DECISION
2014 NSUARB 16
M06178
NOVA SCOTIA UTILITY AND REVIEW BOARD
IN THE MATTER OF THE PUBLIC UTILITIES ACT
-andIN THE MATTER OF A COMPLAINT by BM HALIFAX HOLDINGS LIMITED ("BM
Holdings"), as the owner of the Bank of Montreal Building at 5151 George Street,
Halifax Nova Scotia, pursuant to Section 83 of the Public Utilities Act, regarding the
actions of the Halifax Regional Water Commission ("HRWC") in relation to a
requirement by HRWC that BM Holdings undertake, at its cost, the disconnection of the
wastewater lateral serving the building and its reconnection to a separate wastewater
sewer as well as the separate requirement by HRWC that it disconnect its storm sewer
lateral and reconnect it to a separate storm sewer.
BEFORE:
Peter W. Gurnham, Q.C., Chair
COMPLAINANT:
BM HALIFAX HOLDINGS LIMITED
Robert G. Grant, Q.C.
Kyle Hartlen, Articled Clerk
RESPONDENT:
HALIFAX REGIONAL WATER COMMISSION
James Spurr, LL.B.
Melinda McCrindle, Articled Clerk
HEARING DATE:
December 4, 2014
FINAL SUBMISSIONS:
December 4, 2014
DECISION DATE:
January 23, 2015
DECISION:
Complaint allowed, see paragraph 35.
Document: 232181
-2TABLE OF CONTENTS
1.0
2.0
3.0
INTRODUCTION ...................................................................................................3
BACKGROUND ....................................................................................................4
ANALYSIS AND FINDINGS .................................................................................. 5
3.1
Discrimination .............................................................................................5
3.2
Regulation 20 ........................................................................................... 10
3.3
Regulation 61 ........................................................................................... 11
3.4
Limitation Period ....................................................................................... 13
3.5
Conclusion ................................................................................................ 16
Document: 232181
-31.0
INTRODUCTION
[1]
BM Halifax Holdings Limited ("BM Holdings") filed with the Nova Scotia
Utility and Review Board ("Board"), pursuant to Section 83 of the Public Utilities Act, a
complaint against the Halifax Regional Water Commission {"HRWC").
BM Holdings
owns the Bank of Montreal Building located at 5151 George Street, Halifax Regional
Municipality ("HRM"), Nova Scotia.
The complaint relates to HRWC requiring BM
Holdings to undertake, at its cost, the disconnection of the wastewater lateral serving
the building from the existing George Street combined sewer and its reconnection to the
Water Street sewer.
HRWC also directed BM Holdings to disconnect the Bank of
Montreal Building stormwater lateral and reconnect it to the Water Street stormwater
sewer. The George Street combined sewer was not connected to a treatment plant and
was causing raw sewage to flow into Halifax Harbour.
[2]
BM Holdings complained that HRWC's requirements in this regard were
unreasonable and unjustly discriminatory.
It asked the Board to order HRWC to
reimburse it for costs it has incurred in undertaking the work. BM Holdings argued that
other customers of HRWC and its predecessors have had the benefit of HRWC
intercepting the combined sewer serving George Street and reconnecting it to an
appropriate sewer/wastewater lateral. In those cases, BM Holdings argued, the other
customers of HRWC and its predecessors received the benefit of HRWC undertaking,
at its cost, the required connections.
HRWC argued that it is permitted to require these connections pursuant to
[3]
the provisions of Section 61 (1) and 61 (8) of its Regulations which provide as follows:
61. ( 1) Every wastewater and/or stormwater building service connection shall be
designed and constructed at the expense of the customer served by the connection,
whether on privately owned property or otherwise.
Document: 232181
-4-
(8} The Commission may give notice in writing to an owner of a property serviced by
wastewater or stormwater facilities requiring such owner, within the time specified in such
notice, to connect to the wastewater or stormwater facilities through a building service
connection.
2.0
BACKGROUND
[4]
Much of the background information and circumstances had to be pieced
together by the parties based on documentary evidence, as certain events took place
long ago. In addition, there were gaps (through no fault of the parties) in some of the
documentation available.
