Cheapskates Holdings Ltd. v. City of Vancouver Date:, 2013 BCPC 267

Citation: Cheapskates Holdings Ltd. v. City of Vancouver Date: 20130723 2013 BCPC 0267 File No: 13-43160 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CHEAPSKATES HOLDINGS LTD. CLAIMANT AND: THE CITY OF VANCOUVER DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimant: Barry Gilpin Counsel for the Defendant: Brent Jordan Place of Hearing: Vancouver , B.C. Date of Hearing: June 12, 2013

Date of Judgment: July 23, 2013 Background [ 1 ] Cheapskates Holdings Ltd. (“Cheapskates”) claims against the City of Vancouver (the “City”) as a result of a sewer blockage that occurred on City property adjacent to Cheapskates at 3644 West 16 th Avenue, which caused a backup and resulting damage to the Cheakskates’ premises on October 17, 2012. [ 2 ] Barry Gilpin (“Mr. Gilpin”), the owner of Cheapskates, testified on behalf of the Claimant, and confirmed that the facts set out in his Trial Statement were true and accurate. Brent Jordan (“Mr. Jordan”) prepared the Trial Statement on behalf of City.

The parties agreed that the City’s Trial Statement could be admitted to evidence without Mr. Jordan having been sworn. [ 3 ] During the hearing, which proceeded as a series of arguments by the parties as the basic facts were not in dispute, a representative of the City, although not sworn, advised the Court that the sewer was constructed at a 5 foot depth, and that the maple tree which damaged the City’s sewer system was selected because it has a root system that is not likely to interfere with the sewer. Mr.

Gilpin agreed that these facts could be included as part of the evidence before me. [ 4 ] The Claimant’s building was constructed in 1910 and converted into a strata titled property on March 9, 1983. [ 5 ] If a new sewer connection was installed in 1983 or later, the City would have a record of it, but there is no such record. Accordingly, the best estimate is the sewer connection was installed no later than the 1930’s. [ 6 ] The tree in question was planted on January 13, 2000. The City has a tree planting guideline.

However, this guideline does not address proximity to sewer or water service lines. [ 7 ] There are nearly 140,000 street trees and over 100,000 sewer connection lines in the City. [ 8 ] Sewer and water lines are constructed in such a manner so that they will not leak and also that tree roots will not intrude into them. [ 9 ] The City has no record of any problem with the subject sewer connection line prior to the incident which has led to this claim. [ 10 ] The City has a reactive system for preventative maintenance of private sewer connections.

When the City becomes aware of a problem in the sewer connection line, a property owner is entitled to enrol in the City’s preventative maintenance program. After the backup, Cheapskates enrolled its sewer connection line in the City’s preventative maintenance program. [ 11 ] Three thousand seven hundred (3.7%) of the City’s sewer connection lines are involved in the City’s preventative maintenance program. [ 12 ] Is the City liable in nuisance or negligence as a result of the tree roots infiltrating the City’s sewer line which caused the blockage and led to the damages at Cheapskates’ premises?

Nuisance Claim [ 13 ] Mr. Jordan relies on s. 294(9) of the Vancouver Charter as a complete defence to a claim of nuisance. A portion of s. 294(9) reads, as follows: The city or any officer or employee thereof is not liable in any action based on nuisance or the rule in Rylands v. Fletcher or in any claim or action for injurious affection where the damages giving rise to the action or claim arise directly or indirectly out of the breakdown or malfunction of (

a) a sewer system [ 14 ] In support of the

interpretation Mr. Gilpin says I should adopt, the City relies on British Columbia v. Vancouver (City), 2005 BCSC 747 . [ 15 ] The headnote of this case is, as follows: The legislative history of section 294(9) made it clear that it was enacted to protect the municipality from liability for nuisance claims. It did not provide blanket immunity from such claims but only those that resulted from the breakdown or malfunction of the specified systems. Section 294(9) provided a complete defence.

The damages that gave rise to this action resulted from the malfunction of the sewer system. [ 16 ] In my opinion, the damages in this case are from the malfunction of the sewer system. [ 17 ] The sewer system is designed to prevent the infiltration of the root system. The maple tree was chosen by the City because its root system is not invasive, as the root system is fairly shallow and typically does not go down 5 feet, which is the level at which the sewer system is installed. [ 18 ] Mr. Justice Goepel said the following in British Columbia v. Vancouver (City) , supra:

22 In this case, the legislative history makes clear that the legislative amendment was to (sic) attempting to remedy was municipalliability for nuisance claims. In providing that remedy the legislature did not provide local governments with blanket immunity from allnuisance claims. They chose instead to limit that immunity to claims that arose directly or indirectly form the breakdown or malfunctionof certain named systems. … 24 The purpose of a sewer system is to take sewage from point A” to point “B”.

In this case, because of an unknown obstruction,the sewer system failed to take sewage form point “A” to point “B”. The obstruction prevented the system from fulfilling its purpose in anormal or satisfactory manner, which by definition constitutes a malfunction…. 25 I find that the damages giving rise to this action arose directly or indirectly out of a malfunction of the sewer system. Section294(9) of the Charter provides a complete defence to the claim. The Province’s claim is dismissed. [19] I agree with His Lordship’s comments. [20] Accordingly, the City is not liable in nuisance. Negligence [21] Mr.

