Citation: Lawton's Drug Stores Ltd. v. Halifax (Regional Municipality),
2010 NSSC 17
Date: 20100115
Docket: Hfx No. 237808
Registry: Halifax
Between:
Lawton’s Drug Stores Ltd.
Plaintiff
and
Halifax Regional Municipality and Boylan’s Plumbing & Heating Ltd.
Defendants
DECISION
Judge: The Honourable Justice Gerald R. P. Moir
Heard: November 23, 24, and 26, 2009 in Halifax
Last Written Submissions: December 7, 2009
Counsel: Christopher Wilson and Jessie Irving, articled clerk, for the plaintiff
Roxanne MacLaurin for the defendant Halifax Regional Municipality
Jean McKenna for the defendant Boylan’s Plumbing & Heating Ltd.
Moir, J.:
Introduction
[1] Lawton’s pharmacy in the Professional Centre on the corner of Spring Garden Road and Robie Street in Halifax was flooded on Christmas of 2003, a day of exceptionally heavy rains. Lawton’s says that, some seven years before the flood, Boylan’s negligently connected a toilet drain and two sink drains in a dental office on the floor above to the storm sewer. It claims that, when the heavy rains overloaded the storm sewer system, the water found an outlet in the sinks and toilet that should have been connected to the sanitary sewer.
[2] Lawton’s also says that the building inspector negligently failed to detect Boylan’s error when the job Boylan’s had been working on was inspected before an occupancy permit was issued. So, Lawton’s also claims against the Halifax Regional Municipality.
[3] There were third and fourth party claims that have been resolved and the style of cause may as well be amended in the final order. The cover page of this decision anticipates such an amendment.
Issues
[4] Boylan’s and the municipality deny the claims of negligence. The parties have agreed on damages and prejudgment interest, and the issues are about liability. They are:
1. Is it proved that Boylan’s connected the dentist’s sink and toilet drains to the storm sewer lines?
2. If the drains were wrongly connected, did Boylan’s error amount to negligence?
3. If the drains were wrongly connected, were the building inspectors negligent in failing to detect Boylan’s error?
4. In any event, is the claim against the municipality statute-barred?
Findings of Fact on Boylan’s Work
[5] The Professional Centre is an office high-rise occupied mainly by physicians and dentists. It is about forty years old.
[6] The requirements of so many physicians and dentists for various kinds of plumbing and the turnover of tenants year in and year out have produced untidy results in the plumbing behind walls and under floors of the Professional Centre. Connections to the original sanitary lines have been made, abandoned, and altered very many times.
[7] Like other office buildings of the time, rainwater that accumulates on the roof is drained to ground level and passed into the city sewer. The roof is designed to slope toward troths at the edges, which in turn are connected to numerous drainage pipes.
[8] One enters the building above street level. A wide piazza serves the Spring Garden Road entrance and a narrow one, the Robe Street entrance. These are designed similarly to the roof as regards storm water collection and transportation to the city sewer.
[9] Mr. Leverette Boylan is an experienced plumber, now retired after a long career. He became a certified plumber about 1965 and started his own business in 1973. He started winding down for retirement in 2000 and he wound up in 2004. He had regularly employed himself and four or five others. The business was carried on through the corporate defendant of the same name.
[10] At first, Mr. Boylan’s main sources of business were residential, but he moved into commercial and soon specialized in dental plumbing. Dentists have particular requirements for plumbing, and Mr. Boylan made it his business to become knowledgeable in the field and to develop good will. After a while, most of Boylan’s work was for dental offices.
[11] About half the offices in the Professional Centre are occupied by dentists. Boylan’s worked in the building frequently. Also, they did work on the storm drains for the owner, or for the management company.
[12] In the summer of 1996, a dentist replaced another tenant on the second floor of the Professional Centre above what is now part of Lawton’s pharmacy. Boylan’s was hired to do the plumbing. Mr. Boylan recalls the work specifically.
[13] Mr. Boylan has been intensely concerned about the claim of negligence since he was first told of it in 2004. He has had plenty of opportunity to search his memory. He says he specifically recalls doing the work on the dental office above where the Lawton’s pharmacy is now located.
