Woman struck by GO train at Kitchener, Ont., rail crossing in 2019 files $3.25M lawsuit

A woman who suffered life-threatening injuries after she was hit by a GO Transit train at a rail crossing in Kitchener Ont., in 2019 is suing Metrolinx, Canadian National Railway, Bombardier and others for $3.25 million.

In a statement of claim filed in January 2022, Jenna Armstrong and her husband, Daniel Armstrong, are seeking $2 million in non-pecuniary damages, $1 million in pecuniary special damages and $250,000 in damages pursuant to the Family Law Act.

Two unnamed train operators, the City of Kitchener and the Region of Waterloo are also named in the Armstrongs' lawsuit.

None of the allegations have been tested or proven in court.

An earlier version of the statement of claim that was filed in April 2021 did not include Bombardier, which was contracted to operate the GO Transit train, and mentioned only one GO train operator.

James Scarfone, the Armstrongs' lawyer, did not respond to CBC Kitchener-Waterloo's request for comment. When reached through social media for an interview, Jenna and Daniel Armstrong declined to comment.

As of Friday afternoon, Metrolinx had not yet responded to email or phone requests for comment from CBC Kitchener-Waterloo.

Armstrong's accident was the subject of an independent investigation by the Transportation Safety Board of Canada (TSB), which released its findings Thursday.

The TSB report found Ontario's Ministry of Transportation didn't provide effective safety oversight of provincially regulated railways at the time Armstrong and a six-year-old boy were struck by the GO train at the intersection of Lancaster and Victoria streets.

As well, the report says, Metrolinx has added further safety measures at the rail crossing in question since Armstrong and the boy were struck.

Accident just before 3 p.m.

On Nov.13, 2019, Armstrong and the boy, both from Guelph, suffered serious injuries when they were hit. The train had been travelling westbound as they attempted to walk across the train tracks.

Armstrong was 13 weeks pregnant. The boy is not related to her, but was under her care that day while she worked for a behaviour consulting firm, a centre that provides autism therapy for children. The status of the child today isn't immediately known.

The crossing has two live tracks owned by Metrolinx. Metrolinx commuter trains, Via passenger trains and CN trains all operate over the crossing.

Metrolinx officials said at the time of the incident that staff were notified just before 3 p.m. that two people were hit by a GO train coming from Guelph.

More than $27,000 was raised through an online fundraiser to help Armstrong in her recovery. 

She had several injuries and fractures to her head, neck and spine, as well as to her shoulders, hip, ankle and forearm, according to the statement of claim. It also says Armstrong has suffered from anxiety, sleep dysfunction and other psychological injuries from being struck by the train.

The accident has also impacted Armstrong's ability to return to work, the statement of claim says. While she plans to return to her former employer, it says, she hasn't yet because she's "unable to perform all necessary aspects" of her job. 

The statement of claim says she's seeking reimbursement for out-of-pocket expenses for medical treatment and rehabilitation that she's she's still undergoing.

Negligence to protect pedestrians: claim

Armstrong's statement of claim alleges the parties named in her lawsuit failed to protect and properly warn pedestrians of a second track at the crossing.

It says Metrolinx and Bombardier did not have procedures and policies in place to ensure pedestrians were notified and warned at the crossing of two trains moving at the same time.

The claim also says both parties knew about the dangers at the crossing, and alleges they knew there were no pedestrian warnings or barriers to prevent Armstrong from getting hurt. Both operators were conducting the train without care or consideration for pedestrians crossing the railway and "failed to make audible warnings as the GO train approached the railway crossing" as no horn was sounded at any time, according to the statement of claim.

Because there are two tracks at the crossing, CN had the duty to ensure the safety of pedestrians and co-ordinate with the city and the region to warn pedestrians of on coming trains, "knowing that CN trains could and did obscure the clear view of pedestrians crossing the two sets of tracks," the claim states. It also makes similar allegations about the City of Kitchener and Waterloo region's involvement, saying they failed to install barriers and warnings signs for pedestrians.

Region, city deny allegations

In a joint statement of defence and cross-claim that was filed in October 2021, the region and the city "deny each and every allegation" made in the Armstrongs' statement of claim. In the cross-claim, the two municipalities have said Armstrong should pay their legal fees stemming from the case.

The region and the city also deny they were negligent and deny they have jurisdiction over the rail crossing or any portion of the railway in the claim.

The statement of defence argues the region and city are not liable for Armstrong's injuries, damages and losses as they are owing solely to her negligence in crossing the tracks.

The cross-claim by the region and city say Metrolinx and/or CN have jurisdiction over the rail crossing and were responsible for its care and control, as well as the proper signs and barriers.

Because the matter is before the courts, the Region of Waterloo declined to comment.

Metrolinx, Bombardier and CN have all filed notices of intent to defend themselves in the case, but have not yet filed statements of defence. CBC News reached out to the three for comment, but had not heard back from Bombardier and CN as of late Friday.

Metrolinkx gave this emailed response: "Given there is active litigation before the courts, it would be inappropriate for Metrolinx to comment further."