Carriers consider suing over overpass restrictions

by Carroll McCormick

MONTREAL, Que. – In late January or early February, Quebec carriers affected by the overweight ban imposed on 135 bridges and overpasses last July 19 will learn about their legal options regarding filing lawsuits against Transports Quebec.

The Quebec Trucking Association (QTA) planned to call a meeting to which all interested carriers are invited to attend. Francois Rouette, a transportation attorney with the law firm Cain, Lamarre, Casgrain, Wells will present its legal position on filing suit against the government and what carriers stand to gain.

“We will tell them what their rights and the possibilities are, and they can decide whether they want to file suit. Whether people want to file suit against the government is up to them,” explains QTA president Marc Cadieux. “I will see what the appetite is in the industry for lawsuits.”

The number of carriers who have lost revenue and/or incurred extra expenses number in the hundreds, according to Rouette; the number of trucks that were initially affected by the overweight ban was thought to be about 12,000.

The ban affected, and continues to affect, not only carriers transporting special overweight loads, but also carriers that routinely carry extra weight in quads, B-trains and les grand trains routier (long combination vehicles).

Carriers and their lawyers can thank two key events, should they wish to proceed with lawsuits.

First, a change in provincial law in the late 1990s lifted the government’s immunity to liability for damages resulting from the condition of the road network, making lawsuits possible.

Second, the extraordinary transparency of the Commission of Inquiry into the collapse of a portion of the de la Concorde Overpass.

The very public flaying of Transports Quebec and the assigning of blame provide magnum-calibre ammo for lawyers arguing that this whole debacle is the government’s fault.

“We are acting strictly on the basis of whether there is fault,” Rouette explains. “We have hints coming out of the Johnston Commission that something might be amiss. The Commission was so transparent, every testimony and document was available on its Web site. We downloaded everything from the site. Our point is that because of the negligence of the ministry, they made a major mistake which pushed them to the wall and they closed everything. Evidence states that they were so negligent and incompetent…they did not plan anything, but rather, immediately ordered weight reductions and closures. If you were so negligent that you were forced to close down a system, is this a defence? I cannot see a defence based on this.”

Cadieux notes, “The Johnston Report noted the negligence toward certain inspections and deficiencies that were noted more than 10 years ago. We think there was gross negligence by the ministry.”

The upcoming meeting with carriers will help carriers learn how to build up their claims. After the meeting carriers will be given about 60 days to prepare a full accounting of their losses for suit-planning purposes, according to Rouette.

It is surely anyone’s guess how many millions in damages carriers have choked down to date, and how many more millions the restrictions will cost them by the time the last overpass and bridge is repaired or replaced. Rouette reports knowing at least one carrier which shut down permanently and others which were out of action for weeks. Some could not negotiate new rates with manufacturers, others simply said that if they could not get compensatory rates, they would not move the loads.

One carrier reported driving upward of 8,000 detour kilometres every day. Some regions of the province have been completely isolated.

Since the financial burden to carriers varies so greatly, a class action suit will not be launched, says Rouette. Multiple lawsuits will be filed, if they are launched at all, and the claims will be personalized. However, Rouette notes,”The basis for action – fault – is the same for everyone. The cost of the expertise will be shared among the carriers who decide to file suit.”

Reflecting the uncertain and ongoing nature of this saga, this past December Transports Quebec issued its third report on the status of the inspections of the 135 bridges. Of 113 bridges and overpasses listed, restrictions have been lifted on 67.But 49 are listed as needing work, defined variously as reinforcement, major work, demolition or replacement (there are 22 in the latter two categories).Work is scheduled to begin on all of them this year, but it would be wildly optimistic to expect all repairs and replacements to be completed in a time period measured in less than years.

“There is continuous damage (to transporters) because some of the repairs will not be completed until 2009 or 2010,” says Cadieux. “I have not heard anyone recall there being such an important issue (affecting the trucking industry) before.”

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