WILLMS & SHIER ENVIRONMENTAL LAW MOOT COURT COMPETITION 2015 IN THE SUPREME ENVIRONMENTAL MOOT COURT OF CANADA

Transcription

1 WILLMS & SHIER ENVIRONMENTAL LAW MOOT COURT COMPETITION 2015 S.E.M.C.C. File Number: IN THE SUPREME ENVIRONMENTAL MOOT COURT OF CANADA (ON APPEAL FROM THE ONTARIO COURT OF APPEAL) B E T W E E N: SUSAN HEYES INC. DBA HAZEL & CO. - and - APPELLANT (Appellant) SOUTH COAST BRITISH COLUMBIA TRANSPORATION AUTHORITY, CANADA LINE RAPID TRANSIT INC. AND IN TRANSIT BC LIMITED PARTNERSHIP RESPONDENT (Respondent) FACTUM OF THE APPELLANT SUSAN HEYES INC. DBA HAZEL & CO. Pursuant to Rule 12 of the Willms & Shier Environmental Law Moot Official Competition Rules 2015 TEAM #

2 TO: AND TO: THE REGISTRAR OF THE SUPREME ENVIRONMENTAL MOOT COURT OF CANADA ALL REGISTERED TEAMS

3 i TABLE OF CONTENTS Page No. PART I -- OVERVIEW AND STATEMENT OF FACTS... 1 A. Overview of the Appellant s Position... 1 B. Statement of the Facts... 1 PART II -- QUESTIONS IN ISSUE... 2 PART III -- ARGUMENT... 3 A. Standard of Review for Nuisance... 3 B. Respondents Created a Nuisance... 3 (i) Principles of Nuisance... 4 C. Finding of Nuisance not Precluded by Removal of Public Right of Way... 5 (i) Nuisance May Arise From Otherwise Lawful Acts... 5 (ii) The Focus of Nuisance is on the Harm Suffered... 9 D. Sufficient Weight was Given to the Social Utility of the Canada Line (i) Utility Alone does not Outweigh Individual Harm (ii) The Appellant Should not Shoulder the Burden of Construction without Compensation E. Standard of Review for the Defence of Statutory Authority F. Defence of Statutory Authority is not Applicable (i) The Defence did not Arise from the Greater Vancouver Transportation Authority Act a. The Translink Resolution does not have Legislative Character b. The Nuisance was not Inevitable (ii) The Defence did not Arise from the Vancouver Charter (iii) The Defence did not Arise from the Environmental Assessment Certificate G. Alternatively, the Defence Ought to Apply Only Where there is Express Statutory Exemption H. Alternatively, the Defence Ought not Apply to Permissive Legislation PART IV -- SUBMISSIONS IN SUPPORT OF COSTS PART V -- ORDER SOUGHT PART VI -- TABLE OF AUTHORITIES PART VII -- LEGISLATION AT ISSUE... 28

4 1 PART I -- OVERVIEW AND STATEMENT OF FACTS A. Overview of the Appellant s Position 1 How is a nuisance properly determined by the courts, and when may public bodies use statutory authority as a defence to nuisance? These are the questions at the heart of this appeal. 2 The Appellant, Susan Heyes Inc., appeals the decision of the British Columbia Court of Appeal, which dismissed its claim in nuisance and set aside the trial judge s order for damages on the basis that the defence of statutory authority was available to the Respondents. 3 The Appellant contends that the Respondents are liable in nuisance and that the defence of statutory authority is not available to them. B. Statement of the Facts 4 The Appellant operated a small business engaged in the design, manufacture and sale of maternity clothing under the name Hazel & Co. at a retail outlet located at the north-east corner of 16 th Avenue and Cambie Street, in the Cambie Village area of Vancouver from 1999 through Susan Heyes Inc v South Coast BC Transportation Authority, 2011 BCCA 77 at para 6, 329 DLR (4th) 92 [Heyes]. 5 The Appellant s business was severely disrupted by the construction of the Canada Line, a regional transportation system connecting downtown Vancouver, the City of Richmond and the Vancouver International Airport. Construction between 2005 and 2009 eliminated parking on Cambie Street and restricted pedestrian crossing (Heyes). Prohibitions on both left and righthand turns reduced vehicular traffic in the area. The Appellant s business became difficult to access, and anyone wishing to visit it was required to navigate an intensely disruptive construction area encompassing large portions of Cambie Street (Heyes Trial). The result was a significant reduction in customers and sales. Heyes, supra para 4 at para 29. Susan Heyes Inc v Vancouver (City), 2009 BCSC 651 at para 140, 82 CLR (3d) 40 [Heyes Trial]. 6 The economic impact of the construction of the Canada Line on the Appellant s business was material, causing a decline in gross profit following the commencement of construction. For the years 2000 through 2004, prior to construction, gross profit averaged $329,424 per year.

