2011 NBPC 26, 2011 NBPC 26

2011 NBPC 26 Court File No.: 30075901 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN HER MAJESTY THE QUEEN -AND- ERMEN PLUMBING & HEATING LTD. BEFORE: Judge Pierre W. Arseneault of the Provincial Court. AT: Moncton, New Brunswick. DATE OF DECISION: July 14, 2011. APPEARANCES: Anthony Allman, Q.C, for the Attorney General of New Brunswick, Monica L. Johnson, for the Defendant Ermen Plumbing & Heating Ltd. ARSENEAULT, A.C.J.P.C.N.B. Introduction [ 1 ] Ermen Plumbing and Heating Ltd. (hereafter “Ermen”) is charged that on December 18, 2009 it “failed to comply with Order No. 00021851 issued to them under the National Plumbing Code of Canada 2005”, an offence under s. 10(2)(

b) of the Plumbing Installation and Inspection Act of New Brunswick. [ 2 ] The Order in question was issued by Plumbing Inspector Gary Keenan on December 7 th , 2009 and it required the Defendant to “have water supply to building protected from backflow by installing a Double Check Valve Assembly backflow preventer” before December 18 th , 2009. (Exhibit C-1) [ 3 } Although more will be said below about the position of the Defendant with respect to this Order, in essence Ermen has argued that the National Plumbing Code does not require the installation of a backflow preventer for the premises in question and that consequently, the plumbing inspector was acting outside the scope of his authority when he issued his Order.

Factual Background [ 4 ] Sometime before April 6, 2009 Ermen, as a sub-contractor, applied for a Plumbing Installation permit for the Salisbury Liquor Store which was then under construction.

The application lists the building usage as a Liquor Store and the space under the heading “Number of Backflow Prevention Devices” is left blank. [ 5 ] The permit which bears the signature of the chief inspector for the Province was issued on April 6, 2009 and the notation “N/A” appears next to the caption “Number of Testable Backflow Prevention Devices”. (See Exhibit D-2) [ 6 ] Plumbing Inspector Gary Keenan testified that sometime in June 2009 in the course of conducting his final inspection of the premises, he discovered that the water entrance system was not protected by a double check valve assembly backflow preventer, a device as its name implies, intended to prevent contamination of potable water by backflow from siphonage or back pressure. [ 7 ] The Manual for the Selection and Installation of Backflow Prevention Devices (Exhibit C-2) provides a more technical definition of a double check valve assembly (hereafter, DCVA).

It defines a DCVA as, “a backflow preventer consisting of two force-loaded, independently acting check valves, including tightly closing resilient-seated shut-off valves located at each end of the assembly and fitted with properly located resilient-seated test cocks. This device is designed for use under continuous pressure.” (Exhibit C-2 at p. 4) According to the Defendant’s evidence the cost of installing this device would have been less than $1000.00. [ 8 ] Following the final inspection, considerable discussion, both verbal and written, took place between Mr. Keenan, Mr.

William Fallow the chief plumbing inspector for the Province, and/or representatives of Ermen over the requirement to install a backflow preventer at the Salisbury Liquor Store. During this time a number of Orders to Comply each somewhat differently worded, were issued by Mr. Keenan on the instructions of the chief inspector but eventually, on December 7, 2009 after both sides became firmly ensconced in their position, a final Order was served on the Defendant. (Ex.

C-1) It is clear the Defendant has not complied with this Order and the only issue is whether the plumbing inspector, appointed and acting under the authority of the Plumbing Installation and Inspection Act, could validly issue the Order. [ 9 ] The relevant statutory and National Plumbing Code provisions Plumbing Inspection Act: s. 3 All work done to a plumbing system in the Province shall conform to the standards prescribed by regulation. s. 10 (2) A person who (

b) fails to comply with an order of an inspector, commits an offence punishable under

Part II of the Provincial Offences Procedure Act as a category E offence. New Brunswick Regulation 84-187 (under the Plumbing Installation and Inspection Act) 3(1) The Code is adopted as the standards regulating and controlling work done to plumbing systems. 2. In this Regulation, “Code” means the National Plumbing Code of Canada 2005, as issued by the Canadian Commission on Building and Fire Codes,

National Research Council of Canada, and as amended by

section 3, with the exception of subsection 2.5.9 and articles 2.2.10.16, 2.4.6.5 and 2.6.1.10 of Division B and subsection 2.2.1 of Division C; National Plumbing Code of Canada 2005 2.6.2.1.

Connection of Systems 1) Except as provided in Sentence (2), connections to potable water systems shall be designed and installed so that non-potable water or substances that may render the water non-potable cannot enter the system. 2) A water treatment device or apparatus shall not be installed unless it can be demonstrated that the device or apparatus will not introduce substances into the system that may endanger life. 3) Backflow preventers shall be selected and installed in conformance with CAN/CSA-B64.10, “Manual for the Selection and Installation of Backflow Prevention Devices.” (See Appendix A.) Manual for the Selection and Installation of Backflow Prevention Devices 4.3 Principal Ways of Providing Protection 4.3.1.2 Premises isolation shall be provided by the installation of an RP backflow preventer on all water services where a potentially severe hazard may be caused by backflow.

