From a legal perspective (admittedly I’m an amateur), that written notice of hazard is a key trigger for compelling action on the part of the city to remedy those hazards, not to the limit of our modest fiscal appetite, but morally and legally, to the most current appropriate standards governing the remediation or construction of any other major piece of municipal (or provincial, federal, or indeed private) infrastructure.

More specifically, the seismic standards we must now implement have to be at least as prescriptive as those we demand for any new construction or restoration project in the city.  In fact, the necessity of adherence to a reasonable standard for our duty of care will be not just local, but be informed by provincial and federal standards, as well as by common and case law around the continent and beyond.

Given that Victoria is the most seismically vulnerable city in Canada, our duty is to construct to the highest standards available.  We do not have the luxury of rolling the dice, a strategy critics of the replacement project have clearly spelled out as not just an option, but a prerequisite of their preferred solution of refurbishing the existing bridge.

Nobody is inviting the big one to visit Victoria anytime soon, but provincial and local strategies for decades have been positioning communities to be resilient in the event of disaster.  Building codes have been updated and all manner of public infrastructure are being constructed or upgraded to meet current seismic standards.  The exposure of Victoria in 1992, for example, estimated major earthquake economic impacts in Victoria of between $2.78 and $6.23 billion.  My colleagues with more experience in calculating accumulated inflation could probably convert those to current dollars easily enough, but those numbers are sufficiently instructive at those modest figures to compel action. See: Earthquake economic impacts in BC

Many new, seismically sound buildings and projects have proceeded in the intervening years, no doubt admirably reducing our exposure to significant damage across more and more of our infrastructure (newer roads, including approaches to the Johnson Street Bridge are more seismically robust, as are bridges (Bay St., a new Craigflower Creek bridge in Saanich; private developments; schools are steadily being seismically upgraded, City Hall is in the early stages of logistical assessments, etc.) We don’t allow occupation of heritage buildings targeted for retrofits until new seismic codes have been met – and our heritage tax relief program assists in advancing this work.

As I understand it from my research and past experience, and it is essential to informing my vote on the bridge options before us, our responsibility is not just to “the asset”, namely our bridge, but to the fundamental performance of the design, be it seismic safety, protection of life and the performance of its essential functions, including facilitati just the mobility of cars and trucks (which the old bridge does, but not particularly well – 80 injury and 130 property damage accidents have occurred over the last 5 years on the “S” curve leading from the bridge ramp to Esquimalt Rd in Vic West), but also a key link for citizens traveling by bike, on foot, aboard rail or transit.  It’s not just a bridge, but integral to the economic viability of downtown Victoria.

Examples of how some of these responsibilities play out in practice include:

 

It’s not clear whether or not the dust has settled on the legal quagmires associated with the Concorde Overpass collapse in Montreal in 2006, but one report suggested one orphaned child (5 people died in the tragedy) could win more than $400,000 and the provincial inquiry over the collapse cost over $5 million. 

Elsewhere, the Canada Line construction in project that cost at least one Vancouver merchant her business resulted in a $600,000 settlement after winning a suit claming that “proponents misrepresented the effect the construction would have on local merchants”.  She lost on that point but was awarded compensation on the premise that the project created a “nuisance” that impacted her business.  50 others who went out of business are lined up to sue, I guess pending the outcome of an appeal.  The issue in Vancouver turned on the substitution of an easier, lower cost solution to the construction project.  As it turns out, whose cost is relevant.

See the Vancouver Sun story

For something more eerily comparable to our Johnson St. Bridge, google the Ashtabula Bridge in Ohio, (another Strauss Bascule project) where problems uncovered during refurbishment left the bridge stuck in the open position for some time and closed for a full two years for painting and other refurbishment work.  Local businesses did close as a result and we can probably predict some similar impacts in Victoria should conditions beyond those already identified were revealed after restoration work commenced.  The “nuisance” liabilities associated with our project are likely (according to our risk assessment), to be far in excess of the value of any capital works associated with a new bridge.

Fortunately, we’ve done our assessment, but as noted elsewhere, that triggers now a responsibility to address the hazards.  The inspection stuff is just to say that we can’t just pretend the problem or liability doesn’t exist and hope for the best.  Both with the old bridge and, of course, with any new bridge, we’ll have to inspect, assess and maintain the structure regularly. 

Earthquake issues, again

The possibility of an earthquake, and a significant one at that, determines the extent of seismic work we are obliged to carry out. Notwithstanding the well meaning, thrifty recommendations from some corners that we don’t have to provide the most complete seismic upgrade described in the condition assessment and further evaluated by subsequent professional analysis, we are, I would suggest, obliged to meet the most rigorous standards.  On that element, my vote is fixed.

