver, British Columbia February 18, 2011
Written Reasons by: The Honourable Madam Justice Neilson Concurred in by: The Honourable Madam Justice Prowse Concurring Reasons by: (P. 59, para. 176.) The Honourable Madam Justice Saunders
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Reasons for Judgment of the Honourable Madam Justice Neilson:
INTRODUCTION
[1] The appellants bring this appeal from the order of a Supreme Court judge, pronounced May 27, 2009, holding them jointly and severally liable for nuisance, and awarding the respondent damages of $600,000. The reasons for judgment may be found at 2009 BCSC 651.
[2] The claim arose from disruption to the respondent’s business during construction of the Canada Line, a regional transportation system connecting downtown Vancouver, the City of Richmond and the Vancouver International Airport. At the relevant times the respondent, under the name Hazel & Co., operated its business of designing, manufacturing and selling maternity clothing in a retail outlet located at the north-east corner of 16th Avenue and Cambie Street, in the area known as Cambie Village. Susan Heyes is the respondent’s sole shareholder, officer and director.
[3] Each of the appellants played a role in the implementation of the Canada Line. Some of them have undergone name changes. Like the trial judge, I will refer to each in these reasons by its current name for ease of reference.
[4] The appellant South Coast British Columbia Transportation Authority (“TransLink”) is responsible for regional transportation systems in the Greater Vancouver Regional District (the “GVRD”). It was initially incorporated as the Greater Vancouver Transportation Authority, pursuant to the Greater Vancouver Transportation Authority Act, S.B.C. 1998, c. 30 (the “GVTAA”). It was continued under its present name pursuant to legislative amendments on November 30, 2007 that created the South Coast British Columbia Transportation Authority Act, S.B.C. 1998, c. 30 (the “SCBCTAA”).
[5] The appellant Canada Line Rapid Transit Inc. (“CLRT”) is a wholly-owned subsidiary of TransLink. It was incorporated on September 17, 2002 as RAV Project Management Ltd., to devise and implement a plan to develop the Canada Line, and was renamed in February 2006.
[6] The Canada Line was developed by means of a public-private partnership (“P3”) under which the appellant InTransit BC Limited Partnership (“InTransit BC”) became the concessionaire that assumed responsibility for the final design, construction, operation and maintenance of the Canada Line, and provided private equity of approximately $750 million. InTransit British Columbia GP Limited is its general partner, and SNC-Lavalin Inc., BC Investment Management Corporation, and Caisse de dépôt et placement du Québec are its limited partners.
[7] The federal and provincial governments, who contributed public funds to build the Canada
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Line, as well as the City of Vancouver, were defendants in Hazel & Co.’s Supreme Court action, but the trial judge dismissed the claims against those parties. He also dismissed Hazel & Co.’s claims in negligence and misrepresentation against the appellants. No appeal is taken from those findings.
[8] The issues on this appeal are thus considerably narrower than those at trial. The appellants say, first, the trial judge erred in finding they created a nuisance. Second, they say if they did cause a nuisance the trial judge incorrectly found they had failed to establish the defence of statutory authority.
[9] For the reasons that follow I would not interfere with the trial judge’s finding of nuisance, but would allow the appeal on the basis the trial judge erred in rejecting the defence of statutory authority. I am of the view that defence is available to the appellants, with the result Hazel & Co.’s claim in nuisance must be dismissed.
BACKGROUND
[10] The facts are not significantly in dispute. The following summary is taken largely from the reasons for judgment of the trial judge.
[11] In 2000 TransLink began serious consideration of a rapid transit link between Vancouver, Richmond, and the Vancouver Airport. It retained Ms. Jane Bird, who later became the chief executive officer of CLRT, as a consultant to determine the cost and feasibility of such a project. After receiving a positive report from her, and an indication of funding support from Canada, British Columbia, Richmond, Vancouver and the Vancouver International Airport Authority, TransLink moved on to the project definition stage in late 2001, with a view to refining the concept of the line and investigating technical and financial feasibility.
[12] The planning proceeded on the basis that a significant portion of the Canada Line would be constructed under Cambie Street, a major traffic artery in Vancouver. Two methods of underground construction, bored tunnel and cut and cover, were considered in the course of the project. The trial judge described them in these terms: [36] Bored tunnel construction requires the creation of a portal or opening at a point along the intended route of the tunnel. A tunnel-boring machine is used to excavate material from the portal to the depth of the tunnel. Thereafter, the machine bores into the subsurface material at the required depth and grade, and in the required direction. The tunnel is supported and reinforced as the boring machine proceeds on its intended course. Excavated material is removed from the tunnel through the portal. [37] An alternative to bored tunnel construction employs more conventional mining techniques, including entry to the underground by way of a shaft, the mining and removal of the subsurface material through the shaft, and the reinforcement of the tunnel as underground mining or excavation proceeds. [38] Neither the bored nor mined methods of tunnel construction disrupt the surface except in
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the vicinity of a portal or a shaft. [39] Cut and cover tunnel construction, by contrast, requires the excavation of a trench from the surface to the depth of the tunnel floor, the placing of pre-cast tunnel sections in the open trench, and the return of excavated material to cover the tunnel structure and restore the land to its original surface grade. An alternative to the use of pre-cast tunnel sections involves the construction of forms in the trench for the tunnel floor, walls and roof, and the pouring of concrete in place. The feasibility of cut and cover construction is affected by the depth of the tunnel below grade: the deeper the tunnel, the less feasible cut and cover construction becomes. Cut and cover construction is significantly less expensive than either bored or mined tunnel construction.
[13] At the project definition phase, CLRT envisioned bored or mined tunnel construction under Cambie Street because an old sewer main at 8th Avenue and Cambie could not be moved. It was thought at the time this would require construction of a deep tunnel below the sewer main, which would not be amenable to cut and cover construction.
[14] Funding commitments were pursued. The province of British Columbia, the Vancouver Airport Authority and TransLink were each prepared to commit $300 million to the project, and Canada was prepared to contribute $450 million. This public funding of $1.35 billion was insufficient to build the Canada Line, however, and the project team accordingly identified the P3 model as the best means of attracting private sector involvement. They anticipated additional private sector funding, as well as innovation and cost efficiencies from the private sector, would produce a rapid transit line that could be maintained and operated in a manner to ensure a reasonable return on investment.
[15] TransLink incorporated CLRT to oversee and manage the project. After design and operational requirements were established, the project team drafted a Request for Expressions of Interest, and sent it to approximately 200 private sector companies on November 30, 2002. About 20 of those responded.
[16] By February 27, 2003 the project team completed a final draft of the Project Definition Report to use for consultation with the public and participating agencies and governments in deciding whether the project would be approved and funded. This Report set out ten possible reference lines for the placement of the Canada Line, all of which contemplated bored tunnel construction under the Cambie Village area. It invited the private sector participants to develop innovative design options not identified by the project team, however, and left the manner in which the tunnel would be constructed to them.
[17] On May 23, 2003 the TransLink board approved the preparation and issuance of a Request for Proposals (“RFP”). On August 25, 2003 CLRT sent the RFP to four of the 20 companies that had responded to the Request for Expressions of Interest. The RFP encouraged innovation from the private sector.
[18] By January 23, 2004 three of the four companies had submitted a response. Two of these,
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RAVxpress and RAVLink Transportation, proposed using bored tunnel construction along Cambie Street between 2nd and 37th Avenues. The third, SNC-Lavalin/Serco, introduced the prospect of cut and cover construction in that area as its engineers had been able to design a means of building the tunnel over the problematic sewer line at 8th Avenue. The resulting reduction in tunnel depth permitted use of the cut and cover method.
[19] CLRT staff and each of the respondents to the RFP signed confidentiality agreements that prohibited disclosure of the proponents’ proposals to their competitors or the public. Thus, the public did not become aware of the prospect of cut and cover construction on Cambie Street until late 2004 when the procurement process was complete.
[20] CLRT evaluated the responses to the RFP and recommended to TransLink that RAVxpress and SNC-Lavalin/Serco be asked to submit a best and final offer (“BAFO”). On June 30, 2004 the TransLink board agreed and voted to proceed to the BAFO stage with a view to entering a concession agreement if a satisfactory offer was received.
[21] SNC-Lavalin/Serco and RAVxpress submitted their final offers by September 29, 2004. CLRT undertook an extensive evaluation of the offers and recommended selection of the SNC-Lavalin/Serco proposal to its board in mid-November. These were directed not just to building the Canada Line, but to concluding a 35-year concession agreement to design, own, finance, operate, and maintain it as well. The trial judge summarized his view of the reasons for this as follows: [53] …The [evaluation] committee favoured and recommended the SNC-Lavalin/Serco proposal for several reasons, foremost among which was the reduction in the required amount of public funding. The SNC-Lavalin/Serco proposal quantified the public funding commitment at approximately $1.4 billion, and the RAVxpress proposal, at approximately $2 billion. The difference was obviously material given that public funding was limited to $1.35 billion. The difference in the cost of the SNC-Lavalin/Serco and RAVxpress proposals was largely due to the proposed use of cut and cover rather than bored tunnel construction. [54] Another factor commending the SNC-Lavalin/Serco BAFO was the proposal to use stacked, as opposed to side-by-side, tunnels from approximately 13th Avenue south to 63rd Avenue. That aspect of the design allowed the cut and cover trench to be excavated in the middle of Cambie Street, leaving the east side of the street for the use of construction equipment and access, and the west side, for north-south traffic. The stacked tunnel concept also allowed construction of the tunnel on the east side of the Cambie Heritage Boulevard, thereby reducing the potential adverse effects on the Boulevard itself.
[22] On December 1, 2004 the TransLink board received CLRT’s evaluation reports and recommendation and passed a resolution to conditionally approve selection of SNC-Lavalin/Serco as the preferred proponent, subject to remaining funding concerns. TransLink also authorized CLRT to negotiate and sign a concession agreement with SNC-Lavalin/Serco, subject to certain conditions.
[23] On November 30, 2004 CLRT signed the Vancouver Access Agreement (“VAA”) with the
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City of Vancouver, which specified terms on which CLRT would be granted a licence permitting access to City property and streets to construct and operate the Canada Line.
[24] In July 2005 InTransit BC was created to undertake the project, and SNC-Lavalin/Serco was retained as the primary contractor. On July 29, 2005 CLRT, TransLink and InTransit BC signed the concession agreement that set out the terms on which the Canada Line would be constructed, the ownership of the property involved, and the basis on which InTransit BC would operate and maintain the Canada Line for 35 years after its completion (the “Concession Agreement”).
[25] During these events, CLRT engaged in a parallel process with the Environmental Assessment Office (the “EAO”) to obtain an environmental assessment certificate (“EAC”) for the Canada Line under the Environmental Assessment Act, S.B.C. 2002, c. 43 (the “EAA”). The trial judge described the applicable statutory framework: [27] The Canada Line was not subject to mandatory provincial environmental assessment. It was a railway of less than 20 kilometres in length and therefore not a reviewable project within the meaning of the Environmental Assessment Act, S.B.C. 2002, c. 43, (the “EAA”), and Table 14 of the Reviewable Projects Regulation, B.C. Reg. 370/2002 (the "Regulation"). Nonetheless, s. 7 of the EAA permits a proponent to apply to the Environmental Assessment Office (the “EAO”) to have a non-reviewable project designated as one that is reviewable. [28] The Canadian Environmental Assessment Act, S.C. 1992, c. 37, which is the federal counterpart to the provincial legislation, requires an environmental assessment in circumstances where a federal authority authorizes payments to, or financial assistance for, a project, or where a project affects lands in which the federal government has an interest, such as the Fraser River or the Vancouver International Airport. The Canada-British Columbia Agreement for Environmental Assessment Cooperation permits British Columbia and Canada to co-operate in the creation of a project-specific environmental assessment plan that will satisfy both the federal and provincial environmental assessment requirements.
[26] Thus, an EAC was not required under the provincial legislation, but was necessary under the federal statute. CLRT was nevertheless sensitive to the potential impact of the project on the community and so decided to apply for a provincial review under s. 7 of the EAA. An order designating the Canada Line as a reviewable project was granted on September 10, 2003, before the procurement process was complete. Thus, the assessment initially proceeded on the understanding the Canada Line would be built using bored tunnel construction along Cambie Street. On December 2, 2004, after TransLink accepted SNC-Lavalin/Serco’s proposal, the EAO asked CLRT to provide a supplement to its application dealing with cut and cover construction, and fixed a 45-day period to elicit public comment.
