Windsor (City) v. RC Spencer Associates Inc., 2017 ONSC 7620
CITATION: Windsor (City) v. RC Spencer Associates Inc., 2017 ONSC 7620
COURT FILE NO.: CV-15-22316
DATE: 2017-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the City of Windsor Plaintiff
– and –
RC Spencer Associates Inc. Defendant
COUNSEL:
Sheila C. Handler, for the Plaintiff
Myron W. Shulgan, Q.C., for the Defendant
HEARD: June 13, 2017
RULING ON MOTION
HEBNER J.
[1] This motion was brought by the plaintiff for summary judgment against the defendant under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.
Background Facts
[2] This case involves a dispute between the Corporation of the City of Windsor (“Windsor”) and an engineering company, RC Spencer Associates Inc. (“Spencer”) over who should be responsible for damages experienced by homeowners due to a sewage backup.
[3] Many years ago, when the sewage and storm drains were first installed in the City of Windsor, they were combined drains and they emptied into the Detroit River. In time, dumping sewage into the Detroit River became unacceptable. A project was undertaken to separate the sewer drains from the storm drains. The intention was for the storm drains to empty into the Detroit River and the sewage drains to lead to a treatment centre. Given the extent of the drain system, the work to separate the storm drains from the sewage drains had to be done over time.
[4] Prior to 2012, the storm drain and sewage drain on Gladstone Avenue in Windsor was a combined system. The storm drain and the sewage drain were separated in 2012. Spencer provided the consulting engineering services, including the design work and the provision of engineering plans and drawings. The construction work was ultimately contracted to Coco Paving Inc. (Coco Paving). Work at the intersection of Richmond Street and Gladstone Avenue occurred in April 2012.
[5] On June 10, 2013 and July 10, 2013 Windsor experienced higher than normal levels of rainfall in a short period of time. On both dates, homeowners on Gladstone Avenue including the houses between Erie Street and Richmond Street experienced sewage backups and basement flooding in the course of the storms. Windsor paid the total sum of $73,870.89 to 13 property owners in settlement of their damages. The reasonableness of the settlement has not been challenged by cross-examination or contrary evidence.
[6] Windsor’s claim against Spencer is that Spencer did not provide comprehensible drawings that would allow the contractors to complete the work. Windsor requests judgment against Spencer for 50 per cent of the damages paid to the property owners under the provisions of the Negligence Act, R.S.O. 1990 c. N.1, ss. 1 and 2 which read as follows:
Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.
A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled. R.S.O. 1990, c. N.1, s. 2.
The Evidence
[7] The evidence filed by Windsor was in the form of three affidavits. The first affidavit is that of Jane He, a licensed engineer employed in the engineering department of Windsor. The second is an affidavit of Mark Winterton, City Engineer for Windsor. The third is an affidavit of Mark Stirrup, an independent registered professional engineer who was retained by Windsor to conduct an independent review of the cause of the basement flooding.
[8] The evidence filed by Spencer was in the form of two affidavits. The first is that of David Archer, a professional engineer employed by the defendant at the time the work was done. The second is the affidavit of David R. Colle, Senior Project Manager employed by Coco Paving.
[9] Windsor began to plan the project to reconstruct the sewer and storm drains along Gladstone Avenue in 2010. The reconstruction included the separating of the storm drain from the sewage drain. The design of the project was contracted to Spencer.
[10] Spencer ultimately submitted a design for Gladstone Avenue between Wyandotte Street East and Richmond Street which was approved by Windsor “as to form in reliance upon the professional skill and ability of RC Spencer Associates Inc. Consulting Engineers, as to design and specification” on November 4, 2011. The project was issued for tender.
[11] The problem concerns the work carried out at the intersection of Gladstone Avenue and Richmond Street in the City of Windsor, and specifically in the area of a pre-existing manhole 2C239. Before the sewage and the storm drains were separated, the storm waters and sewage traveled along a combined pipe to a treatment facility, with the overflow going to the Detroit River. The point of separating the drains was to concentrate the treatment on the sewage with the storm drains going directly to the river, untreated. The sewage was to travel through a green PVC pipe.
