Frances Brownell and Cheryl Steadman v. City of Saint John

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF SAINT JOHN

Frances Brownell and Cheryl Steadman v. City of Saint John,

2022 NBQB 122

SJC-82-2018

BETWEEN:

FRANCES BROWNELL and CHERYL

STEADMAN,

Plaintiffs,

-and-

CITY OF SAINT JOHN,

Defendant

Before:

Madam Chief Justice Tracey K. DeWare

Date of Hearing:

Date of Decision:

At:

November 23-25, 2021

June 14^th, 2022

Saint John, New Brunswick

Appearances:

Rodney Gillis, Celeste Poltak, and Adam Tanel, for the

Plaintiffs,

Glenn M. Zakaib, and David Elman, for the Defendant

Table of Contents

Introduction ...................................................................................................................1

Facts .............................................................................................................................1

Procedural History ...................................................................................................1

Project to improve water distribution system in the City of Saint John (SCDWP) ....3

Experts engaged by the City....................................................................................8

Transition of West Saint John Water Source ........................................................14

Post transition investigation ...................................................................................15

Experience of Representative Plaintiff ...................................................................17

Issues..........................................................................................................................17

Position of the Parties .................................................................................................18

Law and Analysis ........................................................................................................19

Summary Judgment...............................................................................................19

Admissibility of Expert Opinion ..............................................................................24

Did the City owe a private law duty of care to the Class Members

in respect of operational decisions relating to the Safe Clean Drinking

Water Project (SCDWP)? ......................................................................................27

Causation....................................................................................................................65

Costs...........................................................................................................................68

Conclusion and Disposition.........................................................................................68

1

DECISION

DeWare, C. J.

INTRODUCTION

[1]

This decision responds to dueling motions for summary judgement in the context

of a class action. While the facts and law are complex, all parties to these

proceedings are of the view the issues may be resolved in summary fashion. The

parties’ agreements end there.

[2]

There is a frequently quoted concept in litigation that if the law is not on your

side, pound the facts, if the facts are not on your side pound the law and if

neither are on your side pound the table. In this matter, the Class Members have

focused exhaustively on the facts while the City has focused heavily on the law.

In arriving at an appreciation for these approaches’ guidance is likely found in the

concept just cited. While the theory of the case put forth by the Class Members in

this matter is factually very persuasive, so is the analytical framework of the

necessary negligence law concepts proposed by the City. Understandably, given

the considerable efforts expended by both parties in advancing their position on

these motions, there is no easy answer and regrettably no jurisprudence directly

on point.

FACTS

Procedural history

[3]

The class action in this matter was certified by Justice Debbie Hackett on May

29^th, 2009. The class was defined in the certification order as follows:

All persons, including individuals, partnerships and corporations, who

were the owner or occupant of an Affected Property from September

2017 to August 31, 2018.

‘Affected Property’ is defined as those commercial, residential, and

other properties in West Saint John subject to a change in water source

from the Spruce Lake Reservoir to a new well source under the Safe

Clean Drinking Water Project.

2

[4]

[5]

[6]

The common issues certified by the court were set out in paragraph 5 of the

certification order as follows:

(a)

Did the Defendants owe a private law duty of care to the Class in

respect of operational decisions relating to the Safe Clean

Drinking Water Project?

(b)

If the answer to common issue (a) is ‘yes’, what was the

applicable standard of care?

(c)

(d)

Did the Defendant breach the standard of care? If so, how?

If the answer to common issue (c) is ‘yes’, was the breach of the

standard of care capable of causing damages to the Class?

The class action in this matter seeks compensation for residents of West Saint

John who allege they suffered damage to their premises’ plumbing due to the

City of Saint John’s change in water source from surface water from Spruce Lake

to groundwater from South Bay Wellfield during the period September 2017

through August 2018. The representative Plaintiffs, Frances Brownell and Cheryl

Steadman, are two of the residents of West Saint John who experienced leaks in

their premises plumbing during the relevant timeframe. For the purpose of the

present decision, the Plaintiffs shall be referred to as the “Class Members”, and

the Defendant, the City of Saint John, shall be referred to as “the City”.

Following the certification of the class action, all parties filed motions with the

Court seeking summary judgment. All parties frame the issues in the summary

judgment motion within the confines of the common questions certified in the

certification order. The motions were originally scheduled to be heard in May of

2020 but were adjourned until September 2020 as a result of the pandemic. In

September 2020 Justice Christie adjourned the hearing of the motions following

reservations expressed by counsel concerning the ongoing pandemic. Justice

Christie explained his reasoning in adjourning the matter on September 3, 2020

as follows:

In the interest of ensuring that all counsel have an opportunity to ‘put their

best foot forward’, in the way they see fit, and recognizing the legitimate

concerns expressed by Plaintiff’s counsel, I direct that the matter

scheduled to be heard beginning September 9^thbe adjourned. Frankly,

3

this is a situation where counsel for one party was not comfortable with

the covid plan that had been developed and other counsel did not want to

present arguments by video. Both positions are, under the circumstances,

reasonable but it leaves the court with little choice but to adjourn the

matter. As I say, if this had not been such a critical set of motions heard

over an extended period of time, I would not be as open to adjourning as I

am. It may well be that at some point in the future video conferencing is

the norm for all counsel. It is not yet.

[7]

[8]

The summary judgment motions were next scheduled for June of 2021 when,

due to scheduling conflicts at the court, they were adjourned again. The motions

were finally argued virtually on November 23-25, 2021.

Project to improve water distribution system in the City of Saint John

(SCDWP)

The City of Saint John is the oldest incorporated City in Canada. It was

incorporated by Royal Charter in 1785. Prior to 2010 the City encountered

challenges assuring quality throughout its water distribution system for various

reasons, including the dated nature of some of its infrastructure. In June of 2010

the City issued a report entitled “A Challenge of Community and Essential

Service: Report on the Action Plan for Safe, Clean, Drinking Water”

(SCDWP). The objective of the SCDWP was to ensure a reliable supply of safe,

clean, drinking water for the City’s residents in compliance with the Guidelines for

Canadian Drinking Water Quality (CGDWQ).

[9]

The City provides water services to its inhabitants and businesses pursuant to

section 117 of the Local Governance Act, SNB 2017, c 18. In operating a water

distribution system, the City must comply with the requirements of the Clean

Water Act, SNB 1989, c C-6.1 and the Clean Environment Act, RSNB 1973, c.

C-6. The statutory framework set out in the legislation provides the guidelines the

City must meet to ensure the quality of the water is compliant with all health and

safety requirements.

[10] The City retained the services of CBCL Limited Consulting Engineers as early as

2008 to begin initial designs for the future water distribution system. Early plans

envisioned the development of a single water treatment plant to provide water

4

distribution for both sides of the City, East and West Saint John. Under this early

model water would have been transported across the Reversing Falls Bridge

from a water treatment plant on the East side of the City to users on the West

side of the City.

[11] In January of 2008, the City of Saint John had received a technical memorandum

from consultants Andrew Hofmann & Associates Inc. which addressed the

potential problem of corrosion control. Corrosion control was one of the many

issues the City needed to consider as planning was underway to design and

implement a new water distribution system. The management and planning of

potential corrosion control would become very important in the context of this

class action. In the executive summary of this report, Andrew Hoffman and

Associates describe the corrosion control concern as follows:

The optimum corrosion control strategy depends on the specific corrosion

problems being targeted. Strategies to address one problem can

sometimes make a different problem worse (e.g. orthophosphate to

control red water can accelerate loss of pipe mass). It is therefore

important to specify the corrosion control objectives prior to selecting a

solution.

In Saint John, there is the potential to experience all corrosion

problems. It is reported that there is significant tuberculation, loss of pipe

mass, frequent red water (occasional green water, possibly from copper),

and while most lead pipes have been replaced in the distribution system,

individual dwellings may continue to have lead plumbing that can leach

lead if the water chemistry remains aggressive. As such, it would be

prudent to design a new water treatment process with flexibility to

address any corrosion problem experienced. Unfortunately,

corrosion solutions are notoriously difficult to predict in advance, or

by using small-scale tests such as coupons or pipe loops. It is usually

recommended that solutions be selected using good judgment and tried

immediately at full-scale, with optimization occurring by trial and error.

[the emphasis is mine]

[12] Water chemistry is an important consideration when planning for changes to a

water distribution system and is a factor to consider when addressing corrosion

control. The January 18, 2008 Andrew Hoffman report goes on to highlight the

following steps to be followed when the new plant is brought online:

5

Bringing the new plant online. When the new plant(s) becomes

operational, the new water may have significantly different chemical

properties than the historical water. The introduction of this new water

could destabilize the distribution system in a way that causes the release

of accumulated minerals and particles. It is generally good practice to

introduce changes slowly. The U.S. EPA Revised Guidance Manual for

Selecting Lead and Copper Control Strategies (U.S. EPA, 2003)

recommends that when making changes to the water chemistry for

corrosion control, the pH be raised weekly in 0.25-0.3 unit

increments in order to avoid shocking the distribution system. It is

also usually best to introduce the new water in winter where most

chemical reactions are slower and water demand is low. This will allow

the distribution system to adjust to the new water before the more

challenging conditions of the summer.

[the emphasis is mine]

[13] On June 16, 2010, a comprehensive report was provided to the Common Council

of the City of Saint John entitled “A report on the Action Plan for Safe, Clean

Drinking Water”. The introduction of this report sets out the scope of concern

regarding the quality of Saint John’s drinking water as follows:

People must have water to live; their personal good health, physical and

mental, depends very much on consuming adequate quantities of water.

This fundamental truth underlies the immeasurable importance of a

drinking water system; a cornerstone for public health, quality of life and a

sustainable economy.

The community expects its public water service to provide safe, clean

drinking water for the people, homes, businesses and institutions it

serves; the drinking water provider must assure that water is delivered in

a state that is clear, colourless, odourless, and free of disease-causing

micro-organisms (pathogens) or harmful chemicals. An October 2009

survey of citizens rated drinking water as the most important service

priority of this community.

Let there be no doubt; Saint John has to improve its ability to assure

safe, clean drinking water. Waterborne disease is a risk inherent to all

surface water supplies; one that the current system of disinfection does

not eliminate with the required degree of certainty.

[the emphasis is mine]

[14] The June 2010 report goes on to highlight some of the challenges the City faced

in the water distribution system as follows:

6

Primary Issues in Transmission/Distribution

Issues concerning potable water systems usually involve three primary

considerations:

1.

2.

3.

Quality – maintaining quality as the water travels to the

consumer’s tap;

Lost Water – minimizing the loss of water during that

passage; and

Fire Protection – providing quantities sufficient for fire

protection.

Saint John’s “water system” challenges are substantial; a difficult river

divide, some very old infrastructure, internal corrosion (tuberculation) of

kilometres of old cast iron mains, large amounts of unaccounted for or

lost water, huge industrial water consumption, unmeasured residential

usage, a costly accumulated infrastructure deficit and, frankly, an inertia

concerning drinking water that has plagued the community for the good

part of a century. Changing from these conditions to a first rate public

water system that will serve Saint John for generations to come presents

a service, engineering and leadership challenge of extraordinary scale.

[15] In August of 2011, R.V. Anderson Associates Limited prepared a Preliminary

Design Report where several concerns were discussed that would need to be

addressed when the water treatment plant was introduced. At this point in the

project the plan remained the establishment of a single water distribution

treatment plant which would cater to the needs of both East and West Saint

John. Two of the issues identified in this report were the potential corrosive effect

of the water in the new system to existing pipe walls and the potential for a

change in pH to destabilize existing scale. The Class Members in particular point

to the recommendation by Anderson Associates in this early report of the need to

gradually change the pH of the water. The authors refer to this issue in first, their

Technical Memorandum, and secondly, in the body of their report as follows:

When the new plant(s) becomes operational, the new water may

have significantly different chemical properties than the historical

water which could destabilize the distribution system and release

minerals and particles. It is recommended that when making

changes, the pH be raised weekly in 0.25-0.3 unit increments. It is

also usually best to introduce the new water in winter where most

chemical reactions are slower and water demand is low. This will allow

the distribution system to adjust to the new water before the more

challenging conditions of the summer.

7

[…]

It is also recommended that when the facility is being

commissioned, that the pH be raised weekly in 0.25-0.3 unit

increments. It is also usually best to introduce the new water in winter

where most chemical reactions are slower and water demand is low. This

will allow the distribution system to adjust to the new water before the

more challenging conditions of the summer.

[the emphasis is mine]

[16] Throughout 2011-2012, options were still being explored by the City for the most

efficient water distribution system that would ensure high quality water in a cost-

effective manner. The costs of water travelling across the Reversing Falls Bridge

were significant and the City was actively exploring other alternatives. In a report

from the City’s consultants to the Mayor and Common Council on June 28, 2012,

the possibility of using a groundwater source as an alternative was discussed as

follows:

The program, as currently structured, includes a proposed 100 MLD

(million liters per day) conventional water filtration treatment facility on

City owned land south of the Little River Reservoir. This would treat our

current water source, surface water, from the Loch Lomond Lakes

system. The cost to build the plant is the single most expensive item in

the program and ongoing maintenance would be a new perpetual cost.

Many households in Greater Saint John rely on wells to supply drinking

water. Water drawn from the ground is generally of good quality, although

some wells have issues with iron, manganese, arsenic and uranium.

Saint John Water is considering groundwater options to augment and

eventually replace its potable supply. If there are well field sites east

and west that can produce a sufficient quantity with a good quality,

there is a possibility that we could deliver high quality water at a

lower cost.

[the emphasis is mine]

[17] As the City continued to work with retained experts exploring the best option for a

new water distribution system, the initial idea of one water treatment centre that

would furnish water to the residents of both East and West Saint John was

abandoned. The costs for water to travel across the Reversing Falls bridge would

have been prohibitive and there were concerns over the viability of the necessary

structural requirements of the bridge. The City was concerned the potential costs

8

of proceeding with a single water treatment plant would result in significant costs

which would ultimately be passed on to the rate payers.

Experts engaged by the City

[18] As the City transitioned the project away from the one water treatment plant

model, TerrAtlantic was hired to explore and advise on the feasibility of

groundwater sources for the West side of the City. In a report dated October 10,

2013, Terr Atlantic reported their initial findings as follows:

The preliminary findings for both South Bay (Area A) and Little River

(Area B) were described in TerrAtlantic’s previous technical memo dated

August 6, 2013. At that time it was indicated that the South Bay target

area looked quite productive and could likely support a viable

groundwater supply to replace or augment a portion of the City’s

overall (or West Side) demand. The Little River target area showed

some promise and could likely support a wellfield to augment the East

Side water supply, but from existing information it was thought to be

unlikely that it could service the entire demand for East Saint John.

[the emphasis is mine]

[19] On October 29^th, 2013, the City and CBCL Limited executed a contract which

confirms that CBCL would be the City’s engineers for the purpose of

implementing the SCDWP. The “Owners Engineer Contract” described the

purpose of the contract as follows:

“… the purpose of this contract is for the owner’s engineer consulting

services in connection with the engineering design and construction of

drinking water systems, business planning and procurement in a public-

private partnership delivery model in order to help realize the potential of

the safe, clean, drinking water program.”

The term of the contract between the City and CBCL was from the date of

execution until December 31^st, 2018.

[20] The City retained the services of CBCL Limited for assistance with both the

planning and implementation stages of the water project. In a technical proposal

submitted by CBCL to the City on June 27, 2013 they described their expertise in

the area of Distribution System Water Quality as follows:

Our project team includes individuals with expertise in distribution

system water quality and corrosion. Experience of utilities such as

CBRM (Sydney) demonstrates that switching water sources from

9

chlorinated surface water to treated groundwater can accelerate corrosion

and cause rapid degradation of water mains and service connections.

This will require assessment during the project and our methodology will

evaluate projected differences in treated water quality and potential

impacts on established biofilms. CBCL will be able to lend knowledge and

experience gained from working with other municipalities facing similar

issues in order to ensure minimal impact on distribution system

integrity and water quality resulting from the transition to a

groundwater source.