[27] The prospect of cut and cover construction along Cambie Street first came to the attention of the public in late 2004 through the EAO website and media reports. Ms. Heyes and other Cambie Village merchants immediately expressed concerns and criticisms. At a public information meeting held to discuss the impact of cut and cover construction Ms. Bird told them that open trenching in any one location along Cambie would be three months. Ms. Heyes and others
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affected by the prospect of cut and cover construction formed the Do RAV Right Coalition and sought judicial review of the EAO’s decision to accept the Canada Line project, including cut and cover construction, for formal review under the EAA, as well as its decision that CLRT’s public consultation programs had fully complied with the requirements of the EAA. Their petition was heard and dismissed on June 30, 2005: 2005 BCSC 991. An appeal taken from that decision was dismissed in October 2006: 2006 BCCA 571.
[28] The EAO completed its review and compiled a report for the responsible provincial Ministers to consider whether to issue an EAC. On April 19, 2005 the Ministers directed further assessment and public consultation. On May 27, 2005, following that further consultation, CLRT agreed to the conditions set out in a draft EAC and the Ministers issued the EAC on June 7, 2005. The federal equivalent was issued on June 15, 2005.
[29] Construction of the Canada Line commenced in late 2005 and was completed in the fall of 2009. The trial judge described the “construction train” used along Cambie Street: [79] Cut and cover construction was to be carried out by means of what was described as a “construction train”. First, Cambie Street would be disrupted in order to relocate municipal utilities and services. Relocation would then be followed by the removal of the road surface, the excavation of the tunnel trench, the installation of the tunnel sections, the backfilling of the trench, and the eventual remediation of Cambie Street. Any point along the route would be and was adversely affected as the various cars of the so-called “train” moved from south to north along the street. Trenching was only one car on the train.
[30] From late 2005 through October 2008 these activities necessitated restrictions in vehicular and pedestrian access to the Cambie Village area. On appeal, the appellants conceded this resulted in a significant decline in Hazel & Co.’s business income. The trial judge found that to be an unreasonable interference with Hazel & Co.’s use and enjoyment of its premises. He concluded the nuisance emanated from the cut and cover construction selected by TransLink and CLRT, and carried out by InTransit BC, and determined TransLink and CLRT on the one hand, and InTransit BC on the other, were equally responsible for the nuisance unless they could establish the defence of statutory authority.
[31] The trial judge then considered that defence and rejected it. He held the EAC did not constitute statutory authority to create the nuisance. He considered TransLink’s statutory mandate under the SCBCTAA and found while it authorized construction of the Canada Line, it did not authorize the chosen method of cut and cover construction. Moreover, since he viewed bored tunnel construction as a viable and non-nuisance alternative to cut and cover, he found the appellants had not established the nuisance was inevitable.
[32] The trial judge assessed Hazel & Co.’s damages arising from the nuisance at $600,000, and ordered that TransLink, CLRT, and InTransit BC were jointly and severally liable for them.
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GROUNDS OF APPEAL
[33] The appellants first say the trial judge erred in finding them liable for nuisance:
a) by failing to recognize the public rights of way that were the foundation of Hazel & Co.’s claim in nuisance had been lawfully removed by the City prior to construction of the Canada Line, thus eliminating the basis for its claim;
b) by failing to give sufficient weight to the social utility of the Canada Line in assessing whether its construction caused unreasonable harm to Hazel & Co.
[34] Alternatively, if the finding of nuisance stands, the appellants say the trial judge erred in holding they failed to establish the defence of statutory authority. They maintain this defence arises from at least one of three sources:
a) the GVTAA, particularly TransLink’s resolution to proceed with the SNC-Lavalin/Serco proposal, passed pursuant to s. 9(3)(a) of that legislation on December 1, 2004;
b) the City of Vancouver’s authority to regulate vehicular and pedestrian traffic under the Vancouver Charter, S.B.C. 1953, c. 55;
c) the EAC granted under the EAA.
ANALYSIS
A. Did the trial judge err in finding the appellants liable for nuisance?
[35] Before considering the appellants’ arguments, I will set out a summary of the law that governs nuisance, and the trial judge’s findings on this point. As well, I will define the nature of the nuisance found by the trial judge, and consider the standard of review.
1) The law governing nuisance
[36] Private nuisance is the unreasonable interference with an occupier’s use and enjoyment of his or her land. In St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392 at para. 77 the Supreme Court summarized the description of the tort by several well-known academics: At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether the interference results from intentional, negligent or non‑faulty conduct is of no consequence provided that the harm can be characterized as a nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character
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of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569). The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536).
[37] Public nuisance is the unreasonable interference with the use and enjoyment of a public right. In Ryan v. Victoria (City), [1999] 1 S.C.R. 201, 168 D.L.R. (4th) 513 at para. 52 the Court described it in these terms: [52] The doctrine of public nuisance appears as a poorly understood area of the law. “A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience”: see Klar, supra, at p. 525. Essentially, “[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference”: See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94.
[38] The same conduct may constitute both a public nuisance and a private nuisance. Ordinarily, an action in public nuisance must be brought in the name of the Attorney General. Individuals may, however, bring an action in public nuisance if they can prove special damage unique to them: Sutherland v. Vancouver International Airport Authority, 2002 BCCA 416, 215 D.L.R. (4th) 1 at paras. 27-29, leave to appeal ref’d [2002] S.C.C.A. No. 385 [Sutherland C.A.].
[39] In considering the factors relevant to nuisance, the court must recognize the inevitability of competing interests and the need for give and take. As Professor Klar observes in Tort Law, 4th ed. (Toronto: Carswell, 2008) at 715, nuisance “is principally concerned with regulating the conflicting uses of land which invariably arise in an increasingly urbanized and crowded society”. A certain degree of inconvenience and interference is inevitable to ensure peaceful co-existence. The task is to determine at what point the process of give and take becomes sufficiently unbalanced to create unreasonable harm that is deserving of compensation: Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 102 D.L.R. (4th) 12, 62 O.A.C. 202 at 18-19 (C.A.).
2) The findings of the trial judge with respect to nuisance
[40] The trial judge expressed his central finding of nuisance in these terms: [138] The evidence in this case compels me to find as a fact that cut and cover construction of the Canada Line tunnel between 2nd and 37th Avenues on Cambie Street substantially interfered with Hazel & Co.’s use and enjoyment of its premises. Consideration of the relevant factors supports the finding that the extent of the interference was sufficiently unreasonable to constitute a nuisance.
[41] He properly acknowledged a finding of nuisance is based on an assessment of four factors:
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the character of the neighbourhood; the nature, severity and duration of the interference; the social utility of the impugned conduct; and the sensitivity of the plaintiff’s use.
[42] The trial judge made these findings with respect to Hazel & Co.’s neighbourhood:
[139] Cambie Street and 16th Avenue is located in what is known by the community as the “Cambie Village”. It is a comparatively small business locale occupied by a number of small enterprises, of which Hazel & Co. was one from 1999 through 2008. The economic viability of the businesses located there results from the local character of the Village and comfortable access for customers. In the case of Hazel & Co., reasonable access was particularly important because of the nature of the company’s clientele who were principally pregnant women, some of whom would undoubtedly have been required to bring young children with them as they shopped. I accept the evidence of the store’s manager, Ms. Cromie, that Hazel & Co. enjoyed a reputation that extended well beyond the immediate locale. The store was a shopping destination for customers from the broad base of the lower mainland.
[43] The trial judge’s assessment of the nature of the interference focussed on the lengthy street closures and traffic disruptions on Cambie Street necessitated by cut and cover construction. He found these interfered with customer access to Hazel & Co., and resulted in reduced business income. He described the disruption in these terms:
[140] There can be no doubt that access to Hazel & Co. was adversely affected by cut and cover tunnel construction. Parking was eliminated on Cambie Street. Pedestrian crossing was restricted or curtailed. Parking on 16th Avenue was restricted as were left turns at 16th Avenue to northbound and southbound traffic. Left and right turns were prohibited for traffic westbound on 16th Avenue. Left hand turns were prohibited for eastbound traffic on 16th Avenue. The result of these restrictions was that customers who wanted to find their way to the store were required to find a way to travel to the vicinity of the store, find a place to park at some distance from the store, and make their way to the store on foot over some considerable distance through what was an intensely disruptive construction area encompassing large portions of Cambie Street.
[44] In assessing the social utility of the Canada Line, the trial judge recognized a finding of nuisance requires a balancing of competing interests. He acknowledged the appellants’ position that the Canada Line had significant social utility, and weighed this against the nature, severity, and duration of the harm its construction imposed on Hazel & Co. He concluded the cost reductions arising from the choice of cut and cover construction were achieved by imposing an unreasonable financial burden on Hazel & Co., particularly since bored tunnel construction presented a viable alternative that would not have created the nuisance: [148] The indisputable fact which I find on the evidence in this case is that the use of cut and cover construction was endorsed because it was cheaper and, in combination with some other aspects of the SNC-Lavalin/Serco proposal, reduced cost by more than $400 million so as to permit construction within the range of public funding commitments. The reduction in cost was achieved by imposing an unacceptable burden on Hazel & Co. A loss of more than $500,000 over four years resulting from the decline in sales and the reduction of approximately 50% in gross profit caused solely by cut and cover construction, cannot be regarded as a tolerable or acceptable burden which should be absorbed by Hazel & Co. as its contribution to the realization of a project of general public utility.
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[149] It is no answer to claim, as the defendants do, that they have taken all possible steps to mitigate the impact of cut and cover construction. It is obvious that the steps taken were not effective. The steps taken did not staunch the loss. At best, they may have reduced the loss that would otherwise have been incurred. Moreover, the defendants’ claim overlooks the fact that CLRT had other options that would have accommodated the public interest while eliminating or substantially reducing harm and inconvenience to Hazel & Co. Bored tunnel construction was an alternative that would not have affected Hazel & Co. and much or all of Cambie Village to any significant degree. Bored tunnel construction was clearly contemplated by CLRT as a viable alternative. That is evident from the fact that the proponent of that method of construction was asked to submit its final offer at the BAFO stage of the proponent selection process. [150] Mr. Eastman, CLRT’s chief engineer, testified that tunnel boring would have had an impact at West Broadway and King Edward Avenues, where significant disruption would have occurred in the course of station stop construction. On his evidence, some disruption would also have occurred at 19th Avenue where a shaft would have been opened in order to extract subsurface material resulting from the tunnel boring process. The defendants tendered no evidence regarding the extent, if any, to which Hazel & Co. would have been affected by those closures. [151] Likewise, the defendants tendered no evidence to support the claim that bored tunnel construction would have resulted in a loss to Hazel & Co. approaching anything like that which was sustained. On the evidence that was adduced, I find that the disruption in the vicinity of Cambie Street and 16th Avenue would have been minimal had bored tunnel construction been employed, and so too would have been the resulting loss to Hazel & Co. [152] The ultimate question remains: does the balancing involved in a “give and take” or “live and let live” analysis for the purpose of identifying compensable nuisance require a single enterprise to absorb an undisputed business loss of more than $500,000 for the benefit of the public as a whole in order that some or all of the defendants may reduce the cost of construction? In my opinion, the answer can only be no. I find that the nature, severity and duration of the impact on Hazel & Co. resulting from cut and cover construction outweigh the social or public utility associated with the creation of the Canada Line to a degree that warrants compensation for nuisance, absent any defence to the claim.
[45] The trial judge found personal sensitivity to the construction was not a factor, and the claim in nuisance arose solely from the impact of construction on Hazel & Co.’s financial performance. He concluded cut and cover construction caused both private and public nuisance in Cambie Village: [159] In this case, both a public and private nuisance resulted from cut and cover construction in the vicinity of Cambie Village. The convenience of the general public was affected by the widespread disruption to vehicular and pedestrian traffic throughout the lengthy course of construction on that portion of Cambie Street. At the same time, Hazel & Co. was uniquely affected by that nuisance as is evident from the significant decline in the financial performance of its business.