[14] Mr. Boylan was a very honest and credible witness. I accept his testimony.
[15] Mr. Boylan inspected the unit to prepare a bid. The leasehold improvements had been completely removed. One could not tell what the space had been used for.
[16] The space below, where the pharmacy is now located, was then a branch of a bank. Boylan’s obtained permission to inspect the pipes above the bank’s tiled ceiling.
[17] Mr. Boylan observed the ends of two, large, cast iron pipes that run horizontally along a partition. They were close together, but one was closer to the wall and slightly higher than the other.
[18] Each of the horizontal cast iron pipes is joined at right angles, near its end, by a similar large, cast iron, vertical pipe that descends from above.
[19] Vertical pipes of this kind are known as stacks or risers or chasers. A stack joins a storm system to deliver storm water. A stack rises from a sanitary system for ventilation or it delivers sewage.
[20] The ends of both horizontal pipes were closed with a mechanism to allow the pipe to be opened for cleaning. When pipes of this kind are joined with a stack, a clean-out is called for because the pipes may get clogged at the juncture.
[21] One of these sets of pipes was storm and the other was sanitary. Mr. Boylan had to determine which was which because drains from sinks and toilets must be connected to the sanitary system.
[22] Mr. Boylan observed that the pipe closer to the wall had a take-off connection, which is referred to simply as a take-off or a Y. A take-off is built into a pipe when it is first installed in a commercial building to make it easier for plumbers to hook units into the system when leasehold improvements are made. Otherwise, those who have to do plumbing when the building is being leased up would have to cut the cast iron pipe and install a take-off.
[23] My Boylan observed that the other horizontal pipe, the one further away from the wall, had no take-off.
[24] There is no reason to make a place for storm waters to be drained from the second floor. It is many stories below the roof, and it is sealed from the outdoors.
[25] The presence of a take-off on the large, cast iron, horizontal pipe nearer the wall and the absence of a take-off on the large, cast iron, horizontal pipe away from the wall indicate that the first, and the stack jointed to it, were part of the sanitary system, and the other, and its stack, were part of the storm system.
[26] Mr. Boylan also observed that a capped stub of three inch copper pipe extended from the take-off toward the upstairs unit. It slopped upward at forty-five degrees, then tapered to right angles, in a direction toward holes in the flooring of a kind one might expect for drains coming down from earlier sinks or toilets in the second floor unit.
[27] Mr. Boylan concluded that the large, cast iron, horizontal pipe and vertical stack nearer the wall were parts of the sanitary system.
[28] After his company was awarded the plumbing subcontract, Mr. Boylan and an apprentice were again permitted access to the bank premises after hours. They connected the drains in the new dental office to the pipe nearer to the wall by running a three inch copper pipe from the drains, under the flooring of the second floor unit and above the bank’s ceiling, to the end of the three inch copper stub. They removed the cap from the stub, fabricated a coupling, and soldered the new pipe to the stub.
[29] Mr. Boylan was confident they had joined the new tenant’s toilet and sinks to the sanitary sewer system.
[30] As I said, I believe Mr. Boylan. He gave a statement in 2005 in which he said:
I tied into the storm sewer line by mistake in the connection. It has a capped 45 degree [ie, a take-off] on it and appeared at the original time to be the sanitary line. It was not the sanitary but was the storm sewer line.
This is consistent with his testimony except that, with further information and thought, he is not so sure that the large, cast iron, horizontal pipe near the wall is the storm sewer line. There may have been no mistake.
[31] Seven and a half years later, the plaintiff’s expert, Mr. Archie Frost, visited the Professional Centre and inspected the plumbing for the bathroom of the second floor dental unit. He traced the large, cast iron, horizontal pipe into which Boylan’s had hooked the drains.
[32] Mr. Frost observed that the line led down to the basement parking garage and down a stack to an exit near the basement floor. As storm and sanitary are mixed in a combined sewer in this part of Halifax, the place of exit cannot tell us whether the pipe is storm or sanitary.
