COURT OF APPEAL FOR ONTARIO
Nordheimer, Madsen and Pomerance JJ.A.
BETWEEN
Patricia Janet Stadnyk
Plaintiff
(Appellant)
and
The Corporation of the City of Thunder Bay
Defendant
(Respondent)
David F. O’Connor, J. Adam Dewar and Erik S. Knutsen, for the appellant
Lawrence G. Theall and Jeffrey A. Brown, for the respondent
Heard: February 13, 2025
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated July 6, 2023, with reasons reported at 2023 ONSC 3920.
REASONS FOR DECISION
1The appellant, a resident of Thunder Bay, sued the City of Thunder Bay (the respondent). The alleged misfeasance is that the city added high concentrations of sodium hydroxide to the soft water of the municipal water supply, causing pinhole leaks in copper plumbing, leading to the release of water and damage to property throughout the city. On July 6, 2023, the motion judge certified a class action against the respondent in negligence while striking the appellant’s claim in nuisance. Although it sought some adjustment to the class definition, the respondent did not oppose the certification of the negligence claim.
2In a comprehensive decision, the motion judge declined to certify the nuisance claim. After setting out a fair summary of the law of nuisance, the motion judge addressed each of the conjunctive requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. He found it plain and obvious that the nuisance claim could not succeed, as it is caught by s. 449 of the Municipal Act, 2001, S.O. 2001, c. 24, a provision that bars all claims against municipalities based on “nuisance, in connection with the escape of water or sewage from sewage works or water works.” The motion judge found that the appellant’s claim was “doomed to fail”, stating: “In the immediate case, [the appellant] has brought a proceeding against a municipality. The proceeding is based in nuisance. Her nuisance claim is based on pinhole leaks that are in connection with the escape of water from the water works of the City of Thunder Bay.”
3Notwithstanding that this conclusion was dispositive of the certification motion in relation to nuisance, the judge analyzed, “for the sake of argument”, three additional elements of the certification analysis with respect to nuisance. He found that there was an identifiable class, but that the common issues criterion was not met and that a class proceeding was not preferable. The motion judge did not address whether the appellant would have been an appropriate representative plaintiff for a claim in nuisance.
4Although the Statement of Claim included a claim for breach of contract, the claim was not argued before the motion judge and consequently, his decision does not analyze that claim. The parties disagree on whether there was consent to a claim in contract proceeding with the claim in negligence. The parties put their positions in writing before the motion judge for the settling of the order. In the result, the order certified only the claim in negligence.
5The appellant advances two main arguments on appeal: that the motion judge erred in declining to certify the claim in nuisance; and that he erred in not certifying the breach of contract claim. We are unable to accept either argument.
6It is only necessary to address one aspect of the appellant’s argument with respect to the nuisance claim; namely, that the motion judge erred in finding that s. 449 of the Municipal Act bars the claim such that it is plain and obvious that the pleadings do not disclose a cause of action. The appellant offers what we can only describe as a strained argument that the case is not about “leaks” or about “the escape of water”, but is rather about “corrosion” and the “integrity of the pipes”. Consequently, the appellant asserts that it is not plain and obvious that the claim would fail, such that the matter should proceed to trial for determination. The appellant emphasizes that government immunity clauses are to be interpreted literally and narrowly.
7This argument cannot succeed. We agree with the motion judge that this is a straightforward matter of statutory interpretation. At issue are water leaks from a sewage or water works that may have caused damage. In concluding that the appellant’s nuisance claim was doomed to fail, the motion judge stated, “[t]here are no ambiguities that have been identified. The interpretation is consistent with the obvious purpose of the statute, which was to eliminate certain types of damage claims connected with the water and sewer works of a municipality.” It is trite law that the starting point for modern statutory interpretation is to determine the ordinary meaning of the text. Ordinary meaning “refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context.” Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada 2014), as cited in R. v. Wookey, 2016 ONCA 611, 351 O.A.C. 14, at paras. 24, 25. The appellant effectively seeks to “read in” limitations to the statutory provision to narrow its applicability, which, on its face and “literally”, precludes a claim such as this. The motion judge did not err in finding that s. 449 of the Municipal Act barred the appellant’s nuisance claim. As the test under s. 5(1) of the CPA is conjunctive, this determination disposes of any need for us to deal with the appellant’s other grounds of appeal in relation to nuisance.
8As noted, the appellant seeks to have the breach of contract claim remitted to the Superior Court for determination on the issue of certification. She says, variously, that she and the respondent had agreed that the claim would be certified in contract; that the parties were “ships passing in the night” that misunderstood one another; and that when she referred to “duties” in relation to the common issues, this included not only duty of care in tort, but duties in contract as well. She says that the motion judge erred in preferring the position of the respondent over her position when the order was settled, without providing reasons.
9We do not accept these arguments. While it is clear that breach of contract was pled in the Statement of Claim, it is equally clear that when the matter went before the motion judge, this component was not argued, nor was the request to certify the proceeding in breach of contract even set out in the notice of motion. The appellant could not point to any evidence of consent to the contract claim, which is strenuously denied by the respondent. There was no consent filed with the court, no letter exchange, not even an email exchange documenting the purported agreement. There was no allegation of specific dates on which discussions had occurred if such agreement were oral. Further, the Statement of Claim referred only to “duties” in the context of the claim in negligence, not in the context of the claim in contract.
10There was no error in the motion judge’s decision in not addressing the contract claim – he would have had every reason to understand that the claim was not being pursued. Nor was there an error when settling the order. The order, as it should, confirmed what had been decided on the motion before him as explained in his reasons.
11For the foregoing reasons, the appeal is dismissed. Costs are set at $50,000 payable by the appellant, inclusive of HST and disbursements. As was agreed between the parties, these costs are inclusive of the motion before Dawe J.A.
“I.V.B. Nordheimer J.A.”
“ L. Madsen J.A. ”
“R. Pomerance J.A.”