5 2 Gross profit for the years 2005 through 2008, the years following the commencement of construction, averaged $171,258 per year. This reflects an average decline in gross profit of approximately 48%. Heyes Trial, supra para 5 at para 142, The three Respondents, South Coast British Columbia Transportation Authority ( TransLink ), Canada Line Rapid Transit Inc. ( CLRT ), and InTransit BC Limited Partnership ( InTransit BC ), were each involved in the implementation of the Canada Line. Heyes, supra para 4 at para 3. 8 TransLink is the body responsible for the regional transportation network in the Greater Vancouver Regional District. CLRT is a wholly-owned subsidiary of TransLink, which was incorporated in 2002 to devise and implement a plan to develop the Canada Line. InTransit BC is the Canada Line concessionaire responsible for the project s final design, construction, operation and maintenance. Heyes, supra para 4 at para 5, 6. 9 At trial, all three Respondents were found liable in nuisance and it was held that the defence of statutory authority was not available (Heyes Trial). On Appeal it was held that while the Appellant had established nuisance, the defence of statutory authority was available to the Respondents, and thus the Appellant s claim in nuisance was dismissed (Heyes). Heyes Trial, supra para 5 at paras 203, 223. Heyes, supra para 4 at para 175. PART II -- QUESTIONS IN ISSUE 10 There are two central issues on appeal: (1) Whether the Court of Appeal erred in holding that the Respondents created a nuisance, in particular: a. Whether the public rights of way that were the foundation of the Appellant s claim in nuisance had been lawfully removed by the City prior to construction of the Canada Line, thus eliminating the basis for the claim; and

6 3 b. Whether the trial judge gave sufficient weight to the social utility of the Canada Line in assessing whether its construction caused unreasonable harm to the Appellant. (2) Alternatively, whether the Court of Appeal erred in holding that the Respondents had established the defence of statutory authority and in particular, whether the defence arose from: a. The Greater Vancouver Transportation Authority Act, SBC 1998, c 30, particularly TransLink s resolution to proceed with the SNC- Lavalin/Serco proposal, passed pursuant to s 9(3)(a) of that legislation on December 1, 2004; PART III -- ARGUMENT b. The City of Vancouver s authority to regulate vehicular and pedestrian traffic under the Vancouver Charter, SBC 1953, c 55; or c. The Environmental Assessment Certificate ( EAC ) for the Canada Line granted under the Environmental Assessment Act, SBC 2002, c 43. A. Standard of Review for Nuisance 11 In this case the existence of a nuisance is a question of fact (Heyes). Findings and inferences of fact by the trial judge are treated with considerable deference and should only be set aside if there has been palpable and overriding error. The appropriate standard of review is thus palpable and overriding error (Housen). Heyes, supra para 4 at para 48. Housen v Nikolaisen, 2002 SCC 33 at para 10, [2002] 2 SCR 235 [Housen]. B. Respondents Created a Nuisance 12 The trial judge held the three Respondents were equally responsible for creating a nuisance, and the Court of Appeal did not find reason to interfere with this finding. Barring a palpable and overriding error on the part of the courts below, the finding of nuisance ought not be altered. The Court of Appeal was satisfied that the trial judge reached his determination of nuisance based on his assessment of the following four factors: the character of the neighbourhood; the nature, severity and duration of the interference; the social utility of the impugned conduct; and the sensitivity of the Appellant s use.

7 4 Heyes, supra para 4 at para The nuisance at issue is private in nature (Heyes; Heyes Trial). The trial judge s analysis was consistent with the principles of the law of private nuisance, which offers protection against being unlawfully annoyed, prejudiced or disturbed in the enjoyment of land (Salmond). An overview of the main principles of nuisance shows his finding of nuisance was justifiable and well founded. Heyes, supra para 4 at para 46. Heyes Trial, supra para 5 at para 163. RFV Heuston & Sir John William Salmond, Salmond on the Law of Torts, 17 ed, (London, UK: Sweet & Maxwell, 1977) at 50 [Salmond]. (i) Principles of Nuisance 14 Nuisance is founded on the right to protection from disruptions and interferences, but not all annoyances will amount to nuisance. This principle was enunciated by Robbins, J. in Schenck v the Queen: Certainly, not every invasion of a person s interest is actionable. The principle of give and take, live and let live is fundamental to the adjustment of claims in nuisance. A threshold of seriousness must be met before interference is actionable. Schenck v the Queen (1981), 131 DLR (3d) 310 at para 603, 34 OR (2d) 595 (CA). 15 As expressed by the Supreme Court of Canada in Antrim Truck Centre Ltd v Ontario, in order to meet the threshold of an actionable nuisance, the interference must be both substantial and unreasonable. A substantial interference is one that is non-trivial. Whether or not an interference is unreasonable will depend on the circumstances and involves the consideration of several factors. Antrim Truck Centre Ltd v Ontario (Ministry of Transportation), 2011 ONCA 419 at para 23, 332 DLR (4th) 641 [Antrim]. 16 In determining the existence of a nuisance, the courts will generally consider the following four factors: (1) the severity of the interference, having regard to its nature and duration and effect; (2) the character of the locale; (3) the utility of the defendant's conduct; and