[12] The original drawings prepared by Spencer were revised on two occasions. The first revision was required as, in January 2012 while preparing for construction, Windsor staff noticed that the design submitted by Spencer called for the 300 mm sanitary sewer being installed on Gladstone Avenue to outlet into an existing 900 mm combined sewer running east-west along Richmond Street. The first design would have resulted in the regular egress of sanitary waste, untreated, into the Detroit River.
[13] On February 22, 2012, Spencer provided revised drawings which called for the installation of a larger 375 mm sanitary sewer and a new precast manhole, 2S3290, to terminate the sanitary sewer at a point north of Richmond Street. This drawing was provided to Coco Paving. Ultimately, a further redesign of the relevant area was required due to the existence of an EnWin power line conduit. The new proposed precast sanitary sewer manhole 2S3290 was to be relocated from north of Richmond Street to south of Richmond Street and replace the existing combined sewer manhole 2C238, which is located south of existing sewer manhole 2C239. Manhole 2C239 had a very large chamber, in good condition, with a cross-connect trough located within it.
[14] Work on the intersection of Richmond Street and Gladstone Avenue occurred on April 18, 2012. The man on the ground for Windsor was its employee, construction inspector Joe Ivan. Mr. Ivan was to contact Ms. He with any questions about the work to be carried out. He did not contact her. He did not ever advise that he made any changes to the design at this location. Ms. He’s affidavit states, “It is my understanding that Mr. Ivan believes he implemented the design at this location.”
[15] The evidence of Mr. Archer, professional engineer employed by Spencer, was that:
A combined 300 mm sewer line ran along Gladstone Avenue from north of its Richmond Street intersection through and to the south of the Richmond Street intersection. It carried both sanitary waste and storm water. The flow direction was from north to south. The combined sewer ran through manhole 2C239 and through manhole 2C238 (located to the south of manhole 2C239). In manhole 2C239 there is a cross pipe, namely a 750 mm storm sewer, running east to west. It is a half pipe which provides overflow relief if the combined sewer fills to backup.
Because it was the city’s intention to separate the combined sewer line by constructing a new sanitary sewer line, the portion of the combined line that entered manhole 2C239 from the north became redundant. It was to be removed and the opening through which it entered manhole 2C239 was to be bricked and parged to seal it.
The new sanitary line was to run west of manhole 2C239 and enter manhole 2C238. The existing combined line that travelled south of the intersection was to remain in place. The existing combined line between manhole 2C239 and manhole 2C238 was to provide overflow relief if the combined line filled to capacity and backed up.
Later, the city requested that manhole 2C238 be replaced with a new manhole designated manhole 2S3290. The design was to remain much the same, however the combined line from manhole 2C239 was to be connected to manhole 2S3290 to continue to provide overflow relief if the contents of the combined line filled to capacity and backed up.
[16] The intention was that the old combined pipe connection between the new manhole 2S3290 and the existing manhole 2C239 would provide overflow relief. This was to be the overflow mechanism such that in the event of a sewage backup, the overflow would empty into the storm drain instead of homeowners’ basements.
[17] The new sewage drain was not installed west of manhole 2C239. Instead, it followed the same path as the old combined drain such that the combined drain between manhole 2C239 and manhole 2S3290 was removed. The result was that there was no overflow mechanism and the sewage backup occurred.
[18] After the basement flooding occurred in July 2013, Windsor staff performed an inspection and determined that, indeed, an overflow mechanism had not been installed at manhole 2C239. Windsor staff created an overflow mechanism by cutting a hole into the new PVC sewage line as it passed through manhole 2C239 directly above the cross-flowing trench style storm drain such that any overflow would then escape via the hole, be caught in the storm drain, and would not back up into homeowners’ basements.
