***** UPDATED WITH COMMENT FROM SUSAN HEYES BELOW
“For I say unto you in all sadness of conviction that to think great thoughts you must be heroes as well as idealists.
Only when you have worked alone / when you have felt around you are a black gulf of solitude more isolating than that which surrounds the dying man, and in hope and despair have trusted to your own unshaken will / only then can you gain the secret isolated joy of the thinker, who knows that a hundred years after he is dead and forgotten men who have never heard of him will be moving to the measure of his thought / the subtle rapture of postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army.
And if this joy should not be yours, still it is only thus you can know that you have done what lay in you to do / can say that you have lived, and be ready for the end.”
~ Oliver Wendall Holmes Jr., Judge and jurist.
I have on good authority that tomorrow is the day the ruling will come down in the appeal of former Cambie Street merchant, Susan Heyes award of damages from Canada Line, Translink and Intransit BC.
The timing is remarkable, for reasons that will soon become evident, but on this night before, I cannot but think of what a hero she has become to so many people, regardless of the outcome of the case.
I met Susan a couple of years ago downtown at the courthouse on a day I attended court to see the Basi-Virk proceedings. I liked her immediately, the kinship evident after a half hour of discussion in the main hall.
Her fiery hair is greatly indicative of her spirit, her eyes indicative of a weary soul who wishes only for justice and closure after so many years on the battlelines.Tall in stature, she paints a strong, statuesque silhouette in any venue. Ironically, the courthouse suits her well – lady justice could not be played by a more appropriate woman than Ms. Heyes…
” I believe in truth. I believe in truth and honesty,and in doing the right thing. Most of all, I believe in justice…” was her reply to me when I asked what drew her to the hearings that day. I knew immediately that this was a woman who, no matter what obstacle came her way, would be triumphant in righteousness regardless of how events unfolded in her personal, but very public, battle against the big guns in government. And I liked that about her immensely.
In many ways, Ms. Heyes has become a hero to thousands of people across BC. She has done the unthinkable, the unimaginable. She stood up in the face of near defeat and said: ” No. No I will not stand back and let you do this.” and took on three levels of government, something many people think about doing, but never do.
As someone who researches,and writes in an effort to find the truth, to expose the facts behind the fallacies and deceptions of a government that routinely crosses the line, it is safe to say that while Susan’s case is likely the most publicized case of David vs. Goliath, it is certainly not by far the only example of government playing roughshod with little regard for those in their path.
Take Pavi Khunkhun, the hotel owner from Golden facing economic ruin in the face of Kicking Horse highway upgrades, much like Susan faced. Unable to find a lawyer to take his case, Pavi was determined to find a way to get the government to do the right thing.
Or Tercon Vs. British Columbia, a case revolving around contracts and the extent to which the Ministry of Transportation and Highways would go to conceal the truth, alter paperwork and misrepresent bids in a competitive tender situation – a case that spanned 10 years and changed the way bidding and contracts are handled with government around the country.
Yes, to be certain Ms. Heyes case is but one among many that demonstrate how this government likes to do business, and it isn’t pretty. The South Fraser Perimeter Road has uprooted historical Delta families who have lived in the same place so long they have streets named after them. In the face of the Goliath persona so much of our government has assumed, most give up before the battle even begins in earnest, not willing to wager years of their life on an unknown end result.
But Susan did. And for that she must be supported, commended and applauded.
No one can say what decision the court has reached. No one but Susan knows what it feels like the night before such a monumental moment in one’s life. But I do know this. No matter what the outcome is, she has become a hero in everyone’s eyes for taking on the impossible, the unthinkable, and for doing it with a passion that never took away from who she is.
On May 27th, 2009, after four years of litigation, BC Supreme Court Justice, Ian Pitfield, awarded $600,000 in damages to my company Susan Heyes Inc. as compensation for business losses caused by the construction of the Canada Line. The appeal of this ruling in my favour was heard April 15th, 2010.
Today, the decision was finally announced, that shockingly contradicts the findings of the lower court.
In upholding this appeal, the legal system has supported the confiscation of individual citizen’s livelihoods by government funded private, for profit ventures. This shocking ruling has failed to protect the rights of citizens, and has failed to uphold justice and fairness in a democratic society.
The Canada Line project was built on the backs of hundreds of blindsided small business people along the Cambie corridor.
The project chose the most disruptive of several methods of construction. This discretionary and confidential decision alone should have negated the defence of Statutory Authority which the Appeal Court Justices used today as the basis for their ruling.
Under the law, the defence of Statutory Authority can only be used when it is proven in court that no other less disruptive method of construction was available. Instead of the devastating cut-and-cover construction, a bored tunnel method was not only available, but it was the basis of all public consultations and years of engineering reports and studies.
This project was enabled by the strategic use of confidentiality agreements at every stage, leaving citizens and even municipal officials misinformed and out of meaningful consultation. The last minute secret switch from underground bored tunnel to cut-and-cover, was never approved by Vancouver City Council, as a decision making body. They had authorized the City’s Engineering Department to negotiate the agreement that provided access to Vancouver’s streets for the project in a vacuum. The engineers were forced to sign confidentiality agreements that prohibited them from informing their bosses – City Council – of this critical switch.
I question the validity of any contract or agreement that allowed this project to proceed, that was obtained in the absence of the whole truth about the project and its impacts on citizens and small businesses. Compensation should have been factored into the business plan.
I am appalled that our legal system has failed to support the rights of citizens, and has attempted to provide a legal justification for the excessive harm caused by this P3 project. I further wonder how many tens of millions of dollars have been spent to legally defend the project, instead of fairly compensating the victims.
The May 27th 2009 ruling from Justice Pitfield must be upheld by the Supreme Court of Canada. The outcome of this litigation will set a precedent for all small businesses across Canada. The precedent that it sets should be just and fair, and reasonable. When governments use their powers to confiscate value for the common good – individuals must be compensated.
4255 Main Street