[46] The trial judge decided, however, it was not necessary to deal with both types of nuisance, and proceeded on the basis the disruption created a private nuisance.
3) The nature of the nuisance
[47] Before considering the appellants’ arguments, it is critical to precisely define the source of
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the nuisance pleaded and established by Hazel & Co. First, Hazel & Co. did not plead, and the trial judge did not find, that the Canada Line per se caused the nuisance. Instead, the claim was based on the allegation that the cut and cover construction methodology chosen by the appellants to build the Canada Line through Cambie Village caused the nuisance. Second, the appellants’ interpretation of the trial judge’s findings as to the source of nuisance was not consistent. For some purposes, they accepted that he found cut and cover construction created the nuisance. For others, notably those arguments that relied on the statutory authority to effect street closures, the appellants argued the trial judge had found that traffic closures were the source of the nuisance. In my view, the findings of the trial judge on this point, which I accept, do not permit separation of the two phenomena. He clearly found the source of the nuisance was cut and cover construction, and the traffic disruptions in the construction zone required by that construction method were integrally linked to it and could not be separated from it in this case.
4) The standard of review
[48] The existence of nuisance is a question of fact. This Court must therefore approach the trial judge’s findings and inferences of fact with considerable deference. They will not be set aside unless he made a palpable and over-riding error by ignoring conclusive or relevant evidence, misunderstanding the evidence, or drawing wrong conclusions from it: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 25; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 at 121-22. If it appears the trial judge failed to consider relevant factors or evidence, a concern may arise that he did not properly weigh all aspects of those properly, and an appellate court may review the evidence to determine if the trial judge ignored or misdirected himself with respect to it. Nevertheless, an omission in the reasons will not necessarily indicate such a review should be undertaken, unless it raises a reasonable concern the trial judge ignored or misconceived the evidence in a manner that affected his conclusion: Re Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 15.
5) Did the absence of public rights of way preclude a finding of nuisance?
[49] The appellants argue that while the trial judge determined the source of the nuisance was cut and cover construction, he found the direct cause of the interference with Hazel & Co.’s use and enjoyment of its premises, and its financial loss, was the restriction of customer access due to closures of public streets and sidewalks associated with the construction. They say the City lawfully directed those closures before the construction began, pursuant to its powers to regulate traffic under the Vancouver Charter. Thus, public rights of way no longer existed in Cambie Village during construction of the Canada Line, and Hazel & Co. cannot succeed in a claim for nuisance based on interference with such rights.
[50] The appellants concede the modifications to public rights of way were necessarily incidental to cut and cover construction, but say their cause is irrelevant. They maintain the City
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lawfully closes streets and alters vehicular and pedestrian traffic patterns all the time for a multitude of reasons, and it is not for a court to assess their rationale. All that matters is the public rights of way are legitimately removed and, in their absence, Hazel & Co. cannot succeed in establishing nuisance.
[51] The appellants rely on Re 383277 Ontario Ltd. and City of Hamilton et al. (1978), 89 D.L.R. (3d) 590, 21 O.R. (2d) 143 (H.C.J. Div. Ct.) in which the applicant company challenged the City’s decision to close city streets to allow a Grand Prix racing event, alleging nuisance among other grounds. The three-member panel rejected the claim in nuisance at 594: The final ground on which the application was based is that the proposed closures would constitute a nuisance. The allegation here is not that the actual running of the race would constitute a nuisance, as a result of noise, fumes or other matters, but rather that the closing of the streets in order that the race might be run will constitute a nuisance which this Court ought to enjoin. We have held, however, that the municipality has the power to close up the streets and parts of streets necessary for the race for the periods of time in question. The result of such closures will be that the streets and parts of streets thus closed will not be public highways during the periods of closure and, therefore, there can be no nuisance in the sense on which the applicant relies because of a restriction or denial of access or passage on those streets or parts of streets. ...
[52] At trial, the appellants raised this argument in the context of public nuisance only, when the City was also a defendant. The trial judge rejected it, stating: [161] The defendants argue that Hazel & Co. should be denied a remedy because no right accruing to the company has been affected. Rather, the rights affected are those pertaining to the use of roads, in relation to which the City has broad statutory powers under the Municipal Act, R.S.B.C. 1996, c. 324 and the Vancouver Charter, S.B.C. 1953, c. 55. The defendants say that “as long as the City acts under its statutory powers, the City’s regulation of city streets does not constitute a public nuisance because it is the City that determines the public’s rights to access city streets.” [162] With respect, the argument must fail. Even if the statutory power to regulate the use of streets may immunize the City from liability, that immunity is not enjoyed by entities such as TransLink, CLRT and InTransit BC who are using City streets under licence for their own commercial purposes as opposed to general City purposes. The source of the nuisance in this case was the method of construction employed by those responsible for the project. The City’s regulation of traffic is not the issue. Regulation was merely a function or outcome of the method of construction chosen by CLRT and TransLink and carried out by InTransit BC.
[53] The trial judge ultimately dismissed Hazel & Co.’ s action against the City and thus found it unnecessary to consider whether the Vancouver Charter afforded the City immunity from liability.
[54] It is common ground the City has the power to regulate streets and traffic under the Vancouver Charter. Section 289(1) states the City owns the city streets. These provisions demonstrate its broad authority over them:
291. The Council may provide (a) for establishing, laying out, opening, maintaining, and improving streets, and for determining the width and boundaries of streets;
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(b) for stopping up any street, or part thereof, and, subject to section 190, for disposing of any street, or part thereof, so stopped up; (c) for widening, altering, or diverting a street or part thereof; … (g) for regulating (i) the means of access to and from the street of any parcel abutting thereon and providing for the use of so much of the street as may be designated for the purpose of such access;
317.(1) The Council may make by-laws (a) for regulating pedestrian, vehicular, and other traffic and the stopping, parking and routing of vehicles upon any street or part thereof; … (w) for designating streets, or portions of streets, upon which no vehicles shall be stopped or parked or only such vehicles or classes thereof at such times and upon such conditions as may be prescribed, and for delegating to the City Engineer or such other person as shall be named for the purpose all or any of such powers so to designate or prescribe; … (bb) for closing a street, or portion of a street, to vehicular traffic and not to pedestrian traffic, or vice versa; ...
[55] As well, the City of Vancouver, by-law No. 2849, Street and Traffic By-law (30 October 1994) s. 86 states: CLOSING STREETS Where owing to work of construction, repair, or maintenance, or owing to damage by accident or storm or other emergency, any street or any portion thereof is unsafe or unsuitable for traffic ... the City Engineer or the Chief Constable, or any person duly authorized by either of them, may temporarily close such street or portion thereof to vehicular traffic, pedestrian traffic or both or otherwise restrict or divert the traffic thereon or therefrom …
[56] I am not persuaded the exercise of those broad powers in this case defeats Hazel & Co.’s claim. The appellants’ argument requires a temporal distinction between the street closures and the commencement of cut and cover construction that cannot be supported on the findings of the trial judge. As I have set out in paragraph 47, while the closures may have been effected before construction commenced, they were dictated by the requirements of the cut and cover construction zone and cannot be properly separated from it.
[57] As well, in my view the effect of the appellants’ argument is to cast these statutory powers as if they provided statutory immunity, when they merely provide statutory authority. Statutory immunity derives from legislative provisions that expressly negate a cause of action. The Vancouver Charter and related traffic by-laws do not have any such provision. The statutory authority they provide to effect street closures does not remove a citizen’s right to bring an action
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in nuisance resulting from those closures, as the appellants argue. They may, however, provide a defence to such an action if nuisance was the inevitable result of the closures.
[58] In my view, the appellants’ argument and the analysis in 383277 Ontario Ltd. represent an unwarranted departure from the traditional approach to nuisance. The focus of a nuisance analysis is the harm suffered by the plaintiff, not the lawfulness of the defendant’s conduct. Nuisance frequently arises from intentional and lawful acts: Royal Anne Hotel Co. Ltd. v. Village of Ashcroft, 95 D.L.R. (3d) 756, [1979] 2 W.W.R. 462, at 759 (B.C.C.A.). The appellants’ argument fails to address the initial and fundamental question of whether the street closures, in this case occasioned by cut and cover construction, caused unreasonable disturbance of Hazel & Co.’s use and enjoyment of its property. Instead, they proceed directly to an examination of whether the street closures were lawful, a question that only arises once nuisance has been established and consideration is given to the defence of statutory authority.
[59] I would not accede to this ground of appeal.
6) Did the trial judge err by failing to give proper weight to the social utility of the Canada Line?
[60] The appellants’ submissions described the social or public utility of the Canada Line in these terms: The public benefit of the Canada Line cannot be overstated. It will serve a vital transportation need, allowing more people to travel to and from the Downtown core while removing cars from the road. It will increase mobility while relieving congestion and the emission of greenhouse gases. It is a $2 billion public works project designed to serve the public interest for about 100 years. The federal government, the provincial government, the City of Vancouver, the City of Richmond and TransLink are all contributing to this project because they deem it to have such a significant public benefit. It is a project entirely aimed at serving the public interest, including the savings to taxpayers that results [sic] from the P3 structure.
[61] The trial judge acknowledged those views, and dealt with this issue at paras. 148-152 of his reasons, which I earlier set out at paragraph 44 of this decision. He recognized the Canada Line was a project of general public utility, and that he must strike a tolerable balance between the public interest and the interests of Hazel & Co. In considering the appropriate balance, however, his analysis focussed almost entirely on the comparative public utility of the two construction methods and their impact on Hazel & Co. He accepted cut and cover construction favoured the public interest as it, along with “some other aspects” of the SNC-Lavalin/Serco proposal, reduced the cost of the Canada Line by over $400 million. However, he also found bored tunnel construction was a viable option to cut and cover that would have accommodated the public interest while causing only minimal disruption to Hazel & Co. He found the choice of cut and cover construction imposed a disproportionate financial burden on Hazel & Co., which outweighed its financial benefit to the public, and concluded the nature, severity and duration of the impact of cut and cover construction on Hazel & Co. outweighed the social utility associated with the Canada
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Line.
[62] The appellants argue the trial judge made two palpable and over-riding errors in reaching those conclusions. First, they attack his finding that bored tunnel construction was a viable alternative to cut and cover construction. They say the finding of nuisance was based on that erroneous premise, instead of a proper consideration of whether the disruption to Hazel & Co. was unreasonable. Second, they say he failed to give proper weight to the significant and long-term public benefit arising from the Canada Line, in contrast to the temporary nature of the interference to Hazel & Co. during its construction.
[63] The trial judge addressed the comparative viability and impact of cut and cover and bored tunnel construction at two junctures in his reasons: his assessment of social utility, and his analysis of the inevitability of nuisance in the context of the defence of statutory authority. In both cases, he found bored tunnel construction was a viable non-nuisance option to cut and cover construction. For the reasons explained later in this decision, I agree with the appellants he erred in that conclusion. I am not persuaded, however, that this error was material to his finding of nuisance. l therefore intend to simply introduce my concerns on this point here, and deal with it in detail when I address the defence of statutory authority where, in my view, the error has greater import.
[64] I am persuaded the trial judge erred by essentially confining his analysis of public utility to the two construction methods and their impact on Hazel & Co. He approached this issue as if bored tunnel and cut and cover construction were readily interchangeable options in a construction contract limited to Cambie Village. In fact, each construction method was embedded as just one element of the comprehensive and voluminous proposals submitted by SNC-Lavalin/Serco and RAVxpress, which were directed not only to building the Canada Line, but to designing it, operating it, and maintaining it under the terms of a 35-year concession agreement. The community impact of the construction methods proposed was only one of a multitude of inter-related factors to be considered in assessing those proposals and their social utility. Moreover, the preferred proponent was selected by a competitive procurement process, and it was not open to CLRT to suggest changes to the SNC-Lavalin/Serco proposal before that process was complete.
[65] The evaluation reports produced by CLRT at both the RFP and BAFO stages generated a large body of evidence of the comparative merits and drawbacks of each proposal, ranking them on multiple criteria. Five evaluation sub-committees in the fields of design and construction, legal and commercial, operation and maintenance, financial, and third party consultation, evaluated the proposals at both stages, assisted by experts in multiple fields, as well as committee members who were independent of the participating entities. Each committee reported to a central Evaluation Committee that provided a final report and recommendations to the TransLink board.
