Ghaeli v. District of North Vancouver Date:, 2015 BCPC 73

Citation: Ghaeli v. District of North Vancouver Date: 20150324 2015 BCPC 0073 File No: 14-24124 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MOHAMMAD REZA GHAELI CLAIMANT AND: DISTRICT OF NORTH VANCOUVER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing in person: M. Ghaeli Counsel for the Defendant: J. Frahm Place of Hearing: North Vancouver , B.C. Date of Hearing: October 7, 2014 Date of Judgment: March 24, 2015 [ 1 ] THE COURT: The claimant has commenced an action against the District of North Vancouver seeking to be reimbursed for

costs he has incurred to deal with some flooding that occurred to his home located at 970 Melbourne Avenue in North Vancouver on or about August 24th, 2013. On that day and seemingly for possibly several days thereafter, the claimant found that there was what he describes to be a sewage line backup at his home at 970 Melbourne Avenue. [ 2 ] His response was not to contact the District of North Vancouver where his home at 970 Melbourne Avenue is situate, but rather to contact a private plumber using the business name, Mr. Rooter.

The plumber came to his premises on August 24th and I believe, as well, on August 26th, 2013, and using a camera or camera-like detection instrument ascertained that there was a blockage in the lateral sewer line connecting his home to the main line and the plumber believed that it was on the District's side of the property line that separates or demarks, if you will, the front of the claimant's home from District property towards the curb and street, namely Melbourne Avenue. [ 3 ] The plumber for the first time contacted the District of North Vancouver on or about August the 27th, 2013, and indicated to the District what he had found and his belief that the blockage was on the District side of the property line as against the homeowner's front yard or side of the property line.

The District's response was to send a crew out to the homeowner's property and that occurred on August the 27th, and the District crew first installed what is called an inspection chamber that did not otherwise exist as any part of the lateral connection or lateral line that connects the front of the claimant's home to the larger main line or sewer line running parallel to the street, Melbourne Avenue.

Having done so and using a camera, they found that there was a collapse on the lateral line on the District side of the line. [ 4 ] The claimant has asserted in his argument that the collapse was located at the Y-join which is a term of art used to describe where the lateral line joins the main sewer line. However, I do not believe it has been clearly established in the evidence that that was the precise point of the failure. [ 5 ] One witness was called on behalf of the District, a Mr.

Chris Alexander, who is now the Acting Construction Maintenance Manager in the Utilities Department, a position he has held since August of 2014 and, prior to which, he was the Utilities Construction Foreman employed with the District of North Vancouver. His entire 21-year career has been spent working in the Utilities Department. [ 6 ] He gave evidence that it was his understanding that no cause could be assigned to the failure or collapse of the lateral line.

His precise evidence was that he was not aware of what caused it and, when asked what the causes might be, he gave a number of potential causes including the state of the soil conditions in which the lateral line was situate, the type of pipe that had been used, and whether or not it had been properly or poorly back filled at the time of its installation. [ 7 ] As I have understood it, the lateral line in question was likely 54 years of age having most probably been installed in or about the year 1959, I assume when the homeowner's home was first built regardless of who then owned it, and I further understood that the pipe in question was likely of a concrete/asbestos form of construction. [ 8 ] So this is a case where there is no clear understanding as to the cause of the pipe collapse.

However, it is clear, in my view, beyond peradventure that this whole incident occurred because on August 24th, 2013, the claimant's sewer pipe was not functioning as it ought to have done in the sense that it was not serving to remove sewage from his home on Melbourne Avenue to the main line in the street where it would then continue on its course to, no doubt, some treatment facility in North Vancouver. [ 9 ] The claimant incurred various costs to rectify the problems, and they are in the amount of $1,355.55, being two invoices that he paid to Mr.

Rooter to detect what the problem was. [ 10 ] The claimant stated during the course of his cross-examination that he does not advance his claim against the District of North Vancouver based in negligence and it is clear to me that the case is put forward in this court sounding in the tort of nuisance. [ 11 ] For example, during the course of his cross-examination, the claimant confirmed that he was not asserting that there was anything that the District did or did not do that caused his sewer backup to occur, nor did he, for example, assert that there had been a want of care or neglect on the part of the District in failing to make it known to citizens such as himself in some reasonable way, including on its own website, that the policy of the District was that the homeowner was expected to call the District first if the homeowner wanted the District to be in a position to fully indemnify the homeowner with respect to any costs related to a blocked connection where the blockage was on the District property. [ 12 ] On a contrary analysis, it is not asserted by this claimant homeowner that the website might have said, but did not state, that if this call was not first made to the District, but rather a call was made to a private plumber to attempt to rectify the problem and if costs were incurred that the District would not be responsible for those costs, including if the problem area was found to be on District property as opposed to the homeowner's property.

