June 2, 2009,11 e-mails

M. D. wrote:

F.Y.I. My insurance company sent an Engineer to my home to inspect damages which may or may not be attributable to the pile driving/vibrations from GO construction.

The Engineer was surprised when he heard that no precondition surveys had been done on any of the homes in the vicinity of the construction. According to him, it is highly unusual for a Construction company working with machinery like pile drivers, that could potentially cause damages to surrounding properties, to not conduct surveys, apparently the is considered due diligence.

He also commented on the proposed noise dampening measures GO is planning and said the same thing Glen did in his email, the measures will definitely not reduce the noise levels by 50%.

As it turns out, the foundation of my house is not leaking, the water in my basement is caused by a damaged eaves and soffet on the west side of the house, the eaves has come away from the house which is causing water to pour down, seep in to the ground and in to the basement.

No conclusion on whether the damage to the eaves could have been caused by the vibrations.

The Engineer inspected the home, noted its condition and photographed various things with the plan to do the same survey at the end of the construction period to establish whether or not damage occurred to the house.

D. B. wrote:

But...pre-condition surveys were done as long as you let the people doing them into your home. Remember the indignation here when people tried and failed to get copies of the surveys?

M. D. wrote:

Correct. I should have said the precondition surveys were proposed but not in a way that provided the information garnered to the residents and the construction company, and that was unacceptable to the majority of home owners therefore most residents declined the offer.

D. B. wrote:

Below is info I received today from Kathryn Hanford. The extended hours are due to having to do piledriving directly by CP tracks which can only be done while CP holds all traffic. Kathryn didn't know if this would be happening again after today.

Yesterday morning at 7 a.m. CP put into effect a track block that will end this evening at 6 p.m. What that means is that all CP traffic is halted in the Diamond. Neither GO nor I were notified of this track block. We would have included this in the newsletter had we known.

While the CP train traffic is halted, the contractors continued the piledriving until 6:30 last night, so they could pile in the actual Diamond. Piling began again today at 7:30. I am told that because they started early today, and if they do not run into any problems, piling should stop by 3:30 this afternoon.

With that said, however, some track work may continue to take place. What that would entail is the lifting of the CP track back to its original position and ballast being placed until the track. All this work must be done before 6 p.m. as that’s when the CP track block ends. Equipment that will be used are cranes and some dozers, but no piledrivers.

I also wanted to point out that the Vibro from France is being used right now on the east wall which is over by Cariboo. It’s significantly quieter than the piledrivers. You’ll hear a rattle as it works. You will also feel a steady low vibration.

T. A wrote:

Peers: On a separate note, does anyone know why the pile driving has moved to a new and distressing level of vibration and screeching in the last 3 business days? I'm quite sure that this is not the pile driving itself as I can still hear that thumping going in parallel. This seems to be another little side project that is even worse in the sound and vibration department.

I won't bother venting the drama that has been occurring at our house as a result of this new noise factor. I just want to know if anyone knows the cause and what has possessed them to do such a thing.

G. S wrote:

It may be a vibratory hammer being used to either pull out a crooked pile or to remove the 5-pile templates.

They have 2 types of vibratory hammers on the site, a new, sophisticated one that is actually not bad for noise and vibration and an older, unsophisticated one that is quite problematic, as it really gets the ground shaking and makes quite a high pitched noise.

The vibratory hammer essentially vibrates the pile into the ground, so it makes a lot less noise. It does, though, have to make the ground vibrate in order for it to work. If it’s done properly, the shaking is noticeable out to about a 500 foot radius but it’s not of the same energy and potential damaging level as the seismic blasts that are generated by the pile drivers. If it’s done with the older technology, the vibrations are wilder and more wide-spread. If they are pulling things out, the vibration is particularly noticeable. We’ve been trying to convince them to get another one of the sophisticated machines.

I know they have been using the sophisticated one on the East (Osler Street) Side at Cariboo Street for the past couple of days and for the next few days. They may have had to employ the other one to do other chores.

We all get the feeling that they are scrambling a bit, as the June 8th installation of noise mitigation devices will probably slow them down. At this point, it would be very awkward to tell the community that they are bringing in more pile drivers to compensate for having to make them less noisy. I expect there will be an increase in the intensity of work this week.

Also, there has been some sort of halt of traffic on the CP line while they pile in the actual Diamond at Junction Rd. and Old Weston. I’m sure they are working madly (yesterday they drove piles until 6:00 PM, 2 hours after their published stop time) to get that line back open.