[33] Mr. Frost traced the line back the other way, and he found a branch. He traced the branch and found further branches off of it. These were connected to the surface water drains of the Robie Street piazza. Either the dentist’s drains were connected to the storm system in error or the piazza drains were connected to the sanitary system in error.
[34] In 2007, the plaintiff’s other expert, Mr. Eugene Pace, inspected the other line, the line that Boylan’s had taken to be for the storm system. He traced the horizontal, cast iron pipe as it leads away from the dental office, and, after about fifteen minutes, Mr. Pace found two connections that appeared to be sanitary. They are about forty feet from the washroom in the second floor unit.
[35] Mr. Pace cannot say whether those two connections were made before or after Boylan’s work in 1996.
[36] In cross-examination, Mr. Boylan agreed that had he seen these other connections in 1996 that would have caused him to pause. He would have traced further back.
[37] Early in 2009, Boylan’s expert, Mr. Craig MacDonald, inspected the lines. He followed both horizontal pipes and found that the one into which Boylan’s had connected was coupled with another four inch pipe, but the other coupled into a six inch pipe. In office buildings built before the time of control flow roof drains the storm pipe is normally larger than sanitary pipe when it leaves the building.
Findings of Fact on the Flood
[38] The rain storm of Christmas 2003 was severe. Over seventy millimetres came down, almost half the total precipitation of snow and rain for the whole month.
[39] Mr. Burce Snook worked for the building management company that served the Professional Centre. He is educated in building maintenance and, by 2003, was experienced at it.
[40] He went to the Professional Centre during the flooding and found an inch or two of water on the pharmacy floor. He went to the dental suite and saw water coming out of the toilet, the bathroom sink, and the kitchen sink. The water was gushing up six to eight inches above the toilet.
[41] What Mr. Snook saw did not look like sanitary sewage. It was clear.
[42] Not able to find a source, Mr. Snook called a plumber he knew to have test plugs. The plumber put these into the toilet and two sinks, and the flooding stopped. Therefore, whatever caused the flooding in that unit did not affect the other second floor units.
[43] A few days later, Mr. Snook inspected the roof. He found a water mark higher than he would expect.
[44] The Robie Street piazza drains are at first floor level, but flooding occurred about ten feet above on the second floor. Why did the backed-up water discharge on the second floor rather than through the piazza drains at the first floor level?
[45] One possible answer is that the drains were clogged with dead leaves and the like. Mr. Boylan said that his firm was hired from time to time to snake out the drains and the then owner was very careful about maintenance. Mr. Snook said that the day porter had the responsibility to report when the drains needed cleaning and that the work would be undertaken when the need was reported. Also, he said that the drains were snaked after the Christmas 2003 flood.
[46] Mr. Frost provided an opinion on the mechanics of the flooding. It assumes that the Robie Street piazza drains are correctly tied to the storm sewer system and, therefore, that the vertical stack joining the horizontal pipe nearer the wall carries storm water.
[47] Mr. Frost is a professional engineer in the civil and structural disciplines. He is very experienced and highly qualified. He was able to give us opinions on “the design and function of plumbing and drainage systems”.
[48] Mr. Frost’s opinion on the mechanics of the flooding is as follows:
After examining the pipe layout, it was my findings that the stack into which the basin pipe had been connected was carrying the surface water drainage down from the building roof above and that at a point lower down it also collected the surface water drainage from the piazza along the Robie Street frontage. As a result, it was felt that what had occurred was that the inflow from the piazza had brought in some material which, together with the flow from the roof, had caused turbulence at the pipe junction resulting in restricted flow and a back-up of the surface water drainage coming down from the roof within the storm water stack.
Did Boylan’s Connect to the Storm Sewer?
[49] This involves a close call on my part. I would not make it at the criminal standard and I am barely satisfied at the civil standard. I am satisfied that it is more likely than not that Boylan’s connected the dental suite’s washroom sink, toilet, and kitchen sink to the storm sewer.
[50] I make the following findings, which tend to the conclusion that Boylan’s connected to the correct line:
· There was a take-off on the line chosen by Boylan’s.
· There was no take-off in the same vicinity on the other line, although both were joined to stacks in that vicinity.
