Canada Line has lost its appeal of a B.C. Supreme Court decision to certify a class action lawsuit by Cambie Street businesses.
B.C. Supreme Court Justice Ian Pitfield had certified a class comprising 62 individuals or companies who own properities in the Cambie Village and about 215 individuals who operate a business in the village.
The businesses claim that the “cut and cover” construction method on the rapid transit line in 2005 and 2006 amounted to a nuisance and are seeking damages.
Canada Line Rapid Transit Inc. appealed the judge’s ruling, arguing that a class proceeding was not the preferable approach to the lawsuit.
The company argued that there were too many individual issues that would predominate in the lawsuit.
But in a ruling released Wednesday, B.C. Court of Appeal Madam Justice Elizabeth Bennett noted that much of Canada Line’s argument was founded on a finding that there was no nuisance, which she did not accept.
Bennett said a chambers judge’s decision in a class action case is generally given considerable deference and only interfered with if the judge erred in principle or was clearly wrong.
“In my view, the chambers judge did not err when he concluded that the class action proceeding would advance the litigation in a meaningful way,” said the judge. “I would not interfere with his conclusion that the class action is the preferable procedure. I would dismiss the appeal.”
Lawyers for Canada Line had initially asked that their appeal be adjourned based on the uncertainty surrounding the Heyes case.
Cambie Street business owner Susan Heyes had filed her own separate lawsuit, with Justice Pitfield awarding her $600,000 for the nuisance caused by the construction.
Canada Line appealed that decision and the B.C. Court of Appeal found that while nuisance was proven, the defence of statutory authority took precedence and overturned the award.
At the time arguments regarding adjournment were heard, it was not clear whether Heyes planned to seek leave to appeal her case to the Supreme Court of Canada. The women’s clothing store owner has since indicated she will appeal.
The Court of Appeal declined to adjourn the class action appeal but Bennett said the decision to proceed with the appeal should not be seen as a direction to the class action trial court to proceed.
“Whether the trial should be postponed pending the outcome of any further appeal by Susan Heyes Inc. is a matter for the case management or trial judge.”
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