Dianne was honoured to be a semifinal judge again this year at the Willms and Shier Environmental Law Moot at the Ontario Court of Appeal. The mooters argued the appeal that, in their opinion, the Supreme Court of Canada should have heard from the decision of the British Columbia Court of Appeal in Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 (CanLII).
As we commented in 2011:
"Public works often impose heavy losses on those in private property nearby. Under what circumstances should they be compensated? That should have been the question in Heyes v. Vancouver, now Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority. Alas, it was not – Heyes was decided on whether the transit builders had been at fault."
Nuisance was never the right legal tool for the losses that Susan Heyes suffered from the prolonged and troubled construction of the Canada Line through her neighbourhood. What she suffered was a classic case of injurious affection. What the court did not discuss in its decision was the inconvenient truth that the British Columbia legislature had specifically barred all compensation for injurious affection in relation to the construction of transportation infrastructure such as the Canada Line. Whether or not this was good social policy, it should surely have been a relevant factor in the court's analysis, and in the application of the Heyes decision to other fact situations across the country.
One of the mooters promised to send me his analysis of this very point, but, for whatever reason, it has not arrived. I am still interested in reading it.
Congratulations again to all the mooters, and best wishes in all your future endeavours. It was a privilege to be part of this biennial celebration of the future stars of environmental law in Canada.
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