Susan Heyes lost round two of her David-and-Goliath battle against the Canada Line builders on Friday when the B.C. Court of Appeal overturned her $600,000 award.

A three-justice panel unanimously found that the owner of Hazel & Co., was not entitled to compensation for business losses incurred when Canada Line construction impeded traffic in the area.

The panel said the construction companies behind the $2 billion mega-project were legally authorized to disrupt the busy of Cambie Street to complete the project.

“In short, the Canada Line could not be built without significant disturbance to many citizens’ use and enjoyment of their property,” Justice Kathryn Neilson wrote with the support of Justice Jo-Ann Prowse.

“There was no construction method that provided a non-nuisance alternative in building the Canada Line. I would therefore allow the appeal and set aside the award of damages to Hazel & Co.”

Justice Mary Saunders added a concurring opinion calling attention to the wide implications of the case considering “the creation of the former Granville Street mall and recent bicycle lanes, full and partial street stoppages to facilitate construction projects, and permanent street closures intended to enhance neighbourhoods or simply to divert traffic to another corridor.”

“The law of nuisance is not well defined for this circumstance,” she warned.

“While it seems, perhaps, harsh that a person or business may lose accustomed access or traffic, an urban dweller will be well familiar with traffic changes affected by the city, both major and minor, permanent and temporary.

Justice Saunders opined it wasn’t clear what sort of right or claim was really at stake. Does the law of nuisance, for instance, render “a party that has received advantage from a street closure or traffic change liable for the losses that a closure may cause others”?

Still, all three justices overturned B.C. Supreme Court Justice Ian Pitfield’s May 2009 decision awarding Heyes $600,000 in damages, costs and interest as compensation for construction that disrupted sales when her maternity-wear store was at 16th and Cambie.

The facts about the building of the rapid transit line connecting Vancouver, Richmond and the Vancouver airport were not in dispute.

The prospect of cut-and-cover construction along Cambie Street was first raised in late 2004 causing Heyes and fellow merchants to balk.

Though they fought fiercely to stop the disruptive excavation, they lost and construction commenced in late 2005. It was completed in the fall of 2009.

Throughout, business in Cambie Village was decimated as pedestrians and vehicles were tortured by road closures, detours and grid-lock.

Justice Pitfield blamed the chaos on the choice of cut-and-cover construction between 2nd and 37th Avenues and concluded that was an unreasonable interference with Heyes’ use and enjoyment of her store.

While Translink was authorized by legislation to build the line, he said, that construction method was not specifically authorized. He added that a bored tunnel was a viable and non-nuisance alternative.

“I am persuaded the trial judge erred by essentially confining his analysis of public utility to the two construction methods and their impact on Hazel & Co.,” Justice Neilson said.

“The community impact of the construction methods proposed was only one of a multitude of inter-related factors to be considered in assessing those proposals and their social utility.”

Cut-and-cover was attractive due to its lower cost, greater flexibility in scheduling and promised increases in ridership from shallower, more accessible stations.

Further, it meant less risk of not being ready for the 2010 Winter Olympics, a condition of federal and provincial funding.

“I am satisfied that by confining his analysis to the construction methods and their impact, the trial judge failed to fully consider the comparative public utility of the two proposals,” Justice Neilson said.

“When this is considered, it is apparent his finding that bored tunnel construction presented a viable alternative that would have adequately accommodated the public interest cannot stand. That conclusion essentially ignores the cost differential of over half a billion dollars in public funds between the two proposals, and the many aspects of the [cut-and-cover] proposal that were superior to that of [tunneling] from the perspective of social utility.”

She concluded:

“Disruption to a multitude of businesses and residents along the 19.5-kilometre line during construction was thus inevitable, regardless of the construction method used. While bored tunnel construction would have caused less disturbance in Cambie Village, it would have created significant disruption in other densely populated areas.”

angrily denounced the decision that has been nearly two years in gestation.

Heyes angrily denounced the decision that has been nearly two years in gestation. “We have a Legal System here in B.C. - but do we have justice?” Heyes complained.

“In upholding this appeal, the legal system has supported the confiscation of individual citizen’s livelihoods by government funded private, for profit ventures. This shocking ruling has failed to protect the rights of citizens, and has failed to uphold justice and fairness in a democratic society.... I am appalled.”

She would like to go to the Supreme Court of Canada but must digest this ruling and hear whether she must return the money: “I’m still struggling financially. I have no idea how on Earth I would pay the damages back.”

A TransLink spokesman said the decision is under review and declined further comment.

imulgrew@vancouversun.com