Court File and Parties
COURT FILE NO.: DC-16-497-AP DATE: April 18, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KEN LAIRD, Respondent Self-Represented Plaintiff/Respondent
- and -
THE CORPORATION OF THE TOWN OF PETAWAWA, Appellant Stephanie Doucet for the Defendant/Appellant
HEARD: April 10, 2017
Endorsement
James, J.
[1] This is an appeal by the defendant municipality from the decision of Deputy Judge R.B. Howe dated May 5, 2016.
[2] The appeal involves an issue between a property owner and the municipality as to who is responsible for the cost of thawing a frozen waterline on the appellant’s side of the property line. At trial this portion of the water system was described as the “water service connection”, being a lateral section of pipe running from the water main to the property line or “curb stop”.
[3] When the waterline became frozen during the winter of 1992-1993, the appellant attended and thawed the blockage without charge to the property owner. This appears to have been consistent with standard practice in the municipality at the time.
[4] In 2013 the public works supervisor prepared a Frozen Water Policy which purported to discontinue the previous practice. This policy was not enacted by the appellant in a by-law or resolution and was without legal effect.
[5] I would dismiss the appeal essentially for the reasons given by the trial judge and in particular at paragraph 92 where he determined that the due diligence obligation of the appellant included a requirement to bear the cost of thawing blockages due to frost in the water service connection.
[6] I would add the following comments and observations.
[7] In the circumstances present here, I would hold that in the absence of a specific provision to the contrary, the appellant was subject to an estoppel that prevented it from discontinuing a service (bearing the cost of thawing blockages in the water service connection) incidental to its obligation to supply potable water.
[8] Support for this proposition is found in the words of Professor Waddams in his text, The Law of Contracts, 6th ed., at paragraph 648 where he states:
The increasing participation of the government in every area of social activity means that government contracts are becoming more common. The citizen is increasingly compelled to contract with the government and to rely on its statements as landlord, as employer, as buyer and seller of goods and services, and as provider of social benefits. It would seem desirable that the government should be bound by the ordinary law of contracts, including the law relating to estoppel, for the alternative is to allow it to profit by disappointing the reasonable expectations of the citizen. In some cases it may properly be found that a statement by a government official of future policy falls short of a promise or firm commitment, in which case enforcement will properly be denied. In other cases protection of the promisee’s reliance may justify a measure of enforcement that falls short of protecting the full expectation, as was suggested in Chapter 5. It may be added that the ordinary law of contracts includes defences based on public policy, mistake and unexpected changes in circumstances, so that the government like any other contracting party may be excused in appropriate circumstances from fulfillment of its promises. A flexible remedy may often be appropriate, such as release from a promise but only on condition of compensating the promisee’s reliance.
[9] In my view, there is a reasonable basis to inject contractual principles into the parties’ relationship and, with respect, I am reluctant to endorse the conclusion of Crane, J. in Grace v. Fort Erie (Town), [2003] O.J. No. 3475 (S.C.J.) at paragraph 96 to the effect that a contractual relationship does not arise between a municipality and the water users it supplies. This decision was referred to at the trial and was binding on Deputy Judge Howe.
[10] It was open to the appellant to enact provisions that had the effect of altering or eliminating obligations to act in conformity with past practice. Specifically, it had an opportunity to do so in 2011 when it passed [by-law 717/11](By-law 717/11 (Town of Petawawa)) wherein the appellant set out its rules and regulations for the operation of the water works system. The appellant chose not to do so nor did it amend the by-law in 2015 to give effect to the Frozen Water Policy.
[11] The appeal is dismissed.
Mr. Justice Martin James
DATE RELEASED: April 18, 2017
COURT FILE NO.: DC-16-497-AP DATE: April , 2017 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KEN LAIRD Plaintiff/Respondent
- and – THE CORPORIATION OF THE TOWN OF PETAWAWA Defendant/Appellant REASONS FOR DECISION Mr. Justice Martin James