8 5 (4) the sensitivity of the use interfered with Ontario Ltd v Huron Steel Products (Windsor) Ltd (1990), 73 OR (2d) 641 at para 14, 21 ACWS (3d) 1242 (Sup Ct). See also Tock v St John s Metropolitan Area Board, [1989] 2 SCR 1181 at para 64, 1 CCLT (2d) 113 [Tock]; Antrim, supra para 15 at para In this case the trial judge reached his determination of nuisance based on the proper application of the four factors. In his analysis, the trial judge considered the character of the Cambie Village neighbourhood as a small business locale and shopping destination. He examined the nature of the interference caused by the construction of the Canada Line, accurately describing it as disruptive and lengthy. He did not find that personal sensitivity was a relevant factor, as there was no indication of a particular sensitivity to the dust or noise, or any evidence of physical discomfort emanating from the construction. Finally, the trial judge found that on balance, the social utility of the Canada Line did not outweigh the deleterious effects on the Appellant s business. Heyes Trial, supra para 5 at paras 139, 142, 143, These conclusions are sound and reasonable, a point on which the Court of Appeal agreed. The Appellant suffered harm as a result of the cut and cover construction method used by the Respondents to build the Canada Line. The interference with the Appellant s use and enjoyment of land was substantial and unreasonable, resulting in a significant loss of profits. The facts of the case support a finding of nuisance. Heyes Trial, supra para 5 at para 76. C. Finding of Nuisance not Precluded by Removal of Public Right of Way (i) Nuisance May Arise From Otherwise Lawful Acts 19 The construction of the Canada Line necessitated certain street and sidewalk closures. These closures impeded customer access to the Appellant s business. At trial, the Respondents argued that since the City was acting under its statutory powers, the City's regulation of streets did not constitute a nuisance because it is the City that determines the public's rights to access city streets (Heyes Trial). The Respondents contended that such powers were conferred on the City by virtue of the Municipal Act and the Vancouver Charter. Heyes Trial, supra para 5 at para 161. Municipal Act, RSBC 1996, c 324 [Municipal Act].

9 6 Vancouver Charter, SBC 1953, c 55 [Vancouver Charter]. 20 While the Respondents were correct in their assertion that the Municipal Act and the Vancouver Charter conferred upon the City the authority to direct street and sidewalk closures, their position overlooked the well-established view that nuisance may arise from an otherwise lawful act. Municipal Act, supra para 19. Vancouver Charter, supra para Nuisance may arise from a wide variety of activities. Its forms and causes are diverse, and unlawfulness is not a requirement (Linden). For example: [Nuisance] can be caused in many ways: by flooding, by smoke from a chimney, by seagulls attracted to the plaintiff s land, on which he is growing tomatoes and cucumbers, as a result of the collection by the defendant of garbage on a garbage dump, by seepage of oil into the plaintiff s hotel, by a tree falling, by propane leaking from a truck parked next to the plaintiff s store (Fridman). Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed (Markham, ON: Butterworths, 2006) at 559 [Linden]. Gerald HL Fridman, Erika Chamberlain, Stephen GA Pitel et al., Law of Torts in Canada, 3rd ed (Scarborough, ON: Carswell, 2010) at 152 [Fridman]. 22 Nuisance describes a type of harm suffered, rather than a kind of conduct that is forbidden (Linden). It is the severity of the interference emerging from the activity complained of, taken in balance with other factors, which dictates a finding of nuisance. Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 9th ed (Markham, ON: Butterworths, 2011) at The Appellant maintains the construction of the Canada Line resulted in a significant interference with its use and enjoyment of land, and the trial judge so found. The road closures were not the immediate source of the nuisance, though the closures were authorized in support of the construction. The Respondents agreed that the City s modifications to public rights of way were necessarily incidental to the cut and cover construction of the Canada Line (Heyes Trial). This suggests that although the closures were not the source of the disruption, the closures were intertwined with the interference resulting from construction. The most important consideration, however, is that the City s lawful use of its powers under the Municipal Act and the Vancouver Charter to remove public rights of way in the construction area does not prevent or undo the

10 7 possibility of a finding of nuisance. It thus remains open to this court to find a nuisance on the facts of this case. Heyes Trial, supra para 5 at para 162. Municipal Act, supra para 19. Vancouver Charter, supra para The authority relied on by the Respondents in the Court of Appeal, Re Ontario Ltd v City of Hamilton, fails to produce support for their contention that the absence of a public right of way precludes a finding of nuisance. In that case, the City of Hamilton authorized the closure of a public highway for the purpose of a grand-prix racing event. The applicant sought a declaration that the City had exceeded its jurisdiction in authorizing the closure. Re Ontario Ltd v City of Hamilton et al (1978), 21 OR (2d) 143, 89 DLR (3d) 590 (Div Ct) [Re ]. 25 Re did not directly examine whether the event necessitating the road closure formed the foundation of a private claim in nuisance. The central question was whether the City had the power to close or stop up a highway for a period of time for an event, and the Court answered that question in the affirmative. The Court s analysis was confined to the validity of the decision-making authority of the City; it was not tasked with assessing whether that decision resulted in damage to the plaintiff. Re , supra para The Court in that case did briefly examine whether the road closure, rather than the event, constituted a nuisance. It held that it did not. The Court did not examine whether the actual running of the race constituted a nuisance, as a result of noise, fumes or other matters. In the case at hand, the main question is not whether the road closures were authorized, but whether the ensuing construction constituted an actionable nuisance. Re , supra 24 at para It is also significant that in Re , the road closures were very limited in scope and brief in duration. The roads in question were authorized closed for a period of eight hours or less on two consecutive days. The closures associated with the construction of the Canada Line, by contrast, lasted many months (Heyes Trial). Re , supra para 24 at para 3. Heyes Trial, supra para 5 at para 77.