[the emphasis is mine]

[21] CBCL went on to describe their experience in the field of water infrastructure as

follows:

This project requires that the successful proponent have demonstrated

experience in groundwater treatment. While the RFP specifically

mentions iron and manganese treatment, there are a range of other water

quality parameters relevant to groundwater treatment that may be

relevant. These include constituents such as fluoride, arsenic, uranium,

nitrate, and turbidity among others. CBCL has carried out pre-design,

design, construction services, and various technical assessments for

groundwater treatment systems related to each of these parameters. We

are currently conducting several concurrent studies and upgrade projects

related to iron and manganese removal in municipal groundwater

systems.

[22] On March 30, 2015 BGC Engineering Inc., formerly TerrAtlantic, submitted a

report to the City describing the hydrogeological assessment of the South Bay

Aquifer. This report and analysis was part of the City’s determination as to the

viability of drawing groundwater from South Bay for the water distribution in West

Saint John. The report of BGC was positive confirming both the volume of

available water as well as its quality – amongst the conclusions set out in the

report were the following:

5.

Provided groundwater levels under pumping conditions are

maintained above sea level, the South Bay aquifer is capable of

providing water of high-quality for the long term. From the numerical

groundwater flow model, a total withdrawal of 12.5 ML/d, or possibly

higher should be feasible. This is sufficient to meet the current ADD of

11.1 ML/d for west Saint John.

[…]

10.

Water quality appears to be excellent and consistent throughout

the aquifer. In the short term at least, the only treatment requirement

10

would likely be the minimum standard of chlorination. Eventually

manganese treatment may be required.

[the emphasis is mine]

[23] As of the summer of 2014 the City, in consultation with their experts, CBCL, had

made the determination that there would be two different approaches to the

provision of water to the City. East Saint John would have water supplied via a

new water treatment plant. West Saint John would have water supplied via a

groundwater source. Once this decision was made, the treatment of the water

itself and any corrosion control considerations were handled differently for East

Saint John and West Saint John.

[24] The early stages of the project involved discussion of the management of

corrosion control problems pertinent to both East and West Saint John. Initially,

one water source was contemplated with one treatment plant so that all

mitigation issues discussed prior to 2014 applied to both East and West Saint

John. Following the decision to split the approach to the water distribution

networks between East and West Saint John, the discussion of applicable

mitigation or corrosion control measures were restricted to the area under review.

In the context of West Saint John, little to no discussion took place concerning

the need to implement corrosion control measures given the City’s assessment

of the water chemistry.

[25] Mike Chaulk is an engineer with CBCL and has been working with the company

since 2006. Mr. Chaulk has been working on the SCDWP with the City since the

fall of 2013. Mr. Chaulk prepared various reports, both prior and subsequent to

the transition of the West Saint John water distribution. In an affidavit dated

October 30^th, 2019, Mr. Chaulk confirms the testing and assessments completed

in order to consider corrosion control in 2014 and 2015 at paragraphs 18 and 19

as follows:

18. A corrosion Control Update Memorandum was provided by myself to

the City on July 15, 2015, a copy of which is attached as Exhibit “G”. The

completed testing included assessing the stability of existing corrosion

deposits within water mains by collecting pipe samples from east and

11

west Saint John, and a multi-variable bench-scale testing program to

assess the impact of various water quality parameters on the existing

deposits. Further recommendations were provided in a subsequent

memo of December 11, 2015, a copy of which is attached as Exhibit “H”.

19. At several points throughout 2014 the City provided CBCL with water

quality sampling data from test wells being developed in West Saint John

by the City and the City’s hydrogeologist, BGC Engineering. CBCL

reviewed the water quality from the test wells and found no parameters

outside the GCDWQ. Furthermore, the test well data indicated that

the pH, alkalinity, and overall mineral balance were favorable with

respect to distribution system and premise plumbing corrosion. The

test well water quality was assessed as low risk for corrosion

potential based on industry practice, technical guidance, and peer-

reviewed science. Since the switch to groundwater has occurred, I am

not aware of any observed occurrences of increased water main breaks

or corrosion deposit breakdown within the City’s water distribution mains.

[the emphasis is mine]

[26] In its final design report of March 4, 2015, CBCL set out the requirements for

treatment of the water in West Saint John in sections 7.4.3 and 7.4.4 as follows:

7.4.3 Chlorination and Treatment

The only form of treatment of the water from the wellfield or from the

Spruce Lake (under emergency pumping conditions) shall be

disinfection using sodium hypochlorite. Project Co shall provide for a

fully functional disinfection system which shall be capable of automatically

dosing 0.5mg/L to 4.0mg/L of sodium hypochlorite to the water delivered

from the wellfield and dosing 2.0mg/L to 6.0mg/L of sodium hypochlorite

to the water from Spruce Lake under emergency conditions. The

application point for the disinfectant agent shall be downstream of the

pumps in the Spruce Lake PS.

The existing Spruce Lake PS

infrastructure presently in use by the City, for sodium hypochlorite

storage, handling dosage and control, will be utilized where practical.

The system shall provide for taps or draw-off locations, appropriately

located downstream of the application point, for sampling of free chlorine

residual.

7.4.4 Provisional for Future Treatment at or Near Spruce Lake PS

Project Co will not be responsible for the water quality nor the rate of flow

that can be safely extracted from the wellfield and underlying aquifer.

However, some form of treatment may be required for the water from

the wellfield in the future. It is presently contemplated that should such

treatment be required it would be located downstream of the disinfectant

application point at or near the Spruce Lake PS.

It is further

contemplated that the treatment would most likely be carried out in

pressure vessels, without breaking pressure, and that the additional

12

pressure drop through the treatment would be between 10 and 20psi.

This is provided for information purposes.

[the emphasis is mine]

[27] CBCL set out the requirements concerning corrosive control for East Saint John

in a memorandum dated November 12, 2015 as follows:

A long term buried water infrastructure corrosion control program, that

takes into account a future East Saint John water treatment plant, should

be developed as a priority within Saint John Water. For the foreseeable

operating horizon the potential impacts of distribution and premise

system corrosion present one of the largest water quality and asset

preservation risks that will be retained by the City. A corrosion

program does not consist solely of chemical addition at a source or

treatment plant. It is a dynamic program that includes continuous

measurement, study, assessment, and performance improvement. The

current outlook for Saint John Water, and particularly the East system,

requires that definitive steps be taken in the short term to alleviate the

potential for future adverse outcomes. To date some work has been done

in this respect; water has been characterized, and existing distribution

system corrosion deposits have been studied. There are, however,

multiple parallel activities that are recommended to accompany this work.

These activities include:

 Developing a residential lead and copper sampling program

according to Health Canada guidelines;

 Advancing studies to further understand the impacts of future

treated water on existing corrosion conditions; and

 Initiating pH control and/or corrosion inhibitor addition within

the existing infrastructure.

[the emphasis is mine]

[28] Mr. Chaulk of CBCL testified at an examination for discovery in January of 2020.

At that time Mr. Chaulk confirmed that despite the decision to have two different

systems for water distribution there was still a need to address corrosion control

in both East and West Saint John. The pertinent exchange at the discovery on

this issue unfolded as follows:

Q. — Right. As — in relation to a change in water source for East Saint John?

A. It does not exclusively or inclusively limit the scope of those statements to

East or West Saint John.

Q. — In other words, it’s a statement of broad application for both sides?

13

A. It’s — it’s specific for the City in the need to have a corrosion control program

which did not exist prior.

Q. — Okay.

A. But it applies to the entirety of the system and not specifically east or west.

Q. — And that recommendation to the City was made after the decision to

change the water source to South Bay?

A. That particular reference is within the — yeah, is after groundwater came.

The same language or similar language can be found in the documentation going

back to 2014, including the design report from 2014 and the early — the earlier

memos that suggest a need to do lead and copper sampling.

Q. —And the scope change with respect to the decision to supply water

from West Saing John — or to West Saint John from South Bay didn’t

impact those recommendations?

A. No. The recommendations being the need to consider corrosion risk.

And then to break that out into the components of corrosion that need to

be considered.

Q. — Right. And CBCL tells that to the City and is there any evidence in the

record of the City developing a corrosion control plan for the west side?

A. I am not aware of anything from the City that I have seen that speaks to a

corrosion plan for the west side.

Q. — And to be clear when we are talking about corrosion — because it is

important that we define it, when you are referring to corrosion, you are — that

includes destabilization of existing scale?

A. That includes the — all aspects of corrosion.

Q. — And that includes —

A. That includes the concept of destabilization of existing scale.

[the emphasis is mine]

[29] The City implemented the changeover in water for West Saint John from Spruce

Lake to South Bay Wellfield in September 2017. At the time of the transition in

the water source, the City did not incorporate any corrosion control measures.

The only treatment deemed necessary for the groundwater derived from South

Bay Wellfield was chlorination.

14

Transition of West Saint John Water Source

[30] Commissioner of Saint John Water, Brent McGovern, in an affidavit sworn in this

matter on September 3^rd, 2019, commented upon the City’s decision not to

include enhanced corrosion controls in West Saint John in September of 2017 at

paragraph 53 as follows:

Saint John relied upon the expertise of the engineers retained as part of

the SCDWP to advise and provide direction on any known impacts which

a change in water source from Spruce Lake to groundwater might have

on distribution infrastructure prior to implementation of the changeover in

September 2017 for West Saint John. Saint John Water implemented an

enhanced program to monitor the quality of the water and integrity of

distribution infrastructure in West Saint John arising from the proposed

change in water source from lake to well water. Based on the

assessment of well water quality, enhanced corrosion control

measures were deemed not to be required for West Saint John prior

to the change in water source.

[the emphasis is mine]

[31] As the water to West Saint John was switched from Spruce Lake to South Bay

Wellfield, the City began to receive complaints. Residents and businesses were

experiencing leaks in their premises plumbing resulting in damages to their

properties. These calls continued until the spring of 2018. The complaints were

most frequent in early 2018. The City began to investigate these complaints

immediately and the experts working with them since the outset of the project,

CBCL, were asked to report on what was happening.

[32] Once the City became aware of the occurrence of leaks in the premises’

plumbing of residents and businesses in West Saint John they introduced

orthophosphates into the water system on a temporary basis. The City added the

orthophosphates given the information that these could assist in stabilizing the

existing scale within private copper plumbing. This action was taken as one

theory for the occurrence of the leaks in the premises plumbing of affected

residents was due to the disruption of the existing scale on the inside of copper

pipes caused by the change in water chemistry at the time the water was

transitioned from Spruce Lake to South Bay Wellfield.

15

Post Transition Investigation

[33] The City asked CBCL to investigate the source of the leaks and to provide a

report. In February 2019, CBCL authored a final Report titled “West Saint John –

Corrosion Control Investigation” where the transition to the groundwater source

and subsequent pinprick leaks of West side residents is succinctly explained as

follows:

As part of the Safe Clean Drinking Water Project, the City committed to

supplying all Saint John customers with water that meets or exceeds the

Guidelines for Canadian Drinking Water Quality (GCDWQ). As such, the

City decided to switch the West Saint John water source from Spruce

Lake, to the South Bay Wellfield. The wellfield consists of 3 ground water

wells which were commissioned in 2013-2014 and have water quality

which meets or exceeds the GCDWQ. In September 2017, the switch

from surface water to ground water supply was completed, and

customers were provided with potable water which meets or exceeds the

GCDWQ. From available practice and technical guidelines, the new

ground water source is considered less corrosive than the previous

Spruce Lake supply. The new source does have increased hardness,

which is comparable to other municipalities using ground water sources.

From a treatment standpoint, the ground water source has a substantial

decrease in color and organic matter compared to the Spruce Lake

supply, and an increase in mineral content. Based on the improved

water quality, the only treatment process required to met the City’s

Approval and GCDWQ is chlorine disinfection, with the amount of

chlorine required being much less compared to what was

historically used for Spruce Lake. The decrease in organic matter

and chlorine dose also predicted a decrease in the formation of

disinfection by-products, which are classified as “probable

carcinogen” by Health Canada and regulated by NBDELG. Based on

water quality parameters from the new wellfield, corrosion inhibitors

and/or pH adjustment was not included in the new treatment system.

In January 2018, the City of Saint John began to receive complaints of

copper pipe leaks from West Saint John customers. Approximately 4% of

the 5,400 West Saint John customers reported leaks within a 3-4 week

period. The reports were not localized to specific neighbourhoods in West

Saint John and there were no abnormal increases within City owned

copper services. In February 2018, CBCL and Dalhousie University were

tasked with leading an investigation into the source water switch and the

reported copper leaks, including bench scale testing of copper piping from

West Saint John and reviewing possible corrosion mechanisms.

After the reports of copper leaks, the City examined several available

options for temporary corrosion control treatments including pH

adjustment and the addition of a corrosion inhibitor. The City elected to

install a temporary orthophosphate system in March 2018 to reduce the

16

apparent copper corrosion and to help promote scale stabilization.

Corrosion inhibitors, including orthophosphates, are commonly used in

Atlantic Canada to prevent corrosion of distribution systems. However,

the systems in Atlantic Canada using corrosion inhibitors are surface

water supplies with water quality similar to Spruce Lake rather than the

South Bay ground water supply. It is not common practice to add

orthophosphates to drinking water supplied by ground water, but it

was employed in this situation as a tool which could be

implemented quickly in attempt to mitigate the copper leaks to the

extent possible.

[the emphasis is mine]

[34] CBCL summarized their analysis in the February 2019 report as follows:

A review of available literature and industry best practices was completed

to compare the events that occurred in West Saint John to other water

treatment systems within Atlantic Canada. The findings of the literature

review are as follows:



Historically, the Spruce Lake water had low alkalinity, low pH and

moderate organics and was considered corrosive to distribution

system piping. The South Bay Wellfield has a higher pH,

moderate alkalinity and is considered a non-aggressive hard

water.



In Atlantic Canada, it is not common to switch from an untreated

surface water to a ground water system as was completed in West

Saint John. The communities that did switch from untreated

surface water to ground water did not report having the same

experience as West Saint John.



Limited literature, research and guidance documents are available

for utilities permanently switching from a surface water supply to

ground water.

South Bay Wellfield water quality is similar to other municipal

ground water systems that do not use orthophosphates/corrosion

control.

Based on the water quality of the South Bay Wellfield and

available information, the corrosion event that occurred was not

expected.

It is likely that the reported copper pipe leaks were the result the

existing corrosion undergoing transitional effects as the water

quality changed within the system.

17

Experience of Representative Plaintiff

[35] The Representative Plaintiff, Frances Brownell, filed an affidavit in support of the

Class Members request for summary judgment. The Representative Plaintiff,

Cheryl Steadman, did not file evidence on the summary judgment motions. Mrs.

Brownell has owned her home in West Saint John since the summer of 1970.

Mrs. Brownell and her husband were the original homeowners and the residence

was built for them. The Brownells were the owners of the home at the time the

original plumbing was installed. Over the years, Mrs. Brownell would have the

premises plumbing inspected and pay necessary repairs. Mrs. Brownell

explained her practice in maintaining her plumbing at paragraph 10 of her

affidavit filed in support of the motion for summary judgment dated August 28^th,

2019 as follows:

10. Since 1981 I have consistently maintained my home. It is and has

been my practice to have professionals address any issues with my

home. I have hired contractors to fix any problems that have happened.

With respect to plumbing, I have used the same plumber for almost 40

years. I had this plumber perform annual inspections of my home’s

plumbing and always followed his advice.

[36] Mrs. Brownell explained the difficulties occasioned to her premises plumbing at

paragraph 11 of her affidavit as follows:

11. On November 11, 2017, I first noticed flooding in the basement of my

home. My laundry room floor was covered in water. I immediately called

my plumber who arrived on same day. My plumber noticed the issue was

serious and told me to call my insurance company. There were holes in

my water pipes. I called my insurance company who referred me to

ServiceMaster. ServiceMaster arrived on that same day and removed

everything from the affected part of my basement.

ISSUES

[37] The issues to be resolved in this matter are as follows:

(1)

(2)

Is this an appropriate case to proceed by way of summary judgment?

