Rhonda Stirrett - v. -, 2015 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 163 Date: December 3, 2015 File: 131/14 Location: Yorkton _____________________________________________________________________________ Between: Rhonda Stirrett - and - Village of Hyas Self-Represented For the Plaintiff Mark Persick For the Defendant _____________________________________________________________________________ JUDGMENT P.A. REIS , J _____________________________________________________________________________ I.

FACTS [ 1 ] On March 15, 2014, there was a sewage backup in Rhonda Stirrett’s (the plaintiff) rental home in the village of Hyas (the defendant). The plaintiff contacted the village office and asked that the problem be solved. It turned out that the sewer pipe was frozen and the village steamed the pipe out. However, the pipe froze and backed up again and after steaming it out two more times, the village

decided to take no further action until the ground was thawed and the pipe could be dug out to find out what caused the problem. [2] In April, June and July, the village checked the sewer pipe three times with a camera; however, the ground was still frozen. The ground eventually thawed and the pipe was dug out. The contractor doing the work detected that, on village property, a flat stonehad pushed down on the pipe and squished it in the shape of a heart. The pipe was not broken, but the damage prevented solids fromflowing through which had caused the backup and freezing. The problem was later fixed.

I note at this juncture the considerableexpense incurred by the village throughout the process. [3] On August 15, 2014, a Statement of Claim was issued by the Provincial Court, Civil Division, in Yorkton. The plaintiffclaims damages in the total amount of $2,650.00. At trial, she brought forward that she had lost her renters due to the blocked sewagesystem which caused her a loss of rent amounting to $1,500.00.

Further, she claims utility bills in the amount of $700.00 as damageswhich arose during the time the house sat empty and were thus not covered by the renters, as well as the cleaning costs caused by thesewage backup, the costs for a plumber ($200.00), pre-judgment interest, filing costs and such further costs as the Court may deem just(which she specified at trial to be about $500.00 because she had to deal with the sewage problem). The defendant disputes the claim. II. ISSUE [4] The issue is if the defendant is to be held liable for the damage caused to the plaintiff due to the blockage of the sewer pipe. III.

ANALYSIS [5] Section 340(1) of The Municipalities Act, SS 2005, c M-36.1, s. 340; 2007, c 32, s. 15, reads as follows: Immunity against certain nuisance actions 340(1) A municipality is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention ornegligence, for any loss or damage arising, directly or indirectly, from any public works, including streets, or from the operation or non-operation of a public utility.

(2) A municipality is not liable for damages resulting from: (

a) any interference with the supply of a public utility service if: (

i) the interference is necessary for the repair and proper maintenance of the public utility service; and (ii) a reasonable attempt is made to notify the owners or occupants of land or buildings affected by the intended interference; or (

b) the breaking or severing of a service pipe, service line or attachment. [emphasis added] [6] The issue therefore is, if the damage in the sewer pipe, caused by the flat rock pushing down on the pipe, whichbrought about the pipe’s freezing, falls under “breaking or severing” pursuant to section 340(2)(b). I am satisfied that this is the case andthat the defendant is therefore not liable for the damages claimed, at least based on nuisance. [7] In Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27, at para 21, the Court held: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[ 8 ] According to The Shorter Oxford English Dictionary , 3 rd ed (Oxford: Oxford University Press, 1973) to “ sever ” means, among others, “ to divide into parts ” , “ to cut in two ” or “ to part or divide suddenly or forcibly ” . In this case, the sewer pipe was not severed in the sense that it was torn apart. Nevertheless, the damage caused by the flat rock which prevented the solids from flowing through the pipe and subsequently caused the pipe to freeze functionally divided it into two parts which is captured by the verb “ sever ” pursuant to the dictionary.

Crucial is not in what way it was divided, but the fact of division itself. [ 9 ] Further, the physical division of a sewer pipe into two parts is captured by the word “breaking” in section 340(2)(b) (given the broad definition of the word “break” in The Shorter Oxford English Dictionary , 3 rd ed (Oxford: Oxford University Press, 1973)) and to limit the paragraph ’ s application to this scenario would take away any significance from the word “ severing ” . Such an

interpretation is against the “ no tautology ” rule which states that presumably the legislature does not include unnecessary or meaningless language in its statutes. In other words, the legislature “ does not speak in vain ” (Ruth Sullivan, Statutory

Interpretation, 2d (Toronto: Irwin Law, 2007) at 167). [ 10 ] A purposive

interpretation of section 340(2)(b), mandated by The

Interpretation Act, 1995, SS 1995, c I-11.2, s 11, also leads to the conclusion that the scenario in the case at bar is governed by the section. In my view, the object of paragraph (2)(

b) is to exclude a municipality ’ s (which includes a village) liability for damage caused by an interruption of sewer pipes through ground movements; something which often happens, particularly when the ground freezes or thaws, and which cannot be prevented. It is true that liability outside of intentional torts or negligence is already excluded by subsection (1) of

section 340; why then did the legislature enact subsection (2)(b)? I think, to exclude a flood of unnecessary and costly litigation, the legislature intended to make it clear that a severing or breaking of a sewer pipe, which I said frequently happens, cannot lead to liability unless the plaintiff can prove an intentional tort or negligence or the breach of a statutory duty. [ 11 ] Therefore, the squishing of the sewer pipe by a flat rock causing the pipe to freeze which backed up the sewage into the plaintiff’s rental home is governed by section 340(2) (

b) of The Municipalities Act and the defendant is thus not liable for the damage caused to the plaintiff based on nuisance. Even if it is not captured by the words “ breaking or severing ” , the defendant is not liable in that according to section 340(1) of the Act , a nuisance action against a municipality is universally excluded.

See paragraphs 21 and 38 of Karle v Nipawin (Town) , [2010] SJ No 710 , 2010 SKPC 154 , 364 Sask R 106 , File No SC #121 of 2008. [ 12 ] Neither is the defendant liable based on s. 343(4) of the Act (a breach of the duty to keep the sewer line in a reasonable state of repair), as the plaintiff failed to show the defendant ’ s failure to do so. Additionally, with respect to negligence, the plaintiff failed to show that the defendant did not meet the required standard of care, or that the defendant ’ s negligence caused the damage, nor that there was any intentional tort.

Further, the defendant repaired the sewer pipe as soon as it was reasonably possible, that is, as soon as the ground around the pipe was thawed. IV. CONCLUSION [ 13 ] There is neither in The Municipalities Act nor in the common law a basis to find the defendant liable for the damage incurred to the plaintiff. The plaintiff’s action is therefore dismissed. In light of all of the circumstances, it is not appropriate to make any order as to costs. P.A. Reis, J