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Injurious Affection and Highway Projects

The Court of Appeal’s recent decision in Susan Heyes Inc. dba Hazel & Co. v. Vancouver (City) 2011 BCCA 77 may have relieved some of the anxiety stemming from the finding of liability in the trial judgment. The Court of Appeal held that either of Translink’s authorizing legislation or the Vancouver Charter power to impose street closures were a sufficient basis for a defence of statutory authority to defeat Heyes’ nuisance claim. The Court of Appeal the $600,000 award for business losses was overturned and the action dismissed. The Supreme Court of Canada dismissed Heyes’ application for leave to appeal the decision of the Court of Appeal.

Heyesis an important case for what it says about the defence of statutory authority (and this paper will return to discuss its influence in another context later). Most local governments though will not likely be involved in rapid transit projects of the scale of the Canada Line. Yet regular road improvement projects that involve partial road closures, the construction of medians and other measures that impact on access may give rise to substantial claims for compensation under the law of injurious affection.

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