CANADA LINE CLASS ACTION
UPDATED February 23, 2016
Notice and Claim Forms
On February 3, 2016, the Supreme Court of British Columbia (the "Court") approved a form of Notice to be issued to Class members of the Court's determination on November 6, 2015 of the common issues in the class action against the Canada Line Rapid Transit Inc., InTransit B.C. Limited Partnership, InTransit British Columbia G.P. Ltd., SNC-Lavalin Inc. and The South Coast British Columbia Transportation Authority, concerning the construction of the Canada Line Rapid Transit Project in Cambie Village, and the compensation Class members may claim as a result of that construction. A copy of the Notice can be seen by clicking on the link below or under "Documents" on this page.
As set out in the Notice, the Court's decision on the common issues means that the Defendants are not liable to the Class members for business losses the Class members may have suffered as a result of the construction of the Canada Line in Cambie Village. However, the Court did determine that Class members have the right to pursue a claim for compensation for injurious affection to the rental value of the property they owned or occupied.
The Court also ordered on February 3, 2016 that in order for Class members to claim compensation for the impact of the construction of the Canada Line upon the rental value of the property they owned or occupied, Class members must submit a Notice of Claim (Property Owners) or a Notice of claim (Business Tenants) form, as applicable, to Class Counsel by May 31, 2016. Copies of these Notice of Claim forms are available by clicking on the links below and also under "Documents" on this page.
A completed Notice of Claim must be delivered to our offices, either in person, by mail, fax or e-mail at:
1400 – 128 West Pender Street
Vancouver, BC V6B 1R8
Fax: (604) 639-3681
Trial Court Decision
On November 6, 2015, Mr. Justice Grauer issued Reasons for Judgment on the common issues in the Canada Line class action: Gautam v Canada Line Rapid Transit Inc., 2015 BCSC 2038. Justice Grauer found that there had been substantial interference with the use and enjoyment of properties in Cambie Village for business purposes caused by the construction of the Canada Line, but that there was statutory authority for any nuisance created by that interference which absolves the Defendants from any liability for nuisance. This result follows the conclusions previously reached but the B.C. Court of Appeal in Heyes v South Coast BC Transportation Authority, 2011 BCCA 77. However, Justice Grauer found that class members are entitled to claim damages for injurious affection for the loss in value to their properties or leasehold interest during the construction.
Class counsel are currently considering the implications of the decision and will issue a further update once we have concluded doing so.
Completion of the Canada Line Class Action Common Issues Trial
Over four days last week (March 30 – April 2), the Honourable Mr. Justice Grauer, the judge hearing this case, heard oral argument from Class counsel, Hordo Bennett Mounteer LLP, and counsel for the Defendants. Prior to the four day hearing, the parties exchanged extensive written submissions which were provided to the judge. The purpose of this final portion of the trial was for counsel to summarize for the judge the evidence previously heard at the trial in November, December and January and to make argument about the legal significance of that evidence.
At the conclusion of the four day hearing, the judge "reserved" his judgment. This means that the judge's decision will not be released right now. It is quite common, especially in complex cases like this one, for judges to reserve their decision in order to give them an opportunity to consider on their own the arguments made by counsel and to compose written Reasons for Judgment. The amount of time required by a judge to reach their decision can vary. Generally, a judge will release their decision within 3-6 months after the conclusion of a trial. However, there is no mandatory timeline by which a judge must release their decision.
Once the judge releases his decision for this case, we will review the court's decision and let you know about the result and explain the significance of the result to Class members.
All Class members, individuals who owned a business or property in the Cambie Village during the Canada Line construction (2005-2009), should continue to hold on to any business records which may assist in showing any losses they may have suffered. These records will be needed in the event that the judge decides the case in favour of the Class.
We would like to take this opportunity to thank everyone who assisted us with this trial, including in particular the Cambie Village Business Association (Rania Hatz) and the following individuals who volunteered their time to testify at the trial in support of the Class action:
Leonard Schein (Park Theatre)
Gary Gautam (Cambie General Store)
Barbara Rasmussen (Sofa So Good)
Dale Dubberley (Thai Away Home)
Glen Gillis (Canadian Tire)
Justin Horn (Paradigm Kitchen Design)
Kelvin Lum (White Spot Ltd)
Moha Bateni (Authentic Art And Rugs)
Ed Gackley (Original Joe's)
Doug King (3010 Cambie Street and 472 W. 15th)
Don Watters (on behalf of Brian Wood)
Additional Trial Dates
On October 8, 2014, the Trial Management Conference for this proceeding occurred before the Honourable Mr. Justice Grauer. At the Trial Management Conference it was decided that, in order to fully accommodate all of the witnesses required for the trial as well as to ensure sufficient time for legal argument, further trial dates should be secured in addition to the already-scheduled trial dates from November 24 to December 12, 2014. Accordingly, the following seven additional days have been added to the existing trial schedule:
January 20-22, 2015
March 30 - April 2, 2015
The new January 2015 dates shall be used for the testimony of Ms. Jane Bird, the former CEO of Canada Line Rapid Transit Inc. The new dates at the end of March and early April shall be used for legal argument.
