THUNDER BAY — The class-action lawsuit against the City of Thunder Bay involving pinhole leaks in copper water pipes is moving forward, but one of the claims has been dismissed by a judge.
In a hearing held in June, Justice Paul Perell certified the negligence claim in the $350 million class-action lawsuit, but in a decision released last week he granted a motion to strike the nuisance claim.
The class-action relates to the city’s use of sodium hydroxide in the municipal water supply beginning in 2018 in an effort to reduce lead levels in the water.
The class-action alleges that the addition of the chemical eroded copper water pipes resulting in some property owners experiencing pinhole leaks.
During the hearing in June, the city’s legal team argued the municipality is protected from such claims under the Municipal Act, which grants immunity from damage caused by water escaping municipal infrastructure or facilities.
Counsel on behalf of the plaintiffs 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.
Perell said in his decision that the nuisance claim is caught by a section of the Municipal Act and is therefore: “doomed to fail.”
“The nuisance claim does not satisfy the cause of action criterion and that the City’s motion pursuant to Rule 21 to strike the claim should be granted,” Perell ruled.
“While in some of the putative Class Members’ cases, the leak occurred in the City’s water works facilities, i.e., the leak was found in a part of the City’s supply of water infrastructure, in all the putative Class Members’ cases, the leaks occurred in connection with the escape of water from the water works of the City of Thunder Bay into which the municipality had added sodium hydroxide.”
The section of the Municipal Act cited by Perell states that: “no proceeding based on nuisance, in connection with the escape of water … from water works (facilities for the collection, production, treatment, storage, supply or distribution of water), shall be commenced against, a municipality.”
“This is a straightforward matter of statutory interpretation,” Perell said. “There are no ambiguities that have been identified. The interpretation is consistent with the obvious purpose of the statute, which was to eliminate certain types of nuisance claims connected with the water and sewer works of a municipality.”
Because the city is protected under a section of the Municipal Act granting immunity for such damages, Perell ruled in favour of the city of Thunder Bay to strike the nuisance claim.
The motion to certify the negligence claim was granted.