Those are examples of the sorts of things that are not claimed by this claimant against the defendant in the case at bar. So, therefore, the case is to be dealt with as an action sounding in negligence. [ 13 ] The position of the defendant District is straight forward. They assert that the claim is fully and completely barred by a statutory provision that is found in s. 288 of the Local Government Act , R.S.B.C. 1996, c. 323. That

section states as follows under the heading, "Immunity against certain nuisance actions": 288 A municipality, council, regional district, board or improvement district, or a greater board, is not liable in any action based on nuisance or on the rule in the Rylands v. Fletcher case if the damages arise, directly or indirectly, out of the breakdown or malfunction of (

a) a sewer system, (

b) a water or drainage facility or system, or (

c) a dike or a road.

[14] Clearly, here, reliance is placed on s. 288(

a) and the District asserts that the damages that the claimant homeowner seeks torecover are really those that flow certainly, I would think, indirectly at least from a breakdown of the sewer system on MelbourneAvenue whereon his home was situate in August 2013. [15] In reliance in this defence, the District draws to the court's attention two decisions, the first being British Columbia v. The Cityof Vancouver, 2005 BCSC 747, a judgment of Mr. Justice Goepel and, secondly, the case of Craxton v.

North Vancouver District, 2006BCPC 212, a decision of His Honour Judge Dohm of this court. [16] The Craxton decision really follows the B.C. v. Vancouver decision of Mr. Justice Goepel. It being a judgment of the SupremeCourt of British Columbia is certainly binding on me as a Provincial judge sitting in this court. [17] The facts in the B.C. decision are reasonably straight forward.

The action was commenced because the Province operated aliquor store on Kingsway Avenue in Vancouver and, as a result of a flood which was caused by an unknown obstruction in a sewer main,certain damages were caused to the store and the store, apparently operated by the Province, and the Province sought reimbursementfrom the City by reason of the damage that occurred. In paragraph 4 of Mr. Justice Goepel's decision, he states as follows, and I quote: On October 19, 1999, the store started to flood with water and sewage. The flood was caused by an obstruction in the sewer main.

Theexact nature and cause of the obstruction is unknown, other than the fact that members of the City's crew who saw it when it was finallyfreed referred to it as a "white mass." As a result of the flooding, the Province incurred damages of $30,978.18. [18] In determining whether or not s. 294(9) of the Vancouver Charter applied so as to be a complete defence to the defendant City,and I note the language in that provision is, while not exactly similar to s. 288, very similar in effect, Mr.

Justice Goepel said as follows,and I quote from paragraphs 22 to 25 of his decision: [22] In this case, the legislative history makes clear that the mischief that the legislative amendment was to attempting to remedy wasmunicipal liability for nuisance claims. In providing that remedy the legislature did not provide local governments with blanketimmunity from all nuisance claims. They chose instead to limit that immunity to claims that arose directly or indirectly from thebreakdown or malfunction of certain named systems. [23] "Breakdown" and "malfunction" convey different meanings.

The Canadian Oxford Dictionary defines "breakdown" as a"mechanical failure", while "malfunction" is defined as a "failure to function in a normal or satisfactory manner". "Function", in turn, isdefined as an "activity by which a thing fulfils its purpose". [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 from 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.

This situation can be readily contrasted with that inMedomist Farms where the drainage ditch continued to function. [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)(

a) of the Charter provides a complete defence to the claim. The Province's claim is dismissed. [19] The Medomist Farms case referred to in paragraph 24 by Mr. Justice Goepel is, in fact, a decision of our Court of Appeal inMedomist Farms Ltd. and H. Douglas Bose v. The Corporation of the District of Surrey, which is reported at (B.C.C.A.), which I shall come to. [20] The second case relied upon by the defendant is the Craxton decision.

In Craxton, the facts were similar to those in the B.C.decision, but different in the sense that, there, flooding was caused to the Craxton home by reason of a blockage in a storm sewer thathad been caused by a known event, namely, the presence of tree roots. There was some suggestion, as I have read this decision, that theblockage of the storm sewer connect pipe caused by roots may have constituted some sort of a malfunction in the pipe itself and I amreading from the headnote. In any event, following the B.C. decision of Mr.

Justice Goepel, His Honour Judge Dohm in this court had this to say in paragraphs 34 to37 of his reasons, and I quote: [34] The purpose of the Storm Service Connection was to take storm service water from the Craxtons' residence to the District's sewersystem. The roots in the Storm Service Connection prevented that purpose from being fulfilled in a normal and satisfactory manner. Thatamounts to a malfunction. [35] This situation is virtually identical to the one in Moffat v.

