THUNDER BAY — The Ontario Court of Appeal has upheld a judge's decision to strike part of a claim against the City of Thunder Bay related to pinhole leaks in household water pipes.
A class action suit seeks $350 million on behalf of residents around the city who faced expenses and inconvenience from leaks in copper pipes after the city added sodium hydroxide to the water supply in 2018 to mitigate the leaching of lead from lead water pipes in thousands of older homes.
The Ontario Superior Court certified the case as a class action in 2023, allowing a claim for negligence to proceed but striking a claim for nuisance after the city argued it is protected by provincial legislation that provides immunity from damage caused by water escaping municipal infrastructure or facilities.
The plaintiffs maintained the nuisance claim should be allowed because the alleged damages occurred as a result of the city adding something to the water supply, not because of water escaping municipal infrastructure.
At a hearing earlier this month, the Court of Appeal heard submissions from lawyers for the representative plaintiff in the case, Patricia Stadnyk, and lawyers for the city.
In a decision released Friday, the court dismissed the appeal, saying it agreed with the previous court ruling that the nuisance claim was doomed to fail and that this is a straightforward matter of statutory interpretation.
The court referenced the judge's finding that "The interpretation is consistent with the obvious purpose of the statute (the Municipal Act) which was to eliminate certain types of damage claims connected with the water and sewer works of a municipality."
Court costs of $50,000 were awarded to the city.
Despite the appeal court's finding, the claim for negligence can proceed.
The class action is on behalf of everyone who owned, leased, rented or occupied properties serviced by water supplied by the city which contained sodium hydroxide.
Lawyers for the class will receive a fee only if the action succeeds.
A date for the trial has not yet been announced.