Class Counsel provide update to Class members at Cambie Village Business Association AGM
On September 24, 2014 Class counsel attended the Cambie Village Business Association's Annual General Meeting to provide an update on what is happening with the Class Action. Key points from the presentation included:
Class membership is now fixed. All individuals included in the Class definition who did not opt-out of the Class Action during the opt-out period are automatically included in the case and will have their claims determined at the Common Issues Trial.
The Common Issues Trial is proceeding on November 24, 2014 and occurring over three weeks at the Vancouver courthouse. The Common Issues Trial will determine whether the Defendants are liable to the Class. The Common Issues Trial is open to the public.
If the Class is successful at the Common Issues Trial and the Defendants are required to pay compensation to the Class, a process will be created by which each Class member will be able to come forward and make a claim for compensation.
An electronic copy of the presentation made at the AGM is available above.
Notice of Class Certification approved by the Court
On May 26, 2014 Class counsel appeared before the Honourable Mr. Justice Grauer to seek an order approving the proposal for notification of class members that the case has been certified. After a brief hearing and with the Defendants consenting, Mr. Justice Grauer approved the proposed notice program. A copy of the court order providing for the notice program and a copy of the court-approved notice can be accessed above.
The court order requires Class counsel to personally deliver, within 30 days, a copy of the notice to each and every business premisess within the Cambie Village Business Improvement Area (King Edward Avenue to 2nd Avenue). Class counsel intend to begin the delivery process this later week. Under the court order, the notice will also be distributed to all businesses located in the City Square Shopping Centre as well as all property owners within the Cambie Village.
Under the terms of the court order, the "opt-in" and "opt-out" deadline has been set at August 30, 2014. This means that for residents of British Columbia which are included in the current class definition, unless you opt-out of this action by August 30th, your claim in this matter will be determined in the class action. On the other hand, if you aren't a resident of British Columbia and believe you have a claim which you would like to have determined in the class action, you need to opt-in to the class by August 30th.
If you have any questions about the court order, the notice program or opting in or out of the class action, please contact Class counsel at firstname.lastname@example.org
Click on the link below to review the Class Notice and Opt-in and Opt-out forms
GENERAL INFORMATION ABOUT THE CLASS ACTION
Between the fall of 2005 and the summer of 2008 the Canada Line subway tunnel was built down Cambie Street in Vancouver through the Cambie Village Business District using a “cut and cover” method of construction. This construction greatly interfered with the public’s ability to access the businesses in the Cambie Village. As a result, the businesses in the Cambie Village were devastated. This Class Action seeks to recover compensation for the losses suffered as a result of the Canada Line construction for those businesses.
Who is included in the Class Action?
All persons who owned a business or property in the Cambie Village between November 1, 2005 and the summer of 2008 are automatically included in the Class Action.
The Cambie Village is defined by the Cambie Village BIA designation by-law, City of Vancouver By-Law No. 9247, which business improvement area covers Cambie Street and its adjoining blocks between 2nd Avenue and King Edward Avenue.
How does the Court of Appeal’s decision in Heyes v. Canada Line affect the class
While we are disappointed that the Court of Appeal did not affirm the trial judge’s decision in the Heyes case on all points, we are still proceeding with the class action. In fact, many parts of the decision of the Court of Appeal on the issue of the nuisance created by the construction of the Canada Line, and the statutory authority of the Canada Line to impose that nuisance, is helpful to our action.
The entire decision of the Court of Appeal in allowing the appeal and finding that the Canada Line was not liable to Ms. Heyes in nuisance rises or falls on uncontradicted or unchallenged evidence in the Heyes trial that the Canada Line tunnel could not practically have been built in a less disruptive way. This factual determination is not binding in our case and we will be challenging that evidence. Our position will be that the tunnel could have been built in a less disruptive manner, and therefore the Canada Line is liable in nuisance to the merchants and property owners in Cambie Village.
What is the next step in the Class Action?
Canada Line appealed the decision certifying the action as a class proceeding. On appeal we were successful in upholding the certification decision.
The trial of the Class Action has now been set for three weeks, beginning in November 2014.
Check back at this website for future updates or visit the Facebook page for this action:
Cambie Village Canada Line Class Action (Facebook)