Beruflich Dokumente
Kultur Dokumente
CI 17-01-
BETWEEN:
- and -
defendants.
STATEMENT OF CLAIM
BETWEEN:
- and -
defendants.
STATEMENT OF CLAIM
TO THE DEFENDANTS:
IF YOU PAY THE PLAINTIFFS CLAIM, and $750.00 for costs, within
the time for serving and filing your statement of defence, you may move to have this
proceeding dismissed by the court. If you believe the amount claimed for costs is
excessive, you may pay the plaintiffs claim and $750.00 for costs and have the costs
assessed by the court.
CLAIM
4. HBRC is the registered owner of the subject railway line (the Rail Line).
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5. HBRC is part of the Omnitrax group of companies, with the parent company being
the defendant Omnitrax, Inc., a body corporate pursuant to the laws of the State of
Colorado, in the United States of America, having its head office in the City of
Denver, Colorado, and carrying on business in the Province of Manitoba
(hereinafter Omnitrax).
6. Canada states that, in May 2017, spring flooding washed out some of the Rail Line
to Churchill, Manitoba, leading to suspension of rail service by the defendants.
7. Since then, the defendants have refused, and continue to refuse, to effect the
necessary repairs to the Rail Line, asserting publicly that it is not economically
feasible to repair the Rail Line and restore its operations; and declaring that Canada
should now assume the financial responsibility to do so.
8. Canada states that the quality of life and safety of all Canadians must be ensured,
and that the loss of railway service to Churchill, Manitoba must be addressed, so
that its citizens will have access to life-preserving amenities, such as food and
medical supplies, which are currently in high demand and short supply.
9. Canada has consistently maintained and communicated, as the facts are, that HBRC
is contractually obligated to repair the Rail Line, and resume service, pursuant to a
July 2008 Contribution Agreement (CA), as amended, entered into by HBRC and
Canada.
10. The CA specified the expectations, obligations and requirements of both Canada
and HBRC, for the rehabilitation and operation of the Rail Line from the yard in
The Pas, Manitoba to and including the rail right-of-way in the Port of Churchill,
Manitoba (the Project).
11. Article 4.1(a) of the CA provides in effect, that as long as HBRC fulfilled its
obligations under the CA, Canada would contribute a maximum of 1/3 of the total
costs of the Project, not exceeding $20 million in contributions, over the duration
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of the Project, which was then expected to take 10 years to complete. It was
anticipated that Manitoba would also contribute 1/3 of the total costs of the Project.
12. On or about March 31, 2010, the CA was amended to extend its term, by one year,
so that the duration of the Project was until March 31, 2019.
13. Since the CA was entered into, Canada has contributed a total of $18,800,316.62 to
the Project.
14. Article 4.1(b) of the CA provides in effect that Canadas involvement in the Project
is limited to making a financial contribution, and to taking any steps necessary, to
enforce HBRCs obligations under the CA.
15. Article 4.2(b) of the CA provides in effect that, aside from Canadas contributions
under the CA, HBRC is responsible to fund all costs of the Project, including any
cost overruns.
16. Article 4.2(c) of the CA provides in effect, that HBRC was and remains solely
responsible for the complete, diligent and timely implementation of the Project, and
that it had, and continues to have, full responsibility for the ongoing repair,
operation, and maintenance of the Rail Line, for the duration of the Project.
17. Articles 16.4, 17.2(b), 19.6 and 19.7 of the CA provide in effect, that if HBRC
defaults under the CA, and abandons this Rail Line, Canada may require, among
other things, repayment of Canadas entire financial contribution, which then
becomes a debt owing to Canada, payable forthwith upon demand, and which
accrues interest in accordance with the Interest and Administrative Charges
Regulations (SOR/96-188) of the Financial Administration Act, RSC 1985 c F-11,
at the rate of the average bank rate plus 3%, compounded monthly, from the date
of default until paid.
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18. On or about October 13, 2017, Canada delivered to the defendants a notice of
default, pursuant to Article 16.3 of the CA, wherein Canada stated that because of
HBRCs failure to repair the Rail Line, and restore its operations, it is in default of
its CA obligations, and that unless those repairs were made and rail service restored
within 30 days from the date of the letter, Canada would take legal action for
HBRCs breach of contract, and would therein seek all available remedies,
including the return of Canadas financial contributions to the Project.
19. The defendants have failed to comply with the notice of default, and they continue
to refuse to repair the Rail Line and restore its operations, effectively leaving the
remote northern town of Churchill, Manitoba, and its citizens, without the railway
services which they depend on to bring essential goods and services to their remote
community, where no roads go.
20. Canada says further that, during the term of the CA to date, HBRC has also
defaulted on other CA provisions, including HBRCs reporting obligations under
Article 7.2 Aboriginal Consultation Information, Article 10.1 Payment
Conditions, Article 11.5 Annual Report, Article 20.1 Independent Engineer,
Schedule D Audit Framework, and Schedule E Information.
21. In addition to HBRCs ongoing obligation to repair and maintain the Rail Line, it
also has an outstanding future obligation under Article 17.2(a), which provides in
effect, that HBRC will keep the Rail Line repaired and operational, from April 1,
2019 until March 31, 2029.
22. By reason of the foregoing, Canada states that the continued default of HBRC to
comply with the CA constitutes breaches of contract.
23. At all relevant times, Omnitrax has held itself out as being in control of this Rail
Line, and its operations, and that it alone decides what will, and what will not, be
done to repair and operate it.
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25. Omnitrax knew that its actions, or lack thereof, would effectively induce HBRC to
breach the CA, which was done by Omnitrax in an attempt to transfer to Canada,
the financial losses of repairing and running this Rail Line.
26. By reason of Omnitrax inducing the breach of contract, Canada says that Omnitrax
should be liable, in tort, for the claims herein.
27. Canada further states that because Omnitrax completely dominates and controls
HBRC, to the point that the latter does not function independently, its corporate
veil should be pierced, and each defendant found to be jointly and severally liable
for the $18,800,316.62 debt plus interest owing to Canada.
28. By reason of all of the foregoing paragraphs, Canada, including its citizens in
Manitoba, have suffered loss and damages.
29. Canada pleads and relies upon the provisions of the Crown Liability and
Proceedings Act, RSC, 1985, c C-50, and the Financial Administration Act, RSC
1985, c F-11.