White Rock (City) (1992) 13 M.P.L.R. (2d) 283 (B.C.S.C.) whereMacdonald J. found that a blockage in a sewer line caused by roots and plastic bags was a malfunction such that the legislative provisionwas a complete defence to the plaintiff's claim in nuisance. [36] In that case and the one before Goepel J., the purpose of the system was to move the sewage from one point to another. Amalfunction occurred because the system failed to fulfill that purpose in a normal and satisfactory manner due to the obstruction in the

system. In contrast, no malfunction occurred in Medomist Farms because the system continued to function in a normal and satisfactory manner; it continued to move the water downstream as was its purpose only it was not able to handle the increased flow of water which lead to the flooding and resulting damages.

This analysis governs this case. [37] Accordingly, there was a malfunction of the Storm Service Connection on October 16, 2003, such that s. 288 of the Local Government Act protects the District from liability in nuisance for the damages to the Craxtons' residence. [ 21 ] The defendant [sic, claimant] homeowner in this case, in an argument that I confess I had some difficulty in following, asserts that it is a critical fact in the case at bar that there was no evidence as to the cause of the failure of the portion of the lateral line found on District property. He asserts that it may have collapsed due to age.

He says that there is every possibility that it somehow failed on its own. There is no evidence of any external force that caused the failure.

He asserts that it failed for some unknown reason and he, therefore, asserts that the two cases relied upon by the District do not apply and, based on the reasoning in the Medomist Farms Ltd. case which I have referred to, I ought to find that s. 288 of the Local Government Act does not apply and is not a complete defence. [ 22 ] I am satisfied that my brother Judge Dohm neatly and with some brevity distinguished the Medomist Farms case from the case at bar in paragraph 36 of the reasons outlined above where he simply points out that, unlike in the case at bar, there was not a malfunction in the drainage ditch from which flooding seemed to have occurred, a so-called manmade draining ditch called Hook Brook, but rather the drainage ditch functioned as it was intended to do, save that the peak flow of water at a particular time meant that the channel was being filled faster than it could empty and, in the result, lacking storage capacity, it overflowed and ended up damaging the plaintiff's farmlands with flooding. [ 23 ] In my view, the defendant has established on the evidence in this case that the purpose of the lateral line whereon the failure occurred was to take sewage from point A, which I will call the claimant's home at 970 Melbourne Avenue in the District of North Vancouver, to point B, namely, the main sewer line running parallel to Melbourne Avenue in front of the claimant's home.

That was the function for which the pipe was designed and the system was designed to do.

In my view, the defendant has proven that because a portion of this lateral line collapsed and, again for some unknown reason, that it failed to do what it was designed to do, namely, take the sewage from point A to point B, as I have defined the same immediately above, thereby removing sewage from the claimant's home to the main line to make its way forward, no doubt, to a treatment facility, in my view, this is a malfunction of the sewer system and the damages that the claimant seeks to obtain from the defendant in this case arise either directly or indirectly out of this malfunction of the sewer system. [ 24 ] I could as easily find that there was a breakdown of the sewage line flowing from the claimant's home to the defendant's home [sic].

However, it is not necessary, in my view, that I do so for purposes of these reasons. [ 25 ] In the result, I find that the defendant has established on the balance of probabilities that s. 288 is a complete defence to the claim advanced by the claimant against it and the claim is, therefore, dismissed. [ 26 ] I do state that the evidence in this case given by the sole witness for the defendant in response to a question put to him by me as the presiding judge is that, had the claimant contacted the District in the first instance in accordance with its policy and procedures found at Exhibit 1, tab 2 and, in particular, at page 9 where it asserts that it supports a "Call us first" policy when a property owner is faced with a blocked connection, that it is likely, knowing what we now know and with some hindsight, that the District would have attended in a timely way and paid for all costs associated with rectifying this problem, particularly because the blockage was located, and there is no doubt about this, on District land. [ 27 ] I leave it to the District of North Vancouver to determine whether more might be done, including on its own website, to draw this policy and procedure under c. 15 dealing with sanitary sewer service connections to the attention of all homeowners.

The result in this case might be seen to be somewhat unfair to this homeowner in as much as I am sure that he felt in doing what he did on the day in question that he was acting reasonably to put the best light he could on a difficult circumstance that no homeowner would seek to face. [ 28 ] Whether there needs to be a clearer reference in the District of North Vancouver website to make it abundantly clear to a homeowner, not only the importance of making the first call to them, but what the downside is if they do not, that might be a very helpful thing for them to consider.

These comments that I make are clearly obiter dicta and do not form any part of the decision I have come to in this case. [ 29 ] In the result, the defendant will recover against the defendant [sic, claimant] any costs and expenses that it is entitled to recover under Rule 20(2) and if the claimant and defendant are not able to agree upon those costs, they will be determined by a registrar of this court. [ 30 ] That concludes this matter. Thank you. [REASONS FOR JUDGMENT CONCLUDED]