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[66] The trial judge referred to this evidence only briefly. He recognized the financial advantage to the public of selecting SNC-Lavalin/Serco’ s proposal, which required half a billion dollars less in public funding than that of RAVxpress. He also acknowledged there were “some other aspects” besides cut and cover construction that commended the SNC-Lavalin/Serco proposal, but mentioned only one of these: the use of stacked tunnels along Cambie, which allowed some traffic lanes to remain open and minimized adverse effects on the Cambie Heritage Boulevard.
[67] Had the trial judge examined the proposals more closely, it would have been evident that SNC-Lavalin/Serco exhibited a number of other features that had significant public benefit, and were not included in RAVxpress’s plans. SNC-Lavalin/Serco was prepared to assume significantly more risk, resulting in additional cost-savings to the public. While cut and cover construction was attractive due to its lower cost, it had the additional benefit of providing greater flexibility in the construction schedule. As well, it promised increased ridership on the Canada Line as it permitted shallower and therefore more accessible stations where cut and cover construction was used. Further, SNC-Lavalin/Serco was viewed as more likely to accomplish completion in time for the 2010 Winter Olympics, which was a condition of federal and provincial funding. The evaluations also spoke to the Serco Group’s experience in operating similar train systems, and the benefits of the type of train chosen by them.
[68] CLRT also evaluated less tangible differences between the proposals. Its qualitative assessment concluded SNC-Lavalin/Serco was superior to RAVxpress on such issues as urban fit, safety, and integration with other transportation modes. The legal and commercial evaluation reported greater progress toward a concession agreement with SNC-Lavalin/Serco. There was greater confidence in SNC-Lavalin/Serco’s governance structure. Ultimately, the Evaluation Committee was unanimous in its selection of SNC-Lavalin/Serco as the preferred proponent.
[69] I am satisfied that by confining his analysis to the construction methods and their impact, the trial judge failed to fully consider the comparative public utility of the two proposals. When this is considered, it is apparent his finding that bored tunnel construction presented a viable alternative that would have adequately accommodated the public interest cannot stand. That conclusion essentially ignores the cost differential of over half a billion dollars in public funds between the two proposals, and the many aspects of the SNC-Lavalin/Serco proposal that were superior to that of RAVxpress from the perspective of social utility.
[70] The appellants say this represents a palpable and over-riding error that justifies setting aside the finding of nuisance. They argue it led the trial judge to give too much weight to irrelevant factors, instead of focussing on the proper balance between the social utility of the Canada Line and the disturbance to Hazel & Co. While the appellants concede Hazel & Co. suffered financially due to the traffic changes necessitated by the cut and cover construction zone, they say the disturbance was not permanent and did not involve physical damage to Hazel & Co. They maintain a proper analysis must lead to a finding that the public benefit of rapid transit outweighs
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the interests of those disturbed during its construction.
[71] The appellants point to earlier authorities that have given substantial weight to the social utility of public transportation. In St. Pierre v. Ontario (Minister of Transportation and Communications), [1987] 1 S.C.R. 906, a case in which the plaintiffs brought an action in nuisance related to the construction of a highway adjacent to their land, McIntyre J., writing for the Court, expressed this view at 916: ... The Minister is authorized -- indeed he is charged with the duty -- to construct highways. All highway construction will cause disruption. Sometimes it will damage property, sometimes it will enhance its value. To fix the Minister with liability for damages to every landowner whose property interest is damaged, by reason only of the construction of a highway on neighbouring lands, would place an intolerable burden on the public purse. Highways are necessary: they cause disruption. In the balancing process inherent in the law of nuisance, their utility for the public good far outweighs the disruption and injury which is visited upon some adjoining lands. The law of nuisance will not extend to allow for compensation in this case.
[72] The Ontario Court of Appeal expressed similar views in Mandrake Management Consultants Ltd. at 24-25 in which the Court overturned a finding of nuisance arising from noise and vibration caused by the defendant’s subway because the trial judge had failed to give sufficient weight to the subway as an essential public service.
[73] Other authorities demonstrate, however, that the social utility of an enterprise does not uniformly trump individual harm in a nuisance analysis. The trial judge in Sutherland v. Attorney General of Canada, 2001 BCSC 1024, 202 D.L.R. (4th) 310 at paras. 203-209 found a new airport runway at the Vancouver International Airport that caused noise nuisance to the plaintiffs substantially enhanced the utility of an airport that was “of immense utility to the public at large”. He nevertheless concluded the burden imposed on the plaintiffs, who were nearby property owners, exceeded what was reasonable and created a nuisance. The finding of nuisance was upheld by this Court, although the trial decision was overturned on other grounds: Sutherland C.A. at paras. 18-19.
[74] Similarly in Nor-Video Services Ltd. v. Ontario Hydro (1978), 19 O.R. (2d) 107, 84 D.L.R. (3d) 221 (H.C.J.) the Court found the social utility of the defendant’s recently-constructed power transmission line, designed to serve the energy requirements of western Ontario, did not provide justification for interference with the reception and transmission of television signals for nearby land-owners served by the plaintiff.
[75] It is clear the Canada Line has significant public benefit in this increasingly urban and environmentally challenged society, and that it could not have been built without widespread dislocation to many residents and businesses during construction. However, what is a tolerable balance to be struck between these competing interests is ultimately a matter of judgment, and a finding of nuisance is a finding of fact. Having examined the trial judge’s reasons on this point in their entirety, I am not satisfied his finding that bored tunnel construction was a viable alternative
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critically undermined his finding of nuisance. He properly considered each of the four factors that constitute a nuisance assessment. In dealing with social utility, despite his narrow focus on the construction methods, the trial judge’s analysis culminated in a clear finding that the nature, severity and duration of the impact of cut and cover construction on Hazel & Co. outweighed the social utility of the Canada Line. As well, his central finding on nuisance was clear: cut and cover construction substantially interfered with Hazel & Co.’s use and enjoyment of its premises, and the extent of that interference was sufficiently unreasonable to constitute nuisance.
[76] In my view, the error I have found in the trial judge’s analysis does not justify interference by this Court with his finding of nuisance. I would not give effect to this ground of appeal.
[77] This result leads to an examination of the remaining grounds of appeal, which address the trial judge’s finding that the defence of statutory authority was not available to the appellants.
B. Did the trial judge err in finding the defence of statutory authority had not been established?
1) The law regarding the defence of statutory authority
[78] Statutory authority may establish a defence to both public and private nuisance. The classic statement of the defence was provided by Viscount Dunedin in City of Manchester v. Farnworth, [1930] A.C. 171 (H.L.) at 183: When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.
[79] The defence thus raises two areas of inquiry. The first is whether the act causing the nuisance was expressly or implicitly authorized by statute. If so, the second is whether the nuisance was the inevitable result of the statutorily authorized action.
[80] The principles that emerge from the authorities make it a difficult defence to establish. The burden of proof rests on the defendant. The legislation in question must be strictly construed in accordance with the presumption against interference with individual rights. In Schenk v. The Queen (1981), 131 DLR (3d) 310 at 322 (Ont. H.C.J.), aff’d (1984), 15 D.L.R. (4th) 320 (Ont. C.A.), aff’d [1987] 2 S.C.R. 289, Robbins J. provided this guidance: In determining whether an authorized activity is to be relieved of ordinary tort liability, the statute authorizing the activity must be given a strict construction. The Legislature is not to be deemed to have taken away the legal remedies of private persons and their right to compensation for injury to their legally recognized interests unless a contrary intention is clearly manifested by the legislation.
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[81] In Ryan, Justice Major, writing for the Court, described statutory authority as “at best, a narrow defence to nuisance”. He observed that in Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, some members of the Court attempted to narrow the defence further, but no majority view in favour of change emerged from the divergent judgments. He therefore affirmed the traditional approach to the defence set out by Justice Sopinka in Tock at 1226: The burden of proof with respect to the defence of statutory authority is on the party advancing the defence. It is not an easy one. The courts strain against a conclusion that private rights are intended to be sacrificed for the common good. The defendant must negative that there are alternate methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one. While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant.
2) The findings of the trial judge with respect to the defence of statutory authority
[82] At trial, the parties and the trial judge dealt with this defence in the context of the SCBCTAA, on the understanding that all relevant provisions in that legislation and the GVTAA were the same. It was common ground the SCBCTAA authorized the appellants to build the Canada Line. The issue, however, was whether cut and cover construction, which caused the nuisance, had been statutorily authorized, since the SCBCTAA did not specify the method of construction.
[83] The appellants argued statutory authority for cut and cover arose from the EAC obtained under the EAA. The trial judge rejected that argument.
[84] The trial judge also found the appellants could not establish the defence of statutory authority under the SCBCTAA because bored tunnel construction provided a viable alternative method of building the Canada Line that would not have caused a nuisance.
[85] The appellants attack both of those findings. As well, they raise two new arguments. First, they say the resolution passed by TransLink on December 1, 2004 pursuant to its powers under the SCBCTAA, which conditionally approved the SNC-Lavalin/Serco proposal, provided statutory authority for cut and cover construction as it was part of that proposal. Second, they argue the City’s powers under the Vancouver Charter that authorized the street closures in Cambie Village necessitated by the cut and cover construction zone provided the necessary statutory authority for nuisance.
[86] Since the GVTAA was in force at the time of the relevant events, and some of its provisions relevant to the December 1, 2004 resolution differ from those of the SCBCTAA, I will consider the defence of statutory authority in the context of the GVTAA.
3) Does the defence of statutory authority arise from the GVTAA, either generally or from TransLink’s resolution of December 1, 2004?
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a) Did the GVTAA provide statutory authority to ground the defence?
[87] It is clear TransLink had statutory authority to construct the Canada Line pursuant to ss. 3 and 4(1)(e) of the GVTAA, which state: 3 The purpose of the authority is to provide a regional transportation system that (a) moves people and goods, and (b) supports (i) the regional growth strategy, and (ii) the air quality objectives and economic development of the transportation service region.
4(1) Subject to this Act, the authority must do the following to carry out its purpose: ... (e) acquire, construct and maintain any assets, facilities and other real or personal property required for the regional transportation system;
[88] The appellants say these provisions are unambiguous and provide statutory authority for cut and cover construction. They give TransLink broad discretion in deciding how to exercise its power to build regional transportation. Section 9(3)(a) of the GVTAA gives the TransLink board a statutory power to act by resolution. By its December 1, 2004 resolution TransLink approved proceeding with the SNC-Lavalin/Serco proposal. The appellants therefore say since cut and cover construction was an integral part of that proposal, the resolution provides express statutory authority for that construction method. The nuisance to Hazel & Co. created by that method was thus the inevitable result of the authorized activity. They maintain it was unnecessary and inappropriate for the trial judge to go beyond that and consider whether bored tunnel construction was a viable alternative.
[89] The December 1, 2004 resolution was passed in the form recommended by CLRT staff in a report presented to the TransLink board. It states: It was MOVED and SECONDED That the GVTA Board approves: 1. Proceeding to the Preferred Proponent stage of the procurement process with SNC-Lavalin/Serco for their Base Case Proposal, subject to the condition that the unfunded costs of the Project are addressed by early December 2004 through measures including scope reductions/value engineering, scope transfers, and additional funding; 2. Entering into a Concession Agreement with SNC-Lavalin/Serco, subject to the conditions that, at Commercial Close: i. The Project is fully funded; ii. There is no significant risk increase in the GVTA risk profile from that contemplated in the draft Concession Agreement issued to SNC-Lavalin/Serco with the BAFO Invitation; and, iii. The Project continues to provide value for money; and, 3. Approves the scope reductions, value engineering, scope transfers and additional funding opportunities, as outlined in Section 6 of this report, with an estimated total value of $280M, including $42M in amended proposal scope and cost from
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SNC-Lavalin/Serco, to eliminate the remaining unfunded cost of the Project, and where the GVTA scope transfers and additional funding would be committed from the GVTA operating and. [sic] capital programs as detailed in this report, and subject to the additional contribution requested from the Province as detailed in this report. CARRIED
[90] The appellants first argue the trial judge recognized this resolution constituted statutory authority for cut and cover construction in this paragraph of his reasons: [189] The provisions of the Act that I have reproduced are unambiguous. Section 3 confers a statutory responsibility on TransLink. Section 4 specifies what TransLink must do for the purpose of carrying out that statutory responsibility, part of which is the development, management and operation of a regional transportation system of which the Canada Line is a part. There can be no clearer example of the exercise of the statutory authority conferred upon TransLink than the development of the plan for the Canada Line and the selection of SNC-Lavalin/Serco as the concessionaire.