[5]
The Bank of Montreal Building was completed in 1971.
[6]
The City of Halifax issued a permit following construction for connection of
a stormwater lateral and sanitary sewer lateral from the building to a combined sewer
located on George Street.
[7]
In 1979 the Waterfront Development Corporation ("WDC") undertook a
Water Street sewer project to construct separate stormwater and wastewater systems
along Water Street. The combined sewer on George Street was not connected as part
of this work; although laterals were placed for the purpose of enabling the Bank of
Montreal Building to be connected, no connections were apparently made. Whether
responsibility for this rests with the City of Halifax or WDC is unclear. The evidentiary
record indicates, however, that Mr. L.M. Dursi, the City's Divisional Engineer, noted this
deficiency in 1979, advising that the system constructed was not one the City approved
for construction and that repairs would have to be undertaken.
[8]
In 2003 HRM, through its contractor Dexter Construction, undertook
consolidated sewer collection infrastructure development in the George Street area,
Document: 232181
-5however, it appears again that the sewer serving the Bank of Montreal Building did not
form part of this work.
In June of 2007 HRM transferred responsibility for sewer and wastewater
[9J
service to HRWC.
[1 OJ
Sometime after that HRWC discovered the problems with the wastewater
and stormwater connections of the Bank of Montreal Building.
There were various
meetings of representatives of HRWC and BM Holdings and exchanges of
correspondence during 2011, 2012, 2013 and 2014, the result of which is that HRWC
demanded that this situation be corrected by BM Holdings.
[11]
The reconnection of the wastewater lateral was undertaken by BM
Holdings at a cost of $59,924.40. The stormwater disconnection and reconnection has
not been undertaken but it is anticipated to cost $55,000. BM Holdings indicated if they
had been instructed to do both connections at the same time there would have been a
saving overall in the total cost of approximately $26,000.
3.0
ANALYSIS AND FINDINGS
3.1
Discrimination
[12]
Section 83 of the Public Utilities Act reads as follows:
Complaint against public utility
83
(1)
Upon complaint made to the Board against any public utility by
any municipal corporation or by any five persons, firms or corporations, that any of the
rates, tolls, charges or schedules are in any respect unreasonable or unjustly
discriminatory or that any regulation, measurements, practice or act whatsoever affecting
or relating to the operation of any public utility is in any respect unreasonable, insufficient
or unjustly discriminatory or that the service is inadequate or unobtainable, the Board
shall proceed, with or without notice, to make such investigation as it deems necessary or
expedient, and may order such rates, tolls, charges or schedules reduced, modified or
altered, and may make such other order as to the modification or change of such
regulation, measurements, practice or acts as the justice of the case may require, and
may order on such terms and subject to such conditions as are just that the public utility
furnish reasonably adequate service and facilities and make such extensions as may be
required, but no such order shall be made or entered by the Board without a public
hearing or inquiry first had in respect thereof.
Document: 232181
-6(2)
The Board, when called upon to institute an investigation, may,
in its discretion, require from the complainants the deposit of a reasonable amount of
money or other security to cover the costs of the investigation. which money or security
shall be dealt with as the Board directs, should the decision be given against the
complainants.
The complaint was filed by BM Holdings, Compass Commercial Realty Limited,
Wolfgang Thiel, Robert Richardson and Paul Hiscock.
[13]
It seems clear to the Board through the fault of the City of Halifax, WDC or
their contractors, that in 1979, when new sewers were installed as an early part of the
Harbour Solutions Project, there was a failure on the part of the City of Halifax, WDC or
its contractors, to properly hook up the wastewater and stormwater lines on George
Street servicing the Bank of Montreal Building.
It further appears, based on the
documentary evidence, that it was HRWC's existing combined stormwater and
wastewater trunk sewer that was not connected, not simply the outfalls from the Bank of
Montreal Building.
[14]
A letter to Mr. W. Yogis, General Superintendent of Works, at the City of
Halifax, from Acres Engineering in 1979 appears to explain why the Bank of Montreal
Building was not connected.