11 8 28 The Court of Appeal in the case at bar held that the Respondents use of Re was unhelpful to their position that the lawful street closures ruled out the possibility of a finding of nuisance. The Court stated that the Respondents analysis of that case represented an unwarranted departure from the traditional approach to nuisance (Heyes). Based on the Respondents misapplication of the case law and given the trial judge s comprehensive assessment of the relevant factors for determining a nuisance, the finding of nuisance ought to be maintained. Re , supra para 24. Heyes, supra para 4 at para The Court of Appeal in the case at bar correctly accepted that nuisance frequently arises from unintentional and otherwise lawful acts. In its discussion of the nuisance claim, the Court cited Royal Anne Hotel Co v Ashcroft (Village), a case from the BC Court of Appeal. In that case, McIntyre J.A. stated that: The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if, for example, effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree. Royal Anne Hotel Co v Ashcroft (Village), 95 DLR (3d) 756 at para 8, [1979] 2 WWR 462 (BCCA). 30 A number of cases support the principle that nuisance may arise from acts that are otherwise lawful. In Kerr v Revelstoke Building Materials, for example, the plaintiffs owned and operated a motel in the farmlands of Alberta. Their property was located adjacent to a sawmill, which emitted smoke, sawdust, fly ash and objectionable noises. The plaintiffs succeeded in their claim of nuisance even though there was no suggestion of unlawfulness or negligence in the operation of the mill. The Court found in the plaintiffs favour because the mill operations substantially interfered with the operation of the plaintiffs' motel business and with their use and enjoyment of their premises. The focus of the analysis was the impact of the defendant s conduct upon the plaintiffs enjoyment of their rights. Kerr v Revelstoke Building Materials Ltd, [1976] WWD 139 at para 14, 71 DLR (3d) 134 (Alta SC (TD)). 31 In another case, TH Critelli Ltd v Lincoln Trust & Savings Co, the plaintiffs owned a twostorey building. The defendants constructed a nine-storey building upon a neighbouring lot. The construction of the taller building created a lee, which dramatically increased the accumulation of snow on the roof of the shorter one. The plaintiffs incurred costs associated with modifying

12 9 their building in order to comply with building code requirements for snow loads, and brought an action in nuisance against the defendants. The judge found the defendants were responsible for causing damage to the plaintiffs property and held them liable in nuisance, even though the taller building had been constructed in a lawful and non-negligent manner, and in compliance with the relevant municipal by-laws. TH Critelli Ltd v Lincoln Trust & Savings Co, 20 OR (2d) 701), 86 DLR (3d) The cases show that the lawfulness of an activity does not preclude it from forming the basis of a nuisance. In the case at bar, the City removed certain public rights of way, and did so in compliance with the law. The legality of the road closures is not at issue. Neither, as the trial judge recognized, is the City s regulation of traffic. The central question is one of nuisance, based in the claim of a disruption caused by the construction of the Canada Line. The fact that the road and sidewalk closures were carried out lawfully does not mean these activities are immunized from nuisance action. Heyes Trial, supra para 5 at para 162. (ii) The Focus of Nuisance is on the Harm Suffered 33 The proper focus of a nuisance action is on the harm suffered by the plaintiff, as opposed to the defendant s conduct. This focus on the harm suffered is consistent with the underlying purpose of the tort, which, again, is designed to protect individuals against the unreasonable invasion of their interest in land. This function was succinctly described by the Ontario Court of Appeal in Smith v Inco, where the court expressed that the primary raison d'être of nuisance is to equip a party who is suffering damage to his land or interference with his use of the land with a means of forcing the party causing that damage to stop doing so. Smith v Inco Limited, 2011 ONCA 628 at para 64, 107 OR (3d) 321 [Smith]. 34 The Supreme Court of Canada reinforced the importance of emphasizing the harm suffered by the plaintiff in the decision of St Lawrence Cement Inc v Barrette: At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct. Nuisance is defined as unreasonable interference with the use of land. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance.

13 10 Heyes, supra para 4 at para 36 [sources omitted], citing St Lawrence Cement Inc v Barrette, 2008 SCC 64 at para 77, 299 DLR (4th) 385 [St Lawrence]. 35 While nuisance often involves competing interests, it is primarily focused on protecting the plaintiff s interest. Both the trial judge and the Court of Appeal were mindful of this important principle. The trial judge acknowledged that the tort of nuisance is concerned only with the effect of the use of one's land upon the use and enjoyment of the land owned or occupied by another (Heyes Trial). The Court of Appeal further remarked that the jurisprudence marks the tort by reference to harm, rather than conduct (Heyes). Each level of court correctly applied the law in this regard. Heyes Trial, supra para 5 at para 137. Heyes, supra para 4 at paras 178. D. Sufficient Weight was Given to the Social Utility of the Canada Line 36 While the lawfulness of a defendant s conduct is not directly relevant to the nuisance analysis, the utility of the defendant s conduct can be an important consideration. It is one of the four main factors examined to determine whether an interference complained of is unreasonable. Antrim, supra para 15 at para 26;Tock, supra para 16 at para In his analysis of the reasonableness of the interference, the trial judge appropriately considered the social utility of the Canada Line and attributed sufficient weight to this factor. He was mindful of the utility of the Canada Line to the public and recognized that a finding of nuisance requires a balancing of competing private and public interests: Consideration of the question whether any particular use of land results in a nuisance must take into account the fact that in the modern world of multipurpose land use, high density urbanization, and frequent if not continuous urban transformation and improvement, citizens and enterprises are expected to engage in a process of reasonable give and take. Heyes Trial, supra para 5 at para Ultimately, the trial judge was not convinced that the utility of the Canada Line outweighed the deleterious consequences sustained by the Appellant. On balance, he found that the nature, severity and duration of the interference caused by the Canada Line was significant to a degree warranted compensation for nuisance. Heyes Trial, supra para 5 at para 152, 149.