Are the expert opinions of Dr. Bryan Karney and Mr. Kenneth Maltese

admissible? What is the weight to be accorded to the expert opinion if they

are found to be admissible?

18

(3)

(4)

Did the City owe a private law duty of care to the Class Members in

respect of operational decisions relating to the Safe Clean Drinking Water

Project?

If a duty of care was owed, what was the applicable standard of care of

the City?

(5)

(6)

Did the City breach the standard of care? If so, how?

If the City breached the standard of care, did the breach of that standard

cause damages to the Class Members?

Position of the parties

[38] The Class Members suggest that the City is a supplier of a utility and in that

capacity clearly owed a duty of care to the Class Members, its customers. The

Class Members submit that in failing to take measures to ensure the transition

from the surface water of Spruce Lake to the groundwater of South Bay Wellfield

would not have a negative impact on the premises plumbing of the Class

Members, the City breached the standard of care. The Class Members direct the

Court to numerous references from the City’s consultants confirming the need to

have in place a corrosion control strategy whenever water is being transitioned

from one source to another. The Class Members assert that it was reasonably

foreseeable that by failing to implement corrosion control measures in West Saint

John, the premises plumbing of the Class Members would be at risk. The Class

Members argue that the City breached the standard of care required of them in

failing to follow the advice of their experts and, as a direct result of this breach,

the Class Members have suffered damages.

[39] The City argues that in September of 2017 they implemented a new water

distribution system for the citizens of West Saint John which dramatically

improved the quality of their drinking water. The City suggests that the pinhole

leaks which occurred in some of the private copper plumbing of certain residents

and businesses were unforeseeable. The City further notes that the provision of

19

water services does not result in the imposition of a private law duty of care. The

City points out that it’s statutory duty to all the residents and businesses in Saint

John is the provision of safe and healthy water. Further, the City maintains that

even if a duty of care is found to exist, the standard of care would not have been

breached in the manner the water source for West Saint John was changed. The

City highlights that perfection is not the standard for the operator of a City’s

waterworks. Finally, the City asserts it acted reasonably at all times by engaging

the services of and relying upon the recommendations of duly qualified experts.

LAW AND ANALYSIS

Summary Judgment

[40] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, set out the

parameters for a court’s consideration of a request for summary judgment.

Hryniak v. Mauldin triggered a cultural shift in Canada confirming that a trial is

not always the default procedure and confirmed that a summary judgment court

can weigh evidence, evaluate credibility and draw inferences from the evidentiary

motion record. The New Brunswick Court of Appeal acknowledged this shift in

the approach to summary judgment in O’Toole v. Peterson, 2018 NBCA 8

(), where Chief Justice Drapeau, as he then was, stated at paragraph 4 as

follows:

[4]

However, our pre-2017 Rule 22 was aligned with the

exceptionality of summary judgment and the conviction of its

drafters that “except in clear cases, the best truth-finding device is

a trial”: Cannon v. Lange et al. (1998), 1998 12248 (NB

CA), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (C.A.) (QL),

para. 17. Our new Rule 22, properly interpreted, embodies the

sought-after “culture shift”. Summary judgment is no longer

an exceptional remedy, the hearing and determination of any

related motion now constituting “a significant alternative model of

adjudication”: Hryniak v. Mauldin, para. 45. As will be seen, this

acknowledgement of the transformative effect of our new

summary judgment rule warrants jettisoning the “stringent

test” required by the wording of its predecessor and the

mindset of its drafters.

[the emphasis is mine]

20

[41] Rule 22.04(1) and (2) of the New Brunswick Rules of Court provides as

follows:

22.04 Disposition of Motion

General

(1)

The court shall grant summary judgment if

(a)

the court is satisfied there is no genuine issue re‐ quiring a

trial with respect to a claim or defence, or

(b)

the parties agree to have all or part of the claim determined

by a summary judgment and the court is satisfied it is appropriate

to grant summary judgment.

Powers

(2)

In determining whether there is a genuine issue requiring a trial,

the court shall consider the evidence submitted by the parties and may

exercise any of the following powers for the purpose, unless it is in the

interests of justice for those powers to be exercised only at a trial:

(a)

(b)

(c)

weighing the evidence;

evaluating the credibility of a deponent; and

drawing a reasonable inference from the evidence.

[42] As set out in Rule 22.04(1)(a), a summary judgment court in New Brunswick shall

grant summary judgment when there is no genuine issue requiring a trial. The

court has no discretion in circumstances where the judge is able to fairly and

justly adjudicate the dispute on the filed evidence. In Russell et al. v.

Northumberland Co-Operative Limited, 2019 NBCA 70 (), the Court of

Appeal described the two-step process to determine whether there is a genuine

issue requiring a trial at paragraphs 21 and 23 as follows:

[21]

The Rule therefore provides a two-step process with specific

reference to the central question: is there a genuine issue

requiring a trial?

[23]

A judge only proceeds to step two if the assessment of the filed

evidence leads to the conclusion that there may be a genuine

issue requiring a trial. In that case, the judge then needs to

determine if that trial can be avoided by resorting to the fact-

finding powers of Rules 22.04(2) and (3). The guiding principle is

that it will always be in the interest of justice for the judge to make

21

use of these fact-finding powers if, applying the principles of

timeliness, affordability and proportionality, the judge believes a

trial can be avoided and a fair and just result can be obtained. The

discretion vested in the judge under this second step will provide

the flexibility required to fashion the appropriate course to follow.

[43] In this particular matter, both parties are of the view that despite the voluminous

nature of the evidence and the complexity of the questions, these issues can be

resolved in the context of a summary judgment motion. The objective of the

revised summary judgment rule is to allow for the early determination of issues

for either a claim or a defence without the necessity of a trial. The Supreme Court

of Canada confirms this goal at paragraphs 49 and 50 of Hryniak as follows:

[49]

There will be no genuine issue requiring a trial when the judge is

able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows

the judge to make the necessary findings of fact, (2) allows the

judge to apply the law to the facts, and (3) is a proportionate, more

expeditious and less expensive means to achieve a just result.

[50]

These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts

and resolve the dispute, proceeding to trial would generally not be

proportionate, timely or cost effective. Similarly, a process that does not

give a judge confidence in her conclusions can never be the proportionate

way to resolve a dispute. It bears reiterating that the standard for

fairness is not whether the procedure is as exhaustive as a trial, but

whether it gives the judge confidence that she can find the

necessary facts and apply the relevant legal principles so as to

resolve the dispute.

[the emphasis is mine]

[44] In this particular matter the parties have both provided comprehensive

evidentiary records including expert opinions in support of their requests for

summary judgment. Further, extensive documentary records have been

furnished to the Court which include contemporaneous reports, affidavits of

central figures, expert reports and discovery transcripts. While the questions the

court is asked to determine are not simple nor straight forward, the necessary

evidence is before the court to allow for a full analysis to take place. A trial on

these issues would be long and protracted. The facts in this matter are not in

22

dispute. It is the application of the facts to the appropriate principles of law that is

contested. This exercise does not require a trial in order to fully address all

questions before the court. I am satisfied that both parties have put their best foot

forward in the records filed both in requesting and defending the summary

judgment motions. It is appropriate to proceed pursuant to Rule 22.04 to resolve

these issues given the circumstances of this case.

[45] As set out in Hryniak, the first thing a judge must be able to do in contemplating

a motion for summary judgment is make the necessary findings of fact. The facts

in this case, as in all, must be determined before they can be applied to the

pertinent law. While the evidentiary records are exhaustive and the interpretation

of the facts in the context of the law is hotly contested, there are several salient

facts that are not in dispute. Following my review of the evidentiary records and

upon consideration of counsel’s oral submissions, I find as fact the following:

 Commencing in the late 1990’s and proceeding until 2010, the City of

Saint John was grappling with water quality issues which needed to be

addressed.

 In 2010 the City of Saint John launched the SCDWP (Safe Clean Drinking

Water Project) to address water quality issues in the City.

 The City engaged the services of experts to assist them in the planning,

design and implementation of the SCDWP. These experts included

Andrews Hoffman, R. v. Anderson Associated, TerrAtlantic/BGC and

CBCL.

 Until approximately the spring of 2014 the City was contemplating a single

water treatment plant to address the water distribution needs for both East

and West Saint John. This initial model would have seen a water

treatment plant constructed in East Saint John with water travelling to

West Saint John via the Reversing Falls Bridge.

23

 Given the significant costs and infrastructure requirements to transport

water across the Reversing Falls Bridge, alternative options were explored

for water distribution to West Saint John.

 Once high quality groundwater sources were identified capable of meeting

the needs of West Saint John, the City modified their original plan. The

decision was made to furnish water to West Saint John from a

groundwater source in South Bay Wellfield. This decision was finalized in

July 2014. The water for East Saint John would continue to be furnished

via the new treatment plant as originally anticipated.

 Prior to the summer of 2017, the water for West Saint John was furnished

from surface water at Spruce Lake/Ludgate Lake. Prior to August 2018 the

water for East Saint John was derived from Latimer Lake, Robertson Lake

and Loch Lomond Lakes.

 There were differences in the water chemistry from the surface water of

Spruce Lake and Ludgate Lake and that of South Bay Wellfield.

 The water from Spruce Lake had low alkalinity, low pH, moderate organics

and was considered aggressive soft water.

 The water from South Bay Wellfield had higher pH, moderate alkalinity

and was considered non-aggressive hard water.

 The only treatment of the West Saint John water at the time of the

transition in September 2017 was chlorination. There were no corrosion

control measures used in West Saint John at the time of the transition of

the water source.

 At all pertinent times, in particular during the period of October 2015 –

December 2018, the City relied upon recommendations of CBCL in the

Management and implementation of the SCDWP.

24

 The City did not implement corrosion control measures in West Saint John

in September 2017, such as changing the pH of the water gradually,

applying phosphates or orthophosphates to the water or introducing new

water into the system gradually.

 The only treatment recommendations made by CBCL for West Saint John

in September of 2017 was chlorination.

 The City followed the specific treatment recommendations made for the

West Saint John water supply made by CBLC in September.

 The Representative Plaintiff, Frances Brownell, experienced flooding in

her basement on November 17^th, 2017. Mrs. Brownell was informed there

were holes in her water pipes which resulted in leaks.

Admissibility of Expert Opinions

[46] The Class Members rely upon the expert report of Mr. Kenneth Maltese in

support of their position. The City relies upon the expert reports of Dr. Bryan

Karney as well as the project engineer’s, CBCL, in support of their position. Both

parties dispute the qualifications of the experts hired by the other in response to

this litigation.

[47] In considering the admissibility of expert evidence, the Court is guided by the test

identified in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. The Mohan

test sets out four requirements for the admissibility of expert evidence:

(a) The evidence must be relevant;

(b) The evidence must be necessary to assist the triers of fact;

(c) The evidence must not be subject to an exclusionary rule; and

(d) The expert must be properly qualified.

25

[48] In the present matter, I accept that the expert opinions of Mr. Maltese and Dr.

Karney are relevant and necessary to the Court’s evaluation of the appropriate

standard of care in this case, and whether or not the City breached this standard

of care. Further, the expert opinions of Mr. Maltese and Dr. Karney are not

subject to any exclusionary rule. The consideration as to whether or not the

expert opinions of Mr. Maltese and Dr. Karney are admissible turn on the issue

as to whether or not they are properly qualified.

[49] The Class Members argue that the expert evidence of the City’s expert witness,

Dr. Bryan Karney, is inadmissible for the following reasons:

(1)

Dr. Karney is not a properly qualified expert because he does not have

specialized knowledge acquired through study or experience on water

chemistry;

(2)

(3)

On cross-examination at discovery Dr. Karney indicated another individual

drafted or assisted with parts of his report; and

Dr. Karney conceded to Plaintiff’s counsel that he did not have special

expertise in water chemistry, scale decomposition, corrosion control or the

use of orthophosphates.

[50] The City asserts that the Class Member’s expert, Mr. Kenneth Maltese does not

have the requisite qualifications to opine on the theorized mechanism by which

scale removal may have resulted in leaks in the premises plumbing of certain

West Saint John residents. The City launches its attack on Mr. Maltese’s

expertise on two fronts, first that Mr. Maltese lacked the requisite expertise and

secondly that he was biased. The City argues that Mr. Maltese had acted simply

as an advocate in this case.

[51] Dr. Karney describes his pertinent qualifications in his report dated January 21^st,

2019 as follows:

Although the core of my research and work is related to hydraulic

behaviour, I have been active in the area of water quality research and

26

specifically have developed a number of studies related to corrosion and

water quality degradation. I have supervised two Ph.D and two masters

students whose work was dominantly concerned with water quality

transformations in water distributions systems, with some of this work

specifically touching on metallic corrosion. These investigations have led

to both published theses and a selection of journal and conference

papers.

[52] Mr. Maltese succinctly explains his experience in water chemistry at paragraph 3

of an affidavit sworn on August 28, 2019 as follows:

3.

Through my practical hands on experience, I have been directly

involved in issues related to water chemistry, and in particular, the impact

of water chemistry on water distribution systems. In managing changes in

water source, part of my job was to verify the need for corrosion

protection and to work with the project team to identify and implement

appropriate corrosion control systems. In so doing, I have often worked

with phosphates as a means to control corrosion across a variety of water

distribution systems.

[53] In R. v. Mills, 2019 ONCA 940, 2019 ONCA 940 (), the Ontario Court of

Appeal discussed the importance of acquiring knowledge through study or

experience at paragraph 52 as follows:

[52] Expert evidence can be provided by a witness who has "acquired

special or peculiar knowledge through study or [page156] experience in

respect of the matters on which he or she undertakes to testify": Mohan,

at p. 25 S.C.R. (emphasis added). Thus, a witness can be qualified by the

court as an expert whether his or her expertise was acquired through on-

the-job experience or through formal education (or a combination

thereof). Just because that specialized knowledge is gained on the job,

sometimes developed through the "accumulated wisdom" of a group of

people, does not, on its own, diminish its value (assuming it otherwise

meets the other criteria for admission): R. v. Dominic, [2016] A.J. No.

395, 2016 ABCA 114, 616 A.R. 356, at para. 22.

[54] In R. v. Rayner, 2000 NSCA 143 (), the Nova Scotia Court of Appeal also

took the opportunity to discuss the importance of practical experience on expert

opinion commenting at paragraph 22 as follows:

[22]

It is not a requirement that a person be formally educated in a

particular area in order to be qualified as an expert. People who are

qualified by some particular or special knowledge, skill or training can

give an opinion on a matter in issue that falls outside common or popular

understanding. This knowledge and expertise can be gained through

either study or practical experience or observation. See for example, R.

27

v. Mohan, supra; R. v. Marquard, 1993 37 (SCC), [1993] 4

S.C.R. 223.

[55] In reviewing the curriculum vitae’s, reports and discovery transcripts of both Mr.

Maltese and Dr. Karney, it is clear that they are both well versed in the field of

water distribution networks, including water chemistry and corrosion control

issues. A great portion of the expert opinions expressed in this case involve the

interpretation of industry standards, industry experiences and available literature.

In my view, the combination of academic credentials as well as actual work

experience in the field and associated fields are sufficient to find that both Mr.

Maltese and Dr. Karney are qualified to provide expert opinion in this case. To

the extent that an expert’s opinion is challenged on the basis they are biased,

this can be dealt with in the context of the weight to be given to that opinion. For

these reasons, I accept as admissible the expert opinions of both Mr. Maltese

and Dr. Karney.

Did the City owe a private law duty of care to the Class Members in respect

of operational decisions relating to the Safe Clean Drinking Water Project

(SCDWP)?

[56] As in all negligence cases, the Class Members must establish that the City owed

them a duty of care, that the City breached the standard of care and that, as a

result of that breach, the Class Members incurred damages. While this analysis

as framed appears quite straightforward, the necessary conclusions that must be

drawn to determine if there exists a private law duty of care in this case are

anything but straightforward. In order to determine if the City owed the Class

Members a private law duty of care the following questions must be considered:

(1)

Has a duty of care been recognized previously in a category of cases

similar to this case?

(2)

Is there an analogous category of cases that could be applicable to this

case where a duty of care has been recognized?

