(The Belleville Intelligencer posted the following article by Bill Hunt on its website on March 6.)
BELLEVILLE, Ontario — A $22 million class action suit has been filed in Belleville s Superior Court of Justice against Canadian Pacific Railway in relation to the train derailment in Tyendinaga Township in the early morning hours of Feb. 21.
Harvey Strosberg and Craig Allen, of the Windsor law firm Sutts, Strosberg LLP, in collaboration with Belleville lawyer David Ross, filed the lawsuit on behalf of plaintiffs Robert and Lorraine Guthrie of RR2 Shannonville and other area residents.
Sutts, Strosberg won court settlements for clients in the Hepatitis C suit against provincial, territorial and federal governments in the 1990s, and Strosberg was a lead counsel in the Walkerton tainted water case.
The Tyendinga suit, being filed on behalf of approximately 500 residents against the Canadian Pacific Railway Company and Canadian Pacific Railway Limited, alleges negligence on the part of one or both companies, charging the trains were not properly inspected, ran at excessive rates of speed, were insufficiently staffed, and were mechanically unfit for the tracks in that area. The suit seeks compensation for environmental contamination, clean-up costs, loss of property value and other economic damages.
None of the allegations in the statement of claim, filed with the Superior Court office in Belleville this week, have been proven in court. As well, there has yet to be a statement of defence filed on the allegations by Canadian Pacific.
A class action is a civil lawsuit in which one or more people, called class representatives, sue on behalf of a class of people. This suit is being filed on behalf of all residents of the area bounded by Shannonville Road to the west, the Sixth Concession to the north, Marysville Road to the east and Highway 401 to the south.
Melrose-area residents were evacuated for several days as a result of the 12-car train derailment. Four propane tanks burned and/or exploded following the derailment which occurred around 5 a.m. Feb. 21 after an eastbound train derailed and struck a train on a siding. The area was evacuated due to fears cars on the eastbound train containing the highly toxic substance anhydrous ammonia could be breached, leading to a potentially deadly spill. Although the cars were removed without incident, the rupture of propane tanks caused at least three explosions, and the tanks burned for days.
Since the derailment, CPR has been distributing claim reports to residents in the area so they can be reimbursed for out of pocket expenses incurred as a result of the accident. The forms, however, contain a release that states the signatory waives all rights to further compensation.
Strosberg is advising residents against signing the forms.
We believe it s not in the interest of anyone to sign any such document and that they should wait until the court deals with this matter, because we believe the letter does not make it clear that people are entitled to claim damages for the disruption of their life, for being evacuated. They don t have to just claim their out of pocket expenses, and they don t know what damage may have happened to their property, said Strosberg.
Robert Guthrie lives with his wife, Lorraine and three children at 1157 Lazier Road, about 125 to 150 metres south of the railway tracks. He estimates his house is 800 to 1,000 metres from the site of the derailment.
When the first explosion occurred this house just rocked, and I mean it s a well-built house, said Guthrie, who is a retired construction contractor and real estate agent. The force of the first explosion caused the double pane windows in his home to bow.
It looked like Hiroshima or Nagasaki … The fireball that came up just covered the entire house.
Since then, he said, his plumbing has loosened and water has begun to leak through the drywall in his second floor bathroom. Also, he fears the explosion may have affected his well.
The Guthries have seven Arabian horses and one Egyptian horse, which they breed for income. After each of the explosions the horses bolted, said Guthrie. Since then, five of the horses have developed coughs and consequently, Guthrie is going to delay breeding until he is certain the horses are in good health. (Horses can only be bred at certain times of the year, to ensure the foals are strong enough to survive the winter.)
Meanwhile, Guthrie s wife is still bothered by the incident.
Every time she hears a train now she shudders, said Guthrie. She s losing sleep over it.
The statement of claim filed in Superior Court of Justice alleges that the derailment and fire was caused by negligence on behalf of one or both of the companies, that the trains were not adequately inspected and were mechanically unfit to operate on the tracks in that area. Further, the claim alleges, the trains were allowed to run at excessive rates of speed with insufficient staff to ensure safe operation, and that employees failed to prevent or recognize the overheated gear journal box, or hot box , as it is known, condition in the wheel trucks below the cars.
The statement also addresses environmental concerns, claiming defendants are liable to compensate the plaintiffs and the members of the Class for spilling contaminants into the air, water, soil, vegetation, property and lands and premises pursuant to common law principles of strict liability and, additionally section 99 of the Environmental Protection Act.
The statement goes on to claim that as a result of the defendants negligence and nuisance, the plaintiffs and members of the Class have suffered and will continue to suffer loss and damages, including interference with their health, safety, comfort, convenience, property, lands and premises and their economic interests, including relocation expenses, clean up expenses, loss of income and business interruption and reduction in property values, loss of livestock and other animals, all of which are foreseeable and directly result from the derailment and fire.
The claim characterizes the defendant s conduct as high-handed, intentional, reckless, wanton, entirely without care, grossly negligent, deliberate, callous, disgraceful, willful, in disregard of the plaintiffs lives, safety and rights and the rights of each member of the Class, indifferent to the consequences and motivated by economic considerations.
As such, it claims the defendants are liable to pay punitive damages.
None of the allegations have been proven in a court of law, nor have the defendants filed a statement of defence.
Belleville lawyer David Ross said Strosberg is experienced in handling class action suits.
Mr. Strosberg has done a lot of these proceedings, he s an expert… He s well-known throughout Ontario in class proceedings, said Ross.
Strosberg confirmed his firm has recovered over $1 billion in class actions.
Sutt Strosberg LLP successfully sued the provincial, federal and territorial governments in the Hepatitis C case that settled for $1.5 billion in 1999. Strosberg was also a lead counsel in the Walkerton tainted water case. That ended in an unlimited settlement, with the provincial government paying all damages.