Bank of Montreal - the 81h sanitary and 101h storm laterals connect into the old sewer
system on George Street with a negative slope. These laterals had to be relaid to go
under the new system going up George Street as they were too low to connect into the
new system. New capped laterals were provided on Water Street for future use.
[Exhibit H-4, Attachment 8, p. 2]
[15]
The failure of WDC to connect the Bank of Montreal Building is noted in a
letter from Mr. Dursi, to WDC and copied to C.L. Dodge, Assistant Director of
Development, dated December 4, 1979, where Mr. Dursi stated:
It would appear from this letter that an inordinate number of buildings along Water Street
together with several others, are connected not to the new sanitary sewer, but to the
storm sewer. This is contrary to all our efforts during the pre-design stage where we
pushed to have all existing building services identified horizontally and vertically so that a
Document: 232181
-7proper design could be undertaken. That is not bad enough! The normal connection
point was in the lower quarter of the storm sewer (subject to surcharging during periods
of high tides), and worse, a number of building services so connected were laid at
reverse grades!
To accept the new system, as is, will place the City in an untenable situation with respect
to any future sewer problems which may occur at these addresses. Further, the present
situation is totally foreign to the desires of the City for sewer separation in the downtown
area which was the basis for the works undertaken on Water Street.
[Exhibit H-4, Attachment 10, p.1]
[16]
This appeared to be in response to a memo from Mr. Dodge to Mr. Dursi
of the same date which contained the following provision:
The same is true with the old George Street combined sewer outlet. Your information to
me the other day re the Bank of Montreal connections is very interesting. Do you have
any idea as to how the City will solve or approach the WDC. not only on this connection.
but also the many others listed in the letter? [Emphasis added)
[Exhibit H-4, Attachment 9]
In questioning from the Board, HRWC was unable to explain what happened to the
other buildings referred to by Mr. Dursi and Mr. Dodge.
[17]
Mr. Grant, in argument, cited several circumstances where customers of
HRWC, such as Ocean Breeze Estates in Dartmouth, for example, have had the benefit
of HRWC, at its cost, connecting combined sewers that were not properly connected to
Harbour Solutions infrastructure.
In its Brief, counsel for HRWC attempted to distinguish Ocean Breeze
[18]
Estates and other situations as follows:
15. When the Ocean Breeze Estates property was sold by DND to private interests, the
City of Dartmouth, as it then was, agreed to assume responsibility for the streets in the
community as well as the water, wastewater and stormwater systems located within
those streets. Those water, wastewater and stormwater systems later became the
responsibility of HRWC.
16. In 2009, HRWC became aware that the wastewater system servicing Ocean Breeze
Estates connected into a DND wastewater system in Shannon Park which discharged
untreated wastewater into Halifax Harbour. As a result, HRWC initiated the Ocean
Breeze Project to intercept its wastewater system servicing Ocean Breeze Estates and to
direct that wastewater to a HRWC sewer on Princess Margaret Boulevard in Dartmouth,
which sewer had recently been installed by BIO as part of its connection to the HRWC
Document: 232181
-8trunk sewer near Windmill Road. The trunk sewer directs wastewater to HRWC's
Dartmouth Wastewater Treatment Facility.
17. The Ocean Breeze Project was a HRWC responsibility because the wastewater
system to be intercepted was HRWC's, not a private system. The Ocean Breeze Project
required no work on private property.
18. At about the time that HRWC was developing the Ocean Breeze Project, HRWC was
approached by the Bedford Institute of Oceanography (" BIO") about being permitted to
discharge its wastewater into the HRWC wastewater system. BIO is located in the vicinity
of Ocean Breeze Estates, near the approach to the A. Murray MacKay Bridge in
Dartmouth. At that time, 810 had its own private wastewater facility, which it wished to
abandon . HRWC granted permission for BIO to connect to the HRWC system.
19. The Canadian Food Inspection Agency {"CFIA") is located in the same genera!
vicinity as 810 and Ocean Breeze Estates. HRWC became aware at this time that CFIA
was discharging its wastewater into the DND wastewater system in Shannon Park which,
as stated previously, discharged untreated wastewater into Halifax Harbour. Pursuant to
its regulations, HRWC required CFIA to cease discharging into the Shannon Park
wastewater system and into the Harbour, and to connect to HRWC's wastewater system.