14 11 39 The trial judge s determination of a compensable nuisance was appropriate in the circumstances. In awarding damages to the Appellant, the trial judge recognized the public utility of the Canada Line as well as the Appellant s loss. (i) Utility Alone does not Outweigh Individual Harm 40 As noted above, a finding of nuisance involves the analysis of a number of factors and a careful weighing of competing interests. The Ontario Court of Appeal in Mandrake Management Consultants Ltd v Toronto Transit Commission summed up this point as follows: The law of nuisance has developed as a means of balancing interests of adjoining property owners in the legitimate use of their properties. That balancing can sometimes be delicate. Mandrake Management Consultants Ltd v Toronto Transit Commission (1993), 102 DLR (4th) 12 at para 47, 62 OAC 202 [Mandrake]. 41 In Mandrake, the plaintiffs complained of noise and vibrations emanating from an underground subway. The Ontario Court of Appeal overturned the trial judge s finding of nuisance because it found that many of the trial judge s inferences were not supported by evidence and that he had improperly carried out the weighing exercise. As stated by the Court: While he [the trial judge] recognized the utility of the defendant's use of its property, he failed to attach much weight to it. As such, it was appropriate in that case for the Court to interfere with the trial judge s conclusion on the finding of nuisance. Mandrake, supra para 40 at para No such error has been made in the case at bar. The evidence shows that the trial judge contemplated the utility of the Canada Line and considered it as a factor in the reasonableness analysis. He also considered the length and severity of the disruption and found that the interference and its impact on the Appellant s business was great (Heyes Trial). The disruption in Mandrake, by contrast, was relatively minor. In that case, the Ontario Court of Appeal accepted that the discomfort caused by the noise and vibrations was unfortunate, but held that it did not cross the threshold of nuisance. Heyes Trial, supra 5 at para 138, Mandrake, supra para 40 at para The Supreme Court of Canada s decision in Antrim highlighted the difficulty of balancing the harm suffered by the plaintiff against the utility of the defendant s conduct in cases

15 12 where the defendant is a public body. As the Court explained, generally speaking, the acts of a public utility will be of significant utility. If simply put in balance with the private interest, public utility will generally outweigh even very significant interferences with the claimant s land. In recognition of this reality, the Court stressed the importance of considering the utility factor in light of the other elements comprising the reasonableness analysis, cautioning that the utility factor must not be pushed too far. In so doing, the Court affirmed that utility is not, by itself, an answer to the reasonableness inquiry. Antrim, supra para 15 at paras 38, In reaching this conclusion, the Court relied on the earlier Supreme Court of Canada decision of The Queen v Loiselle, which suggested that even a very important public purpose must not automatically trump the individual harm sustained by the plaintiff. In that case, the plaintiff owned and operated a car garage and service station on a Quebec highway running parallel to the St. Lawrence River. A diversion of the highway directed for the construction of a seaway rendered the plaintiff s business inaccessible to motorists. The Court held that the plaintiff was entitled to compensation for the interference, even though the seaway undoubtedly served an important public purpose. The Queen v Loiselle, [1962] SCR 624, 35 DLR (2d) 274 [Loiselle]. 45 Loiselle stood for the proposition that a finding of high social utility must not eclipse the other factors in the reasonableness analysis. Antrim further suggests that the social utility factor need not operate in direct competition with the harm done to the plaintiff, and that it is possible to find nuisance even where the defendant s conduct is of high social value. In the case at bar, the trial judge rightfully considered the social utility of the construction of the Canada Line, and weighed that factor against the others. He found that while it was socially valuable, the utility of the Canada Line did not oust the Appellant s right to be compensated for losses caused by the nuisance. Loiselle, supra para 44. Antrim, supra para The trial judge s finding in favour of the Appellant struck an appropriate balance. The decision did not purport to undermine the value of the Canada Line; rather it recognized that the

16 13 Appellant was entitled to be compensated for her loss, notwithstanding the important public purpose served by the Canada Line. (ii) The Appellant Should not Shoulder the Burden of Construction without Compensation 47 In Antrim, the Supreme Court of Canada specifically addressed the approach to be taken when assessing the reasonableness of an interference stemming from an activity being carried out by a public authority in the name of the public good. Writing on behalf of a unanimous Court, Cromwell J. described the test as follows: How should we decide whether an interference with the private use and enjoyment of land is unreasonable when it results from construction which serves an important public purpose? The answer, as I see it, is that the reasonableness of the interference must be determined by balancing the competing interests, as it is in all other cases of private nuisance. The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. Antrim, supra para 15 at para In Antrim, the construction of a new section of provincial highway resulted in re-routing of traffic, which interfered with access to a truck stop complex owned and operated by the plaintiff. For years, the plaintiff had enjoyed the patronage of travelling motorists, but the redirection of the roads severely restricted access to his land, and his operation was effectively put out of business. The Court held the new highway interfered with the plaintiff s use and enjoyment of land, and that he had sustained a significant and permanent loss. The Court further held that in the circumstances, it was reasonable to conclude the plaintiff should not be expected to bear such a loss for the greater public good without compensation. Antrim, supra para As in Antrim, in this case there was an interference with the use and enjoyment of land, which negatively affected the Appellant s business. The central consideration, however, must ask whether it would be unreasonable for the Appellant to bear the burden of the construction of the Canada Line without compensation. On the facts of this case, the answer is yes. Antrim, supra para 15.