The hazard shall be determined based on the type of occupancy or a survey of the premises. Examples of this classification are given in clause 4.3.4.5. 4.3.1.3 Premises isolation for all other water services shall be provided when required by a cross-connection control program (CCCP). Note. The municipality or the authority having jurisdiction generally enforces a CCCP through the enactment of a by-law. See the model by-law in appendix E.

Position of the Parties [ 10 ] The Crown agrees with the defendant that the Salisbury Liquor Store building poses a moderate degree of hazard to the on-site drinking water supply should a backflow incident occur. [ 11 ] According to the Crown, the chief plumbing inspector was entitled to conclude that the connection to the potable water system at the Salisbury Liquor Store building is not installed such that non-potable water or substances that may render the water non-potable cannot enter the system as mandated under subsection 2.6.2.1(1) of the National Plumbing Code.

This, again according to the Crown’s argument, provided the authority for the issuance of the Order to comply. [ 12 ] With respect to

section 4.3.1.3 of the Manual for the Selection and Installation of Backflow Prevention Devices, it is argued that it does not specify that in cases of moderate hazard, there is never any need for any backflow preventer except in those cases where a cross-connection control program exists. It merely states that premises isolation for all other water services (i.e. other than severe hazard classification) shall be provided when required by a cross-connection control program. The Crown therefore invites the court to adopt a

liberal

interpretation of the legislation in keeping with its objective. [ 13 ] For its part, the Defendant rejects the Crown’s view as to the meaning of subsection 4.3.1.3 and instead submits that since the Salisbury Liquor Store is classified as presenting a moderate hazard of harm, premise isolation by means of a backflow preventer must only be provided when required by a cross-connection control program. Since it is agreed that no cross-connection control program was in place in Salisbury, it follows that none is required under the National Plumbing Code and the inspector could not direct that Ermen install one.

Analysis [ 14 ] It is clear that the Plumbing Installation and Inspection Act and the Regulations enacted thereunder has adopted the National Plumbing Code of Canada as the standard regulating and controlling work done to plumbing systems within the Province of New Brunswick. Any Orders to comply must be issued in strict compliance with those standards. [ 15 ] In the case at hand, the Order to comply was given under the purported authority of

section 2.6.2.1. of the National Plumbing Code of Canada, 2005.

As a starting point it must be noted that while subsection 2.6.2.1 (1) refers in general terms to connections being designed and installed so that non-potable water or substances cannot enter the system and contaminate the potable water supply in actuality, only subsection 2.6.2.1 (3) deals with the installation of backflow preventers and how these shall be selected and installed. [ 16 ] A reading of the relevant sections leads me to conclude that the obligations placed upon a plumbing contractor to install backflow preventers in any given building must be considered in the light of subsection 2.6.2.1(3) and of the applicable corresponding sections of the Manual for the Selection and Installation of Backflow Prevention Devices.

If the decision to install backflow preventers in cases of moderate or minor risks of harm is to be left to the discretion of the plumbing inspector, then clear language to that effect is required. I did not see this in any of the legislation or in any of the supporting regulations or plumbing codes. [ 17 ] Although this is not necessarily determinative of the issue, it is somewhat puzzling that neither the application for the permit or more importantly, the permit itself makes any mention of the need for backflow preventers at this location.

Yet, the issuing authority was well aware from the very beginning of the nature of the building being constructed and the level of risk it posed in the event of a backflow incident. It is equally difficult to understand why the issue only arose at the time of the final inspection when it appears from the evidence that other inspections had taken place during the construction phase. [ 18 ] In my opinion, the Crown has not proven beyond a reasonable doubt that the

interpretation it proposes is the correct one. With respect, the plain meaning of the words used in subsections 4.3.1.2 and 4.3.1.3 of the Manual in question supports the

interpretation advanced by the Defendant. The combined effect of those sections is to require the installation of backflow preventers in all cases where the building in question poses a potentially severe hazard should a backflow occur.

In all other situations (minor or moderate hazard classifications), the Manual (and therefore the National Plumbing Code) stipulates that it shall be provided when required by a cross- connection control program—essentially, leaving it to the Municipality or to the authority having jurisdiction generally in that locality to regulate those instances and to determine the level of protection deemed appropriate through the enactment of a by-law. [ 19 ] The Crown invites the court to interpret the legislation in keeping with the directives provided in s. 17 of the

Interpretation Act of New Brunswick which mandates that, “every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and

interpretation as best ensures the attainment of the object of the Act, regulation or provision.” [ 20 ] It seems to me that this argument can be addressed quite simply by referring to s. 33 of the

Interpretation Act which stipulates that “nothing in this Act excludes the application to

an Act or regulation of any rule of construction applicable thereto, and not inconsistent with the provisions of this Act.” [ 21 ] It is all very well to say that when there is ambiguity it shall be resolved in a way that best ensures the attainment of the object of the Act or regulation, but surely the cardinal rule of construction is that plain words shall be given their plain meaning and the words of the subsections referred to above are in my opinion perfectly plain and do not create any ambiguity.

[ 22 ] Consequently, it has not been proven that the Order to comply was issued in accordance with the terms of Plumbing Inspection Act. The Order not being validly issued, the Defendant was not required to comply with it. The Defendant, Ermen Plumbing and Heating Ltd., is therefore found not guilty of the offence charged. _______________________________ Pierre W. Arseneault, A.C.J.P.C.N.B.