[91] I am unable to agree with that interpretation of those comments. The statutory import of the TransLink resolution was not raised at trial, and the balance of the trial judge’s reasons are incompatible with the appellants’ view. I am satisfied he was simply acknowledging that TransLink had the authority to approve the Canada Line, a point conceded by Hazel & Co.
[92] The appellants’ remaining points respond to Hazel & Co.’s argument the December 1, 2004 resolution did not have sufficient legislative character to constitute statutory authority. That argument proceeds from the basic tenets that common law rights, including a right to bring an action, may only be removed or altered by legislation, and that such legislation must be strictly construed: R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) at 431, 476, and 478.
[93] The appellants maintain the December 1, 2004 resolution derives legislative character from TransLink’s status as a government entity with municipal powers in the area of regional transportation. They say it has a statutory mandate to decide what facilities to construct for transportation systems, and the GVTAA empowers it to exercise its powers by resolution. Thus, any resolution made to carry out that mandate is legislative in nature.
[94] In support of that view, the appellants point first to this Court’s decision in Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2006 BCCA 529, 275 D.L.R. (4th) 221, which held at paras. 73-89 that TransLink was “government” within the meaning of s. 32 of the Canadian Charter of Rights and Freedoms. Prowse J.A., writing for the Court, provided this useful history of TransLink’s origins: [75] TransLink is a creature of both the provincial government and the GVRD. In 1967, the GVRD was created as a partnership of 21 municipalities and one electoral area within Greater Vancouver. It was statutorily charged with regional planning. That mandate was removed in 1983 (pursuant to the Municipal Amendment Act, 1983, R.S.B.C. 1983, c. 22), but was restored in 1995, and later incorporated into Part 25 of the Local Government Act, R.S.B.C. 1995, c. 9 (the “LGA”). Part 25 sets out a consensus model for the development of regional growth strategies, which require cooperation between provincial and local governments. At that
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time, the province had responsibility for public transportation, vehicle emissions testing and many major roads; the municipalities controlled local roads; and the GVRD was responsible for planning. Following further negotiations between the provincial government and the GVRD, a framework agreement was ratified in February 1998 relating to transportation management and funding. This led to the enactment of the GVTA Act, which came into force on July 30, 1998. The Greater Vancouver Transportation Authority became known as TransLink.
[95] Referring to excerpts from Hansard, Prowse J.A. noted the intent of the GVTAA was to create a new regional transportation authority for Greater Vancouver, with a new funding and governance structure, which gave local governments in the region control over transportation and transit services. She found the GVRD was government within the meaning of s. 32 of the Charter and, because it exercised significant control over TransLink, TransLink was government as well for the purpose of s. 32 of the Charter: [93] In summary, I conclude that the GVRD has substantial control over the day-to-day operations of TransLink which, when combined with the GVRD’s powers to appoint the vast majority of the members of TransLink’s board of directors, satisfies the control test posited by the authorities. To the extent that the GVRD does not have complete control over TransLink, control is shared by the provincial government. In either case, I conclude that TransLink cannot be viewed to be operating independently or autonomously in a manner similar to either universities or hospitals. It has no independent agenda other than that provided in its constituent Act and no history of being an entity independent of government.
[96] The Supreme Court upheld that decision. Justice Deschamps, writing for the Court, endorsed the reasoning of Prowse J.A., and offered the view the creation of TransLink “was not a move towards the privatization of transit services, but an administrative restructuring designed to place more power in the hands of local governments”: 2009 SCC 31, [2009] 2 S.C.R. 295 at paras. 18-22 [GVTA S.C.C.].
[97] TransLink also argues its powers and governance structure under the GVTAA were consistent with municipal status, and included substantial powers to curtail private rights. Under s. 6, it had the power to expropriate land, raise revenue by taxes, and make bylaws required for regional transportation. As well, it had some of the same powers over highways as those exercised by municipalities for the purpose of planning, acquiring, constructing, maintaining, or operating rail transportation systems. Its 15 board members were all elected officials, either mayors of member municipalities, members of the GVRD board, or members of the legislative assembly whose constituencies or ministries were tied to its mandate.
[98] For present purposes, I am prepared to accept TransLink is a governmental entity with municipal characteristics. I am not satisfied, however, that this imbues the December 1, 2004 resolution with legislative character. Governments perform a multitude of functions and tasks. These may be legislative, administrative, executive, or judicial in nature. Legislative functions typically involve making general rules and regulations that apply to a broad base of people, while executive or administrative powers deal with the application and enforcement of legislation to particular people in particular circumstances: David Phillip Jones, Q.C. and Anne S. de Villars,
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Q.C., Principles of Administrative Law, 4th ed. (Toronto: Thomson Canada, 2004) at 83-84.
[99] In GVTA S.C.C., the issue was whether a TransLink policy on advertising was “law” for the purpose of s. 1 of the Charter. While I appreciate the following comments were made in that context, I find them useful in describing the characteristics of legislative instruments: [64] Where a policy is not administrative in nature, it may be “law” provided that it meets certain requirements. In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority. A rule-making authority will exist if Parliament or a provincial legislature has delegated power to the government entity for the specific purpose of enacting binding rules of general application which establish the rights and obligations of the individuals to whom they apply (D. C. Holland and J. P. McGowan, Delegated Legislation in Canada (1989), at p. 103).
[100] Applying those principles to the December 1, 2004 resolution, I am satisfied it is not legislative in form or substance. It did not create a norm or rule of general application. Instead, it embodied an executive decision by TransLink to conditionally approve moving to the preferred proponent stage with SNC-Lavalin/Serco and entering negotiations toward a concession agreement, subject to obtaining full funding for the Canada Line, and maintaining TransLink’s risk profile for the project.
[101] I conclude TransLink’s December 1, 2004 resolution cannot provide a foundation for the defence of statutory authority.
[102] The appellants argue in the alternative the resolution may derive statutory authority from its superordinate legislation, the GVTAA. They say as long as it fell within TransLink’s jurisdiction under the GVTAA, it is statutorily authorized.
[103] In support, the appellants point to aspects of this Court’s decision in Sutherland C.A., which involved a claim of noise nuisance arising from planes using a third runway built at the Vancouver International Airport. This Court overturned the trial judge on the basis he erred in rejecting the defence of statutory authority. Chief Justice Finch, writing for the Court, found statutory authority for the location of the runway was established by a chain of instruments emanating from an order- in-council made pursuant to s. 4(1)(a) of the Public Lands Grants Act, R.S.C. 1985, c. P-30. That legislation authorized the Minister to enter into a lease of public lands for public purposes. The order-in-council authorized the Minister to enter a lease with the Airport Authority on terms and conditions set out in a draft lease annexed as a schedule to the order-in-council. The draft lease expressly required the Airport Authority to build the third runway in the location specified in an assessment by an Environmental Assessment Review Panel (“EARP”) and identified as well in the draft lease. Chief Justice Finch found the order-in-council was equivalent to subordinate legislation and, together with the lease annexed to it, provided statutory authorization for the location of the third runway.
[104] The appellants point to these parts of the judgment as support for their argument: [69] Driedger refers to “subsidiary laws”, known by a variety of expressions including regulations, rules, orders, by-laws, and ordinances or, collectively, as “subordinate or delegated
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legislation”. He then divides subsidiary laws into categories, including Orders-in-Council in the first category, which includes “laws made by the executive or by some body or person that is subject to some degree of control by the executive”. He says that, although it is not identical to a statute, “all subordinate legislation constitutes law”. Accordingly, to the extent that the Order- in-Council was within the authority granted in the over-arching legislation, its validity cannot be questioned: E.A. Driedger, The Construction of Statutes, Appendix IV, Subordinate Legislation, p.274-277. [70] It is clear that statutory authority may be conferred by subordinate legislation. In In the Matter of a Reference as to the Validity of Regulations in Relation to Chemicals, [1943] S.C.R. 1, Chief Justice Duff said: One observation of a general character remains. It is possible that in what has been said above it has not been sufficiently emphasized that every order in council, every regulation, every rule, every order, whether emanating immediately from His Excellency the Governor General in Council or from some subordinate agency, derives its legal force solely from the War Measures Act, or some other Act of Parliament. All such instruments derive their validity from the statute which creates the power, and not from the executive body by which they are made. (The Zamora [1916] 2 A.C. 77 at 90 … .) ... [75] Leases authorized by statute have also been recognized as providing statutory authority for nuisance: see Jagtoo v. 407 ETR concession Co., [1999] O.J. No. 4944 at para.30. ... [78] The first question is whether the statutory scheme authorized the construction of the North Runway in the location it occupies. There can be no doubt that it did. Order-in-Council 1992-1376, issued on 18 June 1992, attached a draft of the Ground Lease identical to the lease subsequently executed. The lease required the Authority to construct the North Runway as specified in the EARP report. The precise location and configuration of the North Runway is identified in the Ground Lease. The Order-in-Council was authorized by the Public Lands Grants Act, and by s. 4.2(o) of the Aeronautics Act. There is no suggestion that the Order- in-Council is invalid, or beyond the powers granted by the statute.
[105] The appellants argue the December 1, 2004 resolution is similar to the order-in-council in Sutherland C.A. because it was “within the authority granted in the overarching legislation”, being the GVTAA. I am unable to agree this aspect of Sutherland C.A. supports the appellants’ argument. The authorities in which the defence of statutory authority has succeeded have uniformly found that authority rooted in statutes or subordinate legislation. While these parts of Sutherland C.A. might appear to broaden the range of instruments that can provide statutory authority, a review of the decision as a whole clearly demonstrates the only reason the Court found the order-in-council provided statutory authority for the runway location was because it was the equivalent of subordinate legislation. Further, any statutory authority attributed to the lease in Sutherland C.A., or that in Jagtoo, the case mentioned by the Chief Justice, arose only because the lease in each case was incorporated by reference in the order-in-council.
[106] To accede to the appellants’ argument would unduly broaden this “narrow defence”. Crown corporations like TransLink, as well as many other statutory bodies, are typically authorized by their enacting statutes to conduct their business by resolution. If the exercise of that statutory
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power was alone sufficient to extinguish private common law rights and immunize those bodies from nuisance claims, an action in nuisance would only be available if the statutory body acted without jurisdiction. Hazel & Co. correctly points out the appellants’ position confuses the administrative law concepts of jurisdiction and statutory power with the defence of statutory authority.
[107] In short, nothing in the GVTAA, or in the form or substance of the December 1, 2004 resolution, supports the view the resolution provided express or implicit statutory authority to use cut and cover construction to build the Canada Line, thereby extinguishing Hazel & Co.’s common law right to bring this action for nuisance.
[108] Section 4(1)(e) of the GVTAA, however, did give TransLink statutory authority to build the Canada Line. It remains to consider whether the trial judge erred in finding the defence of statutory authority was not available to the appellants under that provision because bored tunnel construction was a viable alternative to cut and cover construction, and nuisance to Hazel & Co. was therefore not an inevitable result of exercising that authority.
b) Was nuisance an inevitable result of building the Canada Line with cut and cover construction?
[109] As explained earlier in these reasons, the trial judge’s initial and primary findings as to the viability of bored tunnel construction were made in his analysis on nuisance, which is set out at paragraph 44 of this decision. When he considered the defence of statutory authority, he did not discuss the alternative construction methods extensively, but simply reiterated his earlier conclusion, and found the defence must fail because bored tunnel was an alternative method of construction that would not have caused a nuisance in Cambie Village.
[110] The appellants first argue the trial judge erred in venturing to assess the viability of bored tunnel construction at all. They say in doing so he exceeded his jurisdiction and entered the realm of politics and policy, in essence putting himself in the role of selecting appropriate transit design. That was a matter reserved for TransLink, and was non-justiciable. Alternatively, the appellants argue the trial judge made a palpable and over-riding error in concluding bored tunnel construction presented a viable alternative to the cut and cover method.