[19] Following these events, Ms. He met with Mr. Archer from Spencer to inform him of the events that occurred on June 10 and July 10, 2013 and the solution implemented by Windsor staff in the field. Mr. Archer advised, by way of letter dated July 12, 2013, that his company’s design called for a connection to be maintained between the existing manhole 2C239 and the new manhole 2S3290 to permit any overflow to discharge into manhole 2C239. As outlined above, no such connection was maintained.
[20] On August 20, 2013, Spencer provided Windsor with a document entitled “budget overview of the sewer rehabilitation”. The document suggests that Windsor’s installation of the sanitary sewer deviated from Spencer’s design in the following ways:
a) The sewer was situated easterly of its planned site;
b) The sanitary sewer was installed as a solid pipe, which prevented surcharging from overflowing; and
c) The interconnect between manholes 2S3290 and 2C239 on the design drawings was not installed.
[21] Ms. He’s evidence is that:
a) The engineers allowed Coco Paving to use the existing trench for the new sanitary sewer line and this in fact is the preferred practice to minimize disturbance and reduce costs where possible;
b) The installation of the sanitary pipe as a solid pipe was consistent with the design as it passed through the chamber and the plan did not suggest any connection and provided no details; and
c) There is no interconnect or cross-connection design detail in the drawings provided. At best, the drawings are ambiguous.
[22] The evidence of Mr. Archer, on behalf of Spencer, was that Windsor changed Spencer’s design during construction of the separated sewer line in three material aspects:
a) The new sanitary sewer line did not run along the route proposed by the defendant so that it would run west of manhole 2C239;
b) Windsor connected the new sanitary line to the existing combined line that ran south of the intersection with the result that when the combined line filled to capacity, it would backup and flow into the sanitary line;
c) The city eliminated the overflow relief that existed in manhole 2C239 by removing the overflow pipe.
[23] Windsor retained an expert registered professional engineer, Mark Stirrup, to conduct an independent review of the basement flooding. Mr. Stirrup provided a copy of a draft final report and an affidavit where he said:
“It is my opinion that the RC Spencer Associates Inc. design ought to have included a Design Brief or Project Overview prepared at the beginning of the project to confirm its understanding of the key objectives of the project and any constraints within the existing combined sewer system. It is also my opinion that the design drawings provided by RC Spencer Associates Inc. ought to have included additional details describing exactly how the new sanitary sewer along Gladstone from Erie to Richmond was to be connected to the existing combined sewer system downstream of Richmond, including the future status of the existing half pipe CSO structure within MH 2C239.”
[24] In the draft report itself, Mr. Stirrup states:
“In any case, as discussed already above, we believe that RCS’ drawings should have included additional details on exactly how the intended connection was to be accomplished, showing the proposed new 300 mm sanitary sewer; the actual dimensions of existing MH 2C239 containing the half pipe CSO structure; and the details of the proposed connection of the new sanitary sewer to the proposed new MH 2S3290 (replacing the existing MH 2C238) – both to confirm there was indeed room to make such a connection, and to confirm beyond doubt that the existing half pipe CSO structure in MH 2C239 was intended to remain in operation. As they have indicated since, this may have been RCS’s original design intent (at least after the original design error discussed above was corrected), but in our opinion, they should have provided clear instructions and/or details on their drawings (or in an accompanying Project Overview or Design Brief) to confirm this beyond doubt. Regardless of RCS’s stated intentions in this respect, it is clear from what ensued later, that their drawings did not provide sufficient instructions or details for the contractor to understand the exact intent of this component of their design.”
[25] In his conclusions, Mr. Stirrup stated:
“The primary cause of the basement flooding events that occurred along the 1000 – 1200 blocks of Gladstone Avenue on June 10 and July 10, 2013 was the removal of the pre-existing half pipe CSO structure inside MH 2C239, combined with the significant rainfall that fell during these events, and we agree with the city’s actions to reinstate this overflow to minimize the possibility of subsequent flooding events.
