THUNDER BAY — The city could once again be facing nuisance claims in connection with the leaky pipes class action lawsuit.
The Ontario Court of Appeal is being asked to reverse a judge's decision to strike part of the claim in the lawsuit against the City of Thunder Bay.
The suit seeks $350 million on behalf of residents who faced expenses and inconvenience from pinhole leaks in copper pipes after the city started adding sodium hydroxide to the water supply in 2018 to mitigate the leaching of lead.
When leaks were brought to its attention, the city stopped using the chemical in early 2020.
The Ontario Superior Court certified the case as a class action in 2023, allowing the claim for negligence to proceed but striking a claim for nuisance after the city argued the municipality is protected under the Municipal Act, which grants immunity from damage caused by water escaping municipal infrastructure or facilities.
Lawyers for representative plaintiff Patricia Stadnyk argued the nuisance claim should be certified because the alleged damage occurred as a result of the city adding something to the water supply, not water escaping from municipal infrastructure, and therefore the immunity under the Municipal Act does not apply.
The decision to file an appeal – expected to be heard in early 2025 – was revealed in a formal Notice of Certification of the class action which was made public Wednesday.
Regardless of the outcome, the claim for negligence will proceed.
The class action is on behalf of everyone who owned, leased, rented or occupied properties serviced by water supplied by the city which was treated with or contained sodium hydroxide.
Lawyers for the class will only be paid if the action is successful, and their fees – which must be approved by the court – will be deducted from any award that might be granted.
The city has denied the allegations against it, and the claims have not been proven in court.