[111] The appellants again rely on this Court’s decision in Sutherland C.A. to support their first argument, pointing to these parts of the Court’s reasons: [107] In this case, the location of the North Runway is specifically authorized by the Ground Lease and the airport certificate, and location was therefore not a justiciable issue. The decision as to where to locate the new runway involved many issues of public policy. The decision was made after receipt of the EARP report and lengthy public consultations and hearings concerning environmental impact of the project. Resulting noise was specifically considered in this process. Alternate locations were also considered. The choice of where best to locate the new runway was not a legal question. It was a “political” issue to be resolved through appropriate public procedures.
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... [112] The learned trial judge said (para. 293) that he was unable to find that there were no solutions to environmental concerns posed by the location of the North Runway elsewhere on Sea Island, or further to the west extending into Georgia Strait. With respect, these considerations were not relevant to the question before him, which was whether the noise nuisance was the inevitable result of building the North Runway where it was located. [113] The learned trial judge also said (paras. 281-282) that the nuisance was not inevitable because Canada could have purchased or expropriated the properties of those residents affected by the aircraft noise. In my respectful view, this was also an irrelevant consideration. …
[112] The Court concluded the trial judge erred in finding the nuisance from the third runway was not inevitable because there were other options for runway locations that would have caused less disruption to the plaintiffs. It said he should instead have limited his analysis to whether the noise was an inevitable result of the third runway in its authorized location. Since noise nuisance was an inevitable consequence of that location, the Court found Parliament must be taken to have authorized that nuisance.
[113] The appellants say cut and cover construction in this case is analogous to the runway in Sutherland C.A., and the trial judge here fell into the same error as the trial judge in that case.
[114] This argument ignores a significant distinction between the two cases. In Sutherland C.A., the runway location that caused the nuisance was expressly authorized by the statutory framework. Thus, there was no latitude for judicial consideration of other options that might have avoided the nuisance. Noise nuisance was an inevitable consequence of the statutorily authorized location. By contrast, the construction method of the Canada Line was not statutorily authorized. Instead, s. 4(1) of the GVTAA gave TransLink a broad discretion in deciding how to build it.
[115] I agree with Hazel & Co. that the statutory framework of the GVTAA is more in line with those considered in Metropolitan Asylum District v. Hill (1881), 6 A.C. 193 (H.L.) and City of Portage La Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150. In each of those cases, the governing legislation gave the statutory body broad authority, in Hill to build hospitals for small pox patients, and in Portage La Prairie to build and devise a sewerage system. The location of the hospital and the method of disposal, respectively, were, however, left to that body’s discretion. When a small pox hospital in one case, and effluent seepage in the other, created a nuisance for nearby residents, the defence of statutory authority was rejected because there were other hospital sites and disposal methods that would have avoided the nuisance.
[116] In my view, those cases demonstrate that, where nuisance arises from the exercise of a discretionary statutory power, the question of whether the nuisance was inevitable necessarily involves an examination of whether there were alternative non-nuisance means of carrying out the authorized activity. Both Viscount Dunedin’s classic statement of the defence of statutory authority in Manchester, and Justice Sopinka’s comments in Tock, adopted in Ryan, expressly endorse an
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examination of the “practical feasibility” of such alternatives in the analysis of inevitability. I am not persuaded a trial judge necessarily errs by examining political and policy issues if those matters had a bearing on a defendant’s discretionary selection of a nuisance-causing option over others. To exempt those matters from consideration would inappropriately curtail the inevitability analysis.
[117] I am satisfied the trial judge did not err in considering whether there were viable options to cut and cover construction in building the Canada Line.
[118] The appellants next argue the trial judge erred in finding bored tunnel construction presented a viable non-nuisance alternative, and that nuisance to Hazel & Co. was therefore not an inevitable result of building the Canada Line.
[119] I addressed this argument to a degree in the context of the trial judge’s analysis of the social utility of the Canada Line, and concluded his finding that bored tunnel construction was a viable alternative that would have accommodated the public interest was not supportable in that context. That is not determinative of the issue here, however, as the analysis of inevitability proceeds from a different perspective. The question in this context, as established in Manchester and Ryan, is whether there was a practically feasible option to cut and cover construction that would not have created a nuisance, given the scientific possibilities, the financial picture, and other relevant circumstances, viewed from a common sense perspective.
[120] The breadth of those considerations makes it evident the question of practical feasibility involves something more than mere technical feasibility of the options. In this case, I am satisfied the other relevant circumstances may properly include consideration of which option will best satisfy the objectives of the project, including increased mobility for citizens, decreased traffic congestion and pollution, and preservation of the Cambie Heritage Boulevard.
[121] Here, for the reasons introduced at paragraph 64 of this decision, I am persuaded the trial judge erred in limiting his analysis of the alternatives to the construction methods alone. Bored tunnel and cut and cover construction were not interchangeable items in a construction contract. Rather, they were just one component of the comprehensive proposals of SNC-Lavalin/Serco and RAVxpress. The framework established by CLRT and TransLink to consider those proposals was a formal competitive procurement process, overseen by a fairness auditor. At each stage, the proponents’ bids had to be evaluated as presented. It was not open to the appellants to deviate from that process and suggest, for example, that SNC-Lavalin/Serco revise its proposal to substitute bored tunnel construction for cut and cover construction in Cambie Village before the preferred proponent was selected. Thus, a proper examination of the practical feasibility of alternatives has to consider each proposal as a whole.
[122] Further, the trial judge’s finding that bored tunnel was a viable alternative means of constructing the Canada Line in Cambie Village was based solely on the fact the appellants
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invited RAVxpress to submit a final offer at the BAFO stage. That conclusion similarly ignores the terms of the formal procurement process that governed the selection of the preferred proponent. That process was designed to foster competition and innovation, and expressly contemplated the selection of two proponents if CLRT moved to the BAFO stage. I cannot agree the invitation to RAVxpress to submit a proposal can alone establish the viability of its response to that invitation. Such a finding could only be made after examining the proposals that were received.
[123] The CLRT evaluations show the SNC-Lavalin/Serco proposals were heavily favoured at both the RFP and BAFO stages for a variety of reasons. The prospect of cut and cover construction in Cambie Village was unquestionably one of these, in part because it was less expensive. The trial judge correctly found the lower cost of SNC-Lavalin/Serco’s proposal was a major consideration. Public funding remained at $1.35 billion. The final Evaluation Committee Report estimated the SNC-Lavalin/Serco proposal required $1.443 billion in public funding, while that of RAVxpress required $2.008 billion, a difference of $565 million. (There was no clear evidence as to what the cost of each construction method was, or how much of the disparity in cost was attributable to this feature.)
[124] Ms. Bird’s unchallenged evidence was the public sector funding cap made acceptance of the RAVxpress proposal “utterly impossible”. Moreover, the record shows even the financial feasibility of the SNC-Lavalin/Serco proposal was uncertain at the conclusion of the evaluation process in November 2004. CLRT’s BAFO Stage Funding Report stated SNC-Lavalin/Serco’s proposal had a $343 million shortfall, and concluded it was unaffordable as defined. As a result, the formal selection of SNC-Lavalin/Serco as the preferred proponent by TransLink had to be delayed for several weeks until the participants were able to identify scope changes and funding initiatives to eliminate the shortfall.
[125] In addressing the comparative financial costs of the proposals, I acknowledge that the Supreme Court in Ryan, at para. 55, approved the view the mere fact one option is considerably less expensive will not be sufficient to negative a non-nuisance alternative. In my respectful view, however, the common sense approach advocated in Manchester suggests there must be some point at which a strong evidentiary record of significant financial disparity that demonstrates one option is practically impossible, becomes a legitimate consideration in determining the practical feasibility of alternatives. The decision in Smiley v. Ottawa, [1941] O.R. 47, [1941] 2 D.L.R. 390 (C.A.), offers support for that approach. There, Riddell J.A. was of the view that greater expense is no excuse unless the greater expense is “practically prohibitive”.
[126] In my view, this is such a case. The RAVxpress option required over half a billion dollars more in public funding than that of SNC-Lavalin/Serco. It was deemed “impossible” by the chief executive officer of CLRT. There was no evidence suggesting that assessment was wrong. In my view, this large and insurmountable shortfall in public funding cannot be ignored in weighing the practical feasibility of the options.
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[127] I am satisfied SNC-Lavalin/Serco’s assumption of significant risks that would have been borne by the public sector under the RAVxpress proposal is also a legitimate consideration in assessing the practical feasibility of the options. SNC-Lavalin/Serco was prepared to shoulder responsibility for all geotechnical risk including changed ground conditions, which Mr. Eastman, CLRT’s technical director, described as one of the biggest tunnelling risks. The Technical Evaluation Committee valued this assumption of risk at about $215 million in comparing the proposals.
[128] The scheduling risks of each proposal also presented practical concerns as to their feasibility. The Canada Line had to be built within a tight time frame. Provincial and federal funding was contingent on completing it by November 2009, in time for the 2010 Vancouver Olympics. By mid-November 2004, the target completion date of May 2009 in the RFP had already slid to November 30, 2009. The CLRT evaluation of BAFO submissions reported RAVxpress had less ability to accommodate delays, while the SNC-Lavalin/Serco schedule had more detail and flexibility. In particular, in the event of equipment breakdown, cut and cover construction could continue at other sites, while construction in a bored tunnel had to halt until the problem could be fixed.
[129] The cut and cover construction proposed by SNC-Lavalin/Serco better served the Canada Line objectives of reducing vehicular traffic and pollution by projecting higher ridership. Its shallower tunnels made the stations more accessible and thus more attractive to users, particularly at Broadway, which was a central transportation hub. The urban fit it proposed in Richmond also favoured higher ridership.
[130] As noted by the trial judge, only the SNC-Lavalin/Serco proposal served the objective of saving the Cambie Heritage Boulevard and its mature ornamental trees. This area had been declared a heritage landscape in 1993, and was the object of significant public concern when it was decided the Canada Line would be built down the Cambie corridor.
[131] Other findings of the Technical Evaluation Committee shed doubt on the feasibility of proceeding with the RAVxpress proposal. It had more omissions and risks, and numerous errors and inconsistencies with respect to the design of below grade stations. It was concerned that if RAVxpress was selected, CLRT would need assurance that corrections would not lead to increased prices. As well, SNC-Lavalin/Serco was viewed as superior in terms of safety, urban fit, and integration, and CLRT had greater confidence in its governance and other aspects of its proposal.
[132] In short, SNC-Lavalin/Serco was favoured at each step of the process. It was described as the most responsive and innovative contender. Four of CLRT’s five evaluation committees at the BAFO stage ranked it first. Its selection as preferred proponent by CLRT and TransLink was unanimous.
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[133] I conclude the trial judge’s limited analysis led to error in finding bored tunnel construction presented a viable alternative to cut and cover construction. A proper analysis of the alternatives facing the appellants required a broader approach. When the differences between the proposals are fully considered, it is evident the significantly lower cost and reduced risks of the SNC-Lavalin/Serco’s proposal, as well as its greater compatibility with the objectives of the Canada Line, made it the only practically feasible option for constructing the Line.
[134] Justice Sopinka’s decision in Tock, adopted by the Court in Ryan, states that if only one method is practically feasible, the defendant must then establish it was practically impossible to avoid nuisance using that method. Here, it was clear cut and cover construction could not be executed without significant disturbance to Hazel & Co. The trial judge’s finding that this disturbance constituted nuisance stands. Nuisance was thus an inevitable result of proceeding with the only practically feasible method of constructing the Canada Line.
[135] That is sufficient to establish the defence of statutory authority and I would allow the appeal on that basis. Before concluding this part of the analysis, however, I wish to address the analysis that would have been required had I upheld the trial judge’s finding that bored tunnel presented a viable alternative to cut and cover construction, and it became necessary to examine his finding that bored tunnel construction represented a non-nuisance alternative. For the following reasons, it is my view that the trial judge erred in reaching that conclusion by examining the impact of bored tunnel construction on Hazel & Co. alone. In the unique circumstances of this case, the nuisance- causing potential of the available options had to be considered more broadly.