We believe that RCS design should have included a Design Brief or Project Overview prepared at the beginning of the project to confirm their understanding of the key objectives of the project and any constraints within the existing combined sewer system, and additional details on their design drawings describing exactly how the new sanitary sewer along Gladstone from Erie to Richmond was to be connected to the existing combined sewer system downstream of Richmond, including the future status of the existing half pipe CSO structure within MH 2C239.
Having said this, we also believe that as the initiator of the project, the owner and operator of the sewer system, the final reviewer of the drawings, and the inspector of the constructed works, it was the city’s responsibility to make sure the works ultimately met the objectives of the project, including maintaining the operation of the existing half pipe CSO structure and MH 2C239 in order to continue to provide protection against sewer surcharging and basement flooding along Gladstone, so the city must bear final responsibility for the removal of the CSO structure and the basement flooding resulting from it.”
[26] Counsel for Windsor submits that I ought to disregard the expert’s comments on the issue of liability as such comments are beyond his scope. I agree. Although the expert has provided his view on final responsibility for the damages suffered by the homeowners, that issue, of course, is one for this court to determine.
The Issue
[27] The issue before the court is whether it is appropriate to grant summary judgment to Windsor against Spencer in the amount of 50 per cent of the monies Windsor paid to the homeowners with flooded basements. Windsor brings its motion under r. 20 of the Rules of Civil Procedure. Rule 20.01(1) provides as follows:
20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
[28] Rule 20.04(2)(a) provides:
20.04(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; ...
[29] The powers of a court on a motion for summary judgment are set out in subrules 2.1 and 2.2 as follows:
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[30] In the Supreme Court of Canada case of Hryniak v. Mauldin, 2014 SCC 7, Karakatsanis J., at para. 66, provided the following guidance for a court hearing a summary judgment motion:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[31] The Supreme Court of Canada, in Hryniak, directs this court, on hearing a motion for summary judgment, to consider the principle of proportionality. Karakatsanis J. pointed to r. 1.04(1.1) which reads “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” In this case, the issues are complex. However, the amount involved is relatively minor ($36,935.45 being one-half of $73,870.89 paid to the homeowners).
[32] A professional engineer, just like any other professional, is required to exercise reasonable care, skill and knowledge in the performance of the professional skill that has been undertaken. The standard is that of a reasonable professional in like circumstances (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147). Insofar as engineers are concerned, they are required, when preparing drawings, to ensure that the design is a workable design. In Trident Construction v. Wardrop, 1979 CanLII 3043 (MB QB), [1979] 6 W.W.R. 481, the Manitoba Queen’s Bench Court described the responsibility of a professional engineer at para. 187 as follows:
Why should it be otherwise, as to the responsibility of the professional engineer or architect whose plans the builder is required to follow, in the event a mistake in those plans proves costly to the builder? Surely, the party whose design it is may be taken to have in contemplation the party invited to build the project as designed, and who by his contract will have to abide by the plans in question, as forming an integral part of his undertaking with the owner. I have no difficulty in fixing the professional engineer with a duty to care towards the person who is to follow the engineer’s design, to ensure that the plans are workable, for breach of which duty the engineer may be made accountable.
[33] I agree with this principle. In my view, I must consider the adequacy of the engineer’s drawings having regard to the purpose for which they were intended; namely, to direct the work undertaken by Windsor to replace the combined sewage/storm drains with separate drains. Such drawings ought to contain necessary directions to complete the project, including the manner in which overflow of sewage and/or storm drains were to be dealt with. These directions ought to be sufficiently clear so that the people in the field directing and supervising the work are able to do so, in accordance with the drawings.
[34] It is not clear from the evidence filed whether Spencer’s drawings at the intersection in question actually provide for a sewage overflow. The defendant takes the position that the design drawings are clear. The plaintiff takes the position that they are not, and provides expert evidence to confirm that position. It seems to me that the real issue is whether the drawings were sufficiently clear (or ought to have been sufficiently clear) to the individual supervising the work in the field on behalf of Windsor. That individual was Mr. Joe Ivan, who is now retired from the City of Windsor. Mr. Ivan did not provide an affidavit and his evidence is contained in the affidavit of Mark Winterton, with Mr. Winterton swearing on information and belief. That affidavit includes the following:
“I am advised by Joe Ivan and verily believe that there was no decision made by the City or Coco Paving to alter the design.
