Paradise drawn into flood lawsuit

Couple filed original claim against City of Mount Pearl

Published on December 17, 2012
A view of David and Melva Whitten’s backyard in Mount Pearl during hurricane Igor. — Submitted photo

A lawsuit filed by a Mount Pearl couple against the municipality over the frequency of flooding on their property now has a third party involved.

In August, David and Melva Whitten filed a statement of claim with the Supreme Court of Newfoundland and Labrador against the City of Mount Pearl seeking payment for damages related to floods.

Their home on Topsail Road, built in the 1940s, is located close to the Waterford River, and the Whittens claim that development along the river is to blame for the floods.

The Whittens also want the city to purchase their property at fair market value.

According to the Whittens’ statement of claim, the city has already agreed to buy several homes in the Forest Avenue area where flooding issues, identical to their own, have cropped up.

In a separate statement of claim filed by the City of Mount Pearl on Sept. 27, it named the Town of Paradise as a third party in the case, stating that Paradise “has utilized the Waterford River as a conduit for the runoff of water.”

While Mount Pearl denies being liable to the Whittens in this case, it goes on to state that if it were found to be liable, then “such damages arise out of the acts or omissions of the (Town of Paradise).”

The statement of claim goes on to say those “acts or omissions” relate to the development of municipal infrastructure and other developments along the Waterford River within the Town of Paradise’s boundaries that have resulted in increased water flow.

In its own statement of defence filed with Supreme Court on Nov. 28, the Town of Paradise denied all allegations brought forward by the City of Mount Pearl.

The town says when building infrastructure or permitting development, it has always acted in accordance with the Municipalities Act and cannot be held responsible for “development approval, mitigation efforts, or infrastructure constructed by the City of Mount Pearl.”

The Town of Paradise is ultimately requesting that the statement of claim filed against it by the City of Mount Pearl be dismissed.

Speaking with The Telegram on Sunday, David Whitten said he believes the City of Mount Pearl’s decision to drag the Town of Paradise into his lawsuit shows that Mount Pearl knows it is responsible for flooding on his Topsail Road property.

“I feel that Mount Pearl in their own hearts and soul, know that they are responsible for this,” he said, despite the fact Mount Pearl’s own statement of claim clearly says otherwise.

If his lawsuit proves successful and Paradise is found liable for damages, David said he wonders whether Mount Pearl will look for Paradise to also contribute to property purchases it has made in the Forest Avenue area.

He also worries the move by Mount Pearl to bring Paradise into the case is a tactic to drag-out the legal process.

Mount Pearl Mayor Randy Simms said he could not comment on the case as it remains before the court. Likewise, Paradise Mayor Ralph Wiseman said he could not comment on the case.

David Whitten said his lawyer is set to file evidence with the court over the next week.

arobinson@thetelegram.com

Twitter: @TeleAndrew