Canadian Underwriter

One-in-100-year rainfall leads to lawsuit against forestry firm

April 12, 2018   by Greg Meckbach

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A company responsible for culvert maintenance is facing a lawsuit over the shutdown of a railway after an “unprecedented” summer rainfall event in northwestern Ontario.

The case raises an issue about the appropriate size of culverts for contemporary rainstorms. For example, are culverts designed for one-in-25-year rainstorm events sufficient, or should they be designed for one-in-100-year events?

The washout occurred June 27, 2010 on a section of rail owned by Canadian National Railway north of Kenora, in the forest near the Manitoba border. CN suspended its transcontinental rail service at the time and suffered damages of about $425,000, wrote Justice Annalisa Rasaiah of the Ontario Superior Court of Justice in CNR v. Weyerhaeuser, released March 29.

CN’s losses included the cost of repairs, clean-up, and losses related to train delays and/or suspension of service.

CN is suing forest products company Weyerhaeuser Company Limited. In essence, Weyerhaeuser has a licence to cut down trees on crown land and is responsible under Ontario law for managing that land, including roads and culverts.

“CN claims the railway washout was caused by Weyerhaeuser’s negligent design, installation, and maintenance of two new culverts located under English River Road that had been installed by Weyerhaeuser shortly before the railway washout,” Justice Rasaiah wrote.

The allegations have not been proven in court. Justice Rasaiah’s decision was not on the merits of the lawsuit but on whether or not the lawsuit should proceed. Justice Rasaiah ruled that CN is barred from suing for negligence by Ontario’s Public Lands Act.

But CN can still try to sue Weyerhaeuser for nuisance and strict liability. Justice Rasaiah ruled that there should be a trial.

In the context of this case, the doctrine of strict liability essentially means that Weyerhaeuser could owe CN damages if CN can convince the court that Weyerhaeuser made “a non-natural use of land” that “permits a collection or accumulation of water” and “that water subsequently escapes, causing injury.”

Weyerhaeuser is arguing that the cause of the washout was “unprecedented rainfall,” noting that a one-in-100-year rain storm occurred. Weyerhaeuser says 86 millimetres of rain fell in nine hours the night of June 26, 2010 and into the following morning.

But CN Rail and Weyerhaeuser disagree on how much rain actually fell, “the impact of that rain and how to characterize it,” Justice Rasaiah wrote.  An engineering firm retained by CN, Aecom, “differs as well in its opinion” on the amount of rain that fell, Justice Rasaiah added.  “Each appear to have used different methods and data.”

The parties also disagree on whether “culverts sized for the 25-year flood event as opposed to the 100-year flood event are more appropriate,” Justice Rasaiah noted.