I am advised by Joe Ivan and verily believe that at all times he did his best to interpret the engineered drawings of RC Spencer and comply with the intentions of RC Spencer on site.
I am advised by Joe Ivan and verily believe that he did not at any time attempt to change the design in any way and that at all material times he believed that the work that was carried out was consistent with the design intention of RC Spencer as expressed in the plans.”
[35] As the issue is whether the drawings prepared by Spencer were sufficiently clear to allow the individuals doing the work to do the work correctly, it seems to me that the court ought to have the benefit of direct evidence from the person in the field. That person would be Mr. Ivan. By not providing an affidavit, Mr. Ivan is insulated from cross-examination, which is unfair to the defendant.
[36] Based on the evidence filed, and without hearing from Mr. Ivan directly, I cannot be satisfied that there is no genuine issue requiring a trial.
[37] I am mindful of the authorities that stand for the proposition that, on a motion for summary judgment, a litigant must put his or her best foot forward. Windsor’s best foot forward would have included an affidavit of Mr. Ivan, which would of course necessitate producing Mr. Ivan for cross-examination. Counsel for Windsor advised that Mr. Ivan refused to provide an affidavit. As he is retired, and no longer an employee, Windsor’s hands were tied. For reasons that follow, I nonetheless turn to the second step in the Hryniak analysis.
[38] The second step in the Hryniak analysis is a consideration of whether the need for a trial can be avoided by using the new powers under r. 20.04(2.1) and (2.2). In my view, it can. A mini-trial, on the issue of the interpretation of the drawings in the field, will result in a determination of the claim. I am mindful that the amount of the claim is only one-half of $73,870.89. Given that, it seems to me that a more summary procedure would be appropriate and, accordingly, this is a case where regard may be had to the powers contained in rule 20.04(2.2). In Bank of Nova Scotia v. Russell, 2016 ONSC 1829 (Div Ct), the Divisional Court said the following about this court’s use of the fact-finding powers discussed in Hyrniak, at paras 19 and 20:
19 Properly interpreted, the Supreme Court held in paragraph 66 that a judge hearing a summary judgment motion should not resort to the powers ordinarily exercised by a trial judge where there is no genuine issue requiring a trial. The Court did not purport to limit the motion judge's ability to receive evidence beyond the paper record in order to determine whether to exercise the powers in r. 20.04 in an attempt to avoid the need for a trial.
20 Hryniak is fundamentally a direction from the Supreme Court of Canada mandating judges hearing summary judgment motions to resolve the motion and, where possible, the litigation, in a way that is proportional to the problems presented by the specific case.
[39] I therefore propose to order a mini trial take place and direct that the plaintiff produce Mr. Ivan, by summons if necessary, to give evidence.
Disposition
[40] The parties shall arrange with Trial Co-Ordination for a mini trial on the issue of the sufficient clarity, or otherwise, of the drawings prepared by Spencer for the purpose for which they were intended. Mr. Ivan is a necessary witness. The plaintiff may call any other witnesses it deems necessary on this issue, and the defendant may summons any additional witnesses it deems necessary on this issue. At this point, I believe that two days ought to be sufficient for the presentation of this evidence but I am not inclined to enforce a time limit. If either party believes that more than two days is required, that party may so advise the Trial Co-Ordinator who will bring this matter to my attention for determination.
“original signed and released by Hebner J.”
Pamela L. Hebner
Justice
Released: December 22, 2017
CITATION: Windsor (City) v. RC Spencer Associates Inc., 2017 ONSC 7620
COURT FILE NO.: CV-15-22316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the City of Windsor Plaintiff
– and –
RC Spencer Associates Inc. Defendant
RULING ON SUMMARY JUDGMENT MOTION
Pamela L. Hebner
Justice
Released: December 22, 2017