28

(3)

(4)

(5)

(6)

(7)

If there is not a recognized duty of care then is this a novel argument on

duty of care that must be appropriately considered pursuant to the

Anns/Cooper test?

Can the Class Members establish proximity? Was the City in a direct

relationship with the Class Members such that it is just to impose a duty of

care in the circumstances?

Was the harm the reasonably foreseeable consequences of the City’s

actions? What is the appropriate question to ask in determining whether or

not the harm was reasonably foreseeable?

If a duty of care has been established, are there residual policy

considerations that negate the imposition of a duty of care in the

circumstances?

Conclusion – is it appropriate to impose a private law duty of care on the

City in all the circumstances of this case?

[57] An excellent place to commence the analysis as to the viability of the Class

Members claims in negligence against the City is the recent decision of the

Supreme Court of Canada in Nelson (City) v. Marchi, 2021 SCC 41. Justices

Martin and Karakatsanis set out in Nelson the following overview of the analysis

to be undertaken in cases where a private law duty of care is argued to be owed

by a public authority:

[1]

Under Canadian tort law, there is no doubt that governments may

sometimes be held liable for damage caused by their negligence in the

same way as private defendants. At the same time, the law of negligence

must account for the unique role of public authorities in governing society

in the public interest. Public bodies set priorities and balance competing

interests with finite resources. They make difficult public policy choices

that impact people differently and sometimes cause harm to private

parties. This is an inevitable aspect of the business of governing.

Accountability for that harm is found in the ballot box, not the courts.

Courts are not institutionally designed to review polycentric government

decisions, and public bodies must be shielded to some extent from the

chilling effect of the threat of private lawsuits.

29

[2]

Accordingly, courts have recognized that a sphere of

government decision- making should remain free from judicial

supervision based on the standard of care in negligence. Defining

the scope of this immunity has challenged courts for decades. In R.

v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, this

Court explained that “core policy” government decisions — defined as

“decisions as to a course or principle of action that are based on public

policy considerations, such aseconomic, social and political factors” —

must be shielded from liability in negligence (para. 90). In ascertaining

whether a decision is one of core policy, the key focus isocial and political

factors” — must be shielded from liability in negligence (para. 90). In

ascertaining whether a decision is one of core policy, the key focus is

always on the nature of the decision.

[3]

In the decade since Imperial Tobacco, there has been continued

confusion on when core policy immunity applies. This appeal requires the

Court to clarify how to distinguish immune policy decisions from

government activities that attract liability for negligence. We conclude that

the rationale for core policy immunity serves as an overarching guiding

principle. Core policy decisions are immune from negligence liability

because each branch of government has a core institutional role and

competency that must be protected from interference by the other

branches. We identify four factors from this Court’s jurisprudence

that help in assessing the nature of a government’s decision: (1) the

level and responsibilities of the decision-maker; (2) the process by

which the decision was made; (3) the nature and extent of budgetary

considerations; and (4) the extent to which the decision was based

on objective criteria. The separation of powers rationale animating the

immunity guides how the factors weigh in the analysis.

[the emphasis is mine]

[58] The City maintains that the operative test for negligence of public authorities

such as municipalities remains as set out in Anns v. Merton London Borough

Council, [1978] A.C. 728 (H.L.), and Cooper v. Hobart, 2001 SCC 79 (),

[2001] 3 SCR 537. The now frequently captioned “Anns/Cooper” test was

summarized by the Supreme Court of Canada in Edwards v. Law Society of

Upper Canada, 2001 SCC 80 at paragraphs 9 and 10 as follows:

9

At the first stage of the Anns test, the question is whether the

circumstances disclose reasonably foreseeable harm and proximity

sufficient to establish a prima facie duty of care. The focus at this

stage is on factors arising from the relationship between the plaintiff and

the defendant, including broad considerations of policy. The starting

point for this analysis is to determine whether there are analogous

categories of cases in which proximity has previously been

recognized. If no such cases exist, the question then becomes

whether a new duty of care should be recognized in the

30

circumstances. Mere foreseeability is not enough to establish a prima

facie duty of care. The plaintiff must also show proximity — that the

defendant was in a close and direct relationship to him or her such that it

is just to impose a duty of care in the circumstances. Factors giving rise

to proximity must be grounded in the governing statute when there is one,

as in the present case.

10

If the plaintiff is successful at the first stage of Anns such

that a prima facie duty of care has been established (despite the fact

that the proposed duty does not fall within an already recognized

category of recovery), the second stage of the Anns test must be

addressed. That question is whether there exist residual policy

considerations which justify denying liability. Residual policy

considerations include, among other things, the effect of recognizing that

duty of care on other legal obligations, its impact on the legal system and,

in a less precise but important consideration, the effect of imposing

liability on society in general.

[the emphasis is mine]

[59] The Class Members suggest that a full Anns/Cooper analysis is not required in

every case to establish the existence of a duty of care. The Class Members

submit that a relationship that falls within a previously established category, or is

analogous to an already established category, can be sufficient to ground a duty

of care requirement. The Class Members refer the Court do the following

decisions where New Brunswick courts have recognized public utilities owe a

duty of care to their customers:

(a)

In Anderson v. New Brunswick Electric Power Commission, the

New Brunswick Court of Appeal concluded that the New

Brunswick Electric Power Commission was liable to a ratepayer

for its negligence for the manner in which it placed its electrical

421

wires.

In so doing, the Court of Appeal recognized that the

Power Commission owed a common law duty of care “to take care

which it owes to anyone whom it might reasonably foresee would

suffer injury as a consequence of its failure to take reasonable

care.” ⁴²²

[Anderson v. New Brunswick Electric Power Commission, [1982]

N.B.J. 275 (C.A.)]

(b)

In Kettle v. Saint John Energy, the Court of Queen’s Bench New

Brunswick held that the power utility owed a duty of care to its

customers; ⁴²³

[Kettle v. Saint John Energy, 2019 NBQB 92 ()]

31

[60] The Class Members suggest that the analysis of a duty of care in this matter

should be considered in the context of a supplier’s requirement to guard against

injury to a consumer’s property for products when there is no reasonable

possibility of intermediate examination. The Class Members refer the Court to

Lord Atkin’s familiar comments in Donoghue v. Stevenson, [1932] All ER Rep 1,

p. 19:

[A] manufacturer of products, which he sells in such a form as to show

that he intends them to reach the ultimate consumer in the form in which

they left him with no reasonable possibility of intermediate examination,

and with the knowledge that the absence of reasonable care in the

preparation or putting up of the products will result in an injury to the

consumer’s life or property, owes a duty to the consumer to take that

reasonable care.

[61] The City refutes the Class members suggestion that duty of care in the present

matter is analogous to that imposed on manufacturers of consumer goods or

providers of public utilities. The City points out that as a public authority, its duty

in the delivery of water is to the public as a whole and there is no private law duty

which exists regarding individual residents or businesses. The city refers the

Court to the following statement of law by the Ontario Court of Appeal in

Wellington v. Ontario, 2011 ONCA 274 at paragraph 44:

[44] There is now a well-established line of cases standing for the general

proposition that public authorities, charged with making decisions in the general

public interest, ought to be free to make those decisions without being subjected

to a private law duty of care to specific members of the general public.

Discretionary public duties of this nature are "not aimed at or geared to the

protection of the private interests of specific individuals" and do "not give

rise to a private law duty sufficient to ground an action in negligence":

Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-

Term Care) (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J.

No. 4400 (C.A.), at para. 17; Williams, at paras. 29-30; Attis, at paras. 59-60;

River Valley Poultry Farm Ltd. v. Canada (Attorney General) (2009), 2009

ONCA 326 (), 95 O.R. (3d) 1, [2009] O.J. No. 1605 (C.A.), at paras. 41-42.

[the emphasis is mine]

[62] The City points out that it is providing healthy and safe water to the residents and

businesses of Saint John. In doing this, the City maintains that its statutory

obligations are to ensure the quality of the water to all of its users at the most

cost effective price possible. In discharging these statutory obligations, the City’s

32

obligations are to the general public, not the specific needs of individual users of

the water distribution system. For these reasons, the City maintains that the

existence of a duty of care is not analogous to the situations referred to by the

Class Members where public utilities, such as power companies, have been

found to have a duty of care to its customers where it is reasonably foreseeable

that the user of the service could suffer injury.

[63] The Class Members suggest that a court has previously recognized a duty of

care of a municipality in the operation of its water system. The Class Members

refer the court to Pettigrew v. Halifax Regional Water Commission, 2019

NSSC 362 () where it was argued the utility was negligent in the manner in

which it upgraded its stormwater system. It was argued that this negligence

caused sewage backups into the Plaintiff’s premise’s plumbing. In confirming the

existence of a duty of care, Justice Norton in Pettigrew commented at

paragraphs 23 and 24 as follows:

[23]

In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, the

Supreme Court of Canada defined negligence as follows (para. 3):

A successful action in negligence requires that the plaintiff

demonstrate (1) that the defendant owed him a duty of care; (2)

that the defendant's behaviour breached the standard of care; (3)

that the plaintiff sustained damage; and (4) that the damage was

caused, in fact and in law, by the defendant's breach. . . .

[24] There is no dispute that Halifax Water owed the Plaintiffs a

duty of care and that the Plaintiffs sustained damage.

[the emphasis is mine]

[64] It is important to note that the Defendants did not dispute the existence of a duty

of care in Pettigrew. In Pettigrew, the harm that was occasioned was the direct

result of infrastructure work the municipality was performing in the area of the

affected homeowners. I am not satisfied that Pettigrew is an appropriate case to

establish a previously recognized duty of care in similar circumstances given the

very different factual circumstances of this case.

[65] The City refutes the characterization of the duty of care suggested by the Class

Members and directs the Court to a small claims decision from Newfoundland,

33

Grondin v. Town of Red Harbour, 2015 37861 (NL PC) in support of

their position that there is no duty of care in these circumstances. In Grondin,

the court considered whether a municipality owes a private law duty of care in

relation to the sewage and water system. The Court in Grondin noted at

paragraph 27 as follows:

[27]

The first issue in an action for the tort of negligence is the question

of whether there is a duty of care. The town has the authority to install

sewer mains under the provisions of the Municipalities Act, 1999, SNL

1999 cM-24, s. 156. The evidence in the present matter is that the town

has sewer mains and lift stations and pumps, all of which it maintains

regularly. However, the town has never taken any responsibility for the

lateral sewer lines which residents install to connect their homes to the

town sewer mains.

[66] The City highlights that in Grondin the sewage lateral in question had been

owned, installed and maintained by the private property owner. The City

compares this situation directly to the premise plumbing complaints advanced by

the Class Members in this case. Further, the City notes that in Grondin, as is the

case here, the municipality had no way of inspecting the laterals. The City

highlights the court’s finding in Grondin that the municipality did not owe a duty

of care to the Plaintiff.

[67] The Class Members caution the Court on the applicability of Grondin to the

current circumstances. The Class Members underscore the Court’s finding in

Grondin that the sewage backup was caused by someone in Grondin’s

household inappropriately flushing cloth wipes and/or rags down the toilet. The

Class Members suggest that Grondin stands for the proposition that where a

homeowner’s acts or omissions cause premise plumbing to leak or backup, the

municipality will not be held liable. The Class Members suggest that the Small

Claims Court decision in Grondin is actually of no assistance to the Court in the

context of this matter.

[68] The authorities provided to the Court are insufficient to establish a previously

recognized duty of care in a similar case. I am not satisfied that Pettigrew v.

Halifax stands for the proposition that a duty of care has been previously

34

recognized in a comparable case. Likewise, the situation in Grondin is

distinguishable, and in my view not determinative, that “no” duty of care exists in

these circumstances. It would seem that the Court is left to consider the question

as a “novel” category and undertake a full Anns/Cooper analysis.

[69] The Supreme Court of Canada in Nelson sets out the following guidelines for

determining whether there is a novel category for the existence of a duty of care

at paragraphs 16 through 19 as follows:

[16]

In Canada, the Anns/Cooper test provides a unifying framework to

determine when a duty of care arises under the wide rubric of negligence

law, including for allegations of negligence against government officials.

But as Cooper and subsequent cases make clear, the framework applies

differently depending on whether the plaintiff’s claim falls within or is

analogous to an established duty of care or whether the claim is novel

because proximity has not been recognized before.

[17]

In novel duty of care cases, the full two-stage Anns/Cooper

framework applies. Under the first stage, the court asks whether a prima

facie duty of care exists between the parties. The question at this stage

is whether the harm was a reasonably foreseeable consequence of

the defendant’s conduct, and whether there is “a relationship of

proximity in which the failure to take reasonable care might

foreseeably cause loss or harm to the plaintiff” (Rankin’s Garage, at

para. 18). Proximity arises in those relationships where the parties are in

such a “close and direct” relationship that it would be “just and fair having

regard to that relationship to impose a duty of care in law upon the

defendant” (Cooper, at paras. 32 and 34).

[18]

If there is sufficient proximity to ground a prima facie duty of care,

it is necessary to proceed to the second stage of the Anns/Cooper test,

which asks whether there are residual policy concerns outside the

parties’ relationship that should negate the prima facie duty of care

(Cooper, at para. 30). As stated in Cooper, at para. 37, the residual policy

stage of the Anns/Cooper test raises questions relating to “the effect of

recognizing a duty of care on other legal obligations, the legal system and

society more generally”, such as:

Does the law already provide a remedy? Would recognition of

the duty of care create the spectre of unlimited liability to an

unlimited class? Are there other reasons of broad policy that

suggest that the duty of care should not be recognized?

[19]

When the duty of care at issue is not novel, there is generally no

need to proceed through the full two-stage Anns/Cooper framework. Over

the years, courts in Canada have developed a body of negligence law

recognizing categories of cases in which a duty of care has previously

35

been established (Cooper, at para. 41; Childs v. Desormeaux, 2006 SCC

18, [2006] 1 S.C.R. 643, at para. 15; Mustapha v. Culligan of Canada

Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 5). In such cases, “the

requisite close and direct relationship is shown” and the first stage of the

Anns/Cooper framework will be complete, as long as the risk of injury was

reasonably foreseeable (Deloitte & Touche v. Livent Inc. (Receiver of),

2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26). The second stage of the

Anns/Cooper test will rarely be necessary because residual policy

concerns will have already been taken into account when the duty was

first established (Cooper, at paras. 36 and 39; Livent, at paras. 26 and 28;

see also Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001]

3 S.C.R. 562, at paras. 9-10).

[the emphasis is mine]

[70] As explained by the Supreme Court of Canada in Nelson, it is first necessary to

determine if the facts confirm a relationship of proximity between the City and the

Class Members in which failure to take reasonable care might foreseeably cause

loss or harm. The Supreme Court of Canada recently described the burden a

plaintiff must meet in order to demonstrate foreseeability and proximity in Rankin

(Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 () at paragraphs 19, 21

and 22 as follows:

[19]

Whether or not a duty of care exists is a question of law and I

proceed on that basis: Galaske v. O’Donnell, 1994 128 (SCC),

[1994] 1 S.C.R. 670, at p. 690. The plaintiff bears the legal burden of

establishing a cause of action, and thus the existence of a prima facie

duty of care: Childs, at para. 13. In order to meet this burden, the

plaintiff must provide a sufficient factual basis to establish that the

harm was a reasonably foreseeable consequence of the defendant’s

conduct in the context of a proximate relationship. In the absence of

such evidence, the claim may fail: see, e.g., Childs, at para. 30.

[…]

[21]

Since Donoghue, the “neighbour principle” has been the

cornerstone of the law of negligence. Lord Atkin’s famous quote

respecting how far a legal neighbourhood extends incorporates the dual

concerns of reasonable foreseeability of harm and proximity:

The rule that you are to love your neighbour becomes in law, you

must not injure your neighbour; and the lawyer’s question, Who is

my neighbour? receives a restricted reply. You must take

reasonable care to avoid acts or omissions which you can

reasonably foresee would be likely to injure your neighbour. Who,

then, in law is my neighbour? The answer seems to be — persons

who are so closely and directly affected by my act that I ought

36

reasonably to have them in contemplation as being so affected

when I am directing my mind to the acts or omissions which are

called in question. [p. 580]

Reasonable foreseeability of harm and proximity operate as crucial

limiting principles in the law of negligence. They ensure that liability

will only be found when the defendant ought reasonably to have

contemplated the type of harm the plaintiff suffered.

