Here’s a little news story of direct interest only to people in Vancouver, but it’s pleasant and uplifting; made me smile and might please others too. And it gives me a chance to gloat a little bit.

The History · What happened was, partly in preparation for the Olympics coming here next year, several layers of government got together and built a big subway line (the Canada Line because the Feds paid most) from downtown through the airport, much of it along Cambie Street, very near where I live.

As a side-effect, the merchants along Cambie street pretty well got raped. The subway, which had been pitched as a bore-from-underneath project, suddenly at the last minute turned into a “cut-and-cover” project. Here are a couple of pictures from August 2007 that illustrate what “cut and cover” means.

The Canada Line under cut-and-cover construction
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The Canada Line under cut-and-cover construction

You can just make out the awnings and signs of the businesses along either side. You can’t hear the continuous roar of heavy equipment or feel the endless grit and dust in your lungs and on your clothes. This state of affairs persisted for multiple years. As well you can imagine, business was not good. I wrote about it before in Going, Going, Gone.

The Court Case · It turns out that Susan Heyes, one of the victims, got mad enough, and was determined enough, to take three levels of government, the public-transit company, and the subway contractors, to court for damages. Today, she won.

Well, not entirely. She sued for misrepresentation, negligence, and nuisance, and only won on the nuisance count. Also, the various levels of government got off the hook, leaving the transit company and contractor holding the bag.

I actually spent an hour today reading the whole 72-page PDF of the decision, and I have to say that Judge Pittfield, he da man! It’s remarkably lucid and readable; I’d sure hate to have to file an appeal against it.

Why This Makes Me Happy · First, it’s an illustration that the workings of justice occasionally line up with what you and I would consider common sense. The judge’s arguments concerning why, although Ms Heyes was arguably misled, this did not consitute “misrepresentation”, and while the experience was nasty, this did not constitute “negligence”, are pretty compelling. And the argument about “nuisance” seems to suggest that the legal and everyday meanings of that word are remarkably similar. Yes, the construction was a big damn nuisance, and apparently the law says, straightforwardly enough, that one party may not wilfully inflict a damaging nuisance on another without incurring some responsibility for the consequences.

(OK, I admit that the judge’s reasoning as to why the Federal, Provincial, and City governments got off the hook went too far into legal technicalities for me to follow.)

The second pleasing thing about this is that I’m reminded that, to quote David Brin, “I am a member of a civilization.” And in this one we have a legal system which, however imperfect, can be used by a shopkeeper to take on three levels of government and a huge company and deliver what smells to me like real justice. There are lots of places in the world where this could never happen.



Contributions

Comment feed for ongoing:Comments feed

From: Terri Molini (May 27 2009, at 23:47)

Tim, this is a great story and I appreciate you sharing it with your readers. I believe I remember hearing the roar in the background during several conference calls.

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From: walter (May 27 2009, at 23:49)

News of this brought a big smile to my face. I would have been somewhat happier had some of the "mud" stuck to the Provincial Government as I believe they played a role in allowing this Nonsense and Nuisances to come about. .. . But Kudos to Ms Heynes

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From: Martin Probst (May 28 2009, at 00:22)

No idea why your government got off the hook, but in Germany the rule is that you can get damages from someone building a new house next door, but you cannot get damages from the government for building a new street (subway, ...).

The argument is that such public works will also benefit you, and the public has a legitimate interest as well, which kind of supersedes your personal right in that case, at least to some degree.

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From: Graham (May 28 2009, at 00:30)

All this says to me is that the city/province/country has an inadequate planning process. The details of construction (and any compensation) should have been worked out with the authorities long before any construction started. I can point you to the gigabytes of documents produced for Crossrail in London, which cover how much disruption there will be where in excruciating detail.

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From: len (May 28 2009, at 07:10)

Ask a Bostonian about the Big Dig or almost anyone who had to drive out of Logan.

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From: Matthew Laird (May 28 2009, at 08:02)

It wasn't just the bait and switch with cut and cover, we were also told under cut and cover the street would have rolling 3 month closures as the work proceeded. No section would be adversely affected for more than 3 months.

