June 3, 2009

BRADLEY FEHR

While most of the roadwork for the Canada Line rapid transit expansion project in Vancouver is complete, work is still ongoing to complete the stations along the route. The Olympic Village Station is taking shape.

Canada Line Lawsuit

B.C. court ruling could impact future construction

RICHARD GILBERT

staff writer

A B.C. Supreme Court ruling that awarded damages to a Cambie street merchant for business disruption caused by Canada Line construction will have ramifications for all public works projects, if upheld.

“There is a serious concern about the impact of this decision on all public works, where people have a business that is adjacent or nearby the project,” said George Macintosh, the lawyer for the Canada Line partners. “The social question is: where does the cost lie at the end of the day? Any business nearby would take the view the burden should be taken by the project. But, the further we get away from the project people think it should be resolved the other way because the cost would be bourn by the public.”

Susan Heyes, the owner of Hazel & Co. maternity wear, claimed her business suffered losses during the Canada Line construction on Cambie Street between 2005 and 2008.

Heyes decided to sue the City of Vancouver, provincial and federal governments, Canada Line Rapid Transit Inc, TransLink and InTransitBC.

In the recent ruling, Justice Ian Pitfield awarded $600,000 in damages to Heyes, who testified her business loss was caused by a decision to use a cut-and-cover construction method instead of a bored tunnel.

The method was used because it reduced cost by more than $400 million and had several advantages in terms of design, such as allowing stations to be closer to the surface.

“The reduction in cost was achieved by imposing an unacceptable burden on Hazel & Co,” said Pitfield in his ruling.

“A loss of more than $500,000 over four years resulting from the decline in sales and the reduction of approximately 50 per cent 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.”

The cut and cover excavation of the street went down to a depth of six storeys, which blocked and redirected traffic.

It created dust, noise and a nuisance that drove people away from the businesses on Cambie Street.

Pitfield ruled that TransLink, Canada Line Rapid Transit and InTransitBC are jointly liable

The judge dismissed claims of negligence, misrepresentation and nuisance against the city of Vancouver, as well as the provincial and federal governments.

“From our perspective the nuisance claim against the provincial government was dismissed,” said Jeff Knight, spokesperson for the B.C. Ministry of Transportation.

“From the ministry’s perspective, we will be analysing the decision to see how it will effect the way we do business. It is too early to see if there are any implications right now.”

Macintosh thinks the ruling may make it necessary for governments to plan projects so that construction will minimize disruption, even if that proves the more costly option.

According to him, an appeal is highly likely, but not yet confirmed.

“It takes a few days to get processed and is likely to be filed in the next few days,” he said.

If upheld, the ruling will have significant ramifications for all public works projects because it challenges a fundamental and long-standing assumption that the benefits of constructing public projects outweigh any harmful consequences.

Tunnel boring vs cut and cover

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.

Then, the machine bores into the earth 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.

Cut and cover tunnel construction requires the excavation of a trench from the surface to the depth of the tunnel floor. Pre-cast tunnel sections are placed in the open trench and the excavated material is returned to cover the tunnel structure and to restore the land to its original surface grade.

In the case of the Canada Line, an alternative to pre-cast tunnel sections was used, which involved the construction of forms in the trench for the tunnel floor, walls and roof, and the pouring of concrete in place. Cut and cover construction is significantly less expensive than bored tunnel construction.

Disclosure key in B.C. Supreme Court ruling

The consortium responsible for the construction of the Canada Line did not publicly disclose that the cut and cover method of construction would be used instead of a bored tunnel.

In the early stages of planning, the general public was advised that the Canada Line would be located in a tunnel on Cambie Street between 2nd Avenue to at least 37th Avenue.

Public information indicated the tunnel would be bored or mined.

There was no indication suggesting that a cut and cover method of tunnel construction would be employed on that portion of the line.

The possibility of cut and cover tunnel construction along Cambie Street was first raised by SNC-Lavalin/Serco in January 2004, when it responded to the Request for Proposals.

The proposal to use this method of construction was not made known to the public because confidentiality agreements prevented disclosure of design proposals and cost estimates under consideration.

The TransLink board approved the proposal, based on a cut and cover trench, on December 1, 2004.

This information first entered the public domain that month by way of disclosure on the Environmental Assessment Office website.

TransLink and Canada Line Rapid Transit LRT did not make a public announcement about the use of the cut and cover method.

Instead, reports of the proposal to use cut and cover construction appeared in the media in January 2005.

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