Tunnel vision correctable

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A note by Zweisystem: Liz James is one of the few writers around who has taken the time to study the issue of transit and transportation and Rail for the Valley welcomes her article.

Elizabeth James, Special To North Shore News

Published: Sunday, June 14, 2009

a recent decision by B.C. Supreme Court Justice Ian Pitfield is likely to have ramifications for all municipal taxpayers — whether or not it stands up to a possible appeal.

On May 27, Pitfield awarded Hazel & Co., a Cambie Street business, $600,000 plus costs in recognition of the severe disruption caused by Canada Line construction.

The decision was music to the ears of entrepreneur Susan Heyes and her counsel, North Vancouver’s Cameron Ward who, for four years, had painstakingly built the case for compensation.

Evidence amounted to thousands of pages. Forensically-audited financial statements supported Heyes’ claim that her maternity-wear business had experienced a loss in sales of more than $900,000. That decline in sales coincided with the appearance of what one customer called the “rubble and muck at Cambie Canyon.”

As Heyes pointed out, “Pregnant ladies don’t like climbing over and around construction trenches and street barricades; nor should they need to.”

After weeks of deliberation, Pitfield decided that Ward had successfully argued Heyes’ case against three of the five defendants: Canada Line Rapid Transit, InTransit B.C., and TransLink.

In his reasons for judgment, Pitfield explained why he decided the extent and four-year duration of the nuisance — an exquisite legal term that belies its real significance — constituted an “unacceptable burden” for the previously successful entrepreneur. He also emphasized that his findings applied only to Hazel & Co. and that, under the strict parameters he had established for this case, he found the provincial government and City of Vancouver not liable.

There is little doubt that Pitfield’s opinion will have implications for future capital projects, and reverberate throughout all municipalities — including the five on the North Shore. No one should be surprised, therefore, if the battery of government lawyers makes much of that point, in the event they launch an appeal.

But before anyone jumps to the conclusion that it will be Heyes’ fault if capital projects become more expensive, there are other points to consider.

As long ago as February 2003, TransLink board directors should have heard the alarm bells. Many of the alerts were contained in the 55-page Independent Review: Phase One report of The Underhill Company, LLC.

Although commissioned by the City of Vancouver, the prophetic findings were pertinent to all TransLink municipalities and concluded:

While “the prospect of senior government funding presents a distinct opportunity . . . it also presents significant challenges and potential financial risks . . . which can cost or save up to a billion dollars.”

So which was it; a cost or a savings?

Premier Gordon Campbell and then-transportation minister Kevin Falcon claim public-private partnerships remove the burden of risk from taxpayers. Yet, it is plain from the Underhill report that the City of Vancouver and, by extension, all taxpayers, remain at risk of financial losses on the Canada Line project.

The report states earlier: “Draft materials showed capital costs to be in the $1.8 to $2.2 billion range. . . .”

So how was it that, at a public meeting in June 2004, City of North Vancouver Mayor Barbara Sharp — representing all North Shore municipalities — still referred to “$1.35 billion, the money we have on the table?” No member of the board contradicted her.

That was not Monopoly money, our tax dollars were at stake.

The most telling Underhill statement appears in the executive summary: “Ultimately, the risks of the RAV project will fall on TransLink.” Those risks include, “a share of the risk related to ground conditions for the tunnel.”

Ah, the tunnel.

In November 2004 — 19 months after the Underhill Review was received by Vancouver council and three months after Sharp put her motion to the TransLink Board – District of North Vancouver Coun. Alan Nixon was so concerned he put the following motion to a special meeting of council:

“That the District of North Vancouver advise Mayor Sharp, as the North Shore representative on the TransLink board of directors, to reconsider her conditional support of this project and consider the rejection of the project as now designed and priced.”

As events unfolded, Nixon’s effort went for naught. In December 2004, the project was approved, and the consortium began its inexorable journey toward Justice Pitfield’s courtroom.

I attended the first of the two June meetings to speak against the project. I heard no discussion of a cut-and-cover tunnel, or of the yet-to-be-proven $400-million savings now being claimed for that method of construction.

It appears Sharp and her fellow directors were either in the dark as to any plan to switch to cut-and-cover, unaware of the significance of the phrase for adjacent businesses, or the phrase had never been used in presentations to the board.

This begs the question: When TransLink held the infamous third vote-until-you-get-it-right, did board members give their informed consent? If they did, why were Cambie business owners not so advised when they attended “public information” meetings, and why did Heyes have to find out only after she had renewed her five-year lease?

On the flip side, if the board was not informed about cut-and-cover details, one is left to ask if that is the process by which billions of our transportation dollars are deployed?

In other words, was this expensive fiasco due to strategic use of confidentiality agreements signed to protect competitive design plans of the for-profit partners in a P3 project dictated by provincial policy? Or was it a mind-numbing omission on the part of those to whom citizens entrust their tax dollars?

Whatever the explanation, justice suggests that taxpayers should not hold Heyes responsible for the fate she suffered. Just like the rest of us, she had no other way to hold the decision-makers to account.

What North Shore taxpayers can do is take heart from the Pitfield decision and resolve to take a closer look at other projects that are on course to drain municipal budgets and citizens’ wallets: the Bilfinger-Berger lawsuit — which also revolves around tunnelling design — for the water filtration project; the persistent downloading of provincial responsibilities onto municipal budgets; provincial policies that allow unelected, unaccountable boards to impose levies that compromise municipal tax revenues; carbon taxes that force municipalities to assign staffing and financial resources to tally the data required . . . the list goes on. Every one of these items warrants a column of its own.

The most important point, however, is this: Governments, at any level, can only spend money they have taken from taxpayers. It is our job to hold them to account for their decisions.

In the overall scheme of things, Heyes’ $600,000 will have been cheap at the price if it persuades us to take a firmer grasp of the wheel that, for far too long, governments have spun out of control on our dime.

Elizabeth James is a West Vancouver writer and editor.

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