Gilpin argues that the City must know that tree roots can infiltrate the City’s sewer line and, therefore, should plant trees ata location that cannot infiltrate the connection to the private property owner’s sewer connection. Essentially, he says the City has nodefence, because it planted the tree. [22] Mr. Jordan argued that the onus is on the Claimant to prove on the balance of probabilities that the City was negligent. Further,he argues that the Claimant has not tendered any expert evidence to support the claim in negligence.

Specifically, he says there is noevidence to suggest the City was negligent with respect to any of the following: (

a) the design of the sewer system; (

b) the choice of planting a maple tree because it has a shallow root system, and that the root system is “unlikely” (my words) to beinvasive nor invade the sewer system. (

c) the location of where the tree was planted in the boulevard in front of the Cheapskates’ location for the maintenance of the sewersystem generally. [23] Mr. Jordan relies upon Fontaine v. British Columbia (Official Administrator) (SCC), [1998] 1 S.C.R. 424 tosupport the proposition that the maxim of res ipsa loquitur no longer applies. Mr. Justice Major said, as follows: 19 For res ipsa loquitur to arise, the circumstances of the occurrence must permit an inference of negligence attributable to thedefendant. The strength or weakness of that inference will depend on the factual circumstances of the case.

As described in Canadian Tort Law (5th ed. 1993), by Allen M. Linden, at p. 233, “[t]here are situations where the facts merely whisper negligence, but there areother circumstances where they shout it aloud.” 20 As the application of res ipsa loquitur is highly dependent upon the circumstances proved in evidence, it is not possible toidentify in advance the types of situations in which res ipsa loquitur will arise.

The application of res ipsa loquitur in previous decisionsmay provide some guidance to when an inference of negligence may be drawn, but it does not serve to establish definitive categories ofwhen res ipsa loquitur will apply. It has been held on numerous occasions that evidence of a vehicle leaving the roadway gives rise to aninference of negligence. Whether that will be so in any given case, however, can only be determined after considering the relevantcircumstances of the particular case. … B.

Effect of the application of res ipsa loquitur 23 As in any negligence case, the plaintiff bears the burden of proving on a balance of probabilities that negligence on the part of thedefendant cause the plaintiff’s injuries. The invocation of res ipsa loquitur does not shift the burden of proof to the defendant. Rather,the effect of the application of res ipsa loquitur is as described in The Law of Evidence in Canada (1992), by John Sopinka, Sidney N.Lederman and Alan W. Bryant, at p. 81: Res ipsa loquitur, correctly, understood, means that circumstantial evidence constitutes reasonable evidence of negligence.

Accordingly, the plaintiff is able to overcome a motion of a non-suit and the trial judge is required to instruct the jury on the issue ofnegligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would beequally reasonable to infer negligence or no negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Underthis construction, the maxim is superfluous.

It can be treated simply as a case of circumstantial evidence. 24 Should the trier of fact choose to draw an inference of negligence from the circumstances, that will be a factor in the plaintiff’sfavour. Whether that will be sufficient for the plaintiff to succeed will depend on the strength of the inference drawn and anyexplanation offered by the defendant to negate that inference.

If the defendant produces a reasonable explanation that is as consistentwith no negligence as the res ipsa loquitur inference is with negligence, this will effectively neutralize the inference of negligence and theplaintiff’s case must fail. Thus, the strength of the explanation that the defendant must provide will vary in accordance with the strengthof the inference sought to be drawn by the plaintiff.

… 26 Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law. 27 It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.

After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant.

Once the plaintiff has done so, the defendant must present evidence negating of the plaintiff or necessarily the plaintiff will succeed. [ 24 ] I conclude from the passages quoted above, that the doctrine of res ipsa loquitur no longer applies. [ 25 ] Accordingly, I must determine on the evidence whether or not the City negligently designed or maintained the sewer system, which also takes into account the planting of the tree in this case. [ 26 ] In my opinion, the City cannot be liable in negligence in each and every occasion that there is a malfunction of the sewer system, irrespective of its cause. [ 27 ] The City chose a tree with a shallow root system, which was unlikely to invade the sewer system.

Furthermore, the sewer system was designed to prevent root systems from interfering or impeding the regular operation of the sewer system. [ 28 ] As the photographs contained in the Trial Statements demonstrate, the trees are planted at a location to take into account signage, parking, driveways, sidewalk, and not only the location of the sewer line. [ 29 ] Mr.

Gilpin argues that the City could have made an inquiry, as he did, by calling “311” to find out the location of the sewer line. [ 30 ] In my opinion, even if the City had known the location of the sewer line in relation to the Claimant’s property and the sewer connection, that would not necessarily have required the City to plant the tree in a different location given the low percentage of sewer system failure.

Also, a maple tree was chosen due to the specific attributes of its root system as described above. [ 31 ] In my opinion, there is no evidence led by the Claimant to support the claim of negligence, as the maxim of “ res ipsa loquitur ” no longer applies. [ 32 ] The Claimant has not proven beyond a balance of probabilities that the City was negligent in this case. [ 33 ] The claim is dismissed. [ 34 ] I decline to award the City costs. __________________________ Lawrence A. Kahn