Nobody is making excuses for them. People are really getting fed-up with this and it’s only 1/3 complete. However, that’s probably what is happening.

From: Elisabeth Bruckmann

Hello,

I am involved in the CTC and have seen some of your emails about the noise etc from the piledrivers. My mum, who is hard of hearing, could hear the noise from her house at Avenue Road and Bloor this past Friday. She did not have her hearing aid in.

But this email is about the legal situation. While I am a lawyer, I practice employment law at a legal clinic, so I cannot help much and the below has NOT been vetted with an expert in this type of law, so do not treat this as a conclusive legal opinion! But I thought I would pass some thoughts on. You probably already know this. It is my understanding that:

1. The Supreme Court of Canada has found that the legality of an activity is irrelevant to a case of nuisance (the right to the peaceful enjoyment of property). So even if the piledriving is "legal" - i.e. they have all the necessary permits - they are still liable to you for nuisance. You could start a class action in nuisance.

2. An injunction can be obtained if a legal case is initiated and the court finds: a. the case is viable (ie there is some chance of success) and b. irreparable harm will be suffered if the activity is not stopped prior to the resolution of the case in court. Irreparable harm is harm that cannot be "remedied" through a payment of money or other reparation. An easy example of "irreparable harm" is cutting down an old growth forest. There is no point in arguing a legal case about the forest if it gets cut down before the court can decide. You cannot put it back.

Your case seems a bit harder. You would likely need expert evidence that the impact of the noise on your health is not reparable. I expect you could find an expert who would say that the impact on your children in particular will be long term with respect to stress, cognitive functioning, their ability to perform in school and other activities, their sense of well-being and security. This cannot be fixed through a payment of money. (So note that harm to your houses is not included as this could be addressed through a payment of money. It is not technically 'irreparable.") Harm to the health of children is something that a court might find irreparable. So if you start a viable action and can show that harm to your children could be irreparable, you might get an injunction to stop the piledriving.

3. I expect you have been looking for lawyers already, but I would say that there is a chance that a law firm might take this on contingency, since there has been harm suffered, damages could be significant, and there are deep pockets to pay an award or settlement (these are the 3 criteria that I understand are necessary for a lawyer to consider the significant risk of a contingency agreement). You also likely need a lawyer functioning within a larger firm that can take on the risk and can fund expert opinions.

I don't know much about civil law suits outside of employment law, but you might try Paliare Roland. They are a reputable litigation firm. You might try Cavalluzzo Hayes. They do mostly labour law, but they also do class actions. Thomson Rogers do medical malpractice, but they might look at this because of the health angle. I am not sure who else.

So again: I am NOT expert in this field. These are just some thoughts.

Best of luck with this awful situation.

M. S. wrote:

You are right Elisabeth. When I was living at University of Toronto Family housing, the management there left the building in such dis-repair until Major work had to be done. They had to repair all the balconies which required them to be drilling the concrete. The buildings were owned by Ontario Housing authority and run by U of T housing which hired Greenwin Management to look after affairs. This was not a subsidy building It ran as a break even building. Anyway, to make a long story short we were told we would never win a class action, we actually had to bring legal action agaimnst Ontario housing and U of T, as no one ever won any legal action against Ontario Housing. Some of the legal students in the building, And approximately half the tenants joined in a litigation. The other half of the tenants were afraid to enter a legal action against the university. Well we won when they said it could not be done. All of us that entered the legal action got all of our rent back. This judgement was passed based on us having the "right for a quiet place to live" , our lease stipulated this. WE had to fight for it. This is definately a case of not allowing us to enjoy the place we live. Apart from the damage to property and the ongoing repairs we should all be awarded punitive damages for this loss in quality of life. What about the property value? Everyone knows about this nobody will want to buy a house here I was given a name of a lawyer that might help, Jim Herbert of Chapel, Bushel & Stuart. I did call him to see if he would be interested to help. I am waiting for his call back.

From: Glenn Sernyk

Elisabeth, you have given us a huge legal tip and some good leads here.

Michelle, you have given us very valuable reinforcement. The legal system does work.

We are sorely lacking legal expertise, which is something that GO is, I’m sure, not lacking in any way. They probably have lawyers paid $150K/year sitting around reading The Hockey News.

We have so many questions that need to be answered by lawyers. We’re plunging into a CTA formal complaint without any legal counsel. The firms that we approached either told us their hourly rate and retainer or told us to get lost.

