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Wednesday, August 24, 2011

B.C. Appeal Court rules injurious affection class action can proceed

The B.C. Court of Appeal is allowing a class action to proceed over claims of loss suffered as a result of the construction of the Canada Line rapid transit system which connects Vancouver with Richmond and the Vancouver International Airport.  The lawsuit was certified by the B.C. Supreme Court, a decision that was appealed by the Defendant, Canada Line.  In another similar case, the Court of Appeal found that a nuisance claim raised by businesses along the Canada Line related to construction was defeated by the defence of statutory authority (i.e. the authority building the line could not be liable for causing nuisance on account of its legal authority to carry out the project).  In its most recent decision, the Court of Appeal found that the ruling in the earlier case was not conclusive of the issues raised in the appeal now before it.

The construction of the Canada Line rapid transit system took place between 2005 and 2009. The construction commenced at the south end of Cambie Street and proceeded north in a manner referred to as a “construction train”.   The method of construction was “cut and cover” which involved the excavation of a trench from south to north Cambie, the installation of a tunnel in the trench, the backfilling of the trench, and the restoration of the street surface.  The construction train proceeded through Cambie Village.   The claimants in the class action (respondents on the appeal) have submitted that this disruption gives rise to several claims: nuisance, waiver of tort, and injurious affection.  The class is comprised of approximately 62 individuals or companies who own properties in the Cambie Village and approximately 215 individuals or companies who operate a business from leased premises in the Village.

The Court of Appeal upheld the lower court's decision to certify the class action for a hearing of the following common issues: whether the construction caused an actionable nuisance; whether the nuisance is excused by statutory authority for the work; waiver of tort as a basis for nuisance damages; and, if it is found that a nuisance was caused but is excused by statutory authority, whether there is a claim for injurious affection. 

Read the decision at: Gautam v. Canada Line Rapid Transit Inc.