[22]

The rationale underlying this approach is self-evident. It would

simply not be just to impose liability in cases where there was no reason

for defendants to have contemplated that their conduct could result in the

harm complained of. Through the neighbour principle, the defendant, as

creator of an unreasonable risk, is connected to the plaintiff, the party

whose endangerment made the risk unreasonable: E. J. Weinrib, “The

Disintegration of Duty”, in M. S. Madden, ed., Exploring Tort Law (2005),

143, at p. 151. The wrongdoing relates to the harm caused. Thus,

foreseeability operates as the “fundamental moral glue of tort”,

shaping the legal obligations we owe to one another, and defining

the boundaries of our individual liability: D. G. Owen, “Figuring

Foreseeability” (2009), 44 Wake Forest L. Rev. 1277, at p. 1278.

[the emphasis is mine]

[71] The Class Members argue strenuously that they have met both the threshold of

proximity and foreseeability in the circumstances of this case. The Class

Members remind the Court of the Supreme Court of Canada’s directives in

Cooper v. Hobart, that proximity factors are “diverse” and “case specific”. In the

circumstances of this case, the Class Members argue the City is providing them

with water. The provision of this service by the City to the Class Members

establishes they have both a close and direct relationship. The Supreme Court of

Canada’s discussion on the issue of proximity in Cooper v. Hobart is quite

helpful to the current analysis at paragraphs 32 to 34:

32

On the first point, it seems clear that the word “proximity” in

connection with negligence has from the outset and throughout its

history been used to describe the type of relationship in which a

duty of care to guard against foreseeable negligence may be

imposed. “Proximity” is the term used to describe the “close and direct”

relationship that Lord Atkin described as necessary to grounding a duty of

care in Donoghue v. Stevenson, supra, at pp. 580-81:

Who then, in law is my neighbour? The answer seems to be –

persons who are so closely and directly affected by my act that I

ought reasonably to have them in contemplation as being so

37

affected when I am directing my mind to the acts or omissions

which are called in question.

…

I think that this sufficiently states the truth if proximity be not

confined to mere physical proximity, but be used, as I think it was

intended, to extend to such close and direct relations that the act

complained of directly affects a person whom the person alleged

to be bound to take care would know would be directly affected by

his careless act. [Emphasis added.]

33

As this Court stated in Hercules Managements Ltd. v. Ernst &

Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, at para. 24, per La

Forest J.:

The label “proximity”, as it was used by Lord Wilberforce

in Anns, supra, was clearly intended to connote that the

circumstances of the relationship inhering between the plaintiff

and the defendant are of such a nature that the defendant may be

said to be under an obligation to be mindful of the plaintiff’s

legitimate interests in conducting his or her affairs. [Emphasis

added.]

34

Defining the relationship may involve looking at expectations,

representations, reliance, and the property or other interests involved.

Essentially, these are factors that allow us to evaluate the closeness

of the relationship between the plaintiff and the defendant and to

determine whether it is just and fair having regard to that

relationship to impose a duty of care in law upon the defendant.

[the emphasis is mine]

[72] The City reminds the Court of the importance of the legislative scheme in the

consideration of the proximity analysis in this case. The City refers the Court to

the comments of the Ontario Court of Appeal in Taylor v. Canada (Attorney

General), 2012 ONCA 479 at paragraph 76 as follows:

[76] The legislative scheme looms large in the proximity inquiry for two

reasons. First, the question of whether a regulator should owe a private

law duty of care to those individuals affected by its actions is largely a

policy decision that falls squarely within the legislative bailiwick. The

legislature announces that policy decision through the terms of its

legislation. Second, even where the legislation is not determinative and

the court must look to the interaction between the regulator and the

plaintiff, the terms of the legislation describing the powers and duties of

the regulator may to some extent shape the relationship between the

regulator and the regulated. That relationship will be relevant in

deciding whether the specific interactions between the regulator and

38

the plaintiff are sufficient to create the degree of proximity required

to establish a prima facie duty of care.

[the emphasis is mine]

[73] All parties agree that the legislative scheme governing the City’s obligation to

provide water is centered around the requirement to provide safe, healthy water

to the users of the City’s water distribution network. The Class Members point out

that Taylor also stands for the proposition that public health duties can co-exist

with a private law duty of care. The Class Members suggest that in these

circumstances there is no conflict between the City’s statutory duty to provide

safe drinking water under the legislative scheme and a private law duty to

prevent property damage. The Class Members are all individuals or businesses

who derive their water from the water distribution system operated by the City.

The Class Members argue that there is no conflict in these circumstances

between the City’s statutory obligation to provide safe drinking water and a

private law duty of care to avoid property damage to users of the water

distribution system.

[74] The City maintains that there is a potential conflict between its statutory

obligation to provide safe drinking water to the residents of Saint John and a

potential private law duty of care to individual users of the water distribution

system in relation to their private plumbing. The City suggests that the imposition

of a private law duty of care in such circumstances may impede the City’s ability

to discharge its statutory duty to provide safe, clean drinking water to all users of

the water system. The City argues that the health of the public as a whole is the

competing interest which must be weighed against the rights of individual

residents and potential damages to their private plumbing.

[75] The City refers the Court to Syl Apps Secure Treatment Centre v. B.D., 2007

SCC 38 (), [2007] 3 SCR 83 at paragraph 28 in support of their position:

28

Where an alleged duty of care is found to conflict with an

overarching statutory or public duty, this may constitute a

compelling policy reason for refusing to find proximity (Cooper, at

para. 44; Edwards, at para. 6). Such a conflict exists where the

39

imposition of the proposed duty of care would prevent the defendant

from effectively discharging its statutory duties. In Cooper, for

example, a duty to individual investors on the part of the Registrar of

Mortgage Brokers was rejected because it was found to “potentially

conflict with the Registrar’s overarching duty to the public” (para. 44).

Similarly, in Edwards a private law duty of care on the part of the Law

Society to the victim of a dishonest lawyer was rejected at the proximity

stage since “[d]ecisions made by the Law Society require the exercise of

legislatively delegated discretion and involve pursuing a myriad of

objectives consistent with public rather than private law duties” (para.

14). In both cases, the serious negative policy consequences of these

conflicting duties were found to justify denying a finding of proximity.

[the emphasis is mine]

[76] The Class Members point out that in Syl Apps Treatment Centre, the statutory

duty which existed was to protect children from suspected abuse while the

proposed private law duty would have been owed to those suspected of

perpetuating the abuse. Such a situation creates an obvious conflict between the

existing statutory duty and the proposed private law duty of care. The current

situation before the Court is quite distinguishable. In the current matter, the Class

Members argue the City has not set out the factors that would result in a conflict

between the statutory duty to provide safe, clean drinking water and a private law

duty to prevent reasonably foreseeable harm to the private plumbing of users of

the system. The Class Members suggest that these two potential duties in fact go

“hand in glove” and I am inclined to agree.

[77] The Class Members were all users of the water distribution system operated by

the City. In my view, this fact is sufficient to establish a relationship of proximity.

Had the Class Members become ill as a result of problems with the quality of the

water in the distribution system there would be no suggestion but that there was

not a proximate relationship between them and the City responsible for the water

distribution. In these circumstances, it is reasonable to expect that the City would

be mindful of the legitimate interests of the Class Members that any potential

impact on their property by the City’s implementation of a new water distribution

be addressed and mitigated to the extent possible. I accept that the Class

40

Members have established a relationship of proximity subject to the

consideration of the existence of a potential immunity at law.

[78] While the court is satisfied that a proximate relationship is made out in these

circumstances, the establishment of a reasonable foreseeability of harm is more

difficult to answer. As noted by the Supreme Court of Canada in Rankin, it is

necessary to approach the question of foreseeability with analytical vigour and to

avoid considering the question in retrospect.

[79] The parties diverge on the nature of the “harm” the court must conclude was

reasonably foreseeable. The parties disagree on the nature of the question the

court must answer in determining if the harm was reasonably foreseeable. The

Class Members refer the Court to the characterization of foreseeability of harm in

School Division of Assiniboine South, No. 3 v. Greater Winnipeg Gas

Company Limited, 1971 959 (MB CA) at paragraph 13 which was upheld

by the Supreme Court:

These words would suggest that recovery may be had, provided the

event giving rise to the damage is not regarded as "impossible", and even

though it "very rarely happened", "only in very exceptional

circumstances". The test of foreseeability of damage becomes a

question of what is possible rather than what is probable.

[the emphasis is mine]

Considering the foreseeability analysis as set out in School Division

Assiniboine South, the Class Members argue that it was reasonably

foreseeable that a change in water source could cause harm to property owners

in West Saint John.

[80] The Supreme Court of Canada in Rankin stressed the importance of framing the

question of foreseeability with sufficient analytical vigour. The City suggests that

following the directives of the Supreme Court of Canada in Rankin, it will not be

sufficient for the Class Members to simply demonstrate it was reasonably

foreseeable that users could generally suffer damage as a result of the change in

water supply. The City disputes the Class Members approach to the

41

characterization of foreseeability in this case and relies upon the more stringent

analysis suggested by the Supreme Court of Canada in Rankin. The City

maintains that the Class Members analysis of foreseeability is overly broad and

fails to take into consideration the requirement of “analytical vigour” required set

out in the more recent decision of Rankin in 2018 as opposed to the approach in

School Division Assiniboine South dating back to the 1970’s. The City argues

it is now not sufficient for the Class Members to establish that it was reasonably

foreseeable that they could generally suffer damage as a result of a change in

water supply. Rather, pursuant to Rankin, they must establish that a change in

water supply could result in a pinhole leaks in private plumbing as a reasonably

foreseeable consequence of the City’s action or omission.

[81] The Class Members suggest that in their suggested approach the City has

conflated the concept of foreseeability with certainty. The Class Members point

out that foreseeability is not to be confused with foresight. It is not necessary for

a defendant to have foreseen the precise manner the injury occurred. The Class

Members direct the Court to the Supreme Court of Canada’s comments in

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (), at paragraph 13:

[13]

Much has been written on how probable or likely a harm needs to

be in order to be considered reasonably foreseeable. The parties raise

the question of whether a reasonably foreseeable harm is one whose

occurrence is probable or merely possible. In my view, these terms are

misleading. Any harm which has actually occurred is “possible”; it is

therefore clear that possibility alone does not provide a meaningful

standard for the application of reasonable foreseeability. The degree of

probability that would satisfy the reasonable foreseeability

requirement was described in The Wagon Mound (No. 2) as a “real

risk”, i.e. “one which would occur to the mind of a reasonable man

in the position of the defendan[t] . . . and which he would not brush

aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship

Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).

[82] The City also highlights the Supreme Court of Canada’s confirmation in Rankin

that foreseeability must not be considered in retrospect. The City directs the

Court to the Supreme Court of Canada’s comment on the issue at paragraph 53

of Rankin as follows:

42

[53]

Whether or not something is “reasonably foreseeable” is an

objective test. The analysis is focussed on whether someone in the

defendant’s position ought reasonably to have foreseen the harm rather

than whether the specific defendant did. Courts should be vigilant in

ensuring that the analysis is not clouded by the fact that the event in

question actually did occur. The question is properly focussed on

whether foreseeability was present prior to the incident occurring

and not with the aid of 20/20 hindsight: L. N. Klar and C.S.G. Jefferies,

Tort Law (6th ed. 2017), at p. 212.

[the emphasis is mine]

[83] In their brief on law in support of their request for summary judgment, the Class

Members set out the following factors in support of the assertion that the harm

sustained was reasonably foreseeable:

(1)

the City was repeatedly warned that a change in water chemistry

can cause adverse impacts in the pipes in which the water flows,

including leaks;

(2)

(3)

the City was repeatedly warned that a change in water chemistry

would impact premise plumbing;

the City was repeatedly advised to develop a plan to transition the

system from the existing water quality to the eventual water

chemistry;

(4)

(5)

all of the applicable standards warn that a change in water source

can cause adverse impacts in the pipes in which the water flows;

and

the City admitted on cross-examination that:

(a)

(b)

before the change in water source and chemistry for West

Saint John, the City knew that a change in water source

could impact premise plumbing; and

before the change in water source and chemistry for West

Saint John, the City knew that a change in water source

can destabilize existing scales.

[84] The City refutes the Class members’ arguments on foreseeability, contending

that the copper pipe leaks were not expected and were in fact unprecedented.

The City sets out their assessment of the evidence which supports the

unforeseeable nature of the problem at paragraphs 165 and 166 of their brief on

law as follows:

43

165.

As set out in Mr. Chaulk’s affidavit and the appended CBCL Corrosion

Control Investigation Report: (1) based on available industry practice, technical

guidance and peer-reviewed science, the ground water supply from the South

Bay Wellfield was assessed as low risk for corrosion potential; (2) other

municipalities in Atlantic Canada that had switched water supplies similar to West

Saint John did not experience reports of copper leaks within private copper

plumbing; (3) limited literature, research and guidance was available for utilities

permanently switching a water source and even less information for switching

from surface water to ground water; (4) South Bay Wellfield water quality was

similar to other ground water systems that do not use orthophosphates/corrosion

control; and (5) the mechanism for the reported copper pipe leaks remains

unclear and would require further testing to determine.

166.

Furthermore, as noted during the cross-examination of Brent McGovern,

Commissioner of Saint John Water, the City also had the experience of the Town

of Rothesay (consisting of a couple of hundred homes or more) having switched

from untreated surface water (from Loch Lomond) to ground water, with no

reported issues with private copper plumbing.

[85] What is the harm that had to have been reasonably foreseeable to the City to

ground the existence of a private law duty of care between these parties? Was it

the general possibility of harm to the Class Members’ premises’ plumbing as a

result of a change in the water distribution system? Was it the possibility of the

development of pinprick leaks in the Class Members premises plumbing as a

result of the change in the water distribution system? While Rankin requires the

Court to approach the framing of this question with “analytical vigour”, it does not

require a specific contemplation of the precise harm encountered. In my view, the

question to be framed in terms of foreseeability in these circumstances lies

somewhere in between the two options suggested by the parties.

[86] Rankin dealt with a fact situation where minors stole a vehicle from a garage and

then were subsequently involved in a motor vehicle accident sustaining personal

injuries. The Supreme Court of Canada in Rankin concluded that it was not

reasonably foreseeable that theft of a vehicle would result in bodily harm so as to

have been in the contemplation of the garage when considering its security

practices. While the fact situation is distinguishable, the court’s discussion of the

process to frame the question in order to determine reasonable foreseeably is

nonetheless quite helpful. The Court states at paragraph 46, 55 and 56 as

follows:

44

[46]

The fact that something is possible does not mean that it is

reasonably foreseeable. Obviously, any harm that has occurred was by

definition possible. Thus, for harm to be reasonably foreseeable, a

higher threshold than mere possibility must be met: Childs, at para.

29. Some evidentiary basis is required before a court can conclude that

the risk of theft includes the risk of theft by minors. Otherwise theft by a

minor would always be foreseeable — even without any evidence to

suggest that this risk was more than a mere possibility. This would

fundamentally change tort law and could result in a significant expansion

of liability.

[…]

[55]

To summarize, the evidence did not provide specific

circumstances to make it reasonably foreseeable that the stolen car might

be driven in a way that would cause personal injury. The evidence did

not, for example, establish that the risk of theft included the risk of theft by

minors. While in this case, it was argued that it was the risk of theft by

minors that could make the risk of the unsafe operation of the stolen

vehicle foreseeable, had there been other evidence or circumstances

making the risk of personal injury reasonably foreseeable, a duty of care

would exist.

[56]

As was the case in many similar decisions by trial courts, I am not

satisfied that the evidence here demonstrates that bodily harm resulting

from the theft of the vehicle was reasonably foreseeable. I conclude that

the plaintiff did not satisfy the onus to establish that the defendant

ought to have contemplated the risk of personal injury when

considering its security practices. The inferential chain of reasoning

was too weak to support the establishment of reasonable

foreseeability: see Childs, at para. 29. For these reasons, the plaintiff

has not met his burden of establishing a prima facie duty of care owed by

Rankin’s Garage to him. Reasonable foreseeability could not be

established on this record.

