Increasingly, Canadian homeowners and businesses are successfully suing municipalities for damages resulting from sewer and watermain failures, and local governments had better wake up to the fact that their aging underground pipes pose serious risk of liability.
TORONTO
Increasingly, Canadian homeowners and businesses are successfully suing municipalities for damages resulting from sewer and watermain failures, and local governments had better wake up to the fact that their aging underground pipes pose serious risk of liability.
That’s the conclusion of well-known Toronto environmental lawyer Dianne Saxe who reviewed recent statutes and case law. In her report, commissioned by the Ontario Sewer and Watermain Construction Association (OSWCA), she says municipalities face civil suits and quasi-criminal prosecutions if they fail to adequately inspect, maintain, repair and replace their aging underground infrastructure.
OSWCA
“This may come as shock to many municipalities because they believe they are protected by statutory authority and statutory immunity. Not so,” notes Saxe.
Her paper cites cases where municipalities (such as Ottawa, Kenora, Stratford, Port Alberni, Thunder Bay and Gloucester) have been held responsible for property damage resulting from sewer and drain backups and broken watermains.
In many municipalities, the sewer and water pipes have not been repaired or replaced on a timely basis. The water infrastructure deficit in Ontario has been estimated at between $11 and $18 billion. In many cases, the pipes have long surpassed their maximum life expectancy. In Toronto, for example, about 500 kilometres of pipe are over 100 years old and the average age of Toronto pipes is over 50 years old. Other Ontario municipalities have water systems of comparable age.
“The underground water and wastewater infrastructure has suffered from decades of neglect,” said Frank Zechner, executive director of OSWCA. “When budgets are tight, it is tempting for local politicians to defer inspections, maintenance, repair and replacement of pipes. But now they may end up paying a far bigger price by ignoring the problem.”
According to Saxe, municipalities providing water and sewer services owe a duty to take reasonable care in construction, maintenance and operation of the system. If they breach this duty of care, they become vulnerable to claims of negligence.
Water and sewer pipe failures can cause damages such as flooded homes and businesses and disrupt other vital services. In Toronto last year, two separate sinkholes had estimated repair costs of several million dollars each, quite apart from the disruption to homeowners and the lost business of nearby stores and restaurants. Another failed water main flooded a telephone control room and knocked out phone service for thousands of customers for almost a week.
These malfunctions may result in violations of federal and provincial laws, such as the Fisheries Act and Ontario’s Environmental Protection Act which prohibit spills of contaminants, including sewage, into lakes and rivers. Municipalities have been convicted of quasi-criminal offences.
In highrise condominiums and apartment buildings, water sprinkler systems are the first and often the only line of defence against fire. If the water system is compromised because of a negligent break in the main, the municipality may be held responsible for damage and even injury.
“Cities and towns can not hide behind statutory immunity,” states Zechner. “Unless municipalities begin to address this very serious problem, they’re going to be facing a growing number of lawsuits, class actions, and charges in the future.”
DCN NEWS SERVICE
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