[136] In his Case Comment on Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, (1990) 69 Can. Bar Rev. 589, Professor Hogg at 594 used this prescient hypothetical in criticizing the judgment of Wilson J.: ... it is easy to imagine a statute that, while conferring a discretion as to manner and location, still cannot be exercised without interfering with private rights. For example, the construction of a subway system in a metropolitan area would inevitably cause a nuisance to the residents of properties adjoining the selected route. According to Wilson J., the defence of statutory authority would be available only if the legislation authorizing the construction of the subway stipulated the route. If the legislation left the selection of the route to a transit authority, no defence would be available. But the nuisance to adjoining residents is as inevitable in the latter case as in the former. Surely, the legislation must be taken to authorize the commission of the nuisance in both cases.
[137] This hypothetical demonstrates the importance of considering the nuisance-causing potential of the options broadly in the inevitability analysis. If one substitutes “construction method” for “route”, it mirrors the reality of this case. The evidence established major disruption was anticipated for many residents, businesses, and other citizens along the Canada Line during construction, regardless of the method used.
[138] The 19.5 kilometre Canada Line was to be built through some of the most densely
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populated areas in the Lower Mainland. A significant portion was to run under Cambie Street, which was designated a part of the “major road network” in the Greater Vancouver Transportation Authority, by-law 01-1998, GVTA Major Road Network Bylaw, (11 December 1998), pursuant to s. 18 of the GVTAA, which deals with major road networks in the GVRD. The Cambie corridor was chosen because of its high population base, derived from institutional, retail, and residential occupants, including two major hospitals, Langara College, business and medical districts, major shopping centres, and numerous residential areas. CLRT’s Project Definition Report in February 2003 described the area as one of the busiest in the region, home to one third of the region’s employment and twenty percent of its population. Disruption to a multitude of businesses and residents along the 19.5 kilometre line during construction was thus inevitable, regardless of the construction method used.
[139] While bored tunnel construction would have caused less disturbance in Cambie Village, it would have created significant disruption in other densely populated areas. It required a large construction site and tunnel access shaft to launch the tunnel-boring machine on Cambie Street between Broadway and 10th Avenue, necessitating traffic closures for up to two years at that site. The evidence described Broadway as one of the busiest transit corridors in the region, with 50,000 users daily, and described the central Broadway area between False Creek and 12th Avenue as the second highest employment centre in the region after downtown Vancouver. The Broadway station was designed to serve a precinct with over 60,000 jobs.
[140] Bored tunnel construction also required a large construction site for tunnel entry at Broadway and 37th Avenue, as well as an exit shaft at 19th Avenue.
[141] As well, both construction methods contemplated significant disruption at many locations along the line, including each station site. In downtown Vancouver, cut and cover construction was used along Granville Street, and the main arteries of Davie and Granville Streets had to be closed at the station sites for over two years.
[142] In short, the Canada Line could not be built without significant disturbance to many citizens’ use and enjoyment of their property. The impact of construction would be greater at Broadway if the bored tunnel method was used, and more significant in Cambie Village with cut and cover construction.
[143] It is impossible to now conduct a speculative and nuanced assessment of the four nuisance factors and determine whether the nature, severity, and duration of harm arising from bored tunnel construction would have actually created a nuisance in other locations. Nevertheless, at the time the appellants had to decide which proposal to accept, I am persuaded it is fair to say the nuisance-causing potential of both construction methods was comparable.
[144] The trial judge rejected the defence of statutory authority because he found the option of
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bored tunnel would have avoided nuisance to Hazel & Co. That finding, however, had the effect of simply transferring the nuisance-causing potential to other parties at other locations. In my view, in the circumstances of this case an option that only relocates the disturbance is not a non-nuisance alternative, and should not operate to defeat the defence of statutory authority.
[145] While s. 4(1)(e) of the GVTAA left the construction method for the Canada Line to TransLink’s discretion, that discretion could not be exercised without significant disruption to many citizens’ use and enjoyment of their property, regardless of the construction method chosen. TransLink’s choice to proceed with the SNC-Lavalin/Serco proposal and cut and cover construction did not transform the RAVxpress option into a non-nuisance alternative simply because it would not have disturbed Hazel & Co. In effect, s. 4(1)(e) of the GVTAA provided statutory authority for the inevitable nuisance that would arise in the course of building rapid transit in this heavily- populated urban area.
[146] I accordingly conclude the appellants have satisfied the burden on them to establish the defence of statutory authority. Section 4(1)(e) of the GVTAA provided statutory authority to build the Canada Line. Nuisance was an inevitable result of exercising that authority because there was no practically feasible alternative to the SNC-Lavalin/Serco proposal, which included cut and cover construction, and, in any event, because there was no construction method that provided a non-nuisance alternative in building the Canada Line.
[147] I would therefore allow the appeal and set aside the award of damages to Hazel & Co.
[148] That is sufficient to dispose of this appeal. Given the amount of time spent on the remaining arguments, however, and the possibility this case may go further, I intend to deal with the balance of the issues in the event the comments of this Court may be helpful.
4) Does the defence of statutory authority arise from the City’s authority to regulate traffic under the Vancouver Charter?
[149] This issue revives the importance of defining the nuisance pleaded and established by Hazel & Co., as set out at paragraph 47 of this decision. The source of the nuisance was cut and cover construction, and the traffic disruptions in the construction zone required by that construction method cannot be separated from it.
[150] The City’s powers under the Vancouver Charter to regulate vehicular and pedestrian traffic were set out earlier at paragraphs 54-55. They clearly provide statutory authorization for the traffic closures and disruptions required by the cut and cover construction zone in Cambie Village. The trial judge held those powers might provide a defence to the City, but found the appellants could not avail themselves of that defence since they were using City streets under licence for their own commercial purposes.
[151] I agree with the appellants the trial judge erred in finding they were not in the same position
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as the City with respect to the statutory authority provided by the Vancouver Charter. In Sutherland C.A. at paras. 86-87 the Court rejected the plaintiffs’ argument the Airport Authority could not avail itself of the defence of statutory authority because there was no agency relationship or factual connection giving it status under the relevant legislative framework. The Court found the critical feature is what the statutory scheme authorized, not who is authorized, and concluded the defence of statutory authority could be open to private parties.
[152] I also accept the appellants’ argument that the statutory and contractual scheme comprised of the VAA, s. 17 of the Municipalities Enabling and Validating Act (No. 3), S.B.C. 2001, c. 44, and the Concession Agreement gave them statutory authority to make those traffic changes. The combined effect of those provisions confirmed the right of TransLink and InTransit BC to construct, operate and maintain the Canada Line infrastructure on city streets and lands, and to use those streets and lands, for temporary construction access. They also authorized them to implement traffic management plans during construction, as overseen by the City’s General Manager of Engineering Services. I conclude the Vancouver Charter provided the appellants with statutory authority to impose the street closures in the cut and cover construction zone. It did not, however, authorize the use of cut and cover construction itself.
[153] The issue then arises as to whether those traffic changes, which were dictated by cut and cover construction, were inevitable, or if the traffic changes that would have been necessitated by bored tunnel construction presented a viable alternative. This leads to the same analysis conducted in the preceding section of these reasons as to whether bored tunnel construction was a practically feasible alternative, with the same result: that method was not a viable alternative.
[154] The defence of statutory authority is therefore also available under the legislative framework of the Vancouver Charter or the combined effect of the provisions mentioned above.
5) Does the defence of statutory authority arise from the EAC?
[155] While the appellants obtained both federal and provincial environmental assessment certificates, at trial and on appeal they relied only on the provincial EAC to advance the defence of statutory authority. The trial judge did not accept the EAC provided a basis for that defence. He stated: [199] The Regulation prescribes a wide variety of projects that are reviewable and in what circumstances. The logical conclusion to the defendants’ argument is that a favourable environmental assessment confers on any proponent, whether private or public, and regardless of the project, the ability to select among alternative designs for a project, one of which has nuisance consequences and the other not, obtain a favourable environmental assessment, and then to proceed without concern or accountability for any nuisance occasioned by the construction or operation of the project. With respect, that is not protection that the EAA can provide, nor the kind of statutory authority to which the defence asserted by the defendants applies. [200] A wide range of federal, provincial and municipal legislation, including statutes, regulations, and bylaws, stipulates that a permit must be obtained as a pre-condition to the commencement of an undertaking or the performance of an act. A certificate issued under the
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EAA is no different. While each permit is a form of statutory authorization, it is not the kind of statutory authority with which the defence is concerned. The relevant statutory authority is that which has been conferred to undertake and fulfil a specific responsibility, invariably in the public, as opposed to private, interest. The defence does not extend to anyone who has obtained the permits required in the course of carrying out the undertaking. [201] The fact that the EAA certificate should not afford protection to the defendants is apparent from the process itself. In this case, the provincial environmental assessment was not mandatory. Rather, CLRT opted into the process. CLRT first applied for approval on the assumption that bored tunnel construction would be pursued on Cambie Street. Bored tunnel construction was also contemplated for the portion of the route from Waterfront Station to 2nd Avenue. The EAO did not materially object to any aspect of the original proposal. While the EAO did approve cut and cover construction, it did not oblige CLRT to pursue that method of construction in the vicinity of Cambie Village. There is no evidence to suggest that use of the bored tunnel method in the Cambie Village area would have been opposed by the EAO. [202] The proposal to pursue cut and cover rather than bored tunnel construction resulted solely from a decision made by CLRT. I must conclude that CLRT chose one environmentally acceptable course over another. The choice resulted in the abandonment of a plan that would not have caused a nuisance, and the adoption of another that would.
[156] The appellants, supported by the Attorney General as intervenor, say those findings cannot be sustained. They say the trial judge’s characterization of the EAC as a permit is not supported by any authority, and argue an EAC is both quantitatively and qualitatively different from other permits as it involves a wide inquiry into competing interests on policy grounds. As well, it is pivotal to a project as no other government approval can be obtained until an EAC is in place. They point out the environmental assessment of the Canada Line considered the adverse impact of cut and cover construction on merchants like Hazel & Co. and the Ministers nevertheless determined it was in the public interest to proceed in that manner. They maintain the EAC specifically approved cut and cover construction and thus constituted statutory authority to use that method, despite any adverse consequences. The appellants say the EAC thus clearly extinguished any claim for nuisance resulting from cut and cover construction.
[157] In its argument, the Attorney General points to what it maintains are the advantages to the EAA process. It says by permitting public consultation before the undertaking begins, it allows proponents of major projects to learn their risks and potential costs in advance. It argues balancing the competing public and private interests at stake in major public undertakings is a political matter, best accomplished by broad regulatory reviews conducted by politically accountable officials, instead of a judge who examines the issues through the narrow lens of a private action in nuisance. The Attorney General says the EAA provides such a regulatory review, and the resulting EAC clearly attracts the defence of statutory authority. Once an EAC is granted, it must provide a defence to the proponent from liability for nuisance. To find otherwise would deter proponents from undertaking large projects of significant public benefit by leaving them open to multiple nuisance suits. Those who object to the project are not left without a remedy, as the options of judicial review, or an action in negligence if the undertaking is not performed with appropriate care, remain open.
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[158] Those arguments fail to persuade me that there is anything in the legislative scheme of the EAA, or in the EAC issued under its provisions, demonstrating an intent to remove a common law right of action or to provide authority to the holder of an EAC to create a nuisance.
[159] Justice La Forest, writing for the majority in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, described the genesis of environmental assessment legislation at 16-18: The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures. In Canada, both the federal and provincial governments have established Departments of the Environment, which have been in place for about 20 years. More recently, however, it was realized that a department of the environment was one among many other departments, many of which pursued policies that came into conflict with its goals. Accordingly at the federal level steps were taken to give a central role to that department, and to expand the role of other government departments and agencies so as to ensure that they took account of environmental concerns in taking decisions that could have an environmental impact. ... In general terms, these guidelines require all federal departments and agencies that have a decision-making authority for any proposal, i.e., any initiative, undertaking or activity that may have an environmental effect on an area of federal responsibility, to initially screen such proposal to determine whether it may give rise to any potentially adverse environmental effects. If a proposal could have a significant adverse effect on the environment, provision is made for public review by an environmental assessment panel whose members must be unbiased, free of political influence and possessed of special knowledge and experience relevant to the technical, environmental and social effects of the proposal.