17 14 50 The case of Rideau Falls Generating Partnership v Ottawa embodies the same principle. In that case, the plaintiff owned and operated an electrical power generating station located downstream of Rideau Falls. The City operated an ice management program to prevent flooding upstream of the falls, which involved the cutting and dynamiting of ice, followed by the flushing of ice over the falls. On two occasions, the build up of ice flushed over the falls created a large ice dam extending to the front of the generating plant. Water rose behind the ice wall and flooded the plant, causing significant damage to the plaintiff s equipment. The Ontario Court of Appeal upheld the trial judge s finding of nuisance on the basis that the City s conduct had substantially and unreasonably interfered with the plaintiff s enjoyment of its property. Rideau Falls Generating Partnership v Ottawa (City) (1999), 174 DLR (4th) 160 at para 6, 1 MPLR (3d) 158 (Ont CA) [Rideau Falls]. 51 The Ontario Court of Appeal in Rideau Falls recognized the great social utility of the City s ice management program. The trial judge described the spring ice flushing procedure as necessary and critical to avoiding damage to private property and public utilities upstream. The City was nevertheless found liable in nuisance for the damage suffered by the plaintiff. The Court quoted the trial judge s reasons: A reasonable view of the circumstances of this case must dictate that the plaintiff be compensated for the damages suffered in consequence of the defendant s program which was designed to protect others. The plaintiff should not be put in the position of having its rights sacrificed for the benefit of other upstream interests in Ottawa. Rideau Falls, supra para 50 at para Such an analysis is applicable to the case at bar. Borrowing from Antrim and Rideau Falls, the ultimate question is whether it would be unreasonable for the Appellant to bear the burden of the construction of the Canada Line without compensation. Antrim, supra para 15. Rideau Falls, supra para The Appellant endured years of lost business and profit as a result of the construction. While the loss was not permanent, it was far from temporary. Given the circumstances, it would not be reasonable for the Appellant to bear such loss without compensation.

18 15 E. Standard of Review for the Defence of Statutory Authority 54 Questions of pure law attract a correctness standard and this court may replace the trial judge s opinion with its own. Conversely, findings of fact by the trial judge receive deference and should not be interfered with unless there is a palpable and overriding error. In this appeal, the issues regarding the defence of statutory authority involve both questions of law and questions of fact. Housen, supra para 11 at paras 8, 10. F. Defence of Statutory Authority is not Applicable 55 The defence of statutory authority applies where the act causing a nuisance is expressly or impliedly authorized by statute, provided the nuisance was the inevitable result of the statutorily authorized act. Ryan v Victoria (City), [1999] 1 SCR 201 at para 54, 168 DLR (4th) 513 [Ryan]. 56 The Court of Appeal erred in overturning the trial judge s finding that the defence of statutory authority did not apply. The Court of Appeal inappropriately overturned the trial judge s findings of fact as well as misapplied the law to the facts. (i) The Defence did not Arise from the Greater Vancouver Transportation Authority Act 57 Neither the Translink resolution nor the Greater Vancouver Transportation Authority Act (GVTA) provide grounding for the defence of statutory authority. The TransLink resolution lacks the requisite legislative character to provide the basis for the defence and the GVTAA fails to meet the meet the requirements dictated by the inevitability analysis. a. The Translink Resolution did not have Legislative Character 58 The December 1, 2004 resolution by TransLink to approve the SNC-Lavalin/Serco proposal is unable to provide the basis for the defence of statutory authority because it does not have the proper legislative character to provide the basis of the defence, and is instead an administrative decision. Translink s municipal characteristics do not allow all resolutions of the authority to be considered legislative merely because of its statutory powers. 59 The case of Homex Realty v Wyoming shows that the existence of municipal characteristics does not automatically import a legislative quality into decision-making. In that

19 16 case, a developer owned a subdivision and had an approved subdivision plan. The municipality passed by-laws purporting to deregister the subdivision and prevent it from connecting to the municipal water system. On the issue of legislative immunity from judicial review, the Court found the by-laws were not legislative but rather quasi-judicial in nature because they lacked general applicability. Homex Realty & Development Co v Wyoming (Village), [1980] 2 SCR 1011, 116 DLR (3d) The principles of administrative law illustrate the distinctions between decisions that are legislative in nature and those that are administrative or quasi-judicial: The exercise of the [legislative] power must generally consist of two elements: (1) generality: the power is of a general application and will not be directed at a particular individual; (2) its exercise must be based on broad public policy grounds. Decisions of a legislative nature create norms or policy, whereas those of an administrative nature merely apply such norms to particular situations. Guy Re gimbald, Canadian Administrative Law, 1st ed (Markham, ON/: LexisNexis, 2008) at TransLink s resolution does not have either of the necessary elements to be considered legislative in nature. As stated by the Court of Appeal, the purpose of the resolution was to conditionally approve the selection of the prefered proponent for the Canada Line project. It was a decision made pursuant to the existing policy framework and was not an attempt to create fresh policy. The resolution lacked general applicability and was limited to carrying out proponent selection. As such, the resolution is best characterized as an administrative or executive decision as opposed to legislative. Heyes, supra para 4 at para The defence of statutory authority can only operate where legislation so authorizes. Because TransLink s resolution is not legislative, it cannot provide the basis for the defence. b. The Nuisance was not Inevitable 63 Sections 3 and 4(1)(e) of the GVTAA provided the statutory authority to build the Canada Line. Because the authority granted was permissive, it is necessary, according to Ryan, to establish that the nuisance was an inevitable result of the construction of the Canada Line in order for the defence to operate. In this case, the Court of Appeal incorrectly applied the law to

