Bennett Mounteer LLP

CANADA LINE CONSTRUCTION CLASS ACTION

IMPORTANT NOTICE

 

GARY GAUTAM dba CAMBIE GENERAL STORE, 557856 BC LTD. dba SOFA SO GOOD, GEORGE KING and JANE KING

 

v.

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CANADA LINE RAPID TRANSIT INC., INTRANSIT BC LIMITED PARTNERSHIP, INTRANSIT BRITISH COLUMBIA G.P. LTD., SNC-LAVALIN INC. and THE SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY

 

Supreme Court of British Columbia, Vancouver Registry No. S087866

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You are receiving this Court-Approved Notice because you previously delivered a Notice of Claim in this class proceeding indicating that you wish to claim compensation for “injurious affection”, for the impact of the construction of the Canada Line on the rental value of the property you owned or occupied.  A Notice of Claim was delivered by you to Bennett Mounteer LLP (“Class Counsel”) in accordance with a Court-Approved Notice issued to you in early 2016, explaining the determinations that had been made by the Court in the class proceeding and your right to claim compensation for the impact of the construction of the Canada Line on the rental value of the property you owned or occupied.  A copy of that 2016 Notice is included with this Notice.

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The purpose of this Notice is to advise you of developments in the class proceeding that will impact your claim for compensation, and the steps you must take to pursue your claim for compensation in light of those developments.

 

The Three Test Claims

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In 2016, Class Counsel and counsel for the Defendant, South Coast British Columbia Transportation Authority (“TransLink”) agreed that three test claims would be selected for determination by the BC Supreme Court, in order to provide guidance concerning the principles that would be applied to the remaining claims for compensation.  The three test claims selected by Class Counsel were the claims of Gary Gautam, the representative Plaintiff, who operated the Cambie General Store, Festival Cinemas Ltd., which operated the Park Theatre, and Dale Dubberley, who operated the Thai Away Home restaurant (collectively, the “Three Test Claimants”).

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These three claims proceeded to trial in May, 2018 and the judgment was rendered on those three claims on September 4, 2018.  The trial judge awarded compensation in the amount of $7,600 to Gary Gautam, $128,800 to Festival Cinemas and $44,560 to Dale Dubberley, plus pre-judgment interest on those amounts, as compensation for the impact on rental value of the properties they each occupied during the construction of the Canada Line.  The Reasons for Judgment of the trial judge in Gautam v. Canada Line Rapid Transit Inc., 2018 BCSC 1515, are available online at www.canadalineclassaction.com.

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TranksLink appealed these awards of compensation.  The appeal was heard in October, 2019 and judgment was pronounced by the Court of Appeal on May 13, 2020.  The Court of Appeal set aside the awards of compensation to the Three Test Claimants, dismissed the claim of Gary Gautam for compensation and ordered a new trial of the claims for compensation by Festival Cinemas and Dale Dubberley.  The Reasons for Judgment of the Court of Appeal in Gautam v. South Coast British Columbia Transportation Authority, 2020 BCCA 135, are available online at www.canadalineclassaction.com.

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The Three Test Claimants then applied to the Supreme Court of Canada for leave (meaning, permission) to appeal the decision of the BC Court of Appeal to the Supreme Court of Canada.  The Supreme Court of Canada denied that request on December 23, 2020. 

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As a result, the claims for compensation must now be determined in accordance with the principles set out by the Court of Appeal in its May 13, 2020 decision.

 

 

What did the Court of Appeal decide?

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The Court of Appeal held that compensation for injury to the rental value of property caused by the construction of the Canada Line could only be awarded for such injury caused by the construction after July 17, 2008.  No claim for compensation can be made for damage caused by the construction of the Canada Line before that date because of the one-year limitation period in the Expropriation Act, RCBC, c. 1996, c. 125, which provides that a claim for “injurious affection” must be made “within one year after the damage (a) was sustained, or (b) became known to the person”.  The claim for compensation for injurious affection under the Expropriation Act was first advanced in the class proceeding on July 17, 2009.  The Court of Appeal held that any claim for injury to the rental value of property sustained more than one-year before that date (which would be before July 17, 2008) was barred by the one-year limitation period in the Expropriation Act. 

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The Court of Appeal also stated that rents payable under a tenancy which was renewed during the construction of the Canada Line reflected either (i) the market rent for the property in light of the construction of the Canada Line or (ii) a business decision by the tenant to pay the premium over that market rent.  In either case, the Court of Appeal held that no claim for compensation could be made by a tenant in respect such a tenancy, unless the market rent for the property dropped further after the tenancy renewal as a result of the construction of the Canada Line. 

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The Court of Appeal also stated in assessing the extent of injury for injury to the rental value of the properties occupied by the Three Test Claimants, and assessing the amount of compensation to be awarded to them, the trial judge placed too much weight on the loss of profitability of the businesses they operated and failed to take into account factors relevant to the holding value of their respective leases.  The Court of Appeal stated that these were factors that should be addressed by the parties in the new trial of these claims.

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What does the decision of the Court of Appeal mean for my claim?

For all claimants, the Court of Appeal’s decision means:

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• You cannot claim for compensation for injury to the rental value of your property caused by the construction of the Canada Line before July 1, 2008.  Your claim for compensation can only be for injury to the value rental of your property caused by the Canada Line construction after July 1, 2008 and until construction was completed in August 2009.

 

If you are a tenant, the Court of Appeal’s decision also means:

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• No claim can be made by a tenant in respect of rent paid subsequent to July 17, 2008 on a month-to-month tenancy.

• No claim can be made by a tenant in respect of rent paid pursuant to a lease negotiated during the construction of the Canada Line, unless the market rent for the property subsequent to July 17, 2008 was less than the market rent of the property when the lease was concluded.