That's not what happened, it became a solid 3 year closure along the majority of the street, causing the nuisance and hardship to those living along the corridor. As Tim knows well, that involved going many blocks out of one's way to simply cross the street. There was a 10 block span where all bus stops were removed.

To Graham, it wasn't just a lack of planning, it was a secretive public private partnership, where the needs of the private entity trumped public need in the deal. Once the successful bidder won, the story I've heard if they then whined to the government that because of soil conditions they couldn't guarantee completion on the specified date using boring. After construction began, the project manager is on record saying boring wouldn't have cost any more than cut and cover.

Good job of taking on a corrupt government that puts private interests above the public interest.

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From: John Cowan (May 28 2009, at 08:17)

Tim: Canada and B.C. are off the hook because their contribution was solely financial and was a grant rather than an investment: they had no control over how things were done, and didn't stand to gain from any profits (ha!) of the project. The City was let off because, due to the nondisclosure requirements, it didn't find out until too late that the obnoxious cut-and-cover method would be used. These are probably good things, because neither the contractor nor TransLink are able to appeal using taxpayers' money.

Graham: There's a saying in the planning biz that while planning is essential, actual plans are worthless. Nobody could have reasonably foreseen (except a pessimist like myself) that a prefab tunnel (which would have been much quicker and less painful) would turn out not to be possible due to the soil conditions.

Here in NYC, we had a similar tear-up of lower Second Avenue (2nd St. to 9th St.) back in the 70s, only much worse. The entire avenue was closed to vehicular traffic, leaving only the sidewalks open. In my opinion, this had a lot to do with the collapse of the neighborhood as a working-class residential area in the decade and a half that followed.

The city has been trying to build a Second Avenue subway since 1929, and now that they are finally working on it again, it turns out that nobody really knows what happened in that section! Was it filled in, or just covered over? We won't know until construction reaches the same point again 10-20 years from now.

As things stand, only the stations are being built with cut-and-cover, and that's bad enough: businesses in the 91st to 95th St. area are suffering, and the city is not offering compensation.

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From: Derek K. Miller (May 28 2009, at 10:25)

I too think this is a good decision, and a good warning for governments and contractors on future projects.

Now, I'm glad we'll have the Canada Line -- this city needs more widespread rapid transit -- but I recall many people warning long in advance that the tunnel construction would be disruptive and suggesting that neighbouring businesses be offered compensation, with TransLink being dismissive of the idea. Turned out the worries were right, and it would have been wise to set up a compensation fund as part of the project budget.

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From: Graham (May 28 2009, at 11:50)

Matthew and John: By "inadequate planning process" I mean the controls over what constructors can and can't build aren't tight enough.

Crossrail required a fully fledged Act of Parliament, which defines its exact boundaries of deviation and construction methods. If they decided they needed to make major changes to the construction methods, they'd need to go back to Parliament, and it'd be up to our elected (and unelected) representatives that decide what they can get away with.

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From: Mark (May 29 2009, at 09:05)

I don't know the specifics of this case, so there may have been some merit, but NIMBYs living alongside subway and train lines are the bane of urban improvement efforts worldwide. Here in Tokyo they've blocked the elevation of lines for years so that traffic is backed up constantly. The government is finally cracking down on these legal shenanigans.

I wonder why they changed their minds on boring in Vancouver? Maybe they waited too late and there weren't any tunneling machines left to lease? There are only so many of those suckers in the world, especially when you take into account that you need specialized types for different geology. My former company is one of the makers.

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From: Alex Waterhouse-Hayward (May 29 2009, at 18:33)

And for a picture of the indomitable Judge Pitfield look here:

http://alexwaterhousehayward.com/blog/2009/05/judge-lawyer-mrs-oakley-fisher.html

Alex Waterhouse-Hayward

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From: cheryl (May 31 2009, at 12:57)

I would like to congratulate Susan for taking on the system and winning! Far too often the little guy gets stepped on by the powers that be. This woman has done a great service for all the people of her city, state, and country!

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From: Cheryl Beckham (Jun 05 2009, at 10:08)

Good news indeed, we need more folks like her that won't sit back and just take what the government dishes out to us. My hat is off to her! We need more success stories just like this one.

Cheryl

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