20 17 the facts because it misconstrued the inevitability analysis. In addition, the Court of Appeal erred in overturning a finding of fact by the trial judge that was supported by the evidence. Ryan, supra para 55 at para The Court of Appeal identified the proper question stemming from the inevitability analysis, asking: whether there was a practically feasible option to cut and cover construction that would not have created a nuisance, given the scientific possibilities, the financial picture, and other relevant circumstances, viewed from a common sense perspective. Heyes, supra para 4 at para The application of the above question required the court to examine the possible alternatives to cut and cover, and assess whether they were practically feasible. In this case, the only alternative to cut and cover was the Ravxpress bored tunnel proposal. As such, the Court s analysis should have been limited to an examination of the practical feasibility of this proposal. 66 Instead of evaluating the feasibility of the Ravxpres proposal in isolation, the Court conducted a comparative analysis of the cut and cover and Ravxpres proposals and considered which of the two options best satisfied the project s objectives. In doing so, the Court misconstrued the inevitability test and misapplied the law to the facts. Heyes, supra para 4 at para The proper assessment of the practical feasibility of the Ravxpress proposal would not have been concerned with which option best satisfied the project s objectives. Rather, it would have asked whether or not the Ravxpress proposal was practically impossible to implement. The correct analysis would have looked at the Ravxpress proposal in isolation in order to assess whether its construction was practically feasible in the circumstances. 68 The comparative nature of the Court of Appeal s analysis is evident in paragraph 129 of its judgment, where it found the SNC-Lavalin/Serco proposal had more accessible stations, favoured higher ridership, and better served the objectives of reducing vehicular traffic and pollution. The Court of Appeal's assessment of these comparative factors contributed to its finding that the Ravxpress proposal was not practically feasible, but these factors ought not have been considered in the Court's analysis.

21 18 Heyes, supra para 4 at para While factors such as ridership, pollution, accommodation of delays, among others, may have made the SNC-Lavalin/Serco proposal more attractive, they did not make the Ravxpress proposal practically impossible. 70 In addition to misapplying the law to the facts, the Court of Appeal erred in overturning a finding of fact by the trial judge. At trial, the judge determined that bored tunnel construction was a viable alternative to cut and cover, which eliminated the ability of the Respondents to rely on the defence. The Court of Appeal did not show that the trial judge made a palpable and overriding error in drawing this conclusion; the trial judge had evidence to support his finding and it was not for the Court of Appeal to overturn it. Heyes Trial, supra para 5 at The Court of Appeal overturned the trial judge s decision with respect to the availability of the defence based on its conclusion that the Ravxpress bored tunnel proposal was utterly impossible due to a funding shortfall. The Court of Appeal s justification is insufficient because it is apparent that the SNC-Lavalin/Serco proposal had similarly been deemed unaffordable due to a funding shortfall. Changes in project scope and funding were adapted to render the SNC- Lavalin/Serco proposal feasible. Arguably, the funding challenges associated with the Ravxpress proposal could have been similarly addressed. Heyes, supra para 4 at para In the 2003 Project Definition Report, bored tunnel construction was the only method contemplated for the Cambie Village area. It is unlikely that TransLink would have contemplated the bored tunnel method at this stage if it truly believed the method was infeasible or practically impossible. Heyes, supra para 4 at para The trial judge s determination of the viability of the Ravxpress proposal represents a finding of fact deserving of a high level of deference. In view of the situation and the expense, the trial judge had evidence to support the finding of fact. It is not the place of an appellate level court to interfere with such a finding in the absence of palpable and overriding error.

22 19 74 The Court of Appeal held that the defence of statutory authority was available to the Respondents in part because it concluded that nuisance was an inevitable consequence of both the cut and cover and bored tunnel methods of construction (Heyes). However, this conclusion misrepresents the central question of the inevitability analysis. The analysis, as stated in Ryan, does not ask whether any nuisance was inevitable; instead, it asks whether the particular nuisance in question was inevitable. Heyes, supra para 4 at para 146. Ryan, supra para 55 at para 55. See also City of Manchester v Farnworth, [1930] AC 171 (HL) at 183 [City of Manchester]. 75 The trial judge found that bored tunnel construction would have avoided the particular nuisance in question. This being the case, he held that the nuisance suffered by the Appellant was not inevitable. The Court of Appeal's argument that bored tunnel construction would result in other nuisances in other locations is not relevant to the Appellant's particular claim. Heyes, supra para 4 at para The Court of Appeal contradicted itself several times in reaching the conclusion that bored tunnel construction would have caused a nuisance at a different location. A finding of nuisance requires the balancing of four factors, and it is not open to the courts to speculate on what the balancing exercise might look like in a hypothetical situation. The Court of Appeal acknowledged the impossibility of engaging in such speculative analysis, but at the same time made conclusions about the nuisance-causing potential of an entirely hypothetical bored tunnel scenario. These two ideas cannot be logically reconciled. Heyes, supra para 4 at paras 143, The focus of the nuisance analysis is on the harm done. This cannot be done in any reliable fashion when the harm has not occurred, as it is not possible to engage in the necessary balancing exercise. The Court of Appeal s attempt to show that bored tunnel construction would have caused a nuisance in a different location is a dangerous extension of the law into hypothetical liability. 78 The Respondents cannot satisfy the burden of establishing the defence of statutory authority. Nuisance was not an inevitable result of exercising the authority given by section 3

