NORFOLK CLAIM - COURT DOCUMENTS ONTARIO SUPERIOR COURT OF JUSTICE

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					                                NORFOLK CLAIM - COURT DOCUMENTS

                                          STATEMENT OF DEFENCE



                                                                                           Court File No. 02-748
                                          ONTARIO
                                 SUPERIOR COURT OF JUSTICE

BETWEEN:

     FRANK MCLAREN, ELAINE MCLAREN, PATRICIA MILLER and DANIEL MILLER
            on behalf of themselves, and on behalf of all others similarly situated

                                                                                                       Plaintiffs
                                                    - and -

                THE MUNICIPAL CORPORATION OF THE CITY OF STRATFORD

                                                                                                      Defendant



                                     STATEMENT OF DEFENCE

1.   The Defendant admits the allegations contained in paragraph 10 of the Statement of

     Claim, insofar as it admits that it is a municipal corporation incorporated pursuant to the

      laws of the Province of Ontario. This Defendant denies the balance of the allegations

      contained in paragraph 10 of the Statement of Claim.



2.    The Defendant denies the allegations contained in paragraphs 1, 2, 7, 8, 9, 11, 12, 13,

     14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of

      the Statement of Claim.



3.    The Defendant has no knowledge of the allegations contained in paragraphs 3, 4, 5 and

      6 of the Statement of Claim.
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BACKGROUND



4.       The Defendant states that the City of Stratford’s storm and sanitary sewer systems are

         complex and intricate systems comprised of approximately 286.7 kilometres of pipe, 3400

         manholes, 3800 catch basins and numerous pumping stations. The storm and sanitary

         sewer systems service more than 29,000 City of Stratford residents.



5.       The Defendant states that sections of the storm and sanitary sewer systems were

         constructed at different times from the early 1900's until the present time pursuant to

         various Certificates of Approval issued pursuant to the Ontario Water Resources Act,

         R.S.O 1980, c. 361, as amended or its predecessor statutes. At all times, the storm and

         sanitary sewer systems were constructed in accordance with generally accepted and

         approved design and engineering standards applicable at the time of construction.



6.       The Defendant states that, at all material times, it was responsible for the day to day

         maintenance of the storm and sanitary sewer systems in the City of Stratford, except for

         the storm and sanitary sewer lateral lines, which were the responsibility of the individual

         property owner.



7.       The Defendant states that the storm and sanitary sewer systems in the City of Stratford

         were at all material times designed, constructed and maintained in a careful and prudent

         manner without any negligence, breach of duty or want of care on the part of the

         Defendant or on the part of anyone for whom the Defendant is in law responsible.
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8.       The Defendant states that if the Plaintiffs have suffered the damages and losses alleged

         in the Statement of Claim, which is not admitted, such damages did not occur as a result

         of any negligence, breach of duty or want of care on the part of the Defendant or on the

         part of anyone for whom the Defendant is in law responsible.




THE STORM EVENT



9.       The Defendant states that on July 28, 2002, the City of Stratford experienced a period of

         extremely intense unforeseeable rainfall beginning at approximately 2:00 a.m. ("storm

         event"). The intensity of the storm event resulted in significant over land flooding of

         streets, parks and other lands throughout the City of Stratford which continued to exist

         throughout the following day.



10.      The Defendant states that on becoming aware of the intensity of the rainfall, City forces

         responded in a timely and efficient manner working throughout the night in an attempt to

         minimize overflows and flooding throughout the City of Stratford.



11.      The Defendant states that the amount and duration of rainfall during the storm event,

         combined with the resulting over land flooding caused flows to the City’s storm and

         sanitary sewer systems that went well beyond the design capacity characteristics of any

         reasonably designed and constructed sewer system.



12.      The Defendant states that the storm event in question being both unforeseeable and well
         beyond the capacities of the City of Stratford storm and sanitary sewer systems

         constituted an act of god and that the Defendant cannot in law be held responsible for



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         any damage or loss experienced as a result of the flooding event. The Defendant pleads

         and relies on the doctrine of vis major.



13.      The Defendant further states that if there was any defect or flaw in any portion of the

         City’s storm or sanitary sewer system at the material time, which is not admitted, such

         defect or flaw did not, in the circumstances which occurred during the storm event, cause

         or materially contribute to the cause of any losses suffered by the Plaintiffs.




THE POLICY DEFENCE



14.      The Defendant states that the City’s storm and sanitary sewer system was initially a

         combined system and that during the period in or around 1920 to 1935, a major storm

         and sanitary sewer separation program was undertaken by the Defendant with the

         majority of storm sewer construction occurring in the latter part of this time period.



