Court File No.

12-36015

ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NATIONAL STEEL CAR LIMITED
Plaintiff
and

THE CORPORATION OF THE CITY OF HAMILTON

Defendant

STATEMENT OF CLAIM
Notice of aotion issued on July 18, 2012

The plaintiff claims:

(a) Damages in the anaount of $20,000,000 for losses incurred as a result of the
ongoing flooding of its property;
(b) A mandatory interlocutory and/or pelmanent order restraining the defendant from
causing continuing damage to the plaintiff's premises;
(c) Exemplary and purdfive damages;
(d) Pre-judgment and post-judgment interest pursuant to the Courts of Justice Act,
R.S.O. 1990, c. C. 43;

(e) Costs on a substantial indemnity basis including GST; and

(f)

Such fresher and other relief as counsel may advise and this Honourable Court
deems just.

erks

No,

Description of the Parties

2.

The plaintiff is a company which has carried on the business of freight car manufacturing

in the Province of Ontario since 1912. It employs almost 2,500 people and has manufacturing
facilities totalling 1,000,0000 square feet. It is the owner of approximately 66 acres of property
municipally known as 600 and/or 602 Kenilworth Avenue North, Hanfilton Ontario (the
"Kenilworth Property").
3.

The defendant is a mtmicipal corporation incorporated purstmnt to the Municipal Act

2001, S.C. 2001, c. 25 and the City of Hamilton Act 1999, S.C. 1999 c. 14. ("the City").
The Kenilworth Avenue Storm Sewer
4.

In or about 1922, the City and/or its predecessors constructed a storm sewer which outlet

into the open waters of egg's Inlet in the Hamilton Harbour.

5.

As egg's Inlet was filled in over the years, the City's storm water no longer outlet

directly into the Harbour; rather the City allowed the storm water from the entire watershed to
outlet into a ditch along an unopened numicipal road allowance located on Kenilworth Avenue,
adjacent to the plaintiff's Kenilworth Property.
6.

Since that time, while urbanization has increased exponentially, the City has failed to

upgrade its stoma sewer or maintain it in a manner that prevents the City's stoma water from
backing up and creating a nuisance on the plaintiff's Kenilworth Property.
7.

The plaintiff pleads that the defendant is strictly liable for all damages caused by the

continuing nsanee it has created. The plaintiff also relies upon the doctrine in Rylands v.
Fletcher and states tlaat the defendant is strictly liable for interference with the natttral course of a
water com'se. The plaintiff also pleads that the defendant is strictly liable in nuisance for putting
its land to a non-natural use, thereby causing ongoing flooding and ongoing damage to the
plaintiff's property,

lerks

No,

8.

In addition, the plaintiff states that file defendant was and continues to be negligent and

that this negligence was and continues to be the direct cause of the damages intuited, particulars
of which are as follows:
a, It failed to design, construct and maintain its storm sewer system in a manner

that would not cause damage to the plaintiff's property;

b,

If failed to retain competent contractors and/or it retained incompetent

contractors to design, construct and maintain its storm sewer system in a

manner that would not cause damage to the plaintiff's property;

It failed to properly supervise and train staff and/or contractors to properly
construct and maintain its storm sewer system in a nlanner that would not cause

damage to the plaintiff's propeW;

dl

It failed to require that developers of upstream urbanization prepare adequate

storm water management plans to ensure that the City's stotrrt water system

would not cause damage to the plaintiff's property before approving

urbanization that significantly increased the flow of storm water;
e.

It failed to properly review Storm water management plans provided by

upstream developers to ensure that urbanization did not add storm water to the
City's existing storm water system without upgrading the stoma water
management system and ensuring that additional urbanization would not cause
damage to the plaintiff's property.

Damages

9.

As a result of the ongoing nuisance created by file City and its ongoing negligence, tile

plaintiff has inctm:ed extensive damages. The f!ll extent of the plaintiffs' dantages are not yet
quantified, but particulars of same will be provided prior to the trial of this action.

lerks

No,
4

10. The damages to the plaintiff's property were caused by the wrongful acts of the
defendant, its servants and agents. While damages have not yet been quantified, partieulm's

include, but m'e not limited to the following:

(a)

The losses to equipment and chattels required for the manufacturing of

freight cars;

(b)

The losses resulting from the lost opportunity to mamtfacture additional

freight cars when operations had to be delayed as a result of flooding;

(c)

The loss of contracts caused as a direct result of delayed operations

resulting from flooding of the Kenilworth PropelV;

(d)

The losses resulting from fle additional staff time and effort required by the

plaintiff in dealing with the flooding;

(e)

Expenses incurred by the plaintiff in an effort to inspect, investigate,

pevent, eliminate and decrease the flooding;
All other expenses and losses, the particulars of which will be provided
prior to trial.

11. The plaintiffpleads and relies on the Negligence Act, R.S.O. 1990, c. N1, as amended and
MuntcipalAct 2001, S.C. 2001, c. 25 and the City of Hamilton Act 1999, S.O. 1999 c. 14.
12. The plaintiff requests that this action be tried at Hamilton, Ontario.

Augustl6,2012

PAPAZIAN HErSEY MYERS

Barristers & Solicitors

Suite 510, 121 King Street West

P,O. Box 105

Toronto, Ontario

MSH 3T9
I1. Gail Goodman LSUC#: 23715U
Tel: (416) 601-2700

Fax: (416) 601-11t18

Lawyers for the Plaintiff

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