Saint John denies negligence in west side water woes

Saint John's decision to change the water source for west side users from Spruce Lake to the South Bay aquifer was made in good faith, was based on the best available advice and does not give rise to liability in negligence, the city argues in its statement of defence to a class-action lawsuit.

City files statement of defence to class-action lawsuit filed on behalf of residents, businesses

About 5,600 customers in west Saint John were switched over to water drawn from the South Bay wellfield in September. (Matthew Bingley/CBC)

Saint John's decision to change the water source for west side users from Spruce Lake to the South Bay aquifer was a policy decision made in good faith and based on the best available advice and does not give rise to liability in negligence, the city argues in its statement of defence to a class-action lawsuit filed last month.

The city also denies any breach of contract, arguing the provision of water services is not contractual in nature but rather a legislated requirement, according to the document filed with the Court of Queen's Bench in Saint John on Monday.

In addition, the city contends the lawsuit cannot be certified as a class action for several reasons, including that the plaintiffs, Frances Brownell and Cheryl Steadman, "do not fairly and adequately represent the interests of the proposed class members," and a class proceeding would not result in a "fair and efficient resolution of the dispute."

The city, represented by two law firms, along with its staff solicitors, is seeking to have the action dismissed with costs and any other relief the court deems just and reasonable.

The lawsuit was launched on behalf of west Saint John residents faced with leaking pipes and costly repairs they allege are due to their water source being changed.

Charles Bryant, one of the lawyers who filed the suit, said the city "responded in form, but not in substance."

Bryant and fellow lawyer Rodney Gillis will now move to the discovery phase, gathering more detailed information from the more than 200 people who have signed up to be part of the class action to determine the scope of the alleged liability.

Complaints have ranged from burst pipes and water heaters breaking down, to hard, discoloured water and irritated skin.

The lawyers expect to seek certification of the class-action lawsuit within a few months. (Brian Chisholm/CBC)

The statement of claim alleges the city was "negligent and breached duties of care" by failing to "adequately test, analyze and/or review the distinct chemistry of the new water source and condition of the water pipes before, during and after the switchover."

It also accuses the city of failing to "adequately design, construct, inspect, repair, maintain, operate and supervise the water supply and distribution system" and is seeking damages to cover existing and future costs of repairing structural damage, and repairing or replacing pipes, appliances and other equipment.

None of the allegations in the statement of claim have been proven in court.

Spruce Lake water a health risk

About 5,600 customers in west Saint John were switched over to water drawn from the South Bay wellfield instead of the Spruce Lake reservoir in September, as part of the Safe Clean Drinking Water project.

The city says in its statement of defence that the Spruce Lake water lacked filtration to protect against certain microbiological contaminants, including giardia and cryptosporidium, which "posed a potential health risk."

The water did not meet provincial guidelines and without "significant and costly infrastructure changes," the city could not comply with the regulatory obligations imposed by the Clean Water Act and the Clean Environment Act, the document states.

During the course of the water project, which included approximately three years of exploration and testing, according to the document, the city decided the South Bay aquifer was the best available source of safe, clean potable water for west Saint John users.

The city "exercised all due care and caution and relied upon the best available advice with respect to all decisions regarding the change in the water supply," the document states.

The new water source meets both provincial and federal guidelines, satisfies all of the city's regulatory obligations and is safe and clean, it says.

The class action lawyers hope to seek certification of the lawsuit within a few months.