· The presence of the take-off is a strong indication that that line is sanitary.
· The copper stub showed that the line chosen by Boylan’s had been chosen earlier by a plumber as the sanitary line.
· The line rejected by Boylan’s is part of a four inch system that, unlike the chosen line, increases to six inches, and the increased size is more likely to be found in a storm line.
[51] I find that the two copper connections further along the line chosen by Boylan’s were sanitary, but I give little weight to that fact. Those connections could have been made after Boylan’s did its work, after Mr. Frost recommended moving the dental office connection to the other line, and after someone made a very noticeable job of changing the connection. (It stands out because that plumber used ABS pipe, contrary to Code, and removed what is supposed, according to Code, to be a clean-out.)
[52] The following findings tend to the conclusion that Boylan’s connected to the wrong line:
· The Robie Street piazza drains are connected to the line chosen by Boylan’s.
· The fountains of water in the second floor dental suite were clear. This is not conclusive, but it is suggestive, that the water did not originate in the city sewer and that it did originate at the juncture referred to in Mr. Frost’s opinion.
· The flooding stopped when the test plugs were inserted, and it did not appear in any other sanitary outlets on the first or second floors. (I make this finding on Mr. Pace’s evidence that the flooding stopped. I take him to have indicated that the second floor dental suite was the only source.)
[53] Finally, I accept Mr. Frost’s opinion about the mechanics of the flooding. It seems far more plausible to me than a theory that the sanitary lines backed-up, but only in the second floor dental office.
[54] I am not sure whether the piazza drains were completely clogged, which would explain flooding a floor higher or whether they did flood over. The forces in the juncture could have been so great as to exceed whatever relief the system of branches to the piazza drains could provide and cause the water to seek a higher available exit.
[55] I find that Boylan’s connected the drains in the second floor dental office to the storm sewer. That finding is based on the balance of probabilities and, as I said, it is by no means a certainty.
Whether Boylan’s Was Negligent?
[56] No one suggests Boylan’s did not owe a duty of care to the tenants below the second floor dental office or persons who would take that space in future. I must inquire into the standard of care and decide whether it was breached.
[57] Mr. Wilson submits, and I accept, that the standard is correctly stated in Lewis N. Klar, Q.C. Tort Law 4th ed. (Toronto: Thomson Carswell: 2008) at p. 381:
The care required of the professional person is that degree of care which is shown by the reasonably prudent practitioner operating in the like circumstances.
...As well, Lord Edmund-Davies has reaffirmed this view, in Whitehouse v. Jordan, when he stated that “the test is the standard of the ordinary skilled man exercising and professing to have that special skill.”
Mr. Wilson also referred me to provisions about plumbing in the National Plumbing Code, and these can help inform the standard.
[58] Ms. McKenna referred me to a passage in Fleming on evidence of general practice, and I accept that “conformity with general practice...usually dispels a charge of negligence.”
[59] Article 4.2.1 of the National Plumbing Code of Canada 1995 provides “every fixture shall be directly connected to a sanitary drainage system” and article 1.6.1(2) similarly provides “a combined building drain shall not be installed”. Mr. Pace referred to these in his opinion, and I presume they applied in 1996.
[60] Mr. Pace is an expert in the field of commercial plumbing, and he has had a good deal of experience in the practice as well as two decades of teaching in the field. He explained that articles 4.2.1 and 1.6.1 serve several purposes.
[61] The first purpose is to allow the efficient use of sewage treatment plants. Much of Halifax is on a combined system and this purpose does not apply to the Professional Centre at this time.
[62] Secondly, separation helps avoid a sanitary back-up. And, a related third reason concerns overloads during severe storms. Storm water forces can be so strong as to throw cast iron manhole covers aside. One does not want those forces unleashed inside a building.
[63] Mr. Pace’s opinion is:
In this case, it is my opinion that the plumber, who installed the original suite drain, could have prevented the water damage by simply tracing out the piping as I did in my inspection that took me 15 minutes.
The failure to trace out the piping did not follow the normal procedures that are typically undertaken to ensure that the work complies with the National Plumbing Code.