20. HRWC also became aware that several buildings in Shannon Park were also
discharging wastewater into the Shannon Park wastewater system, and then untreated
into Halifax Harbour. Pursuant to its regulations, HRWC required DND to cease
discharging untreated wastewater into Halifax Harbour, and to direct such wastewater
into HRWC's wastewater system.
22. None of the foregoing connection projects, Ocean Breeze Estates, DND, 810 and
CFIA, are, we submit, comparable to BM Holdings as suggested in its argument. HRWC
paid the full cost to connect its Ocean Breeze wastewater system, as it was required to
do as the owner of that system. Further, HRWC paid none of the costs for the three
private property owners, DND, BIO and CFIA, to connect to the HRWC wastewater
system.
23. In 2007, HRWC became aware that there were three combined sewer outfalls
discharging untreated wastewater into Halifax Harbour. Those outfal!s had not, for
reasons unknown to HRWC, been connected to the interceptor sewer which was installed
under the Halifax Harbour Solutions Project ("HHSP"). HRWC requested the approval of
the Board to connect the three combined sewer outfalls and received the Board's
approval on December 19, 2008 for a capital expenditure of $60,000 to proceed with that
project (WW-HRWC-E-08 (Req #34). The three combined sewer outfalls and the sewer
mains upstream of those outfalls were, at the time of the 2008 Project, and continue to
be, owned by HRWC and not by private property owners served by those sewers. No
work on private property was required to complete this project.
[Exhibit H-6, pp. 3-4}
[19]
BM Holdings also provided evidence from Paul Hiscock who manages the
Bank of Montreal Building.
Document: 232181
-9[20]
He indicated that his employer, Compass Realty, also manages the former
Bank of Commerce Building on George Street currently known as the Merrill Building.
He testified that during renovations of that building to accommodate a pub it appeared
that the wastewater system for the building was not properly connected to the City's
sewer lines on George and Granville Streets. That deficiency was corrected at the cost
of HRM.
[21]
The Board finds, based on a review of available evidence, that it was
HRWC's combined sewer serving the Bank of Montreal Building that was not properly
connected to the Halifax wastewater and stormwater system.
[22]
This seems to the Board to be exactly the same situation as the Ocean
Breeze Estates, cited by Mr. Spurr in his Argument.
It also seems identical to the
circumstances noted with respect to the three combined sewer outfalls discharging
untreated water into Halifax Harbour noted in paragraph 23 of HRWC's Submission
quoted above. In all of these cases HRWC paid for the costs incurred in connecting
"that system". Likewise, in the view of the Board, it is HRWC's (or its predecessor's)
responsibility to properly connect the combined sewer on George Street or its
replacement.
It seems clear to the Board, having found that the HRWC combined
sewer was not connected, that the facts surrounding the Bank of Montreal Building are
largely indistinguishable from the other circumstances where HRWC, in fact, paid for the
connection on the basis that those were not private systems on private property.
Neither was the combined sewer on George Street serving the Bank of Montreal
Building which, unfortunately, was dumping raw sewage into the harbour.
Document: 232181
- 10-
[23]
Based on the foregoing, it seems clear to the Board that BM Holdings was
treated in a discriminatory manner. The only issue is whether, by virtue of the HRWC
Regulations, or the HRWC Act, HRWC is relieved from responsibility for connecting its
combined sewer or its replacement.
3.2
Regulation 20
[24]
HRWC made its original request that BM Holdings disconnect its
wastewater lateral and connect it to the Water Street sewer line under then-existing
Regulation 20. Regulation 20, at the time, stated:
20.
Cross Connection of Wastewater Discharges to Storrnwater Systems
a.
The Commission may, from time to time, undertake testing for cross connections
of wastewater entering into the stormwater system.
b.
No owner, customer, or other person hereinafter collectively referred to in this
rule and regulation as "person" shall connect, cause to be connected, or allow to
remain connected to the stormwater system or plumbing installation, without the
express written consent of the Commission, any piping, fixtures, fitting or
appliance in a manner which, under the circumstances, may allow sewage,
wastewater or any other liquid as specified elsewhere in these regulations to
ingress or flow into the stormwater system. This regulation does not apply to
existing premises currently connected to the combined sewer system.
c.