[the emphasis is mine]

[87] In the present matter I accept the City’s submission that in this case, pursuant to

the guidance provided in Rankin, it is necessary to determine if the harm

experienced by the Class Members was reasonably foreseeable with specificity.

However, the level of specificity, as argued by the Class Members, cannot rise to

level of certainty. It is not enough to suggest that a change in the water

distribution network could have an impact on the premise’s plumbing of the Class

Members. In my view, the appropriate question is whether or not it was

reasonably foreseeable to the City that their acts or omissions in implementing

corrosion control measures when transitioning the water distribution in West

45

Saint John could cause leaks to premises plumbing of the Class Members. In

order to answer this question, it then becomes necessary to examine the

information available to the City prior to the switch over of water sources in 2017,

not the information available to the City subsequent thereto.

[88] The Class Members point to the following pieces of evidence found in the record

in support of their assertion that the City had ample knowledge prior to August of

2017 that their management and implementation of the switch over of the West

Saint John water distribution system could result in leaks to the Class Members:

R.V. Anderson Associates Limited, August 2011, section 7, page 16,

East and West Saint John

Changes in the source water quality, treatment, or distribution system

operations and maintenance can adversely impact corrosion control

efforts (AwwaRF, 1996; AWWA, 2005):

-

Source water changes can affect pH and alkalinity and

render corrosion control efforts ineffective by

changing buffering capacity and impacting the

solubility of protective films;

-

Treatment changes such as changes in oxidants,

disinfectants, or coagulants can impact metal oxidation

rates and the nature of scale deposits;

-

The addition of hydrofluorosilicic acid or chlorine gas can

reduce pH levels, increasing the corrosivity of the water;

Enhanced coagulation for reduction of total organic carbon

may involve pH depression, potentially increasing lead and

copper corrosion and release;

-

Operational changes resulting in increased water age,

blending of water, or increased water flow can impact

the formation and dissolution of films and scale

deposits.

Maintenance efforts such as flushing the system (which

can scour the pipe) and service line/meter replacement

can increase the release of contaminants into the water.

CBCL Memorandum dated June 27, 2013, East and West Saint John

The potential for a groundwater derived water source to cause

unintended distribution system water quality issues once implemented is

a significant risk identified for this project. One of the most widely-known

46

incidents to have occurred was in Washington, D.C. between 2001-2004.

A change from chlorine disinfectant to chloramines caused widespread

lead release in the distribution system which persisted for several years

before the problem was mitigated through the addition of orthophosphate

corrosion inhibitor. Although the blending analyses highlighted in the RFP

focuses on treatment blending, we believe effort is also required to

assess the potential consequences of either blending water sources in

the distribution system or completely switching a given area of the system

from surface to groundwater source. Our project team includes individuals

with expertise in distribution system water quality and corrosion.

Experience of utilities such as CBRM (Sydney) demonstrates that

switching water sources from chlorinated surface water to treated

groundwater can accelerate corrosion and cause rapid degradation

of water mains and service connections. This will require assessment

during the project and our methodology will evaluate projected differences

in treated water quality and potential impacts on established biofilms.

CBCL will be able to lend knowledge and experience gained from working

with other municipalities facing similar issues in order to ensure minimal

impact on distribution system integrity and water quality resulting from the

transition to a groundwater source.

CBCL memorandum dated January 27, 2014 - East Saint John water

treatment plant

The primary objective of this corrosion study is to determine the impacts

on existing scales. Corrosion of new pipes is not a major concern, as

there is a vast amount of research related to the subject and once the

system is operational, the corrosion control can be optimized by iteratively

adjusting treated water quality.

[…]

In the case of Saint John, where corrosion scales are well

established, changes arising from the implementation of treatment

could have a significant impact on stability of tubercles. We are

proposing a detailed corrosion study to minimize risks of unintended

outcomes following the implementation of a new treatment system.

CBCL Report, June 2014, section 4.5.1 - East Saint John

Latimer Lake, like many surface water sources in Atlantic Canada, is

relatively aggressive towards corrosion in water distribution pipes and

premise plumbing systems. The water has naturally low pH, alkalinity,

and hardness. Common distribution system concerns related to corrosion

include: coloured water complaints, reduced pipe capacity caused by the

build-up of corrosion scale (tuberculation), premature pipe failure through

loss of pipe material or pinhole leaks, degradation of chlorine residual

through reactions with corrosion scale, excessive biofilm growth resulting

from favourable growth conditions in tubercles, and potential health

concerns resulting from increased metals concentrations (particularly with

high lead levels).

47

Corrosion control will form a critical component of the new water

treatment plant- particularly during the transition period when treated

water is first introduced to the system. The Saint John distribution system

includes old pipes with well-established corrosion scales. These scales

are sensitive to subtle changes in water quality, which can cause them to

break down and release large quantities of metals. Resulting problems

could include coloured water complaints, taste and odour issues, and

high concentrations of toxic metals. Excessive corrosion can also lead

to pipe failures, which can be costly, waste a lot of water and

money, and may require boil water advisories. Furthermore, corrosion

scales may shelter biofilm from chlorine; breakdown of the scales can

lead to presence of coliform bacteria in the water. The release of this

bacteria and metal particles causes an increase in chlorine demand, and

as a result areas of the system can lose free chlorine residual. Problems

such as these would have drastic impacts on consumer confidence in the

Saint John water supply and should be avoided.

CBCL report dated March 2015, East Saint John, section 4.5

While proponents will not be responsible for the condition of the

distribution system, the water quality leaving the facility will impact the

mains and premise plumbing. The optimum approach (chemicals,

dosages, pH, alkalinity, etc.) to corrosion control in the distribution system

is not yet known. Some work is underway and more is recommended to

evaluate options and determine the preferred approach. In terms of the

DBFOM work, the preferred approach is to identify which chemical

storage and feed features must be included in the plant to address

corrosion issues and to include relevant treated water quality parameters

as part of the performance specifications. We anticipate that ongoing

work on the City’s part will be required to develop a system-wide

corrosion control program. We have included elements of that program in

this section for information and discussion purposes. The responsibilities

of the Proponent will be limited to providing the chemical storage and

feed capabilities within the plant and to meeting the treated water quality

requirements.

CBCL Memorandum dated December 11, 2015 - East Saint John

In developing a corrosion control program, both distribution system

pipe corrosion and premise plumbing pipe corrosion must be

considered. These systems present different challenges and control

measures are not necessarily the same for each.

[…]

Corrosion related issues are of particular concern when water

quality in the distribution system changes, as it can destabilize

existing corrosion scales and cause aesthetic, regulatory, and economic

issues.

[the emphasis is mine]

48

[89] The City refutes the Class Members assertion that the risk of leaks were within

the knowledge of the City as a result of the planed switch over of the water

distribution system in West Saint John.

The City relies upon the

recommendations of their experts engaged at the time in asserting such leaks

were not reasonably foreseeable in the context of West Saint John.

[90] There is no doubt but that the City’s approach to corrosion control changed

significantly for West Saint John once the decision was made to switch to the

groundwater of South Bay Wellfield. The appropriateness of the measures taken

by the City once that decision was made is, in my view, properly considered

within the analysis of the standard of care. However, the City had knowledge

throughout the life of the SCDWP that changes in the water distribution network

required consideration of corrosion control measures because of the potential

impact of a change in water on the infrastructure including private plumbing.

Given this knowledge, I conclude that it was reasonably foreseeable that the

City’s acts or omissions in implementing corrosion control measures when

transitioning the water distribution in West Saint John could cause leaks to the

premise’s plumbing of the Class Members.

[91] Although the Court has determined that there was a relationship of proximity

between the parties and the loss was a reasonably foreseeable consequence of

the City’s actions or omissions, the Court must consider whether a duty of care is

nonetheless not made out as it arises out of a core policy decision. Again, the

court has the benefit of the Supreme Court of Canada’s direction on how such an

analysis is to be undertaken from Nelson v. Marchi. At paragraphs 40 and 41

Justices Martin and Karakatsanis discuss the concept of immunity for core policy

decisions of government agencies in the law of negligence as follows:

[40]

Although there is consensus “that the law of negligence must

account for the unique role of government agencies”, there is

disagreement on how this should be done (Imperial Tobacco, at para.

76). Some even argue that private law principles of negligence are wholly

incompatible with the role and nature of public authorities. Echoing the

obiter in Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89,

[2016] 1 F.C.R. 446, at paras. 130 and 139, for example, the City of

Abbotsford intervened to propose that only public law principles should

49

govern public authority liability. Instead of examining how core policy

immunity operates within negligence law, it suggests that courts should

focus on indefensibility in the administrative law sense and exercise

remedial discretion where appropriate to grant monetary relief.

[41]

Such an approach has no basis in this Court’s jurisprudence. It

also runs counter to Crown proceedings legislation in Canada, which

subjects the Crown to liability as if it were a private person. This Court’s

approach has been to accept that, “[a]s a general rule, the traditional

tort law duty of care will apply to a government agency in the same

way that it will apply to an individual” (Just, at p. 1244). However, to

resolve the tension arising from the application of private law

negligence principles to public authorities, the Court has adopted

the principle from Anns v. Merton London Borough Council, [1978]

A.C. 728 (H.L.), that certain policy decisions should be shielded from

liability for negligence, as long as they are not irrational or made in

bad faith. This approach accounts for the unique nature of public

authority defendants and is firmly grounded in both the legislation and this

Court’s jurisprudence dating back to Barratt v. Corporation of North

Vancouver, 1980 219 (SCC), [1980] 2 S.C.R. 418, and Kamloops

(City of) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2.

[the emphasis is mine]

[92] In Nelson v. Marchi, the Supreme Court of Canada goes on to provide an

analytical framework to determine whether a public authority’s actions or

omissions relate to core policy decisions as opposed to operations decisions

setting out at paragraphs 61-66 as follows:

[61]

The rationale for core policy immunity should also serve as an

overarching guiding principle for how to assess and weigh the factors this

Court has developed for identifying core policy decisions. We will

elaborate.

[62]

First: the level and responsibilities of the decision-maker.

With this factor, what is relevant is how closely related the decision-maker

is to a democratically-accountable official who bears responsibility for

public policy decisions. The higher the level of the decision-maker within

the executive hierarchy, or the closer the decision-maker is to an elected

official, the higher the possibility that judicial review for negligence will

raise separation of powers concerns or have a chilling effect on good

governance. Similarly, the more the job responsibilities of the decision-

maker include the assessment and balancing of public policy

considerations, the more likely this factor will lean toward core policy

immunity. Conversely, decisions made by employees who are far-

removed from democratically accountable officials or who are charged

with implementation are less likely to be core policy and more likely to

attract liability under regular private law negligence principles (Just, at pp.

1242 and 1245; Imperial Tobacco, at para. 87).

50

[63]

Second: the process by which the decision was made. The

more the process for reaching the government decision was deliberative,

required debate (possibly in a public forum), involved input from different

levels of authority, and was intended to have broad application and be

prospective in nature, the more it will engage the separation of powers

rationale and point to a core policy decision. On the other hand, the more

a decision can be characterized as a reaction of an employee or groups

of employees to a particular event, reflecting their discretion and with no

sustained period of deliberation, the more likely it will be reviewable for

negligence.

[64]

Third: the nature and extent of budgetary considerations. A

budgetary decision may be core policy depending on the type of

budgetary decision it is. Government decisions “concerning budgetary

allotments for departments or government agencies will be classified as

policy decisions” because they are more likely to fall within the core

competencies of the legislative and executive branches (see, e.g.,

Criminal Lawyers’ Association, at para. 28). On the other hand, the

day‐to‐day budgetary decisions of individual employees will likely not

raise separation of powers concerns.

[65]

Fourth: the extent to which the decision was based on

objective criteria. The more a government decision weighs competing

interests and requires making value judgments, the more likely separation

of powers will be engaged because the court would be substituting its

own value judgment (Makuch, at pp. 234-36 and 238). Conversely, the

more a decision is based on “technical standards or general standards of

reasonableness”, the more likely it can be reviewed for negligence. Those

decisions might also have analogues in the private sphere that courts are

already used to assessing because they are based on objective criteria.

[66]

Thus, in the course of weighing these factors, the key focus must

always be on the underlying purpose of the immunity and the nature of

the decision. None of the factors is necessarily determinative alone and

more factors and hallmarks of core policy decisions may be developed;

courts must assess all the circumstances.

[the emphasis is mine]

[93] It is necessary to consider these questions of core policy decisions through the

framework as set out in Nelson v. Marchi. The Class Members acknowledged

during the course of oral arguments that the City’s decision to implement the new

water distributions system along with the determination that west Saint John

would be furnished water from a groundwater source were core policy decisions

that would attract immunity protection. However, the Class Members suggest

that the claims in negligence in this matter relate to the operational decisions

51

taken by various actors in the implementation of the water distribution system, in

particular, whether or not to proceed with specific corrosion control measures in

West Saint John. The Class Members maintain that the actions or omissions of

the City which form the basis of the claims in negligence are all operational as

opposed to core policy decisions. The Certification Order itself refers to the

operational nature of the decisions in framing the common questions, “did the

Defendants owe a private law duty of care to the Class in respect of operational

decisions relating to the Safe Clean Drinking Water Project?”

[94] Clearly all decisions relating to the City’s determination that they would transition

the water distribution for West Saint John to the groundwater source from South-

Bay Wellfield would fall under the “core policy” criteria as is conceded by the

Class Members. However, the question in this case is whether or not the

decisions relating to corrosion control measures when transitioning the West

Saint John water supply are a different consideration. It is helpful to consider

these decisions in light of the Nelson v. Marchi criteria to determine if they are

solely “operational” or “core” policy decisions.

[95] The decision makers responsible for deciding what, if any, corrosion control

measures would be added to the water were not members of council or senior

city officials. These types of decisions would be made by the appropriate

technical employees with the guidance of experts. These decisions are

operational. Similarly, these decisions would be made amongst the technical staff

with the assistance of the experts. Decisions concerning water chemistry would

not be made by senior city officials outside those with the specialized skill

working for the water department.

[96] The City’s decision to implement a new water distribution system in order to

provide high quality water to its residents was a core policy decision. The

manner in which the SCDWP was designed, funded and rolled out were all core

policy decisions taken by city council and its senior advisers. However, the

decision on whether or not to treat the water in East or West Saint John with

52

whatever chemical or other additives recommended or not recommended would

have been highly technical decisions. Those are clearly not policy decisions that

are made after a deliberative process, nor would they appear to have been

particularly subject to budgetary considerations given the comparative costs

within the overall costs of the project. Considering the criteria as established by

the Supreme Court of Canada in Nelson, the decision as to whether or not

treatment for potential corrosion control was necessary in West Saint John would

have been operational in nature.

[97] In conclusion, I find that the Class Members in these circumstances have

established a novel duty of care pursuant to the Anns/Cooper test. The Class

Members have satisfied the Court that, in these specific circumstances, there

existed a relationship of proximity between themselves and the City. Further, I

accept that it was reasonably foreseeable that the City’s acts or omissions in

implementing corrosion control measures when transitioning the water

distribution in West Saint John could cause leaks to the premise’s plumbing of

the Class Members. Finally, I conclude that the decisions taken by the City were

operational in nature and therefore, the duty of care is not negated on the basis

of an immunity for core policy decisions. In all of the circumstances, I conclude

that it is appropriate to recognize a private law duty of care in this case.

[98] In my view, the conclusion that in the circumstances of this case, the City owed

the Class Members a private law duty of care requires further commentary given

the novel nature of this determination. The City’s obligation in the design,

construction and provision of water to residents and businesses centers on the

requirement to provide safe, healthy water pursuant to the applicable statutory

requirements. A private law duty of care cannot be found to exist if the existence

of such a duty of care would impede the public body from discharging its

statutory duties.

