Yesterday, Ivan Henry emerged from Mountain Institution into the waiting arms of his family, hours after Mr. Justice Lowry of the Court of Appeal decided that he could be released pending the hearing of his appeal. Mr. Henry was arrested nearly 27 years ago, when his two daughters were nine and six years old, and he had been imprisoned ever since. In January, the Court of Appeal granted him the extraordinary opportunity to appeal his convictions for sexual assault on the merits.

At his original trial before a judge and jury, Mr. Henry defended himself. The Crown tendered no physical evidence to link him to any of the crimes he was accused of. The only evidence was eyewitness identification evidence from the female complainants, after many had participated in viewing a questionable lineup:

Portion of a photo of the lineup, from The Vancouver Sun

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Friday’s decision is due in no small measure to the hard work of Mr. Henry’s legal team, especially David Layton, Marilyn Sandford and law student Tony Paisana. On a personal note, being present for the reunion of Mr. Henry and his family was quite a thrill, and is no small reward for deciding to enter this profession all those years ago…

September 25, 2009 update: InTransit BC Limited Partnership has filed a Petition seeking a judicial review of the decision of the Information and Privacy Commissioner that the entire Concession Agreement with respect to the P3 (including financial information) must be released to me.

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July 26, 2009 update: Mr. Justice Chiasson dismissed the Defendants’ application for an Order that execution on the judgment obtained by Susan Heyes Inc. be stayed until after the disposition of the appeal.

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June 19, 2009 update: The Defendants have filed and served a Notice of Appeal today.

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In a judgment released May 27, 2009, the Honourable Mr. Justice Pitfield of the Supreme Court of British Columbia found that the construction of the Canada Line constituted a nuisance to Ms. Heyes’ business at 16th and Cambie, Hazel & Co., and awarded it damages of $600,000 plus interest, costs and disbursements. Read the Reasons for Judgment here.

Our firm has received many enquiries about this matter. The following is a general response to questions that have frequently been asked and should not be considered legal advice. If specific legal advice is required, please feel free to contact Mr. Ward by e-mail. (cward@cameronward.com)

FREQUENTLY ASKED QUESTIONS:

Q. What happened in Susan Heyes’ lawsuit?

A. In 2005, lawyer Cameron Ward started an action in the Supreme Court of British Columbia on behalf of Susan Heyes Inc. doing business as Hazel & Co. The claim alleged that those responsible for the project, then known as the RAV Line, for “Richmond/Airport/Vancouver”, had misrepresented the nature of the manner of construction, had created a nuisance and/or were negligent. After extensive pre-trial procedures, including the exchange of thousands of pages of documents and several days of examination for discovery, the case went to trial. On May 27, 2009, following about three weeks of evidence and argument, the trial judge found that Hazel & Co. had suffered a nuisance as a result of the cut and cover construction at 16th and Cambie. The Court awarded Ms. Heyes’ business damages of $600,000 for lost business income, plus interest and court costs.

Q. Will the judgment be appealed?

A. The defendants have thirty days to file an appeal to the British Columbia Court of Appeal. As of June 5, 2009, no appeal had been commenced yet.

Q. My business was affected too. What are my options?

A. You should seek legal advice about your specific situation without delay, as limitation periods may apply. The judgment won by Ms. Heyes is significant, and may have implications for others with similar claims.

Q. I have heard about a class action. What is the status of that?

A. A Vancouver law firm recently commenced a case on behalf of two businesses and a couple of individuals who claim that they were adversely affected by Canada Line construction. While the plaintiffs purport to represent others, the case is not a class action yet; it would have to be certified by the court to proceed as a class action and there is no indication yet when or if such certification will occur. If the case becomes certified as a class action, anyone can choose to opt in or opt out. This case is at a very early stage, as a Statement of Defence has not yet been filed and there has been no exchange of documents or discovery. No trial date has been set.

This from Trevor Lautens in the North Shore News:

“Susan Heyes got stiffed by half a dozen bureaucracies regarding Canada Line construction damage to her Cambie Street business when technical and time information proved bogus. She sued and won $600,000 in damages. Good for her lawyer, Cameron Ward. A human face and offer to compensate merchants for business losses might have lowered the bill and demonstrated some decency.”

The Lieutenant Governor of British Columbia awarded the Victoria Human Rights Institute’s Human Rights Medal to Cameron Ward in a ceremony at Government House on May 26, 2009.

Courtesy of the Office of the Lieutenant Governor

The interim report of Commissioner William Davies, Commissioner of Inquiry into the circumstances surrounding the death of Frank Paul, has been released to the public, more than a month after it was delivered to the Attorney General of British Columbia. The report says that the justice system failed Frank Paul and his family and calls for sweeping reforms, including eliminating the current approach of having police investigating police when they are implicated in a civilian death.

The entire report is available online at www.frankpaulinquiry.ca.

The public comments of Mr. Davies, a well-respected former British Columbia Supreme Court justice, can be found here:

REMARKS OF COMMISSIONER Press Conference March 12 2009

The report is not complete, as the Attorney General has appealed a BC Supreme Court decision upholding Commissioner Davies’ order that the Crown prosecutors involved in the case testify at the inquiry. That aspect of the case, that centers on the Crown’s repeated decisions to lay no charges, has been argued and we are awaiting a decision from the Court of Appeal.

That said, it is hard to avoid the unsettling notion that anyone other than a uniformed police officer who had caused a death like Frank Paul’s would have been charged with criminal negligence causing death in no time.

May 27, 2009 update: WE WIN, AGAINST ALL ODDS! Read the decision of the Honourable Mr. Justice Pitfield here:

Judge Pitfield, re Heyes v. City of Vancouver,05-27.pdf

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April 3, 2009 update: The trial of Susan Heyes’ Inc. dba Hazel & Co.’s claim for damages for nuisance caused by Canada Line construction ended today with the Honourable Mr. Justice Pitfield advising the parties that judgment will be reserved.

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March 31, 2009 update: The parties’ closing submissions have been scheduled to commence Wednesday, April 1, 2009 at 10:00 a.m. before the Honourable Mr. Justice Pitfield in courtroom 33, The Law Courts, 800 Smithe Street, Vancouver. The closing submissions are anticipated to be completed by Friday, April 3, 2009.

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March 18, 2009 update: The Court heard testimony from former BC Finance Minister Carole Taylor and a City of Vancouver engineer, Lon LaClaire. Tomorrow’s witnesses are expected to include former city councillor Anne Roberts and Hazel & Co.’s store manager, Lynn Cromie.

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March 13, 2009 update: We have consented to a request from the Defendants’ lawyers that the trial start Wednesday, March 18, 2009 and that certain preliminary motions be heard on Monday, March 16, 2009. The Defendants are applying for orders that notices compelling Kevin Falcon and Carole Taylor to attend as adverse witnesses be set aside, as well as an order that documents be subject to a confidentiality order.

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The trial of a Cambie Street small business’ claim for damages due to cut and cover construction disruption is scheduled to start in British Columbia Supreme Court on Monday, March 16, 2009.

The action involves Susan Heyes Inc. doing business as Hazel & Co. (Plaintiff) versus the City of Vancouver, the governments of BC and Canada, Translink, Canada Line Rapid Transit Inc. and InTransit BC Limited Partnership (Defendants) and is filed under Action no. S054152 in the Vancouver Registry.

The Plaintiff alleges that the Defendants’ actions, including misrepresentation and private nuisance, caused it business losses and seeks general, special, aggravated exemplary and punitive damages, interest and costs. None of the allegations have been proven in Court.

The trial is expected to last three weeks and hear testimony from a number of key government witnesses.