Update: The case of City of Vancouver v. Ward was heard on January 18, 2010 before all nine Justices of the Supreme Court of Canada. No fewer than 25 robed lawyers were in attendance. Judgment was reserved.

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It can be disconcerting when one’s name is bandied about in print, as mine was in recent Vancouver Sun columns by Ian Mulgrew (October 23, 2009) and Law Society President Gordon Turiff (October 29, 2009).

Mulgrew wrote about my 2002 arrest and the legal odyssey that has followed and Turiff used the case to stress the importance of lawyers’ independence. I will refrain from saying too much about the matter now, as the case is before the Supreme Court of Canada, but I will say this: it has been an eye-opening experience to have had my fundamental rights and liberties trampled by agents of the state and then to have had insult added to injury by the authorities’ subsequent behaviour.

Seven years ago, I was handcuffed, thrown in a police wagon, strip-searched and jailed, and my car was seized from where it was lawfully parked, all because Vancouver police were apparently concerned that I matched the description of someone who had been overheard using the word “pie” in the same sentence as the phrase “Prime Minister”. I arrived home after the ordeal to learn that footage depicting me being bundled away in handcuffs had been shown on the evening news.

After consulting an experienced lawyer, I requested an apology to set the record straight and clear my name. The matter should have ended there. However, no apology was forthcoming, so I sued. I hired lawyers and as the trial date approach, I offered to drop the case for a formal apology. The matter should have ended there. But again, the authorities refused to provide an apology. Four lawyers defended my claim, at taxpayers’ expense, and the six day trial resulted in a judgment in my favour. The matter should have ended there. It didn’t, because the Province and the City of Vancouver instructed their lawyers to appeal. The Court of Appeal upheld the trial judgment. The matter should have ended there. It didn’t; the defendants sought and obtained leave to appeal to the Supreme Court of Canada and their two related appeals will be heard in Ottawa in January.

As Mr. Mulgrew expressed so clearly, I have been dragged through years of litigation without any apparent regard for the cost involved. The City of Vancouver, in particular, is spending taxpayers’ money on an appeal that arises from the trial judge’s decision to award me $100 for the unreasonable seizure of my car.

As a lawyer, I have devoted my professional life to the pursuit of justice for my clients. Concepts of fundamental rights and liberties, and the independence of the legal profession, are near and dear to me. However, these may be hollow notions indeed when those with unlimited resources can use them to crush the individual.

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.”

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.

A former environmental activist with the Friends of Clayoquot Sound has won an appeal of a lower court decision awarding Creative Salmon Company Ltd. damages for defamation. The west coast salmon farming company had sued Don Staniford for damages as a result of two press releases he authored about the company. At the end of a twelve day trial, the judge found that the releases had defamed Creative Salmon and ordered that Staniford pay damages of $15,000. The Court of Appeal has found that the trial judge erred in applying the law and has set aside the decision and ordered a new trial.

The result means that Staniford will be relieved from any obligation to pay Creative Salmon at least $100,000 which includes the judgment, court costs of $75,000 for trial and estimated appeal costs of $10,000. He should recover some of his costs as well.

We had only a peripheral role in the case, representing the interests of Friends of Clayoquot Sound, but we welcome this major victory and congratulate Mr. Staniford and his lawyers for standing up to the bullying tactics of the plaintiff.

Read the decision here: 2009 BCCA 61 Creative Salmon Company Ltd v. Staniford

The Court of Appeal issued reasons for judgment today which upheld the decision of the trial judge in the civil case arising from my arrest, strip search, wrongful detention and seizure of my car after Vancouver police somehow mistook me for someone who was conspiring to throw a pie at Prime Minister Chretien at a ceremony in Vancouver’s Chinatown in August of 2002.

Read the decision here: 2009 BCCA 23 Ward v. British Columbia

A few comments:

I am extremely grateful for the work of my lawyers, especially Brian Samuels, who took the lead for the six day trial and two day appeal and did terrific work on my behalf. I hope that this case encourages others to stand up for their rights.

The learned trial judge said I was “mistaken” about the events leading to my arrest by three Vancouver police officers. I certainly wasn’t, and this finding drives home the difficulty a citizen faces when it’s his word against the word of, in this case, three police officers.

The Court of Appeal decision leaves the impression that I initiated the appeal. I didn’t. After I won at trial, the Province filed an appeal against the Court’s decision to award me $5,000 for the unlawful strip search that breached my Charter rights. After receiving notice that the Province was taking that step, I challenged aspects of the trial decision that I disagreed with.

My formal complaint lodged with the Office of the Police Complaint Commissioner was dismissed as “unsubstantiated”. How could this be, if the courts found my rights were violated? Simply put, because the police investigated the police.

Finally, the City of Vancouver, which is responsible for the actions of its police, had at least two opportunities to avoid this lengthy and expensive litigation by simply providing an apology. I made it clear I would accept an apology a short time after the incident and again shortly before trial. The offer to drop the case for an apology was rejected both times.