No owner, customer or other person shall discharge wastewater anywhere
except into wastewater facilities, private on-site wastewater system or private
central wastewater collection system and treatment facility.
d.
Where in the opinion of the Commission, there may be a risk of sewage,
wastewater or any other liquid as specified elsewhere in these regulations,
flowing into the stormwater system, the Commission may require the customer,
at the customer's sole cost and expense, to install or remove at any point on the
customer's stormwater system, one or more fittings or appurtenances to prevent
such connection.
e.
In the event of any breach, contravention or non-compliance by a person of any
of the provisions and regulations in this Section, the Commission may:
i.
ii.
f.
Document: 232181
suspend water service to such person, or
give notice to the person to correct the breach, contravention or noncompliance within 96 hours, or other specified period. If person fails to
comply with such notice, the Commission may immediately thereafter
suspend wastewater and/or water service to such person.
Halifax Water may require a Stormwater Building Service Connection to be
inspected and brought into compliance with the provisions of the Rules and
- 11 Regulations, at the property owner's expense, when a new service account is
created.
Costs of the remedial works required to ensure compliance with the provisions of
the Rules and Regulations are the responsibility of the customer. [Emphasis
added}
[25]
The Regulation states on its face "this Regulation does not apply to
existing premises currently connected to the combined sewer system".
fiRVVC conceded, in Argument, that at the time it made the request of BM
[26J
Holdings that request was not permitted by the then-existing Regulation as this was a
combined sewer system.
THE CHAIR:
But I think you're missing my point. If HRWC directed the Bank of
Montreal Building to undertake work that they weren't entitled to do under Regulation 20
and that work was subsequently undertaken, isn't that HRWC's fault, regardless of when
the complaint came in?
MR. SPURR: If I understand your point correctly, if the regulation in place at the time
exempted them, which I think is maybe what you're saying.
THE CHAIR
Yes.
MR. SPURR And the work was wrongly undertaken, when an exemption applied,
certainly that would be the grounds for a valid complaint.
THE CHAIR:
Would you agree that under Regulation 20, if this was a combined
sewer, HRWC couldn't have demanded this work be done by the Bank of Montreal
Building?
MR. SPURR:
Regulation 20, when it was in force, did have that provision in it.
[Transcript, p. 48]
3.3
Regulation 61
As noted earlier the relevant provisions of Regulation 61 state as follows:
[27]
61. (1) Every wastewater and/or stormwater building service connection shall be
designed and constructed at the expense of the customer served by the connection,
whether on privately owned property or otherwise.
(8) The Commission may give notice in writing to an owner of a property serviced by
wastewater or stormwater facilities requiring such owner, within the time specified in such
notice, to connect to the wastewater or stormwater facilities through a building service
connection.
Document: 232181
- 12-
[28}
HRWC argued that the current Regulation 61 enables it to cause BM
Holdings to make this connection. This Regulation was put in place as a result of a
recent rate hearing by the Board. At the time the Board permitted this change it was not
aware of the dispute with BM Holdings.
[29]
Mr. Grant, on behalf of BM Holdings, argued that when the new
Regulation was enacted, the dispute between HRWC and BM Holdings was fully
engaged and it would be unfair to allow HRWC to escape responsibility in these
circumstances. He stated:
The other point my friend was making was that, in effect, he's saying that the complaint
should be dismissed on the basis that Regulation 61 applies and HRWC has complied
with Regulation 61. We submit that that doesn't get them out of the woods. The
complaint is that HRWC's action is in any respect unreasonable, insufficient or unjustly
discriminatory and the Board, in the course of dealing with the complaint, can look at any
regulation or Act that applies in a way which is unreasonable, insufficient or unjustly
discriminatory.
I may have been overreaching a little bit in responding to some questions you had earlier
about, well, the fact that someone could have had a benefit under a previous regulation
and then the regulation changes and they no longer have the benefit, that's a
consequence of the change. There are special circumstances in this case. The dispute
In our submission, it's
was fully engaged at the time the regulation changed.
unreasonable to permit HRWC to change the regulations or for the Board to have
changed the regulation where it's changing the basis for the dispute in a way which
discriminates.