15.      The Defendant states that at various times following the storm and sanitary sewer system

         separation program, sections of the storm and sanitary sewer system have been

         reconstructed, upgraded, repaired and expanded as reasonably required and available

         financial funding allowed.
16.      The Defendant states that it has undertaken ongoing analysis of the storm and sanitary

         sewer systems as municipal and provincial funding became available. In addition to its

         internal system of inspection and analysis, the Defendant has retained consultants to

         undertake analysis and monitoring of the storm and sanitary sewer systems to ensure

         their proper functioning, the particulars of which include the following:



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         a.    in 1970, the Defendant retained the engineering firm of Wyllie & Ufnal Limited to
              study the storm and sanitary sewer systems to determine the sources of, and
              prepare a program for, the elimination of sanitary trunk sewer floodings and
              pollution of receiving waters within the City of Stratford’s boundaries;

         b.    in April 1980, the Defendant requested that the Ontario Ministry of the
              Environment undertake The Stratford-Avon River Environmental Management
              Project to provide a comprehensive water quality management strategy for the
              Avon River basin. This project was undertaken and involved, among other things,
              the study of inflow/infiltration reduction in the City of Stratford storm and sanitary
              sewer systems;

         c.    the Defendant retained American Digital Systems to undertake a sanitary sewer
              flow monitoring study in 1981;

         d.    in 1989, the Defendant retained R.V. Anderson to undertake a sanitary sewer
              rehabilitation study which included a series of camera inspections of the majority
               of the City of Stratford’s sanitary sewer system;

         e.    the Defendant retained R.V. Anderson Associates Limited to undertake a sanitary
               sewer flow monitoring study in 1991;

         f.    in 1998, the Defendant retained R.J. Burnside and Associates Ltd. to undertake
              a sanitary sewer flow monitoring study; and

         g.    in May, 2001, the Defendant retained the engineering firm of Earth Tech (Canada)
              Inc. to undertake a sanitary sewer master plan study.



17.      The Defendant states that, in the last 10 years, in addition to ongoing maintenance and

         smaller upgrading projects involving an annual cost of approximately 1 million dollars, it

         has undertaken a number of major projects to modify and improve the sanitary and sewer
         systems, particulars of these projects include the following:

         a.    in or around 1994, in conjunction with other government agencies, it upgraded the
               City of Stratford’s water treatment plant at a cost of approximately 13 million dollars;

         b.   in or around 1997, it undertook the expansion of the sanitary sewer system in the
              Romeo Street area at a total cost of approximately 3.5 million dollars; and



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         c.   in or around 2001, it undertook the first phase of the reconstruction of the Ontario
              Street roadway and storm sewer system at a total cost of approximately 2.6 million dollars.



18.      The Defendant states that, in addition to its regular routine of inspection and

         maintenance, it has undertaken a number of steps to maintain and improve the storm and

         sanitary sewer service and attempt to prevent system surcharging. Particulars of the

         steps undertaken over the last approximately 30 years and prior to July 28, 2002 include

         the following:

         a.    the Defendant has undertaken a system of identification and disconnection of
              improper connections to the sanitary sewers, including a door-to door-campaign,
              as well as offering a $30.00 per disconnection rebate, such that approximately
              80% - 90% of the improper connections have been disconnected;

         b.    the Defendant has undertaken a system of sealing manhole covers;

         c.    the Defendant has implemented mandatory back-flow valve installation on both
              sanitary and storm sewer connections for new subdivisions and developments;

         d.    the Defendant has implemented a subsidized basement isolation program for
              certain residents of the City of Stratford. This program promotes, inter alia, the
              disconnection of weeping tile from the sanitary sewer system, the installation of
              back-flow valves or sump-pumps on storm service connections and the installation
              of back-flow valves or sewage ejectors or sanitary service connections; and

         e.   the Defendant has provided a financial incentive to homeowners to upgrade
              private sanitary service connections and install private storm service connections.



19.      The Defendant states that the scope, timing and nature of the studies and investigations
         undertaken, as well as the repair, replacement, upgrading and improvement programs

         and projects undertaken by the City of Stratford with respect to its storm and sanitary

         sewer systems constituted reasonable exercises of the discretionary powers granted to

         it by sections 207 and 210 of the Municipal Act, R.S.O. 1990, c. M.45, as amended.



page 7



20.      This Defendant further states that all decisions with respect to the timing, scope or nature

         of any work undertaken involved a balancing of available financial resources and

         competing political priorities and constituted valid policy decisions for which it can not in

         law be held responsible. The Defendant pleads and relies on section 331.3 of the

         Municipal Act, R.S.O. 1990, c. M.45, as amended.




