Susan Heyes fights on, despite legal setback and formidable legal costs
Susan Heyes remains resolute in her decision to fight the appeal before the Supreme Court of Canada, but added that legal fees have become a major problem. “It’s obscene how much money you have to spend… just to have the opportunity to go to court and receive justice. I’ve already paid over $300,000 for my first lawyer and another $100,000 for the appeal,” the well-known Vancouver merchant said.
On Friday, February 18th, a BC Court of Appeals decision to overturn an award of $600,000 in compensation to Heyes, a former Cambie Street business owner. This has created an opportunity for a dangerous precedent to be set for how big-time developers will deal with small businesses in Canada, Heyes said.
Heyes, a clothes designer who owns Hazel & Co. on Main, and Jools on Dunbar, sees this issue as an important opportunity to set a precedent forcing future mega-developments to live up to their obligations to the smaller businesses that they impact.
A wave of support is now building as an increasing number of Canadians are taking notice of the precedential nature of Heyes' case, and a fund will soon be established for supporters to make contributions to offset her legal expenses, she said.
When asked what would happen if the worst case scenario - the Supreme Court upholding the appeal denying her compensation - came to pass, Heyes responded optimistically, saying, "I can't even imagine that they would."
Heyes ran a maternity store, Hazel and Co., at 16th and Cambie, when Canada Line construction began. The store suffered major financial losses due to the cut-and-cover construction method used in the building of the new Canada Line. For two years, it made driving and parking along parts of Cambie hellish. "It was like a perfect storm for business failure," she said. "You just couldn’t ask for a worse situation. Especially for somebody like me, who is selling maternity clothes. No pregnant woman would want to come anywhere near the area."
After an expensive legal battle, Heyes recieved $600,000 in compensation for her business losses, $300,000 of which was immediately spent on lawyer's fees to cover the cost of her suit, she said. Now the BC Court of Appeals has ruled that the nuisance caused by the construction was unavoidable, and that Heyes must therefore give the money back.
“This was not a public works project," Heyes said. "it was built for profit, and the end result is something that is clearly for the greater good, but these things should be balanced… The benefit to the public should be weighed against the devastation suffered by a very small group of citizens who have been unfairly impacted by it... It’s just another cost of doing business and it should have been factored into the project from the very beginning."
According to the Court of Appeals, the Canada Line Public-Private Partnership had statutory authority for the project, and therefore should not have to pay out compensation, to which Heyes responded that "The rule of statutory authority [states that] they needed to build it in the least harmful way possible, and they chose instead to go forward, to their own gain, to build it in the most destructive way they possibly could, and [without] consulting fairly with the public at large, and certainly not with the merchants, about just exactly how that would impact their business and their lives.”
While the developers are technically sheltered behind the statutory authority that was granted to them, Heyes said it's important to remember that they haven't actually tried to deny responsibility for her losses. “The defendants didn’t take any issue with my claim of loss," she said, "and they also didn’t deny that there was a serious impact, and that the impact was caused by the construction. So that’s a very important point to make here.”
For Heyes the bottom line seems to be that, despite the developer's admission of moral responsibility for harming local businesses, they are circumventing their financial responsibility to compensate those businesses by cloaking themselves in legal protections.
"Some people had information," she said, "and some people didn’t, so they were voting based on the information that was presented to them, which was that the construction would be an underground, bored tunnel to at least 37th Ave. So they weren’t concerned about all these references to making sure that the [Canada] Line was built ‘in-tunnel’ [a phrase often used by its proponents]… There is a vast difference between tunneling, which is boring, and placing these sections [of tunnel] in a fifty foot deep pit.”
Initially, the tunnels were going to be pre-made and lowered into place in sections, but when that plan failed to work out, the developers were forced to cast them on the spot, creating further disruptions with cement trucks rumbling constantly through the area.
So why did they use the open pit method rather than simply boring a tunnel, a much less disruptive option?
"It had to be done in time for the Olympics," exclaimed Heyes. "It always was an Olympic project, they just never admitted that at the time. ...Most engineers will tell you that some… artificial, political deadline should not be the criteria for how a project of this magnitude goes forward. It should be based on construction and engineering requirements and constraints.”