THE CHAIR:
So you're saying that even if the regulation changed, the overriding
Public Utilities principle that you can't discriminate amongst customers getting the same
service would still apply.
[Transcript, pp. 57-581
[30]
However, for the Board, the more important point is that even in the
administration of Regulation 61, as it currently exists, HRWC would assume
responsibility for connecting its own combined sewer or its replacement with new
infrastructure. So having made the findings the Board made earlier in this Decision, the
Board is of the view that it would be discrimination to cause BM Holdings to connect to
Document 232181
- 13the Water Street sewer when the failure here is the failure of the predecessors of
HRWC to connect the combined sewer in either 1979 or 2003.
3.4
Limitation Period
[31]
Section 32 of the Halifax Regional Water Commission Act, S.N.S. 2007,
c. 55, as amended, ("HRWC Act') states as follows:
Limitation period
32
For the purpose of the Limitations of Actions Act, the limitation period for
an action or proceeding against the Commission, a Commissioner, an officer or
employee of the Commission, or against any person acting under the authority of any of
them, is twelve months.
[32]
HRWC argued that the claim is statute barred and also that it is exempt
from liability by virtue of the provisions of Section 26 to 31 of the HRWC Act.
Exemption from liability re negligence
26
The Commission, its officers and employees, are not liable for damages
caused
{a)
directly or indirectly by
(i)
the design, construction, operation, maintenance, repair,
breaking or malfunction of wastewater facilities, a stormwater system or
a water system, or
(ii) interference with the supply of water through a water system,
unless the damages are shown to be caused by the gross negligence of the
Commission or its officers or employees;
(b)
by the discharge of sewage or water into premises from a sewer unless
the discharge was caused by improper construction or neglect in the
maintenance of the sewer, or a failure to remedy a matter that was known, or
should reasonably have been known, to the Commission and should reasonably
have been repaired; or
(c)
in any case where this Act or the regulations have not been complied
with by an owner or previous owner of premises that have been damaged.
Exemption from liability re breakage or interruption
27 {1) The Commission is not liable for a loss as a result of the breakage of
a
pipe, conduit, pole, wire, cable or a part of a utility or service provided by the
Commission, or the discontinuance or interruption of a service or connection, by reason
of
(a)
accident;
(b)
disconnection for non-payment or non-compliance with a term or
condition of service; or
(c)
the necessity to repair or replace a part of a utility or service.
(2)
Document: 232181
repealed 2012, c. 60, s. 12.
-14Exemption from liability re nuisance
27A
The Commission is not liable for nuisance as a result of the construction
or operation of any work owned or operated by it, including, without limiting the generality
of the foregoing, any water system, stormwater system or wastewater facilities, if the
nuisance could not be avoided by any other practically feasible method of constructing or
operating the work.
Exemption from liability re failure to provide or maintain
28
The Commission, its officers and employees, are not liable for
(a)
failure to provide water, wastewater or stormwater service, or the manner
in which water, wastewater or stormwater service is provided, unless the
Commission fails to meet a standard of care to be determined having regard to
financial, economic, personnel, social, regulatory and other factors or constraints
in the circumstances; or
(b)
failure to maintain a place or thing that is subject to the direction, control
and management of the Commission, in a reasonable state of repair, unless the
Commission has actual notice of the state of disrepair and fails to take steps to
remedy or otherwise deal with the state of disrepair within a reasonable time.
Exemption from liability re overflow
29
Where an overflow of water or sewage from a water, wastewater or
stormwater system or a drain, ditch or watercourse is a consequence of snow, ice or rain,
the Commission is not liable for a loss as a result of the overflow.
