By Wendy Harris
It helps to have an ancestor who started a war. Harvey Borley, past promoter of big band names such as the Rolling Stones, Blue Oyster Cult, and Electric Light Orchestra, present-day producer of name acts, and owner of Astro Records, has been embroiled in a battle with the CN Railroad in one way or another since 1995. While Borley acknowledges he's like a flea on CN's back, he's not about to jump off. . .not even if it kills him.
Perhaps Borley's tenacity stems from great-grandma Harriet Beacher Stowe, author of Uncle Tom's Cabin . After the Fugitive Slave Law was passed, Harriet wrote her novel hoping she could expose the nation to the horror of slavery. The book did more than that. Uncle Tom's Cabin sold over 300,000 copies in one year, was published in 37 languages, and provided the public fuel the Abolitionists needed to get rid of slavery. When President Abraham Lincoln later met Stowe in the White House, he remarked, “So you're the little lady who wrote the book that started this Great War.”
While Borley's battle with the CN pales in comparison to the fight to overturn legalized slavery, his issue with the CN exposes the loss of certain individual common law rights. In an industry regulated by the government, practices are authorized and approved by that government. So. . .even if a person or property is harmed in the process, the company is protected because it can legally use “defense of statutory authority.”
In 1995, Borley purchased a parcel of land from Calvin West, and, along with it, he thought, Transport Canada and CN's irremovable road-to-river-crossing contract, essential to access the land. Originally, West's father Henry owned 74 acres that became severed in 1911 as a result of the new CN rail line. Lot 3, the parcel of land Borley eventually acquired, runs north, adjacent to CN's right of way, bounded on the north by the Fraser River, and on the east by the mouth of West Creek.
Concerned over safety issues, West asked for the removal of the crossing planks, after being assured that CN would replace the planks upon written request. While the crossing itself was inactive at the time the property was sold to Borley, the crossing agreement with CN was very much still active.
After purchasing the property, Borley failed in his bid to have the contract honoured and the planks replaced. CN referred to a private crossing agreement with West, pointing out a clause in the small print stating that the crossing was not transferable without CN's written consent. Promptly canceling the agreement it had with West, CN maintained they had the right to break the irremovable contract once the parcel of land was sold.
Suing for breach of contract, Borley has requested a toll of five cents per ton of freight be levied from any rolling stock that has passed over the subject land since 1995. Ivan Mann of Transport Canada has since acknowledged that the Canadian Transportation Agency doesn't know how to rule on this unprecedented action, and would rather put their heads in the sand, stonewalling Borley in hope that he gives up on his suit and disappears.
A bizarre twist to the story is that Borley's property started to fall into the Fraser River, an estimated 3/4 of an acre's worth. Borley maintains the daily vibrations of 24 to 28 eastbound trains and 20 to 26 westbound trains were directly responsible for the erosion of his land.
Borley's nightmare with his sinking property investment had only just begun. In 1999, his three-bedroom houseboat, moored off the property, was consumed in an unexplained fire. Uninsured, as the land was considered inaccessible and therefore uninsurable, Borley's million-dollar collection of rare, live recordings and other memorabilia from the early '60s and onwards, also went up in smoke.
Apart from a small chunk of land he still owns, Borley sold what remained of his property for $20,000. Recently, Lot 3 was assessed at $7,900, a far cry from Borley's original purchase price of $150,000.
At an age when he should be thinking of slowing down, Borley's war with the Canadian National Railway and the Canadian government pushes him all the harder toward lasting success with his company, Astro Records—a combination of work and fight for which his friends, including Sir Bob Geldof of the Boomtown Rats, highly admire and respect him.
Without legislative protection from liability, Borley realizes that his case for breach of contract against CN would have been settled long ago. After years of knocking legal heads in the courtroom, however, Borley is no longer prepared to accept a token “shut up and go away” from anyone.
“I'm talking class action,” says Borley. “When you think of all the people living alongside rivers that have lost land as a result of the vibrations, people that can't access their land properly. . . generally people like me that CN and their army of lawyers want to bury in paperwork…it just makes me all the more determined to take it back to the Supreme Court.”
While definitely a long shot that Borley concedes might not happen in his lifetime, his argument against a 200-year-old defense, is in fact, an argument that others have debated.
Along with Borley, Chief Justice Dickson and Mr. Justice La Forest question the value of a “defense of statutory authority” defense. The two Supreme Court judges have stated in part, “The fact that an operation will inevitably damage some individuals does not explain why those individuals should be responsible for paying for the damage.”
Borley couldn't agree more. “Just think, though,” he says, eyes narrowed as he reflects on the toll his war with CN has cost him, “If my case sets precedence and I'm compensated at five cents per ton of freight, I could own CN. That's what they're afraid of.”
Ah, if only Great-Grandma Harriet were still alive. . .she'd like that.
