Citing breach of trust, claiming ownership as Tobermory makes plans for dive site
ASSIGINACK—The S.S. Norisle Steamship Society has begun legal proceedings against the Township of Assiginack since learning of the municipality’s plans to sell the historical ship to the Tobermory Maritime Association (TMA) to be sunk and used as a dive site.
According to the Statement of Claim filed with the Ontario Superior Court of Justice against the Township of Assiginack on Tuesday, December 13, the Steamship Society is claiming $10 million for damages in addition to an order declaring that the S.S. Norisle Steamship Society is the owner of the S.S. Norisle by way of constructive trust.
The Society is also claiming $250,000 for “aggravated, punitive and/or exemplary damages,” an interim order restraining the town from disposing of the Norisle until the matter has been tried, an interim order “compelling the defendant to continue to provide status quo administrative tasks including providing all risk insurance, to maintain its current accessible dockages, road access and snow removal, utilities service and ongoing maintenance at its expense until this matter is tried, full indemnity costs of this proceeding plus all applicable taxes” and “such further and other relief as to this honourable court may seem just.”
The claim goes on to accuse Assiginack of breaching a joint venture agreement between the town and the Society.
“The parties acted in accordance with their joint venture team effort up until the latter part of 2015, when in November the municipality abruptly and without discussion or notice withdrew its support,” the claim states. “On July 4, 2016, seven months after the municipality locked out the Steamship Society, the plaintiff received a letter from the municipality stating that all support for the Steamship Society and S. S. Norisle project as proved by the MOU (Memorandum of Understanding) was withdrawn. The plaintiff states that the municipality’s above described action breached their joint agreement and ended the joint venture relationship. This was done without good reason and without any discussion with the Steamship Society. The municipality breached its duty of good faith, trust, honesty and reasonable forthrightness. The lack of any attempt at communication with the Steamship Society was in itself an unreasonable action. The plaintiff made numerous attempts to reengage the defendant, all of which were rejected.”
The Steamship Society claimed a breach of fiduciary duty as well. “The plaintiff reposed trust and confidence in the municipality,” the claim states. “It trusted that the municipality would act reasonably in fulfilling the objectives of the joint venture and MOU and continues to work towards securing funding for the project. The plaintiff felt betrayed when the municipality withdrew its support.”
The claim also sites unjust enrichment and constructive trust, negligence, damages and a restraining order.
The Expositor contacted the S.S. Norisle Steamship Society Director of Restoration John Coulter and long-time member Rob Maguire, who both said they were unable to comment on the Norisle or the lawsuit.
The Expositor also contacted Assiginack Mayor Paul Moffatt inquiring if the municipality had received the lawsuit, to which the mayor responded, “It’s common knowledge that we have.”
As to the claims, Mayor Moffatt said he had “no comment” and that the matter had been handed over to the municipality’s insurance provider.
The lawsuit was the topic of the Assiginack council’s in camera session at the Tuesday, December 20 meeting, but no motions were made as a result.
As The Expositor previously reported, Assiginack had begun negotiations with the TMA in the fall of 2016 regarding the sale/donation of the S.S. Norisle to be relocated to Tobermory, sunk and used as a dive site.
TMA representative Michael Marcotte spoke to The Expositor earlier this week, stating that the TMA would be proceeding with its plans for the Norisle, despite hearing the news of the lawsuit.
“If the Steamship Society is able to successfully make the Norisle into a cruise ship—fantastic—it would be beautiful to see it sailing again,” said Mr. Marcotte, “but if it doesn’t work and it’s going to be scrapped, it is part of history and we want to keep it available to the public. We aren’t stopping—I just put the last permit in a few days ago and we are still planning to go ahead with obtaining the Norisle and sinking it to be made into a dive site in the event that the Steamship Society isn’t successful.”
Mr. Marcotte said he had been following the efforts to make the Norisle a cruise ship and came to the Island with his wife last summer to see the vessel.
“I asked the municipal office as to the status of the ship and they said they had no plans and were looking to get rid of it,” said Mr. Marcotte. “We called a TMA meeting to investigate bringing the S.S. Norisle back to Tobermory as a dive site. I have submitted all the paperwork for approvals with the Ministry of Transportation, Department of Fisheries and Oceans and Ministry of Natural Resources and Forestry. We are just waiting to hear back.”
The TMA was formed in 1998 and obtained and sank the Niagara II in May of 1999, said Mr. Marcotte. Since then the TMA has created four additional dive sites in addition to working in partnership with Parks Canada overseeing the Fathom Five National Marine Park, with a total of 28 ship wrecks.
If the TMA obtains the necessary permits and the Norisle, the ship will be sunk in Little Cove.
Little Cove is home to two other ship wrecks: the Niagara II and the Lady Dufferin and Mr. Marcotte said that the S. S. Norisle would be sunk between the two.
The Norisle has been in the municipality’s care since 1975 and, according to the original agreement, was to revert back to provincial ownership this year.