OTHER DEFENCES



21.      The Defendant states that if the Plaintiffs have sustained the damages and losses alleged

         in the Statement of Claim, which is not admitted, such damages and losses were caused

         directly or indirectly by a variety of construction deficiencies in individual Plaintiffs’

         premises or by other causes unrelated to the Defendant’s operation of the storm and

         sanitary sewer systems for which it cannot be held liable. Particulars of such

         inadequacies or other causes of flooding in individual homes include the following:



         a.   there were illegal cross connections of floor drains and/or other plumbing facilities
              in the premises to the storm and sanitary sewer systems;

         b.   there were unsealed sump pits or openings in the floor or walls of the premises
              which allowed the direct flow of water into the basement;
         c.   the flooding occurred as a result of surcharging of weeping tiles and surrounding
              soil around the premises which resulted in flooding of the basement through
              cracks and holes in the walls and floors;

         d.    there was ponding of surface water resulting from inadequate lot grading which
              caused water to enter the premises;

         e.   the nature of the design of the premises allowed surface drainage to enter the
              premises through basement windows;



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         f.    water entered the premises through back doors, windows, window wells and
              exterior staircases; and/or

         g.    the basement floor had been improperly installed at the same elevation as the
              storm or sanitary sewer lines.



22.      The Defendant specifically denies that there was a fiduciary relationship between it and

         the Plaintiffs as pleaded in paragraph 19 of the Statement of Claim and states that there

         is no basis in law for an action against the Defendant for breach of fiduciary duty.



23.      In the alternative, if the Defendant did owe a fiduciary duty to the Plaintiffs, which is not

         admitted, the Defendant denies that it breached this duty in any manner whatsoever. The

         Defendant further denies it breached any legal duty it may have owed to the Plaintiffs as

         alleged in the Statement of Claim or otherwise.



24.      The Defendant states the Plaintiffs’ claims constitute an attempted claim in nuisance in

         connection with the escape of water or sewage from sewage or water works and is

         therefore statute-barred by s.331.2(1) of the Municipal Act, R.S.O. 1990, c. M.45 as

         amended.
25.      The Defendant denies that the doctrine of res ipsa loquitur arises on the facts and

         circumstances of this case, and states that, in any event, that doctrine is no longer valid

         in law.



page 9



26.      The Defendant pleads and relies upon Section 59 of the Ontario Water Resources Act,

         R.S.O. 1990, c. O. 40, as amended and states that at all material times the storm and

         sanitary sewer systems operated by the Defendant were constructed, maintained and

         operated pursuant to statutory authority.




CONTRIBUTORY NEGLIGENCE



27.      The Defendant states that if flooding did occur in the manner alleged in the Statement of

         Claim and if Plaintiffs have suffered the damages and losses alleged in the Statement of

         Claim, which is not admitted, such damages were caused or contributed to by the

         negligence of individual Plaintiffs, particulars of such negligence include the following:


         a.    they failed to equip their sewer laterals with back-flow valves, check valves, drain
              plugs and available sump pumps or otherwise seal sump pits or, in the alternative,
              they failed to ensure that the backflow valves, check valves, drain plugs and
              available sump pumps were in proper operating condition;

         b.    they or their predecessor illegally connected the floor drains and/or plumbing
              systems into the premises’ storm sewer system; and/or

         c.    they knew or ought to have known by the nature of the design of the premises
              and/or lot grading that the premises presented a potential flooding problem but
              failed to take any or adequate steps to correct this situation;
          d.    they disregarded notices from the City and City programs designed to assist
               residents in isolating their weeping tile from the sanitary sewer system, install
               backflow valves and sump pumps; and

          e.    they knew, or ought to have known, from past flooding events, that their basement
               was susceptible to flooding in extreme weather conditions but failed to take any
               or reasonable steps to either prevent the further entry of water in to their premises
               or, in the alternative, to store their chattels in such a manner that they were not
               susceptible to flooding damage.