We have to remember that we’re going up against the Liberal Government here and there are a lot of Liberal supporting law firms. The Tory supporting law firms couldn’t care less about stuff going on in Liberal/NDP ridings. There aren’t really any NDP law firms – an NDP law firm is most likely a socially active legal aid clinic.

We tried the Environmental legal service, but our group didn’t qualify, as we all have at least some assets.

The principle of “nuisance” trumping GO’s “permitted” right to wail away with these diesel hammers is something that would not have even crossed our minds.

We’ll do some digging based on your suggestions. Our complaint goes in on Thursday.

One of the biggest legal questions (and I won’t ask you, Elisabeth, for an opinion but if you want to informally comment, I’m all ears) is that the approved Federal Environmental Assessment for this project called for an 85 dBA (sound at the source of noise) noise environment with minimal vibration. At 85 dB, your hearing is widely, professionally considered safe at up to 8 hours exposure. The vibration zone spoken of in the EA is a 75-meter radius from source.

The actual implemented project is a 120 dBA noise environment (about 5,000X the sound pressure of 85 dB and somewhere between 8 and 16X as loud, with hearing damage starting after 15 seconds) and vibrations of ~3.5 on the Richter Scale (a mildly notable earthquake), detectable out to close to 1 KM radius.

Nobody seems to know – is this material breach of a binding document or just the sorry way things panned out when GO finally had good information to act upon?

I’ll leave you with that.

Thank you both for your interest and support. If either of you have the time, please attend a meeting or just spread the word and check the list/serve for updates and news. We’re trying our hardest for a positive outcome.

C. V. wrote:

Have the leaders considered the possibility of contacting MacMaster, McIntyre & Smith? They are located in the Junction at 2777 Dundas Street West, within clear range of the piledriving.

http://www.mmslawyers.com

If no lawyer from their office can help us directly perhaps they could suggest another agency, as well, they would have firsthand experience with the piledriving.

From: Elisabeth Bruckmann

Glenn,

I just don't know the answer to your question, but I assume that the complaint that you are filing with the CTA specifically notes that these levels are higher than those identified in the EA? I don't know what else you would do with this except to get your measurements clearly recorded.

With any kind of legal case, we always recommend keeping notes, trying to get the best and most reliable information possible (whether it's asbestos in a work place or noise in a community, you need hard evidence), and recording everything from communications to events to emotions. You will not remember what happened when if you don't write it down. if you cannot get expert evidence on noise and vibration owing to cost, take your own measurements with the best equipment you can obtain. If you cannot get equipment, try to describe what you are experiencing by comparing it to other experiences: the noise of a police siren, a jack hammer, a plane taking off, etc. and describing your experience of the noise. There is a lot of documentation out there on the impact of noise on health, including the cognitive impacts of excessive noise. You should also get doctors' reports from as many people as possible which speak directly to the effects of the piledrivers on people's health. If people have not gone to their doctors, they should go and tell them clearly what they are experiencing so that the doctors take it down and can report on it later if necessary. Document, document, document.

With respect to counsel, I don't know either of the firms cited, but they may well be good firms. A number of other firms which are more left (and less liberal) are Iler Campbell; Roach Schwarts; Symes, Street & Jull; Julian Falconer's office (don't know the firm name), Bakerlaw, and Klippenstein (again, don't know the firm name). I am on mat leave so I am too far out of the loop to know who is doing what at the moment. I recommend not doing one at a time and waiting for an answer. You will wait forever. Do a blitz. Google search class action and toronto and see who comes up. Hit them all. You can tell them that you are talking to more than one firm because of the extreme urgency of the situation.

Finally, many people go to administrative tribunals without representation. It is not ideal, but a small group of intelligent people can do it. Just do not be intimidated by the opposing side. Insist that procedures be clearly explained and that you be alerted to any errors you make so that you can remedy them. If you do not understand anything, state that clearly and insist that you must understand before the matter proceeds. Try to identify one or two people to act as your spokespeople, but also try to have others present. They can act as resources and having a lot of people in the room sends a message that the matter is serious and is having broad impact.

I do not know if the piledriving can be stopped pending a decision with respect to the complaint, but I would certainly recommend requesting that the work stop until this matter is sorted out. You can use the language of "irreparable harm" and focus on health and especially children's health. I do not know if the tribunal has the authority to stop the work, but always ask for what you want. They can only say no.

Best I can do at the moment. Take care all