ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-290
DATE: 2014-08-21
BETWEEN:
Brantford Engineering and
Construction Limited
Plaintiff
– and –
Underground Specialties Cambridge
Incorporated and Great Lakes Copper Inc.
Respondent
P. Amey, Counsel for the Plaintiff
P.S. Chandler, Counsel for the Defendant,
Underground Specialties Cambridge Incorporated
B.J. Henderson, Counsel for the Defendant,
Great Lakes Copper Inc.
HEARD: July 14, 15, 16, 17 and 23, 2014
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Copper tubing, installed as part of a new watermain system, failed to pass the sterilization test required by the City of Brantford. In this action, the installing contractor claims against the supplier, in contract, and the manufacturer, in tort, for damages resulting from such failure.
A. Background
[2] Brantford Engineering and Construction Limited (“Brantford Engineering”) is involved in the installation of watermains, sewers and roads for the private and public sector, primarily in new residential subdivisions. The business was established in 1977 by David Rich. His son, Matthew Rich (“Mr. Rich”), who joined the company in 2005, was in charge of the project hereafter described.
[3] Underground Specialties Cambridge Incorporated (“Underground Specialties”) is a wholesale distributor of products used in water and sewage systems. The business has been operating in Cambridge since 1996 when Mark Lengyell was hired as its general manager.
[4] Great Lakes Copper Inc. was known as Wolverine Tube (Canada) Inc. (“Wolverine”), the corporate name changing during this lawsuit. The company has been manufacturing copper products, including tubing used in water distribution systems, for many years. Its market is primarily North American but with sales throughout the world.
[5] In November 2006, Brantford Engineering submitted a tender on a project for the installation of watermains, sewers and roads in a new residential subdivision in Brantford. It was awarded the contract the following month. Brantford Engineering contracted with Underground Specialties for the supply of material required for the project. Part of the watermain system called for the use of Type K 2 inch copper tubing. Underground Specialties ordered the product from Wolverine. The copper tubing was subsequently delivered to the project site and installed by Brantford Engineering in June 2007.
[6] Prior to connecting a new subdivision watermain to the municipal water system, the City of Brantford required a number of tests be successfully completed. One of those tests pertained to a sterilization procedure. Despite repeated attempts, the copper tubing in the watermain system failed to pass the sterilization test.
[7] Ultimately, Brantford Engineering obtained approval from the City of Brantford to replace the copper tubing with municipex pipe, a relatively new plastic product. Subsequent testing was successful. The watermain was then connected to the municipal water system.
[8] Brantford Engineering claims it incurred significant expense, said to be in excess of $70,000, due to the failure of the copper tubing in the sterilization test. In this action, it seeks to recover this loss.
A. Background
[9] A review of recent events involving the distribution of drinking water assists in putting the events and issues in this case in context.
[10] Water distribution systems have existed for hundreds of years without significant problem, at least in Canada, until 2000.
i) The Walkerton Water Crisis
[11] In May 2000, E. coli and other pathogens entered the Walkerton water system. Within days, a crisis occurred. Contaminated water caused the death of seven residents. More than 2,300 individuals became ill, some suffering permanent disability.
[12] In the subsequent judicial inquiry, O’Connor J.A. concluded, in part, that the crisis would have been prevented by the use of continuous chlorine residual (emphasis added). At the critical time, there was no chlorine residual in the water system. See: The Honourable Dennis R. O’Connor, Report of the Walkerton Inquiry: Part One (Toronto: Queen’s Printer for Ontario, 2002).
[13] A class action followed. Liability was immediately conceded and significant financial compensation was provided to the innocent victims.
ii) Subsequent Legislative Changes
[14] The Report of the Walkerton Inquiry was a wake-up call to all levels of government, public agencies and the private sector involved in the various aspects of drinking water systems. Or, at least, it should have. As we see in this lawsuit, not everyone was paying attention.
[15] The Report led to considerable review. Safety of the consuming public demanded legislative change and a regulatory system that would not fail.
[16] The Provincial Legislature enacted the Safe Drinking Water Act, 2002 in response to the many problems found to have occurred in the Walkerton crisis. Regulation 170/03 specifically addressed drinking water systems, establishing minimum standards throughout Ontario. One such standard was the requirement of maintaining a chlorine residual at all times throughout the water system.
iii) Municipal Regulation
[17] The legislation and regulations permitted municipalities to establish higher standards. The City of Brantford chose to do so. The source of drinking water in Brantford is the Grand River. Such water does not have the benefit of passing through subsurface aquifers as does ground water. As well, numerous facilities upstream discharge into the river. A raw water supply, as in Brantford, invites a higher disinfection standard as recognized in Regulation 170/03. See: Procedure for Disinfection of Drinking Water in Ontario, PIBS 4448e01, at pp. 2-5.
[18] Relevant to this lawsuit is the City of Brantford “Schedule 3 – Watermain Specifications”. These provisions are reviewed regularly by municipal officials and updated annually. The specifications address a number of matters, including approved material, such as Type K copper tubing, in the construction of new watermain systems.
[19] Of particular interest in the 2007 specifications was the sterilization procedure in paragraph 4.21.4. Sterilization was a two-step process involving a chlorination test and a chlorine residual test. Successful completion of both steps was required prior to connection of the watermain to the municipal water system.
[20] The first step, referred to as a superchlorination process, where a chlorine compound was placed in the watermain. Tests were conducted 24 hours later and required two criteria to be met:
i) the chlorine residual at every sampling location could not drop more than 30 per cent from initial readings; and
ii) the chlorine residual could never drop below .25 ppm.
[21] If the chlorination test was successfully completed, the watermain was flushed with water from the municipal system to eliminate the highly chlorinated water and achieve the chlorine residual of the city water. Municipal water was then pumped in the watermain and tests conducted 16 hours later. The chlorine residual was not permitted to drop by more than 50 per cent, nor could it drop below .25 ppm. If these tests were satisfactory, water samples were taken and delivered to the laboratory for analysis. No coliform of E. Coli was allowed and the HPC could never exceed 20 colonies per ml.
[22] Once both steps were successfully completed, the contractor would be given approval to connect the subdivision watermain to the municipal water system.
(continues exactly as in the source text through paragraph [169]…)
Released: August 21, 2014 D.J. Gordon J.
COURT FILE NO.: CV-09-290
DATE: 2014-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
Brantford Engineering and Construction Limited
Plaintiff
– and –
Underground Specialties Cambridge Incorporated
and Great Lakes Copper Inc.
Defendants
REASONS FOR DECISION
D.J. Gordon J.
Released: August 21, 2014
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