[99] In the present matter, the City’s adoption and implementation of the SCDWP

required an analysis of multiple factors which included the impact of any

transition in water on existing plumbing infrastructure, including premises

53

plumbing. While the City did not, nor would they be expected to prioritize the

impact on any individual resident or business’s plumbing in making decisions

concerning the implementation of the SCDWP, this was a consideration in the

determination of what measures were appropriate during the water transition. It

is not onerous to impose a private law duty of care in these circumstances as the

City was in the process of implementing a new water distribution system, and it

was feasible in the context of this new project to be mindful of and mitigate

potential impacts on residents and businesses. The requirement to do this in no

way jeopardized the City’s overarching duty of providing safe and healthy water.

[100] For all the reasons previously cited, I accept in these circumstances that there

was a relationship of proximity between the City of the Class Members and the

potential harm was reasonably foreseeable. Further, I accept that the decision

taken regarding corrosion control measures for West Saint John were operational

as opposed to core policy decisions. Finally, I conclude that the existence of a

private law duty of care can co-exist in these circumstances with the City’s public

law duties. I find the City did owe the Class Members a private law duty of care.

STANDARD OF CARE

[101] The Supreme Court of Canada set out the factors to be considered in the

identification of the particular standard of care in Ryan v. Victoria (City), 1999

706 (SCC) at paragraphs 28 and 29 as follows:

28 Conduct is negligent if it creates an objectively unreasonable risk of

harm. To avoid liability, a person must exercise the standard of care that

would be expected of an ordinary, reasonable and prudent person in the

same circumstances. The measure of what is reasonable depends on

the facts of each case, including the likelihood of a known or

foreseeable harm, the gravity of that harm, and the burden or cost

which would be incurred to prevent the injury. In addition, one may

look to external indicators of reasonable conduct, such as custom,

industry practice, and statutory or regulatory standards.

29

Legislative standards are relevant to the common law standard of

care, but the two are not necessarily co-extensive. The fact that a statute

prescribes or prohibits certain activities may constitute evidence of

reasonable conduct in a given situation, but it does not extinguish the

underlying obligation of reasonableness. See R. in right of Canada v.

Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205.

54

Thus, a statutory breach does not automatically give rise to civil liability; it

is merely some evidence of negligence. See, e.g., Stewart v. Pettie,

1995 147 (SCC), [1995] 1 S.C.R. 131, at para. 36, and

Saskatchewan Wheat Pool, at p. 225. By the same token, mere

compliance with a statute does not, in and of itself, preclude a finding of

civil liability. See Linden, supra, at p. 219. Statutory standards can,

however, be highly relevant to the assessment of reasonable conduct in a

particular case, and in fact may render reasonable an act or omission

which would otherwise appear to be negligent. This allows courts to

consider the legislative framework in which people and companies must

operate, while at the same time recognizing that one cannot avoid the

underlying obligation of reasonable care simply by discharging statutory

duties.

[the emphasis is mine]

[102] The Class members describe the City’s standard of care in this case as follows:

(a) ensure that it collected relevant information to determine how to

properly manage the change in water source for West Saint John and to

take care to make reasonable and appropriate decisions based on that

information, including by the City’s advisors and consultants; and

(b) consider the impact of a change in water source on property owners in

West Saint John.

[103] The City’s expert, Dr. Bryan Karney, described the City’s standard of care in his

report of January 21^st, 2019 as follows:

City’s Standard of Care

For purposes of this opinion, the standard of care to be applied is defined

as “the level of care, diligence and skill with regard to a municipal

drinking water system that a reasonably prudent person would be

expected to exercise in a similar situation. It is also expected that

they exercise this due diligence honestly, competently and with integrity”.

Further, we have considered this definition to be inclusive of the City of

Saint John as an organization, being an extension of the concept above

which appears to specifically apply to individuals.

[the emphasis is mine]

[104] The Class Members explain the breach of the standard of care by the City at

paragraph 8 of their pre-hearing brief as follows:

55

8.

In changing the water source for West Saint John, the City of

Saint John breached its standard of care:

(a)

First, before the change in water source, the City’s

engineering consultant CBCL and other advisors

specifically advised the City that a change in water

chemistry can destabilize existing scale, and that the City

should undertake more work to understand the issue and

to develop a Corrosion Control Program.

(b)

Despite these specific warnings, the City took no steps to:

(i)

undertake, or even consider, this additional work

that CBCL recommended to understand the extent

of the corrosion issue;

(ii)

(iii)

develop an effective, or any, Corrosion Control

Program that CBCL recommended for the West

side; and

protect the West Side against descaling arising

from the new water chemistry.

(c)

Second, the City was repeatedly advised that:

(i)

the change in water source for West Saint John

would create a change in pH; and

(ii)

a change in pH requires careful management,

including by gradually and incrementally changing

the pH rather than implementing a rapid,

destabilizing change, and through the application of

orthophosphates that act as an inhibitor to slow the

breakdown of scale and stabilize existing pipe

materials.

(d)

(e)

Despite these warnings, the City did not take these steps,

and instead proceeded with a rapid, destabilizing change

in water pH in West Saint John.

Third, contrary to industry standards and its experts’

advice, the City’s evaluation of a new water source

(improperly) did not focus on the effect of a change in

water quality on plumbing in residences (premise

plumbing).

(f)

Fourth, the City negligently relied on a Water Treatment

Assessment conducted by CBCL on the mistaken and

improper belief that it encompassed all treatment aspects,

including corrosion and descaling, when the scope of the

report, as defined by the City, was limited and did not

56

include an evaluation of these issues. The City negligently

relied on this report in support of its decision not to develop

a plan to transition the West Side from Spruce Lake to

South Bay and its failure not to take any steps to prevent

descaling.

(g)

Fifth, if this Court concludes that the City reasonably relied

on its advisors and did not independently breach the

standard of care, the City is still liable for the negligence of

its consultants under its non-delegable duty to take

reasonable care.

[105] The City maintains that it did not breach the standard of care and points to the

following factors in support of this assertion at paragraph 137 of their responding

brief:

137. In contrast, the City’s evidence, including the evidence of CBCL, referable

to these factors indicates:

(a) the low likelihood of a known or foreseeable issue with private

plumbing leaks;

(b) the minimal gravity of any such leaks (no negative health impact

and small number of complaints);

(c)

the need to change the water source in a timely and fiscally

manageable way;

(d) the unfeasibility of Mr. Maltese’s suggested preventative steps;

(e) the uncertainty (at best) as to whether Mr. Maltese’s suggested

preventative steps would have prevented the harm;

(f)

the possibility that Mr. Maltese’s suggested preventative steps

would have caused other issues;

(g) the City’s adherence to applicable regulatory standards; and

(h) the absence of industry guidance applicable to the type of

transition undertaken in West Saint John.

[106] The City submits that it must not be held to a standard of care of perfection, nor

can the standard of care be assessed solely with the benefit of hindsight. The

City accepts the Class members’ submission that it was required to follow the

advice and recommendations of the experts engaged to advise them on all

requirements related to the water transition. The City maintains that it did follow

all of the advice and recommendations of the experts, none of which included the

steps recommended by Mr. Maltese in his expert report.

57

[107] In his report, Mr. Maltese concludes that the City had access to sufficient

information to have reasonably anticipated difficulties such as leaks in the water

distribution system in West Saint John as a result of switching the water source.

Further, Mr. Maltese suggests that there were a number of options available to

the City to mitigate the risk of difficulties for West Saint John residents such as a

corrosion control plan as was done for East Saint John. In setting out his

conclusions at the outset of his report Mr. Maltese notes as follows:

11.

The corrosion protection system should have been populated with

adequate chemicals to control the pH change from the existing system

running at 6.0 – 7.0 (Spruce Lake) to gradually reach the 8.0 found in the

South Bay Well Field. This process includes increasing the alkalinity

ahead of, or at least concurrently with, the pH change as this will also

slow down the net pH rate of change. As noted in several reports listed

above as well as industry guidance and standards, care must be taken to

transition from one water quality to another water quality by gradual

steps.

12.

The West Side Corrosion Protection Plan should have included

the use of phosphates / orthophosphates. It was known to the City of

Saint John that the West Side distribution system had a serious corrosion

problem. For example, various consultants advised the City of Saint John

to be concerned about corrosion in the water distribution network and

premise piping, and the City was advised that after many years of

exposure the corrosive water, the existing system had a deposit of copper

salts (scaling) that acted as a barrier to further corrosion. The City was

further advised that a change in water quality could change the type of

barrier salts that had formed. In consequence, it was important to take

steps to mitigate this loss of scaling by transitioning the change in water

slowly and gradually to allow the deposition of a new critical protective

barrier to form. A rapid change was likely to cause the existing scale layer

to be removed, subjecting the pipe to accelerated additional corrosion

(and leaks) until a new layer of scale could be formed.

13.

A change in water source chemistry in a water distribution system

is capable of causing leaks in the water distribution system. Based on my

review of documents, my education and my professional experience, my

conclusion is that the change in water source caused leaks in the West

Saint John water distribution system premise piping.

14.

In my opinion, based on my experience and industry standards,

the introduction of the South Bay Well Field water with its high pH and

alkalinity into the existing West Saint John distribution system should

have been gradual, with pH control limiting the change in pH in the

system and adding buffering capacity to further minimize the potential for

shocking the existing copper scales and risking pipe failure, as

recommended by the documents referenced above. This conclusion is

58

consistent with information known to the City. Based on the documents

produced by the City that I have reviewed, this was not done.

[108] Mr. Maltese goes on to comment in his report on the need to mitigate the

consequences of expected corrosion at paragraphs 95 and 96 as follows:

95.

In my opinion, it was appropriate to implement the

recommendation to mitigate the consequences of expected corrosion,

especially if so advised by these same experts over the almost 18 years

of project development and study (from 1999 to date of switchover, the

Corrosion Protection Plan recommendations are inconsistent).

96.

The City of Saint John should have required the implementation of

a comprehensive Corrosion Protection Plan as recommended by its

facility design engineer. The original plan was one plant in East Saint

John – which met the definition of a change in source identified as a

potential issue – with Spruce Lake as a backup. When the source water

changed from the East Side plant to the South Bay Well Field, this

nevertheless was a change in source – nothing ought to have changed in

the recommendations concerning corrosion control. The City should have

followed the advice and guidance of their experts as well as AWWA,

AWWARF and USEPA guidance and industry practice regarding care in

maintaining infrastructure when changing water sources. This was not

done.

[109] Mr. Maltese suggests in his expert report that the City ought to have taken the

following steps in order to mitigate or prevent leaks in private copper plumbing

and in failing to take these steps, they breached the standard of care:

A) changing the pH from the water from Spruce Lake of 6.0 to 7.0

gradually in order to reach the 8.0 pH of the water in the South Bay

Wellfield;

B) applying phosphates or orthophosphates for the new water supply; and

C) introducing the new water from South Bay Wellfield gradually.

[110] Mr. Chaulk explained in his affidavit of October 30^th, 2019 that CBCL did not

recommend to the City any of the measures set out by Mr. Maltese in his expert

report. Mr. Chaulk explains the reasoning behind CBCL’s decision not to

implement measures such as those suggested by Mr. Maltese at paragraphs 22,

23 and 24 as follows:

59

22. In relation to bullet “A” above, the primary goal of the SCDWP was to

provide safe drinking water that meets all GCDWQ requirements, not pH

correction of the existing high risk source water. The introduction of early

pH correction of Spruce Lake, given the source quality, could have led to

other unforeseen water quality and/or corrosion issues throughout the

distribution system. Alternatively, the acidification of groundwater to a

value approximating Spruce Lake would move the corrosion risk profile of

the groundwater from non-corrosive to corrosive.

23. In relation to bullet “B” above, the South Bay Wellfield is similar to

other municipal groundwater systems that do not use orthophosphates.

The addition of orthophosphates to groundwater of the quality in West

Saint John is not recommended based on corrosion control guidance and

as such was not initially included in the project.

24. In relation to bullet “C” above, blending water from groundwater wells

and Spruce Lake would create an undefined risk profile capable of

causing an array of negative water quality outcomes, is generally

unacceptable to regulatory authorities and was not expected to receive

regulatory approval.

[111] Following his review of the use of orthophosphates in other water networks and

considering characteristics of ground water from South Bay, Dr. Karney also

commented on the use of orthophosphates in these circumstances as follows:

In summary, although the exact concentration of copper at the tap in

West Saint John is not reported in the documentation I have received, I

do not believe that copper in the drinking water is an acute, or potential,

health problem there. Moreover, lead (or any other metal in high

concentration) does not appear to be a specific concern in West Saint

John, which would be a situation where orthophosphate has often been

used. Nonetheless, there is ample evidence from the U.S. that suggests

that orthophosphate can reduce the release of copper associated with

well waters with high alkalinity(e.g., 250 mg/L). It is possible that

orthophosphate addition could slow the rate of copper release, and

maybe affect pitting corrosion and pipe leaks. However, the high pH (~8)

and relatively low alkalinity (~100mg/L) of the water in West Saint John

suggests it may not be overly effective. Overall, adding orthophosphate

to high DIC groundwater can be justified to a degree based on earlier

research (although it is reiterated that the West Saint John water does not

have a high DIC content). There is insufficient data available to

understand whether such treatment may have had any material impact on

the outcome in West Saint John, noting the rather small fraction (i.e.,

3%^xviii) of customers affected.

Accordingly, I am of the opinion that the City (including its advisors) would

not have had access to any definitive knowledge not ought to have been

able to reasonably predict the outcome that occurred. Even the recent

publication referenced above^xvii— published after the events affecting

60

West Saint John — speaks to the general lack of knowledge and degree

of uncertainty in the industry associated with this topic. Further, the

results of that work would suggest that the chemical characteristics of the

West Saint John water would not merit such (orthophosphate) treatment.

Although unfortunate, this may serve to assist in the industry’s normal

evolutionary process.

[112] Following his assessment of the available literature and specific information

concerning West Saint John, Dr. Karney concluded his first expert report with the

following explanation of why he felt the City had met the standard of care:

It is my professional opinion that the City met its standard of care based

on the following:

 Corrosion processes are complex and that there was no clear,

current experiential evidence in the industry literature that would

have given rise to concerns associated with the change in drinking

water supply from an acidic surface water source to an alkaline

groundwater source for which all indicators suggest that corrosion

would be less of an issue. Corrosion problems in systems

supplied from groundwater sources, or the use of corrosion

inhibitors, are rare and would not be expected on the basis of

published reports. Certainly the cluster of pipe failures that

appear associated with the change in water source are

unfortunate, but I believe these circumstances could not

reasonably have been predicted and only became apparent in

retrospect after the change in water source had been

implemented.

 Based on the chemical characteristics of the groundwater supply

and available information relating to industry practices, the City

would not have had any access to any definitive knowledge prior

to the switch to a ground water source that it ought it to have been

able to reasonably predict the outcome that occurred. Following

the same reasoning, nor should the City had reasons to consider

the application of orthophosphate treatment to the supply system

immediately prior to the switch in source water. Thus, this

conclusion applies both at the time of planning, as well as during

implementation. Although unfortunate, this may serve to assist in

the industry’s normal evolutionary process.

 There is likely no meaningful connection with the decision to stop

fluoridating the water and any change in water corrosivity, and if

there were any such connection, it would have at the very least

been very difficult to predict and mitigate against given the

industry’s state of knowledge on this matter.

 The governing hydraulics of the supply system affecting water

flow, velocity or pressures characteristics in the distribution

61

system and, in turn, the premise plumbing, were not changed as a

result in the change in water supply source and, as such, there

would be no impacts from this perspective.

 The change in water supply source did not create, but rather

appears to have exposed existing weaknesses in premise

plumbing systems.

 The situation experienced in West Saint John is rather unique and

it would not normally have been expected beforehand given the

state of industry knowledge and understanding of matters.

 The decision taken by the City to convert to a groundwater supply

was sensible in the circumstances and motivated by concerns for

public health and fiscal responsibility.

 The approaches taken for water quality, including corrosion

assessment, for each of the East Saint John and West Saint John

systems was also sensible in the circumstances.