Sifting through the historical record and other references, it is clear, to me at least, that we are at, not approaching, the decision point on the future of the bridge.  Even at a brisk pace, construction or refurbishment is a 2 to 3 year project, edging out of the time frame the condition assessment suggested was our window in which we are compelled to act.

The understanding of the economic impacts associated with exposure to conceivable seismic events has been in circulation for nearly two decades.  More recently, local assessments of hazards to infrastructure within our portfolio highlighted not only the exposure, but of the key role the Johnson St. Bridge plays in our diverse and integrated transportation network.

Victoria Hazard report identifies Johnson St. Bridge as critical infrastructure:
http://www.victoria.ca/cityhall/pdfs/vema-hazard-risks.pdf

“Due to the age of the (Johnson St) bridge, a damaging earthquake may have a devastating affect.” (pg 41)

 “In the case of major earthquake, it is likely that the Johnson St. Bridge would fail”. (pg 58)

The report also noted that the Johnson St. Bridge approaches were upgraded, debunking the suggestion that the bridge will be inaccessible in the event of an earthquake.

See also, the Hazard table that identifies very high impacts for earthquake events in various scenarios.

Liability for economic impacts is a fact, not an opinion, and it is largely absent from some of the analysis provided by the critics of the decision at Council.  The city’s engineers and consultants have been doing their homework drilling further into conceptual options for refurbishment to ensure that council has the benefit of assessing the practical and cost implications of the restoration wish list.  The risk of choosing cheaper or more expedient solutions ostensibly to preserve heritage values is that it induces economic dislocations far exceeding the value of any capital works as noted above with respect to the Cambie St merchants and the Canada Line.

This example emphasizes, as Council must consider, that the bridge not be assessed in isolation from its function as a central link in our transportation network, and one vital to the viability and stability of our downtown economy.  On that score, the new bridge easily beats refurbishment for preserving economic sustainability.  A good example of that theory is demonstrated by the Strauss project itself.  When the current bridge was built, city engineers flipped old alignments to ensure minimum disruption of traffic in 1924.  We are returning to the “heritage alignment” of the first crossing of Victoria’s inner harbour and likewise choosing the least disruptive project to ensure the maintenance of a vital downtown economy and the viability of our transportation network.

A seminar description for the 2008 Provincial Municipal Liability Conference said:

“Municipalities face civil suits and quasi criminal prosecutions if they fail to adequately inspect, maintain, repair and replace their aging infrastructure;”

Next year’s program covers the waterfront on issues like:

You can do more research on the Canadian Institute’s website where they are promoting the 2010 conference.  http://www.canadianinstitute.com/PMGL.htm

Common themes are the duty to inspect to determine safety of facilities, an obligation to remediate once a hazard has been identified and where written notice has been served.

Here’s what Ontario’s legislation spells out for the duty of care (which can be assumed will be similar in BC).

Atherton Barristers
as follows:
Subsection 284(1) of the Act is repealed and the following substituted:
(1) the council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge
(1.1) In case of default, the corporation subject to the Negligence Act, is liable for all damages any person sustains because of the default.
(1.2) The corporation is not liable under subsection (1) or 1.1) for failing to keep a highway or bridge in a reasonable state of repair if it did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge.
(1.3) The corporation is not liable under subsection (1) or 1.1) for failing to keep a highway or bridge in a reasonable state of repair if it took reasonable steps to prevent the default from arising.
(1.4) The corporation is not liable under subjection (1) or 1.1) for failing to keep a highway or bridge in a reasonable state of repair if, at the time the cause of action arises.
(a) minimum standards established under subsection (1.5) apply,
(i) to the highway or bridge, and
(ii) to the alleged default; and
(b) those standards have been met.

See also an article in The Standard on Burgoyne Bridge in
St. Catherine’s (similar decision issues to our bridge)

Standards of care and duty to address hazards are the issue for the bridge.  With the assessment having identified significant seismic vulnerability, it triggers a responsibility on the part of the municipality to address that hazard, and to current seismic codes.  Given that Victoria is the most seismically vulnerable city in Canada, our duty will be to meet the highest standards.

After reviewing the options for refurbishment and replacement, liability issues for both loss of life and economic dislocation, complete and comprehensive seismic upgrading is not a discretionary item for me and I have voted accordingly.  It is a prerequisite to my thinking also on cost issues, which will be discussed in another blog entry. For the latest please visit: John's Council Blog

John Luton,
December 9, 2009