New Brunswick

Lawyers in west Saint John class action fail to agree on COVID protocols

An important court hearing on a class action lawsuit in Saint John has been postponed after lawyers couldn't agree on COVID safety protocols.

Toronto lawyers representing City of Saint John want to appear in court in person

Saint John Mayor Don Darling addresses a public meeting of west side water customers in February 2018. (Joseph Tunney, CBC)

An important court hearing on a class action lawsuit in Saint John has been postponed after lawyers couldn't agree on COVID safety protocols.

The case involves west side residents affected by alleged pipe failures caused by a new municipal water supply.

The court hearing was scheduled to begin Thursday on two motions Justice Thomas Christie described as having a "fundamental impact on whether the case ever goes further."

Toronto lawyers Glenn Zakaib and David Elman, who are representing the city of Saint John, had planned to attend the three day hearing in person.

That plan was opposed by Rodney Gillis, co-counsel representing west side water customers in the suit. 

"Basically I told the judge that I was uncomfortable because in Toronto two days before they had a thousand new cases of COVID-19," said Gillis. "There were none in New Brunswick."

Gillis said if the lawyers are unwilling to present by video they could come to the province and quarantine for 14 days.

Zakaib told CBC he and Elman had arranged to follow protocols set out by WorksafeNB and had registered with the Department of Health.

Toronto lawyer Glenn Zekaib represents the City of Saint John in the class action lawsuit launched by west side water customers. He wants to appear at a court hearing in person. (BLG.com)

"My partner and I did everything that was required," said Zakaib. "We coordinated with Worksafe. We'd worked with the courthouse and frankly we commended the courthouse for the work they had done to prepare an operational plan which we understand was being approved by Worksafe."

"It was a concern raised by the plaintiff's counsel and we respect that."

The lawsuit was launched in September, 2018. It followed a move by the city to switch the west Saint John drinking water source from the Spruce Lake Reservoir to a collection of drilled wells in the South Bay area.

Shortly after the new water source came online many residents began to complain of leaking copper pipes, and costly water damage. 

There were also complaints of failed appliances and skin irritation.

Christie's written decision to adjourn notes that lawyers for the city did not feel they could "put their best foot forward" in advocating by video for their clients.

"Frankly 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," wrote Christie. "Both positions are, under the circumstances, reasonable."

Gillis told CBC the proposed arrangements would have seen the out-of-province lawyers arrive at the courthouse at 7:45 a.m. to be screened.

Rod Gillis represents west Saint John municipal water customers: Lawyers are ''not essential workers.' (CBC)

They would also have had exclusive use of their own washroom.

But he claimed little had been done to ensure the safety of lawyers and others in the courtroom itself.

"For the life of me I couldn't understand how Public Safety would give special permission to lawyers - they're not an essential worker - to in effect come into the province, not self isolate to protect the taxi cab driver that would drive them in from the airport, the hotel staff, the people they may meet on the street, and other lawyers such as myself that would be in the courtroom. I was most uncomfortable with it."   

Gillis says the solution in the end may be to have lawyers for all sides present by video. He said if the Toronto lawyers are allowed to attend in person, he would not be there unless regular COVID protocols are followed.

"We'll do it by video and if the only lawyer in the courtroom is the lawyers from Toronto, so be it,"  he said.

No new dates have been set for the hearing.

About the Author

Connell Smith is a reporter with CBC in Saint John. He can be reached at 632-7726 Connell.smith@cbc.ca

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