[64] Mr. Pace does not, however, say that it is practice in buildings where lines are not marked as sanitary or storm for a plumber to trace the lines until he or she is certain which is sanitary and which is storm. In cross-examination, Mr. Pace referred to the Professional Centre as a “nightmare” that resulted from so much plumbing being installed and removed in numerous offices with many tenant turnovers. In direct examination, Mr. Pace explained that one traces until one has sufficient “tell tales”.
[65] So, for Mr. Pace, once a plumber has sufficient evidence to reach a conclusion at an accepted level of probability the plumber can safely hook into the probable line.
[66] Mr. MacDonald’s evidence shows the utter impracticality of a requirement of certainty. In a building such as the Professional Centre, the exercise could take a very long time, and the plumber still would not likely achieve certainty.
[67] For Mr. Pace, Mr. Boylan had not accumulated enough evidence to be sufficiently satisfied. How much more would be enough for Mr. Pace? It seems to me very little.
[68] Mr. Pace formed his opinion of which line was which only on the basis of this evidence:
· the take-off, indicating the line nearer the wall
· the sanitary connection to that line made before Boylan’s work, indicating the same
· a sanitary connection down the line, indicating the other
· a sanitary line further down the line, also indicating the other.
It is hard to see how the contradictory evidence before Mr. Pace was any stronger than the evidence before Mr. Boylan, and we do not even know whether the evidence for the other line existed when Boylan’s did its work.
[69] I accept the opinion of Mr. Craig MacDonald. He is a licensed plumber with over thirty years of continuous experience. His opinion is:
In conclusion, if any competent plumber had this job to do with the same existing layout that Boylans Plumbing and Heating saw when they looked above the ceiling tile, with the plumbing code in effect at that time he would have seen the extra “y” and copper pipe and reasonably assumed that the copper connection was a sanitary line and tied into that line as Boylan’s Plumbing and Heating did.
For Mr. MacDonald, the presence of the take-off, or Y joint, and the evidence it was used before for a sanitary connection, are sufficient. It would not be consistent with practice to trace further.
[70] Mr. MacDonald’s view is consistent with Mr. Boylan’s evidence about practice, as well as that of Mr. Brian Cochran.
[71] Mr. Cochran became a licensed plumber in the mid-1980s. He joined the municipal inspection department in 1996 as a plumbing inspector and was promoted to building official in 2008. He worked on, then inspected, numerous jobs like the one in issue.
[72] Mr. Cochran would not, as a plumber, trace further back along the lines after seeing the take-off and copper stub on one line and none on the other. He would, as an inspector, approve a connection that was based on that evidence.
[73] As discussed, I have some difficulty with the Pace opinion. None arises with the MacDonald opinion. It seems reasonable to me that the take-off would be sufficient evidence. It accords also with the experience of Mr. Boylan and Mr. Cochran, both of whom have much experience in this field.
[74] I find that the connection made by Boylan’s probably did not comply with the Code requirement that fixtures be directly connected to a sanitary drainage system. I find that it is highly impractical, and sometimes impossible, for a plumber to determine with certainty that a line in a building like the Professional Centre is sanitary rather than storm. I find that the practice is to connect on the basis of probabilities, and that the level of probability on which Boylan’s acted is within the general practice of competent plumbers.
[75] Boylan’s did the plumbing work on the new, second floor, dental suite in 1996 with the care shown by a reasonably prudent commercial plumber in like circumstances.
Whether Building Inspectors Were Negligent
[76] Mr. Cochran preformed a plumbing inspection on Boylan’s work in August of 1996. His business records say “partial rough-in for pipe in walls.” This refers to an inspection before dry walling, before the work is covered up. At that, “partial” indicates that another inspection was required before the final one, and that the sink and toilet fixtures were not in place when this inspection was done.
[77] The next entry is for a final inspection more than a year later, and well after the plumbing work was finished. It is doubtful that the connection in the ceiling above the bank, later above Lawton’s, was inspected.
[78] Both Mr. Boylan and Mr. Cochran testified to the effect that the inspector relies on the plumber, especially a licensed plumber, to identify the sanitary line.