23 20 and 4(1)(e) of the GVTAA because there was a practically feasible alternative that would not have created the nuisance in question. (ii) The Defence did not Arise from the Vancouver Charter 79 The Vancouver Charter provided general authority to impose street closures for the construction, but did not specifically authorize the cut and cover construction. Heyes, supra para 4 at para 152. Vancouver Charter, supra para The grant of general authority requires the nuisance to be an inevitable result of the action. Based on the above analysis and the finding of the trial judge, the nuisance was not inevitable because there was a practically feasible alternative to the cut and cover construction method. For this reason, the Vancouver Charter does not provide the defence of statutory authority. Vancouver Charter, supra para 19. (iii) The Defence did not Arise from the Environmental Assessment Certificate 81 The provincial Environmental Assessment Certificate (EAC), granted under the provisions of the Environmental Assessment Act, cannot be used to invoke the defence of statutory authority. The defence is narrow, and a permit is insufficient to give rise to the defence. Environmental Assessment Act, SBC 2002, c 43 [EAA]. 82 A statute must establish clear and unambiguous statutory authority for the work, activity or conduct complained of (Sutherland) in order for statutory authority to exist. The EAC did not supply the requisite authority. An environmental assessment, as the Court of Appeal correctly stated, is an informational gathering process and not a grant of statutory authority. Sutherland v Canada (Attorney General), 2002 BCCA 416 at para 118, 215 DLR (4th) 1 [Sutherland]. G. Alternatively, the Defence Ought to Apply Only Where there is Express Statutory Exemption 83 In addition to the defence of statutory authority not being applicable in this case under the current law, it is submitted that the Court consider taking a more progressive approach to the defence. The recent case of St Lawrence has limited the applicability of the defence of statutory

24 21 authority under Quebec law, and it is submitted a similar change should occur in Canadian common law. St Lawrence, supra at para In St Lawrence, a special statute of the Quebec Legislature authorized the operations of a cement plant. Neighbours complained of dust, noise and odours emanating from the plant and brought an action in nuisance under article 976 of the Quebec Civil Code, which is analogous to the common law action of nuisance. The plant attempted to invoke the defence of statutory authority, a recognized defence in Quebec civil law, based on the special statute authorizing its operations. The Supreme Court of Canada rejected the plant's use of the defence, reasoning solely that when the legislature excludes the application of the ordinary law, it generally does so expressly. St Lawrence, supra para 34 at paras 4, 8, 79, The Supreme Court of Canada s recent rejection of the defence was due to the fact that the plant s authorizing legislation did not specifically exempt it from liability in nuisance, which represents a departure from the standard view of the defence as enunciated in Ryan. This Court is encouraged to follow the modern approach adopted in St Lawrence and find that the defence is not applicable unless the legislature has provided express exemption from liability in nuisance. See Canadian Pacific Railway Co v Roy, [1902] AC 220, 12 Que KB 543 (Quebec Privy Council); Ouimette c Canada (Procureur général), [2002] RDI 238, [2002] RJQ 1228 (Que CA), Laforest c Ciments du St-Laurent, [1974] CS 289, 1974 CarswellQue 342 (CS Que). St Lawrence, supra para 34 at para The elimination of the defence except for where the legislature expressly created immunity is not a new idea, and it is not the first time it has been supported by members of the Supreme Court of Canada. In Tock, La Forest J. and Dickson C.J.C. supported the elimination of the defence, describing it as relic of the Victorian era that was and no longer relevant or needed. Tock, supra para 16 at The defence is at odds with the fundamental principles of nuisance. Nuisance is designed to protect one s interest in land and the defence works to undermine that very purpose. The defence of statutory authority creates an unfair situation in which the harm done to the plaintiff is diminished and the common law remedies become unavailable. Simply because the legislature has authorized certain work to be done, it does not logically follow that it intended to remove the

25 22 compensation framework that would otherwise be available to injured parties. A plaintiff should not be required to shoulder the burden of harm unless it is clear that the legislature explicitly intended to remove a plaintiff s common law remedies. Smith, supra para The elimination of the defence would neither cause sweeping liability for public authorities nor complicate the nuisance analysis. The consideration of the social utility of a public works project, as discussed in Antrim, allows for greater flexibility in the nuisance analysis by asking: whether the interference is such that it would be unreasonable in all the circumstances to require the claimant to suffer it without compensation. Antrim specifies that not every substantial interference made by a public work is unreasonable. Factors taken into consideration include making reasonable efforts to reduce the impact. This approach is fair and just and can operate effectively in the absence of the defence. This analysis allows public authorities to be protected from extensive liability while providing greater flexibility than the defence of statutory authority in cases such as this, where the Appellant has suffered too greatly. Antrim, supra para 15 at paras 26, If this Court elects to follow the restricted version of the defence of statutory authority as set out in St Lawrence, the defence would be unavailable to the Respondents due to the absence of express statutory immunity in either the GVTAA or the Vancouver Charter. St Lawrence, supra para 34. Greater Vancouver Transportation Authority Act, SBC 1998, c 30 [GVTAA]. Vancouver Charter, supra para 19. H. Alternatively, the Defence Ought not Apply to Permissive Legislation 90 If it is decided the defence of statutory authority should not be limited to circumstances of express legislative exemption as in St Lawrence, it is alternatively submitted that, at a minimum, there should be a rethinking of the defence and a return to its historical roots as a narrow defence. St Lawrence, supra para The trial judge and the Court of Appeal applied the defence of statutory authority as expressed by Sopinka, J. in Tock, which was adopted and described in Ryan as the traditional view of the defence. Sopinka J. s approach, however, does not truly reflect the traditional view