Published here March 2008.


Musings Index

Change in Project Method Sparks Litigation

As many people already know, the city of Vancouver, British Columbia (BC) Canada, will host the 2010 Olympic and Paralympic Games. This expensive effort has kick started a number of other significant projects in the area either to take advantage of the large number of tourists and media who will visit the city, or to facilitate their movement around the various venues. One large project in particular is the rapid transit project linking the municipalities of Richmond, Vancouver and the Vancouver airport on Sea Island in Richmond.

This Richmond-Airport-Vancouver (dubbed RAV) project, now named the "Canada Line", is targeted to be ready in 2009. In fact, this costly project has been "in the works" for years but the Olympic Games have helped fast track the project that has now become synonymous with Olympic construction in general. However, in an effort to save cost the method of construction through a commercial section of the city was evidently changed from tunneling, as employed on an adjacent section, to "cut-and-cover" construction. This has given rise to litigation the details of which are described by Julian Ho in an article titled Last Stop for RAV Line Litigation, September 6th, 2007, presented on THE COURT website.[1] At issue, apparently, is "not the substantive decision of government approving the project, but the process by which the government decision-makers informed the public and sought its opinions about the project."[2]

Julian describes the project as follows:

The bulk of the parties in the claimant 'Do RAV Right Coalition' are storeowners along a stretch of road where the line is being built. Their main argument is that when public consultation took place, they were not informed of the 'cut and cover' method that is now being used in construction for the portion of road that affects them. Instead, they had thought that a less intrusive method such as tunneling or boring would be employed. They further claim that the little consultation that did take place after the 'cut and cover' method was chosen was inadequate and 'meaningless'. The issuance of an environmental assessment certificate is thus alleged to be neither conforming to the statutory requirements of the Environmental Assessment Act, S.B.C. 2002, c. 43 (the 'Act'), nor to the common law rules of procedural fairness.

Under requirements outlined by the Act and associated B.C. Reg. 373/2002, the EAO's Project Assessment Director (the 'Director') accepted a preliminary reference project on November 19, 2003 that anticipated the use of twin bored tunnels as a construction method. A requirement of this acceptance was that a 'Public Consultation Plan' was to be prepared in advance of the subsequent actual application. From November 2003 to April 2004, RAVCo conducted extensive public consultation sessions via public displays, open houses, and an interactive website. This feedback was taken into account before moving into the final phase of the secretive bid process.

On Nov. 19, 2004, the successful bidder was revealed, and the chosen and revised construction method employing 'cut and cover' for the parts of the road at issue was made known. On Dec. 2, 2004, the Director accepted RAVCo's formal application for an environmental review certificate; conditional upon the receipt of an additional supplement that specifies how the difference in construction method might impact the assessment. He further specified additional public consultation periods to seek public input with regards to the changes in the construction method of the accepted bid.

After various sources of this additional stakeholder input was collated and digested, the Director submitted his report to the responsible Ministers on May 27th. On June 8th, an environmental assessment certificate was issued.

BC Court of Appeal
Without reviewing some of the more poignant findings of the lower court (i.e., that 'common law rules of natural justice were supplanted by the Act and regulations' and that the proper standard of review for the Director's decision was 'patent unreasonableness'), the [British Columbia] Court of Appeal [BCAA] found that the public consultations undertaken were sufficient to meet the statutory and procedural fairness requirements.

For reference, the sections of the Act and regulations in question are reproduced as an appendix to the BCCA decision. At para. 43, Madam Justice Newbury summarized her findings thus:
'I do not read the Act as requiring that all public consultation was to take place in the pre-application stage, or as precluding the Director from making a conditional approval and requiring an Application Supplement as he did. Nor has it been shown, in my view, that meaningful public consultation could not take place after December 2. Further periods of consultation of 45 and 21 days were ordered, providing a full opportunity for the expression of views by the public before the decision-makers (the two Ministers) reached their decision. It fell to them as elected representatives to do so on a consideration of the public interest as a whole.'
Having recently seen the progress of the construction in Vancouver, one is understandably sympathetic towards the business owners who suffer lost business as a result of the construction. Though they will likely benefit from the increased foot traffic when construction is complete, that benefit will never be realized if their businesses can't survive until then. Regardless, the construction is going ahead full-tilt, and doesn't show any sign of slowing.

Interestingly, as pointed out earlier, the issue here is not about the approval process, or even about compensation. Rather, it's about the public notification process. On this issue, it seems the BCCA's decision is well grounded, and that the SCC [Supreme Court of Canada] will likely dismiss this leave to appeal.

If, however, they do grant leave to appeal and the claimants succeed in showing that the project went ahead without sufficiently fulfilling the environmental assessment requirements, the question of the appropriate remedy will be an interesting one to resolve. By the time the case finishes winding through the SCC, the rail line will be close to completion; at which point, monetary damages would be the likely avenue of remuneration. But then, how much is adequate public notification worth? Even if properly notified and consulted, the project would likely have gone ahead anyway. If such is the case, are the appellants here just chasing for a moral victory?

Moral victory or not, this is another lesson to be learned. So, my question is this: Is this yet another new (large infrastructure) project risk to be contended with?

1. Visit to see the original article (site accessed 10/22/07).
2. Ibid.
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