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28.       The Defendant further states that if any personal injury was suffered by individual

          Plaintiffs, which is not admitted, such personal injury was caused or contributed to by the

          negligence of those Plaintiffs, the particulars of which include the following:


          a.   they entered flooded areas without taking necessary precautions such as the
               wearing of appropriate footwear and clothing;

          b.   they undertook the cleaning of flooded areas without wearing protective gloves;

          c.   they submerged themselves in flooded areas when they knew or ought to have
               known it was dangerous to do so;

          d.   they inadequately cleaned flooded areas;

          e.   they negligently ingested contaminated materials;

          f.    they retained contaminated materials in their homes when they knew or ought to
               have known it was dangerous to do so;

          g.   they failed to seek medical treatment promptly, or at all; and

          h.   they disregarded clear warnings with respect to health issues issued by the local
               Board of Health.



29.       The Defendant pleads and relies upon the provisions of the Negligence Act, R.S.O. 1990,

          c. N.1, as amended.
DAMAGES



30.       The Defendant denies that the Plaintiffs have suffered any damages for which it is in law

          responsible and puts the Plaintiffs to the strict proof thereof. In the alternative, the

          Defendant states that the damages claimed are excessive, exaggerated and/or too

          remote and that the Plaintiffs have failed to take any or, in the alternative, adequate steps

          to mitigate their damages.



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31.       In the event that the Plaintiffs have suffered any damages for which it is in law

          responsible, which is not admitted, the Defendant pleads entitlement to all payments the

          Plaintiffs received under the Defendant’s without prejudice Emergency Aid Program.



32.       The Defendant states that if the Plaintiffs repaired or replaced any property as a result

          of the incident alleged in the Statement of Claim such repair or replacement constitutes

          a betterment for which the Defendant is not liable.



33.       The Defendant states that any diminution in value of the Plaintiffs’ real property as well

          as their alleged diminished ability to rent or lease their homes as pleaded in paragraphs

          30 and 31 of the Statement of Claim, which is not admitted, is transitory in nature and that

          there has been no ongoing effect on property values. The Defendant states that to the

          extent any transitory decrease in property values has occurred, it has arisen not as a

          result of any flooding caused by the storm event but as a result of the Plaintiffs and their

          solicitors unreasonable and excessive public statements which have promoted and
          unreasonably perpetrated fears of on-going flooding problems.



34.       In the event that any of the Plaintiffs suffered personal injury as alleged in the Statement

          of Claim, which is not admitted, the Defendant states that the injuries were not caused

          or contributed to by any act or omission by the Defendant, but rather were due to the

          various Plaintiffs’ pre-existing medical conditions for which it is not responsible or as a

          result of unrelated accidents or conditions which occurred before or after July 28, 2002.



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35.       The Defendant states that any loss of income or loss of competitive advantage which the

          Plaintiffs may have suffered, which loss is not admitted, has not been caused by any

          action or omission on the part of the Defendant or on the part of anyone for who the

          Defendant is in law responsible.



36.       The Defendant denies that any of the Plaintiffs are entitled to claim damages pursuant

          to the Family Law Act R.S.O. 1990, c. F3, as amended, with respect to the events which

          are the subject matter of this action.



37.       The Defendant specifically denies that it has at any time acted in a high-handed, wanton

          manner or otherwise conducted itself in a manner which would in any way constitute a

          basis for an award of punitive damages and puts the Plaintiffs to the strict proof of the

          allegations contained in paragraph 34 of the Statement of Claim.



38.       The Defendant denies that the Plaintiffs are entitled to interest pursuant to the provisions
          of the Courts of Justice Act, R.S.O. 1999, c. C43, as amended.



39.       The Defendant therefore submits that this action be dismissed with costs. The Defendant

          states that due to the Plaintiffs having made totally unmeritorious allegations against it of

          "high handed and wanton disregard for the safety and property interests of the Plaintiffs"

          and claimed punitive damages without any legal basis for such a claim the Defendant

          should be awarded its costs of defending this action on a substantial indemnity basis.



Date: November 28, 2002



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                                          Lerners LLP
                                   Barristers & Solicitors
                                          130 Adelaide Street West
                                          Suite 2400, Box 95
                                          Toronto ON M5H 3P5

                                           C. Kirk Boggs (LSUC# 23620V)
                                           Nada Nicola-Howorth (LSUC #42086B)
                                           Telephone: (416) 867-3076
                                           Fax: (416) 867-9192
                                           Solicitors for the Defendants



TO:       Mountain Mitchell LLP
          Barristers & Solicitors
          56 Albert Street, P.O. Box 846
          Stratford, ON N5A 6W3

      Michael E. Mitchell (LSUC #10331B)
      Telephone: (519) 271-6770
      Fax: (519) 271-9261
      Solicitors for the Plaintiffs