[79] Further, the same information was available to an inspector as was available to Mr. Boylan, the take-off and the copper stub Mr. Cochran testified that this would have been sufficient for him to pass the work. I accept his testimony. Also, his standard of care could not have been higher than Boylan’s.
[80] There was no negligence on the part of the municipality.
Statutory Limitation
[81] The Halifax Regional Municipality Act, S.N.S. 1995, c. 3 was in force from April of 1996 until April of 1999. The inspections were done in that period. Therefore, s. 205(1) of the Halifax Regional Municipality Act applies:
No action shall be brought against the Regional Municipality, or against Council or any member of the Council, or against any officer or employee of the Regional Municipality, or against any person acting under the authority of the Council member, officer or employee unless the action is brought within twelve months next after the act complained of was committed.
[82] This action was started in December 2004, just under a year after the flood. It is, therefore, well outside the period of twelve months after the inspections.
[83] Ms. MacLaurin points out, without suggesting that it is applicable, that the judicial discretion to extend a limitation period in s. 3 of the Limitation of Actions Act, R.S.N.S. 1989, c. 258 expires four years after the limitation period expires.
[84] The only issue is whether discoverability applies:
I am thus of the view that the judgment of the majority in Kamloops laid down a general rule that a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence...
Central Trust Company v. Rafuse, [1986] S.C.J. 52 at para. 77.
[85] Discoverability applies to limitations that run from the time a cause of action arose. It does not apply to the limitation that runs from the day “professional services...terminated” under s. 2(1) of the Limitation of Actions Act: Sawh v. Petrie, [1986] N.S.J. 415 (S.C., A.D.) and Smith v. McGillivray, [2001] N.S.J. 430 (S.C.). Nor, to the limitation that runs from the day “when, in the matter complained of, the professional services were rendered” under s. 60 of the Pharmacy Act, R.S.N.S. c. 343: Marshall v. Parker, [1998] N.S.J. 518 (S.C.). Nor, to a limitation that runs against an estate from the date of death: Waschkowski v. Hopkinson Estate, [2000] O.J. 470 (C.A.).
[86] In short, the discoverability rule does not apply to legislation in which “time ran from an event not related in any way to the accrual of the cause of action”: Burt v. LeLacheur, [2000] N.S.J. 230 (C.A.) at para. 33.
[87] Justice Richard applied the discoverability rule to s. 150 of the Municipal Act in MacInnes v. Inverness, [1994] N.S.J. 349 (S.C.). That limitation ran “twelve months next after the act complained of was committed”. That case went on appeal, but the appeal court found it unnecessary to comment on Justice Richard’s treatment of the limitation issue: [1995] N.S.J. 205 (C.A.).
[88] Justice McDougall applied the discretionary rule to s. 512(1) of the Municipal Government Act in Clarke v. Halifax, [2008] N.S.J. 332 (S.C.). However, s. 512(1) provides “the limitation period for an action...against a municipality...is twelve months.” In a sense, this is passive. Twelve months from when? The answer was twelve months from the cause.
[89] When does “the act complained of” stop occurring in a case, like this one, of an alleged omission, the failure to hold the second inspection? I should say it is continuous and the limitation applies only when the omission shows its consequence and becomes known. Before that, there is nothing to complain of.
[90] The limitation in s. 205(1) of the Halifax Regional Municipality Act was more vague, and less concrete, than limitations that run from the termination of services, the rendering of services, or death. A limitation that runs from “the act complained of” is broad enough to encompass all essential aspects of the complaint. It is, in my opinion, broad enough to encompass damages, which is an element of liability in a negligence. In this case, the damage did not occur until Christmas of 2003.
[91] In my opinion, to speak of complaints is very close to speaking of civil wrongs, or causes of action. I interpret s. 250(1) as encompassing the discoverability rule, and I would not have upheld this defence had I found that the inspectors were negligent.
Conclusion
[92] I will dismiss Lawton’s action against Boylan’s and the municipality. Parties may make submissions on costs in writing. I thank all counsel for their very professional presentations.
J.