• You must establish that the construction of the Canada Line unreasonably interfered with the use and enjoyment of your property for business purposes subsequent to July 17, 2008.

• You must establish any loss of profitability resulting from the construction of the Canada Line impacted the market rent for the property.

 

If you are an owner, the Court of Appeal’s decision also means:

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• You may have a claim for a tenancy negotiated during the construction of the Canada Line, either pursuant to the lease or on a monthly basis, if the rents paid pursuant to the tenancy were less than what the market rent for the property would have been without the construction of the Canada Line.

• You may have a claim in respect of any reductions in the rent payable under a lease you agreed to provide your tenant, for any period between July 17, 2008 and August 2009, provided that the rent resulting from those reductions was not less than the market rent for the property in that period.

• You may have a claim for compensation in respect of property you could not rent during the period between July 17, 2008 and August 2009, if you can demonstrate that the property could not be rented because of the ongoing construction of the Canada Line.

• In determining whether and in what amount to award compensation for any injury to the rental value of your property during the construction of the Canada Line between July 17, 2008 and August 2009, the Court may consider the benefit to the property resulting from the completed construction of the Canada Line, if the Court considers it appropriate to do so.

 

The precise manner in which decision of the Court of Appeal will be applied to the claims of both owners and tenants, in respect of their claims for injury to rental value property between July 17, 2008 and August 2009, remains to be determined by the Court, once the claims process is finalized and approved and claims are determined pursuant to that claims process. 

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What happens now?

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Each claimant must now decide whether they wish to continue to pursue their claim for compensation, and if so, whether they wish to retain their own counsel or continue to be represented by Class Counsel.  You will receive with this Notice a form entitled “Notice of Intention to Proceed”, either in the form attached as Schedule “A” for business tenants or in the form attached as Schedule “B” for property owners.  The form you will receive with this Notice will be personalized for you by Class Counsel from the information in the Notice of Claim you previous delivered.

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If you wish to continue to pursue your claim for compensation, you must complete the attached Notice of Intention to Proceed and deliver it to Class Counsel by November 30, 2021.  You must answer all questions on the attached Notice of Intention to Proceed and you must provide any of the documentation specified in the Notice of Intention to Proceed, if you have not already done so.  You must complete the Notice of Intention to Proceed if you wish to pursue your individual claim even though you previously delivered a Notice of Claim in 2016.

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You must also indicate on the Notice of Intention to Proceed whether you wish Class Counsel to continue to represent you with respect to your individual claim, or whether you have chosen to retain individual counsel to represent you.  If you have retained or will retain your own counsel, you or your counsel must provide contact information for your counsel in the space provided on the Notice of Intention to Proceed.  You also may represent yourself without counsel, if you so choose and so indicated on the Notice of Intention to Proceed.

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Class Counsel’s Retainer

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Class Counsel’s Retainer Agreement provides that Class Counsel will be paid 25% of any amounts collected in the class proceeding.  It also provides that disbursements incurred by Class Counsel in the conduct of the proceeding will be a first charge on any proceeds recovered in the class proceeding.  The disbursements incurred to date by Class Counsel amount to $255,678.25. 

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After November 30, 2021, and the time for filing the Notices of Intention to Proceed has passed, Class Counsel intends to apply to the Court for approval of the Retainer Agreement, for the payment of fees of 25% of any amounts recovered in the class proceeding, and for the payment of a further 25% of the amounts recovered by each claimant to be held in trust for the payment of disbursements pending the completion of the claims process.  All claimants who delivered a Notice of Intention to Proceed will have notice of that application and will have the opportunity to object to the payment of fees and disbursements as proposed or to otherwise make submissions with respect to the application. 

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Will it cost me anything to continue my claim?

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There is no cost for filing a Notice of Intention to Proceed.  If you retain Class Counsel, you will not pay any legal fees unless and until funds are recovered on your behalf, and then Class Counsel’s legal fees will be paid from that recovery as approved by the Court.  If you retain your own lawyer to act for you in the claims process, then you must make your own arrangements with that lawyer for the payment of legal fees.

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If you retain Class Counsel, you will be responsible for any expenses which you agree with Class Counsel should be incurred to support your claim.  For example, if you agree that an expert appraiser report should be provided to prove the impact of construction of the Canada Line on the rental value of the property you owned or occupied, then you will be responsible for the cost of that expert report (or your share of it, if the report is also used to support other claims). Such out-of-pocket costs may be recoverable from TransLink, in whole or in part, in the event that your claim is successful.

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It is also possible that if your claim is ultimately unsuccessful, some amount may be payable by you to TransLink to compensate it for expenses it incurred in having to deal with your claim.  Whether any such costs will be payable by unsuccessful claimants, and if so, in what amount or how that amount will be determined, will be decided as part of the claims process to be approved by the Court.  You will have notice of any potential liability for such costs before your claim is submitted for determination in the claims process. 

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How much can I expect to receive?

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It is not possible to estimate the amount of any potential recovery for your claim at this time, as it will depend upon the individual circumstances of your claim.  However, in the trial of the three test claims, TransLink’s expert appraiser gave evidence that the rental values of the properties in Cambie Village were generally reduced during the construction of the Canada Line by 20% in 2008 and 10% in 2009.  You may reasonably use these amounts as a rough estimate of the amount of compensation that you might receive, if your claim is successful.

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If you have questions regarding this class action

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If you have any questions regarding this Notice, please contact Bennett Mounteer LLP at:

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Bennett Mounteer LLP

#400 – 856 Homer Street

Vancouver, BC V6B 2W5

 

Phone: (604) 639-3680

Fax: (604) 639-3681

 

Email: info@canadalineclassaction.com

 

Website: www.canadalineclassaction.com

 

Please do not contact the Supreme Court of British Columbia about this Notice.