Exemption from liability re inspection
30
Where an inspection is carried out or ought to have been carried out
pursuant to this Act or another enactment,
(a)
the Commission, and its officers and employees are not liable for a loss
as a result of the manner or extent of an inspection or the frequency, infrequency
or absence of an inspection, unless the Commission was requested to inspect at
appropriate stages, and within a reasonable time, before the inspection was
required, and either the Commission failed to inspect or the inspection was
performed negligently;
(b)
an inspection is not performed negligently unless it fails to disclose a
deficiency or a defect that
(i) could reasonably be expected to be detected, and
(ii) that the Commission could have ordered corrected;
(c) notwithstanding the Limitation of Actions Act or another Act, the Commission
and its officers and employees are not liable for a loss as a result of an
inspection or failure to inspect if the claim is made more than six years after the
date of the application for any permit, approval or other process in relation to
which the inspection was required.
Exemption from liability re certification
31
Where the Commission receives a certification or representation by a
professional engineer, architect, surveyor, accountant or actuary or other person held out
to have expertise respecting the thing being certified or represented, the Commission and
its officers and employees are not liable for any loss or damage caused by the
negligence of the person so certifying or representing.
Document: 232181
- 15[33]
Sections 26 through 31 relating to design, breakage, maintenance and
inspection do not seem to have any application to this proceeding. Mr. Grant noted that
in argument:
MR. GRANT: I'm happy to respond to that. Mr. Chair, in our submission, that limitation
period doesn't apply to complaints to the Board. That simple. If you read the ... I'll pull
out my copy of the Act. If you read the limitation section in the Halifax Regional Water
Commission Act, it appears in a section after dealing with all kinds of claims for
negligence and nuisance against Halifax Regional Water Commission with all the
limitations on bringing those types of claims. Those are, I think most of those
amendments to the Act were intended to reverse the decision of the Supreme Court of
Canada in Tock and the City of St. John's, which kind of expanded the right of action
against a city or a utility. So I would submit that ... I'll just find the section here.
THE CHAIR:
It's 32, I think.
MR. GRANT: So it's section 32 is where the limitation period. You go back to that,
section 26, exemption from liability re negligence. 27, exemption from liability re
breakage or interruption. Exemption from liability re nuisance. Exemption from liability re
failure to provide or maintain. Exemption from liability re overflow. Exemption from
liability re inspection. Exemption from liability re certification. And then the limitation
period. So it all pertains to the sections above it which relate to actions.
And then section 32 itself is referring to the purpose of the Limitations of Actions Act.
That's for bringing an action against the Commission, an employee or a person, action or
proceeding. And, in our submission, action or proceeding there refers to an action or
proceeding in the Supreme Court.
My friend refers to the Board regulations that says that application refers to a complaint
pursuant to section 79, 83. And 83 of the Public Utilities Act and any other
proceedings. But that use, or any other proceeding, matter or thing which the Board can
determine.
So the Board doesn't determine negligence actions. This is not a negligence action. And
I submit that the Board Regulatory Rules can't modify or qualify the language of the
statute of the Halifax Regional Water Commission Act to the extent it's dealing with
actions against the Water Commission. It's a piece of subordinate legislation and it's not
even subordinate to the Water Commission Act.
[Transcript, pp. 39-41]
[34]
The Board agrees that this is a proceeding by way of complaint that does
not enjoy the protections of the limitation provisions of the HRWC Act. Indeed, the
action here was precipitated by HRWC initially demanding (improperly as it turns out)
through Regulation 20 that this remedial work be done. HRWC then applied to the
Document: 232181
- 16Board to change the Regulation and now attempts to argue that, under the new
Regulations, BM Holdings is required to undertake the hookup.
3.5
Conclusion
[35]
The Board finds that given the facts of this case it was the responsibility of
HRWC, consistent with its practice in administering its Regulations, to repair the
situation with respect to the combined sewer on George Street serving the Bank of
Montreal Building.
The Board orders HRWC to reimburse BM Holdings for costs
already undertaken, with interest, and to complete the balance of the work at its account
or reimburse BM Holdings for completing the work.
[36]
No submissions were made on an appropriate rate of interest. The Board
assumes HRWC and BM Holdings can agree on that; however, if not the Board retains
jurisdiction to deal with the interest calculation.
[37]
An Order will issue accordingly.
DATED at Halifax, Nova Scotia, this 23rd day of January, 2015.
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Peter W. Gurnham
Document: 232181
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