BLG obtains summary judgment for the City of Saint John in class action arising from change in municipal water source
On June 14, 2022, the Court of Queen’s Bench of New Brunswick released its decision in Brownell v. Saint John, a highly publicized class action arising from a 2017 change in water source for residents of West Saint John. The change was part of a larger upgrade to the City’s water distribution system, known as the Safe Clean Drinking Water Project. Shortly after the change in water source and over the course of a few months, a number of West Saint John residents experienced leaks in their private or premise copper plumbing. The class action was commenced on behalf of all persons who owned or occupied properties in West Saint John at the relevant time and alleged damages to their premises’ plumbing and property.
The following common issues had been certified on consent:
- Did the defendant owe a private law duty of care to the Class in respect of operational decisions relating to the Safe Clean Drinking Water Project?
- If a duty was owed, what was the applicable standard of care?
- Did the defendant breach the standard of care? If so, how?
- If the standard was breached, was the breach capable of causing damages to the Class?
Duelling motions for summary judgment were brought by the Class and the City on all of the common issues. The motion was heard by Madam Chief Justice Tracey DeWare over the course of three days. Ultimately, Chief Justice DeWare found that the City did not breach the relevant standard of care and granted the City’s motion for summary judgment.
Duty of care
Chief Justice DeWare did conclude that the City owed the class members a private law duty of care in the circumstances. The Court embarked on a fresh Anns/Cooper analysis, having determined that there was no authority sufficient to establish the prior recognition of an analogous duty of care or the absence of a duty of care. The Chief Justice viewed the fact that the class members were all users of the water distribution system operated by the City as sufficient to establish a relationship of proximity. On the issue of foreseeability, Chief Justice DeWare agreed with the City’s submission that it was insufficient for the Class to demonstrate that a change in the water distribution network could have an impact on the premise plumbing of class members. However, the evidence was found to establish that the City had sufficient knowledge that a change in the water source could cause leaks to premise plumbing. It is noteworthy that in concluding her analysis, Chief Justice DeWare emphasized that the City’s obligations in the design, construction and provision of water to residents centres on the requirement to provide safe, healthy water, such that a private law duty of care could not be found to exist if such a duty of care would impede the City from discharging its statutory obligations.
Standard of care
Chief Justice DeWare concluded that the standard of care was to:
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.
On the evidence, including experts from both sides in the field of water distribution networks, the Chief Justice found 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. Chief Justice DeWare accepted the City’s submission that none of the measures suggested by the expert for the Class had been recommended to the City and that the City’s consulting engineers had explained why they were not taken. Chief Justice DeWare also relied on the City’s evidence demonstrating that there was no industry precedent for what transpired in West Saint John and that the measures suggested by the Class were not typically adopted in similar water transitions. Chief Justice DeWare emphasized that the standard of care is not one of perfection and concluded that the City cannot be found negligent where they have engaged the necessary experts and followed the informed advised of those experts throughout the process.
Although unnecessary to grant the City’s motion for summary judgment, Chief Justice DeWare concluded by considering the parties’ submissions on causation. Chief Justice DeWare agreed with the City’s submission that there was no evidence from which the Court could conclude that “but for” the City’s alleged failure to implement measures suggested by the expert for the Class, the leaks would not have occurred.