More

specifically, the more corrosive surface water source supplying the

East Saint John system appeared to present an obvious threat

while the groundwater source supplying the West Saint John

system did not based on industry knowledge and practices.

 In retrospect, the City’s initial communications could have more

specifically discussed the implications of using hard water and its

impact on washing and scale build-up on appliances.

Nevertheless, given the measured and reported ground water

characteristics, there initially would have been no obvious reason

to consider corrosion impacts in any such communications. The

City’s response to customer feedback provides the necessary

information and I do not expect that there would have been any

material differences in impacts associated with premise plumbing

issues had this information been communicated earlier in the

process.

 Overall, I find that the approach taken by the City in respect of its

conversion to a groundwater supply was generally in line with

typical industry practices, and it exercised the level of care,

diligence and skill that a reasonably prudent municipality would be

expected to exercise in a similar situation.

[113] Dr. Karney prepared a second expert report on behalf of the City dated August

27^th, 2019. In this second report, Dr. Karney confirms his earlier findings that

what transpired in West Saint John was unprecedented in the sense that a

similar occurrence had never been identified in the published literature. On this

point, Dr. Karney states as follows:

62

As noted in the 21 January 2019 report, a review of available literature

was conducted in relation to identifying experiences in other jurisdictions

which similarly converted from a surface water source to a groundwater

source, with no cases of such having been discovered. Further research

conducted following the issuance of that report has reinforced this finding,

and this is consistent with, and independent of, the findings of the Post-

Changeover Investigation. Stated starkly, based on my quite extensive

review of the published literature, the West Saint John experience with a

rash of leaks associated with a transition to a less corrosive water source

in historically unprecedented.

[114] Dr. Karney goes on to comment upon other water changeovers in Atlantic

Canada where surface water was changed to groundwater without the

implementation of corrosion control measures. Dr. Karney notes as follows:

The Post-Changeover Investigation identifies three relevant cases in

Atlantic Canada where conversions from surface water to groundwater

sources occurred, none of which experienced “report of major copper

pipe leaks within premise plumbing systems as experienced in West Saint

John.” It is noted, moreover, that none of these other conversions in

Atlantic Canada made use of corrosion control inhibitors. This relevant

local experience would have been instructive in Saint John’s water

conversion from Spruce Lake to the South Bay Wellfield. Thus, in my

opinion the City acted reasonably in being consistent with its peers who

converted from surface water to groundwater in not implementing

corrosion control measures at the time of conversion, and had no

objective basis for anticipating the leakage-related impact of this change

in water source on the existing premise plumbing during the transition.

This impact upon the existing scale in private infrastructure came to light

only in retrospect and only following considerable study and investigation.

Conventional wisdom suggests that the changes in pH and alkalinity

which occurred in West Saint John in the conversion from surface to

groundwater would reduce susceptibility to corrosion. Indeed, such a

conclusion is clearly indicated in Figure 3-1 of the Corrosion Control

Investigation.

[115] In concluding his second report, Dr. Karney explained that the City, in his expert

report opinion, did not breach its standard of care for the following additional

reasons:

To summarize, it is my professional opinion that the City met its standard

of care based on the following:

 That the groundwater source was less corrosive to pipe materials

than the previous surface water source is not under debate and,

accordingly, corrosion protection such as orthophosphates would

63

not normally be required and which is consistent with other similar

water source conversions in Atlantic Canada.

 That the change in water supply source did not create, but rather

appears to have exposed existing weaknesses in a small

percentage of the premise plumbing systems through the

dissolution of previously deposited scale.

Further, such

dissolution was found to not be in accordance with industry-

standard cuprosolvency models and, as such, could not be

reasonably predicted beforehand, emphasizing the important

distinction to be made between well-established corrosion control

practices for pipe materials, and the lack of such in relation to

scale decomposition leading to leakage for which there no

references or experiences have been identified.

 That there is no readily apparent industry literature dealing with

issues associated with the conversion of surface water supplies to

groundwater supplies, nor have any recent and geographically

relevant cases where this has occurred resulted in premise

plumbing leakage or the application of corrosion inhibitors such as

orthophosphate. Further, following a review of the City’s peers,

there are no examples in Atlantic Canada, and only a single

example in all of Canada (among hundreds of systems), where

groundwater systems employ an orthophosphate blend for

corrosion control.

Accordingly, it is my opinion that the approach and actions taken by the

City in respect of its conversion to a groundwater supply was in line with

typical practices, and it exercised the level of care, diligence and skill that

a reasonably prudent municipality would be expected to exercise in a

similar situation, thereby meeting the standard of care expected of it.

[116] The Court has quoted extensively from the expert reports of Mr. Maltese and Dr.

Karney as their evidence is essential to a determination as to whether or not the

standard of care was breached in this case. The City accepts, as does the

Court, the articulation of the standard of care suggested by the Class Members.

The standard of care bares repeating. The City was required to do the following:

(a) ensure that it collected relevant information to determine how to

properly manage the change in water source for West Saint John and to

take care to make reasonable and appropriate decisions based on that

information, including by the City’s advisors and consultants; and

(b) consider the impact of a change in water source on property owners in

West Saint John.

64

[117] I am satisfied based on the evidence before this Court that the City did engage

the necessary experts and collected all relevant information in order to properly

manage the change in water source for West Saint John. The Class Members’

expert, Mr. Maltese, sets out in his report how the City fell short in meeting the

standard of care. However, all of the measures Mr. Maltese suggests should

have been taken were not recommended to the City by CBCL, the City’s project

engineers. Further, Mr. Chaulk of CBCL has explained why the measures

suggested by Mr. Maltese were not taken in these circumstances.

[118] The opinions of Dr. Karney are unequivocal in this case. Dr. Karney undertook

an exhaustive review of available industry literature and could not identify any

situations where what transpired in West Saint John had occurred. To the

contrary, available industry information indicated that corrosion control measures

were not necessary or typically adopted when transitioning from surface water

with characteristics similar to Spruce Lake to groundwater with characteristics

similar to South Bay Wellfield.

[119] There is no doubt that prior to September 2017, the City had been informed as a

result of the many reports of experts engaged in the SCDWP that corrosion

control was an important consideration when transitioning a water distribution

system. It is for that reason that the Court accepts potential harm to the Class

Members was “reasonable foreseeable”. However, the City cannot be found to

be negligent if they have engaged the necessary experts and followed the

informed advice of these experts throughout the process.

[120] It is trite law that the standard of care is not one of perfection. In this particular

matter, I cannot conclude that the City breached its standard of care. I accept

the expert opinion of Dr. Karney that the City did not breach the standard of care

in these circumstances. Further, I accept the position of the City that the

mitigation measures suggested by Mr. Maltese in his report of August 2019 were

not appropriate in September 2017 for the reasons explained by Mr. Chaulk in

his affidavit of October 30^th, 2019. Again, it is important to look at the information

65

available to the City in September 2017 when assessing if their actions breached

the standard of care.

[121] In all of the circumstances, I am persuaded that the best information available to

the City in September 2017 was that the only treatment necessary for the water

coming from South Bay Wellfield was chlorination. I further accept that, while the

City was alive to the issue of corrosion control when any water transition is taking

place, the advice provided which was gleaned from industry practice and

experience was that no corrosion control measures were necessary. The City did

not breach the standard of care owed to the Class Members by failing to

implement corrosion control measures at the time of the transition of the water in

West Saint John from Spruce Lake to South Bay Wellfield.

CAUSATION

[122] Although I have determined that the City did not breach the standard of care and

the action in negligence must therefore be dismissed, I will nonetheless deal

briefly with the issue of causation. As all in negligence cases, the burden

remains on the plaintiff to establish on a balance of probabilities all components

of negligence, including causation. The Supreme Court of Canada confirmed

this principle in Clements v. Clements, 2012 SCC 31 at paragraphs 8 and 11 as

follows:

[8] The test for showing causation is the “but for” test. The plaintiff must show

on a balance of probabilities that “but for” the defendant’s negligent act, the injury

would not have occurred. Inherent in the phrase “but for” is the requirement that

the defendant’s negligence was necessary to bring about the injury ― in other

words that the injury would not have occurred without the defendant’s

negligence. This is a factual inquiry. If the plaintiff does not establish this on a

balance of probabilities, having regard to all the evidence, her action against the

defendant fails.

[…]

[11] Where “but for” causation is established by inference only, it is open to the

defendant to argue or call evidence that the accident would have happened

without the defendant’s negligence, i.e. that the negligence was not a necessary

cause of the injury, which was, in any event, inevitable. As Sopinka J. put it in

Snell, at p. 330:

The legal or ultimate burden remains with the plaintiff, but in the

absence of evidence to the contrary adduced by the defendant,

an inference of causation may be drawn although positive or

scientific proof of causation has not been adduced. If some

66

evidence to the contrary is adduced by the defendant, the trial

judge is entitled to take account of Lord Mansfield’s famous

precept [that “all evidence is to be weighed according to the

proof which it was in the power of one side to have produced,

and in the power of the other to have contradicted” (Blatch v.

Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)]. This is, I

believe, what Lord Bridge had in mind in Wilsher when he

referred to a “robust and pragmatic approach to the . . . facts” (p.

569).

[123] Despite the voluminous nature of the materials before the Court, there remains

no definitive opinion on the exact cause of the leaks experienced in the premise’s

pluming of the Class Members. Likely the most instructive, albeit succinct,

comment on the cause of the leaks is as set out in the CBCL report of February

2019 where they note as follows:

“It is likely that the reported copper pipe leaks were the result of the

existing corrosion undergoing transitioned effects as the water quality

changed within the system.”

[124] Curiously, the Class Members have provided no expert evidence setting out the

exact mechanism identified in the affected pipes experiencing the leaks. While

Ms. Brownell describes being informed by her plumber that there were leaks in

the pipes there is no suggestion that Mrs. Brownell’s pipes, nor any other Class

Members pipes, were examined to identify the corrosive process causing the

leak.

[125] The Class Members rely on Mr. Maltese’s opinion that “if appropriate corrosion

control was put in place, existing scale would not have been disrupted before a

new scale formed thereby preventing leaks.” The Class Members further rely on

the theories suggested by CBCL in support of their assertion that the leaks were

caused by the water transition in the absence of corrosion control measures.

[126] The Class members refer the Court to the “material contribution” test in the

consideration of causation as set out in Athey v. Leonati, [1996] 2 S.C.R. 458 at

paragraphs 12, 19 and 20 as follows:

12

The respondents’ position is that where a loss is created by tortious and

non-tortious causes, it is possible to apportion the loss according to the degree of

causation. This is contrary to well-established principles. It has long been

established that a defendant is liable for any injuries caused or contributed to by

his or her negligence. If the defendant’s conduct is found to be a cause of the

67

injury, the presence of other non-tortious contributing causes does not reduce the

extent of the defendant’s liability.

[…]

19

The law does not excuse a defendant from liability merely because other

causal factors for which he is not responsible also helped produce the harm:

Fleming, supra, at p. 200. It is sufficient if the defendant’s negligence was a

cause of the harm: School Division of Assiniboine South, No. 3 v. Greater

Winnipeg Gas Co., 1971 959 (MB CA), [1971] 4 W.W.R. 746 (Man.

C.A.), at p. 753, aff’d 1973 1313 (SCC), [1973] 6 W.W.R. 765 (S.C.C.),

[1973] S.C.R. vi; Ken Cooper-Stephenson, Personal Injury Damages in

Canada (2nd ed. 1996), at p. 748.

20

This position is entrenched in our law and there is no reason at present

to depart from it. If the law permitted apportionment between tortious causes and

non-tortious causes, a plaintiff could recover 100 percent of his or her loss only

when the defendant’s negligence was the sole cause of the injuries. Since most

events are the result of a complex set of causes, there will frequently be non-

tortious causes contributing to the injury. Defendants could frequently and easily

identify non-tortious contributing causes, so plaintiffs would rarely receive full

compensation even after proving that the defendant caused the injury. This

would be contrary to established principles and the essential purpose of tort law,

which is to restore the plaintiff to the position he or she would have enjoyed but

for the negligence of the defendant.

[127] There are difficulties with the causation analysis in this matter regardless of

whether the issue is approached through the lens of the “but for” test or the

“material contribution” test. While the theory of CBCL certainly appears

reasonable, there remains no firm conclusions as to the mechanism of the leaks

in this case. Neither Ms. Brownell, Ms. Steadman, nor any other Class Members

appears to have had their impacted plumbing examined to determine the precise

cause of their failures. Further, there is no evidence in this matter that confirms

the measures proposed by Mr. Maltese would not have had other nefarious

impacts on premises’ plumbing. One of the features of corrosion control

measures is the need to be mindful that in implementing measures to address

one potential problem, you don’t create other problems. The Court is unable to

point to any expert evidence that would confirm that the implementation of Mr.

Maltese’s recommendations would have prevented the leaks. While the City did

introduce orthophosphates in 2018 after the leaks had been reported, the

incidences of leaks were already declining when the treatment of

orthophosphates began.

It remains uncertain if the introduction of

68

orthophosphates precipitated the end of the leaks or that this would have

happened in any event.

[128] In all of the circumstances, while I would be prepared to accept that on a balance

of probabilities, the mechanism of the leaks was as suggested by CBCL in

February 2019, I am unable to conclude that “but for” the City’s failure to

implement corrosion control measures in West Saint John, the leaks would not

have occurred. Further, well arguably a less arduous task, I struggle to see how

the Class Members could establish that the City “materially contributed” to the

leaks in failing to adopt corrosion control measures in the absence of

determinative evidence that, if there had been in place corrosion control

measures, the leaks would not have occurred. In my view causation remains at

best a live issue based on the evidence currently before this Court.

COSTS

[129] There is no question but that all parties before the Court in this matter have put

an enormous amount of effort into the preparation of both written and oral

submissions. The parties’ agreement to proceed by way of summary judgment

has saved the time and costs that would have been required to hear a trial on the

merits. That said, the City has been successful and is entitled to costs. Pursuant

to section 39(1) of the Class Proceedings Act, RSNB 2011, C 125, costs in this

proceeding are to be awarded in accordance with the Rules of Court and are

therefore discretionary. In all of the circumstances, I award the City costs on the

summary judgment motions of $25,000.00 plus taxable disbursements.

CONCLUSION AND DISPOSITION

[130] In order to provide clarity in the context of this class action, the common issues

as set out in the certification order are answered as follows:

(a) The City owed the Class Members a private law duty of care in respect

of operational decisions relating to the SCDWP;

69

(b) The applicable standard of care owed to the Class Members was as

follows:

(i) ensure the City collected relevant information to determine

how to properly manage the change in water source for West

Saint John and to take care to make reasonable and appropriate

decisions based on that information, including by the City’s

advisers and consultants; and

(ii) consider the impact of a change in water source on property

owners in West Saint John.

(c) The City did not breach the Standard of care.

(d) A breach of the standard of care as framed could be capable of

causing damages to the class; however, no breach of the standard of

care has been proven in this case.

[131] While the Court accepts the Class Members submission that the City owed them

a private law duty of care in this case, the City did not breach the standard of

care and therefore, the claims in negligence cannot proceed. The Class

Members’ Motion for Summary Judgment is denied. The City’s Motion for

Summary Judgment is granted, and the Class Action is therefore dismissed.

Pursuant to section 37(5) of the Class Proceedings Act, publication, on Class

Counsel’s website, and distribution, by Class Counsel to recognized Class

Members via email, of this decision shall be sufficient to satisfy the notice

requirements to Class Members.

[132] The order of the Court is as follows:

(i) Pursuant to Rule 22.01(1)(a), the Class Members Motion for Summary

Judgment is denied;

(ii) Pursuant to Rule 22.01(3)(b), the City’s Motion for Summary Judgment

is granted;

70

(iii) Pursuant to Rule 22.04(1)(a) the Court is satisfied that there is no

genuine issue requiring a trial, the Class Members’ action is dismissed;

and

(iv) The City is entitled to costs of $25,000.00 plus taxable disbursements.

DATED at Saint John, N.B., this 14^thday of June 2022.

_______________________________________

Tracey K. DeWare

Chief Justice of the Court of Queen’s Bench

of New Brunswick