H.W. Osmond Doyle, LL.B., LL.M.
City Solicitor
Legal Services
55 John Street
Stn.1260, 26th Flr., Metro Hall
Toronto ON M5V 3C6
Tel: (416) 392-8047
Fax: (416) 392-3848
July 19, 1999
To:Administration Committee
From:H.W.O. Doyle
Subject:Sheppard Subway--Don Mills Station
Initiation of Civil Lawsuit to Recover Contamination Costs
Purpose:
To obtain authority to commence legal proceedings against Imperial Oil Limited and/or any other parties that may have
liability in respect of contamination encountered during the excavation of the Don Mills Station of the Sheppard Subway.
Funding Sources, Financial Implications and Impact Statement:
TTC staff advises that sufficient funds have been included for the Sheppard Subway Project in the 1999-2003 Capital
Program, as approved by City Council on March 2, 1999.
Recommendations:
It is recommended that:
(1)the City Solicitor be authorized to commence proceedings against Imperial Oil Limited and any others that may be
implicated in respect of contamination encountered during the excavation of the Don Mills Station of the Sheppard subway
system and that such authority include authority to settle any such lawsuit on terms satisfactory to the City Solicitor, in
consultation with the TTC, or to appeal such proceedings, or to take any such steps as may be necessary in the opinion of
the City Solicitor in respect of the matter; and
(2)the appropriate City staff be authorized to take such action as required to give effect to these recommendations.
Council Reference/Background/History:
During the design of the Don Mills Station, soils boreholes indicated that hydrocarbon contamination from the Imperial Oil
Limited (Esso) gas station at 2500 Don Mills Road had migrated into the City owned road allowance on Sheppard Avenue
which had to be excavated in order to construct the Don Mills Station. As a result, provisions were included in the Don
Mills Station contract for the contractor to excavate and dispose of the expected volume of contaminated material.
Excavation of the Station is now complete and the costs for removal of contaminated soils are being finalized.
Comments and/or Discussion and/or Justification:
Imperial Oil Limited was notified during property negotiations that hydrocarbon contamination had been found in the road
right-of-way and that it was the intention of the TTC and the City of Toronto to recover the incremental costs for the
removal of contaminated soil (ie. the cost over and above the cost to remove non-contaminated material). At that time,
negotiation with Imperial Oil Limited was underway to acquire a temporary easement from the Esso gas station at 2500
Don Mills Road for the construction of the Don Mills Station. Imperial Oil Limited was reluctant to negotiate any
settlement related to contamination found in the City owned right-of-way at that time.
The incremental cost to remove contaminated material from the station excavation includes the cost to dispose of
contaminated soil, additional inspection and testing costs, and the provision for a clay cap on top of the station box to
reduce contaminated water seepage into the finished subway structure. Overall incremental costs currently estimated at
approximately $1 million can be demonstrated. As Imperial Oil Limited has not shown any inclination to voluntarily
recognize their responsibility for these incremental costs to date, it is necessary to initiate a civil lawsuit to recover these
costs.
The lawsuit will be initiated by my staff as the contamination affects the City owned property. TTC legal and technical
staff would provide support for the lawsuit. Specialized consultant services may be required and would be the subject of a
separate report. Staff of the TTC's Legal Department and the TTC's Sheppard Subway Project have been consulted and
concur with this report.
Conclusions:
A civil lawsuit against Imperial Oil Limited (2500 Don Mills Road) or such others as may be identified is necessary to
attempt to recover the additional costs for the removal of contaminated soil from the City owned road allowance in the
vicinity of the Don Mills Road and Sheppard Avenue.
Contact Name:
Graham Rempe, Solicitor
Legal Services--Litigation Division
Telephone: 392-2887
H.W.O. Doyle
City Solicitor
Legal Services
GJR/da
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