[160] Those objectives are reflected in the EAA as well. A review under that legislation is directed at determining whether a project will have adverse environmental, economic, social, heritage or health effects, taking into account practical means of preventing them or reducing them to an acceptable level (s. 10(1)). Regulations made under the EAA dictate what projects will be reviewable. As well, a proponent of a project that would ordinarily be exempt from review may apply under s. 7 for reviewable project designation. Once designated for review, the proponent is subject to the restrictions in ss. 8 and 9 of the EAA, which provide: 8 (1) Despite any other enactment, a person must not (a) undertake or carry on any activity that is a reviewable project, or (b) construct, operate, modify, dismantle or abandon all or part of the facilities of a reviewable project, unless (c) the person first obtains an environmental assessment certificate for the project, or (d) the executive director, under section 10 (1) (b), has determined that an environmental assessment certificate is not required for the project. (2) Despite any other enactment, if an environmental assessment certificate has been issued for a reviewable project, a person must not (a) undertake or carry on an activity that is authorized by the certificate, or (b) construct, operate, modify, dismantle or abandon all or part of the project facilities
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that are authorized by the certificate, except in accordance with the certificate.
9 (1) Despite any other enactment, a minister who administers another enactment, or an employee or agent of the government or of a municipality or regional district, must not issue an approval under another enactment for a person to (a) undertake or carry on an activity that is a reviewable project, or (b) construct, operate, modify, dismantle or abandon all or part of the facilities of a reviewable project, unless satisfied that (c) the person has a valid environmental assessment certificate for the reviewable project, or (d) there is in effect a determination under section 10 (1) (b) that an environmental assessment certificate is not required for the project. (2) Despite any other enactment, an approval under another enactment is without effect if it is issued contrary to subsection (1).
[161] The assessment leading to certification is broadly discretionary. While the regulations make review mandatory for some projects, the Minister and executive director have wide discretion to designate other projects as reviewable (ss. 5, 6, 7). As well, both have wide latitude to determine the scope, procedures and methods of assessment. There are no statutory parameters to provide guidance (ss. 11, 13, 14).
[162] In the judicial review brought by the Do RAV Right Coalition in the Supreme Court, Bauman J. summarized the process in these terms: [32] First, it contemplates the assessment of works and activities which may have significant adverse environmental, economic, social, heritage or health effects. [33] Second, the process contemplates an ad hoc régime for public notice, access to information and consultation, tailored for each assessment by a person with broad discretionary authority which, in turn, is loosely guided by the Regulation. [34] Third, at the end of the process, a political, policy-driven decision is made by elected Ministers of the Crown; they are given a very broad discretion to consider the issue: they may consider “any other matters that they consider relevant to the public interest in making their decision on the application”. [35] The environmental assessment process is not, in substance, one engaged in resolving a dispute between a project proponent and affected individuals. It is, on the contrary, one which assesses a project in the context of its broad impacts on society, weighs the efficacy of mitigative measures, and authorizes a project to proceed if it is in the public interest to do so. [36] In the language of the cases, the process is highly polycentric, not bipolar.
[163] The environmental assessment is thus primarily an information-gathering process, directed at considering whether major projects are in the public interest, and ensuring co-ordination of government objectives and policies in mounting such projects. It is highly discretionary and broadly based, and addresses competing interests and concerns at a “macro” level. It does not focus on individual interests or disputes. As the Attorney General points out, it may alert
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proponents of the project to their potential risks and costs, but I see nothing in the legislation or the process that suggests it is intended to protect those parties from later claims in nuisance.
[164] As summarized earlier, the environmental assessment in this case was extensive and wide ranging. It began with a submission based on bored tunnel excavation, which was replaced by a supplemental application when TransLink approved the SNC-Lavalin/Serco proposal that included cut and cover construction. It involved public consultation with Ms. Heyes and other merchants. When the assessment was referred to the responsible Ministers for a certificate, they directed additional public consultation with specific reference to the impact of cut and cover construction along Cambie Street. Ultimately, the EAO concluded “practical means have been identified to prevent or reduce to an acceptable level any significant potential adverse effects” on the Cambie merchants, and the Ministers granted the EAC on August 8, 2005. The EAC authorized the Canada Line to proceed on certain conditions, one of which was that it be built in accordance with the specifications in the supplementary application, which specified cut and cover construction on Cambie Street.
[165] Both parties rely on earlier decisions to support their positions. The appellants again raise Sutherland C.A., and draw a parallel between cut and cover construction and the third runway in that case. They say in Sutherland C.A. the EARP designated the location of the third runway, and the Court found an airport certificate granted pursuant to regulations under the Aeronautics Act statutorily authorized its operation. They maintain the EAC here similarly provided statutory authority for cut and cover construction.
[166] I am unable to agree. First, the defendants in that case did not rely on the EARP as statutory authority. Second, while the Court found the legal effect of the certificate was to authorize the operation of the airport, including that runway, that finding was based on s. 302.03(1) of the Canadian Aviation Regulations, SOR/96-433, which expressly stated the certificate had the effect of “authorizing the applicant to operate an aerodrome as an airport”. There is no similar legislative provision addressing the effect of an EAC.
[167] Hazel & Co. relies on two authorities. The first, St. Lawrence Cement Inc., involved a class action brought against the owner of a cement plant, the location and operation of which was authorized by the SLC Special Act of the Quebec legislature, which caused a nuisance to its neighbours. The main issue before the Court dealt with the no-fault liability regime under the Civil Code of Quebec. However, the defendant also argued it could avail itself of the defence of statutory authority as the special statute expressly authorized the location and operation of the plant. The Court rejected that argument at para. 98 on the basis that “there is no provision in the SLC Special Act precise enough to justify a conclusion that the law of civil liability has been excluded for all consequences of the plant’s activities”. Hazel & Co. says this decision establishes that statutory authority for nuisance must be express and precise, and an EAC issued under the EAA does not meet those requirements.
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[168] I am not persuaded the Supreme Court has narrowed the defence of statutory authority to that extent. The St. Lawrence case arose in the context of the Civil Code of Quebec, and the Court devoted only two paragraphs to the issue of nuisance and the defence of statutory authority. I am unable to accept the Court intended this brief treatment to create a significant departure from its earlier decisions dealing with that defence.
[169] Hazel & Co. also points to the decision of the Supreme Court in Portage La Prairie. As discussed earlier, the Court found the City’s Charter did not provide statutory authority to operate a sewage lagoon that seeped effluent onto adjacent property. Relevant to present purposes, the Court also rejected the City’s argument that regulations under the Public Health Act, requiring it to obtain a Minister’s certificate of approval before constructing the lagoon, provided statutory authority. Martland J. stated at 155: The same applies to the regulations made pursuant to The Public Health Act, R.S.M. 1954, c. 211. In brief, these regulations require a municipality contemplating the construction of a sewage disposal or treatment system to submit plans, specifications and other material to the Minister, and prohibit such construction without his certificate that such construction may be carried out. These provisions do not add to the appellant's statutory powers, but make their exercise conditional upon this required procedure being followed.
[170] Hazel & Co. says this supports the trial judge’s finding the EAC was simply a permit that had to be obtained as a precondition to beginning the undertaking, and did not provide statutory authority for cut and cover construction. There is some support for this view in that, to the extent nomenclature is instructive, CLRT’s documents, including the RFP, the invitation to submit a BAFO, and the Concession Agreement, all dealt with the EAC under the heading “Permits” or “Permits and Approvals”.
[171] I nevertheless conclude these authorities offer limited assistance as each is dependent on its own legislative framework.
[172] The central question is whether the EAA, or the EAC issued under its provisions, provided statutory authority for cut and cover construction. In Sutherland C.A., Chief Justice Finch expressed the test in these terms: [118] …I understand that the onus is upon the defendant asserting the defence to establish clear and unambiguous statutory authority for the work, activity or conduct complained of, in the place where that work, activity or conduct takes place, and express or implied authority to cause a nuisance as the only reasonable inference from the statutory scheme.
[173] In my view, the appellants have not met that onus with respect to the EAC. There is nothing in the EAA, the environmental assessment process, or the EAC that would support such an inference. While the EAO who conducted the assessment concluded means had been devised to prevent or reduce adverse effects of construction on merchants such as Hazel & Co., there is nothing to suggest that, if Hazel & Co. found those means were inadequate, it was precluded from bringing an action for nuisance.
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[174] I conclude the trial judge correctly found the EAC did not provide a basis for the defence of statutory authority.
CONCLUSION
[175] I would allow the appeal on the basis that, while Hazel & Co. established nuisance, the defence of statutory authority is available to the appellants. I would accordingly set aside the award of damages and dismiss the claim of Hazel & Co.
“The Honourable Madam Justice Neilson”
I AGREE:
“The Honourable Madam Justice Prowse”
Reasons for Judgment of the Honourable Madam Justice Saunders:
[176] I have had the privilege of reading the draft reasons for judgment of Madam Justice Neilson, and agree with her that the defence of statutory authority precludes recovery by Hazel & Co. of its losses suffered during the construction of the Canada Line, in the event the activities of the appellants can be characterized in law as a nuisance. However, in my view this latter question is less clear because, only, of the right of access issue and the legal authority of the City of Vancouver to stop up any street or portion, as well as to regulate access to property, and to close a street or portion of it. The power of the City to control the traffic on streets is provided by ss. 291 and 317.(1) of the Vancouver Charter and s. 86 of the City of Vancouver by-law No. 2849, Street and Traffic By-law (30 October 1994) replicated in Madam Justice Neilson’s reasons for judgment at paras. 54 and 55.
[177] Construction of the Canada Line presented the City of Vancouver with a difficult question concerning competing short term uses of public land – most significantly Cambie Street, although side streets were also impacted by the construction of the Canada Line. The Legislature has chosen, through the above sections of the Vancouver Charter, to give the City of Vancouver the power to determine the degree of vehicular and pedestrian traffic on those streets. In this case the City altered the traffic pattern through means that are not challenged. The City then permitted the appellants to use the street property for construction of this major transportation project. While it is true that the City would not have made these changes but for the project, it is likewise true the appellants could not have engaged in their construction activity without the City altering the public’s right to use the streets.
[178] The law of nuisance is not well defined for this circumstance. The jurisprudence marks the tort by reference to harm, rather than conduct: St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392 at para. 77 replicated in my colleague’s reasons at para. 36. In nuisance
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cases, causation is not usually a focus and cases generally proceed from the premise that the interference complained of caused the harm, and the defendant caused that interference, as for example in Sutherland v. Canada (Attorney General), 2002 BCCA 416, 215 D.L.R. (4th) 1, leave to appeal ref’d [2002] S.C.C.A. No. 385, wherein the nuisance alleged, noise, clearly emanated from the activities of the alleged tortfeasor and was the source of the complaint.
[179] In this case Mr. Justice Pitfield found Hazel & Co.’s drop in customer traffic was caused by the cut and cover method of construction pursued by the appellants. If this causal connection is sound, it seems to me on the authority of Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, that the finding of nuisance cannot be challenged because there was evidence supporting the judge’s findings of fact relating to the four factors derived from St. Lawrence Cement Inc.
[180] This approach, however, seems to be a shifting of responsibility for access from the City to parties who only have use of the street through the permission given by the City.
[181] The question of the legal consequences of altering rights of way and public access is important. While it seems, perhaps, harsh that a person or business may lose accustomed access or traffic, an urban dweller will be well familiar with traffic changes effected by the City, both major and minor, permanent and temporary. The creation of the former Granville Street mall and recent bicycle lanes, full and partial street stoppages to facilitate construction projects, and permanent street closures intended to enhance neighbourhoods or simply to divert traffic to another corridor, are all within the experience of the City and its citizens, and are properly the subject of public discourse.
[182] It is not clear to me that there was the sort of right here as would support a claim in nuisance based on interference with access. Indeed the claim appears more as one sounding in injurious affection. However a claim for injurious affection could not be advanced in this case because the necessary statutory framework for such is not present.
[183] Nor is it clear to me that the law of nuisance renders a party that has received advantage from a street closure or traffic change liable for the losses that a closure may cause others. Notwithstanding these considerations, however, I prefer to rest my decision on the defence of statutory authority as developed by my colleague, and therefore to dispose of the case as she proposes.
“The Honourable Madam Justice Saunders”
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