minicounsel

COURT FILE NO.: CV-15-22316 DATE: 20190213 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: September 5 and 7, 2018

Hebner j.:

1The plaintiff brought a motion for summary judgment. I heard that motion on June 13, 2017. My initial reasons are dated December 22, 2017. I ordered a mini trial to take place and I directed the plaintiff to produce Mr. Joe Ivan, by summons if necessary, to give evidence. I heard that evidence, and additional viva voce evidence from the defendant, on September 5 and 7, 2018. I am now in a position to deal with the motion in its entirety.

Background Facts

2I previously summarized the background facts, and the evidence filed on the motion prior to receiving the viva voce evidence of Mr. Ivan, in my ruling dated December 22, 2017, located at 2017 ONSC 7620. I repeat the background facts and the earlier evidence here for ease of reference.

3This 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.

4Many 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, in stages.

5Prior to 2012, the storm drain and sewage drain on Gladstone Avenue in Windsor was a combined system. The storm drain and the sewage drain north of the intersection at Gladstone Avenue and Richmond Street 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.

6On 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 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.

7Windsor’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 percent of the damages paid to the property owners under the provisions of the Negligence Act, R.S.O. 1990 c. N.1, s. 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

8The 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.

9The 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.

10Windsor 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.

11Spencer 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.

12The 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 an existing manhole 2C239 (the designation “C” stands for “combined”). 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 tubular PVC pipe. The staged work required that the PVC pipe containing sewage be connected to the existing combined drain at the intersection.

13The 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.

14On February 22, 2012, Spencer provided revised drawings which called for the installation of a larger 375 mm sanitary sewer and a new precast manhole, MH 2S3290 (the designation “S” stands for “sanitary”), to terminate the sanitary sewer at 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 MH 2S3290 was to be relocated from north of Richmond to south of Richmond and replace the existing combined sewer manhole MH 2C238, which is located south of existing sewer manhole 2C239. Manhole 2C239 had a very large chamber, in good condition, with a crossconnect trough located within it.

15Work 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.”

16The evidence of Mr. Archer, professional engineer employed by Spencer, was that:

a) 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 direction was from North to South. The combined sewer ran through a 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 (trench) which provides overflow relief if the combined sewer fills to backup.

b) 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 parched to seal it.

c) 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.

d) Later, the City requested that manhole 2C238 be replaced with a new manhole designated 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.

17The 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 trench style storm drain instead of homeowners’ basements.

18The 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.

19After 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.

20Following 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.

21On 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.

22Ms. 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.

23The evidence of Mr. Archer, on behalf of the defendant, was that the City 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) The City 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.

24Windsor 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.

25In 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.

26In 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.

27Counsel 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

28The issue before me in June 2017 was whether it was appropriate to grant summary judgment to Windsor against Spencer in the amount of 50 percent of the monies Windsor paid to the homeowners with flooded basements. Windsor brought its motion under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. After a discussion of the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, I considered the question of whether to use powers of the court on a motion for summary judgment as set out in rr. 20(2.1) and (2.2). Specifically, I considered subrule 2.2 that reads “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.” I noted the direction from the Supreme Court to consider proportionality in determining whether to use its special powers. The amount involved in this case is relatively minor ($36,935.45 being one half of the $73,870.89 paid to the homeowners) and I found that, in my view, the matter could be dealt with on a cost-effective basis by the use of the court’s special powers on the summary judgment motion.

29I determined that in order to rule on the plaintiff’s claim of negligence, I was required to 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. I noted that 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. I determined that I needed to have the benefit of direct evidence from that person in the field in order to properly adjudicate the plaintiff’s claim. I was advised that that person is Mr. Joe Ivan. I ordered 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. I directed that Mr. Ivan was a necessary witness and that the plaintiff and defendant were free to call any other witnesses they deemed necessary to resolve the issue.

Mr. Ivan’s Evidence

30Mr. Ivan was the construction inspector of the Gladstone project for Windsor in 2012. He worked as a construction inspector for the plaintiff between 1988 and 2016, when he retired. In 2012, Mr. Ivan had been an inspector for 24 years. He worked extensively during the reconstruction of the storm sewers, the sanitary sewers, and the reconstruction of the roads and sidewalks. On the Gladstone project, the designer was the defendant. Coco Paving was the contractor.

31Coco Paving’s job was to complete the work in accordance with the plans prepared by the defendant. Mr. Ivan’s role, as the construction inspector, was to make sure that Coco Paving fulfilled the duties of its contract and to take notes for the purpose of calculating the payment owing to Coco Paving. Mr. Ivan did not have any input into the design of the project. Mr. Ivan did any authority to change the plans or the specifications. In the event Mr. Ivan encountered any problem in the field, he was required to contact the city engineer who would then call the defendant. While Coco Paving was doing its work, Mr. Ivan would ensure that the pipe was laid on grade according to the plans. He would look at the drawings from manhole to manhole and conduct measurements in order to check the grade.

32The plans for the work at the intersection of Richmond Street and Gladstone Avenue was reviewed extensively by Mr. Ivan while he gave his evidence. The plans clearly indicate that they called for the “existing combined sewer to be removed”. A new storm drain was to be installed at Richmond Street with the flow of stormwater going from south to north. A new sewage pipe in the form of the PVC closed pipe was to be laid adjacent to the new storm drain with the flow of the sewage to be from north to south. The water in the storm drain was to head for the Detroit River. The sewage in the PVC pipe was to head to a treatment facility.

33According to Mr. Ivan, the new sanitary sewage pipe was laid into the same trench as the old combined pipe. Coco Paving took out the combined pipe and laid the sanitary sewage pipe into the same trench. When Coco Paving reached the intersection of Gladstone Avenue and Richmond Street, it encountered existing manholes 2C239 and 2C238 that serviced the old combined drain. The directions were to replace manhole 2C238 with a new precast manhole 2S3290. Coco Paving laid the PVC pipe through 2C239 and into the new precast manhole, 2S3290. All of the existing combined pipe was removed, including the old combined pipe between former manhole 2C238 and manhole 2C239.

34As indicated above, the evidence of Mr. Archer was that the sanitary line was to run west of manhole 2C239 and enter manhole 2C238. The existing combined line between 2C239 and 2C238 was to remain for overflow relief. After the City requested that manhole 2C238 be replaced with a new manhole 2S3290, according to Mr. Archer, the design was to remain the same however the combined line from manhole 2C239 was to be connected to manhole 2S3290 to continue to provide overflow relief. That is not what happened. The new sanitary line was instead laid right through manhole 2C239 to the new manhole 2S3290 where it was connected with the old combined line. The old existing combined line between manhole 2C239 and the former manhole 2C238 was removed. The result was there was no overflow relief in place.

35According to Mr. Ivan, Coco Paving had a foreman on-site overseeing the work. No questions were asked of Mr. Ivan about the work. No changes to the drawings were made by Coco Paving. There were no authorized changes to the work. There was no concern that what was actually being done was not called for.

36When the drawings were put to Mr. Ivan, he pointed out that there was nothing on the drawing to indicate an overflow connection. There was nothing on the drawing to indicate that the connection between manhole 2C239 and 2C238 was to be retained. In fact, the drawings specifically indicated that “the existing combined sewer to be removed”. The connection between manhole 2C239 and 2C238 could not be retained because the new PVC pipe was laid in the same trench. There was nothing in the drawings to indicate that an overflow was necessary at that location. Mr. Ivan said that if an overflow connection was expected, it would be noted at the bottom of the page of the drawings specifying what needed to be done. There was no such notation. There was nothing in the drawings to indicate a new cross piece or overflow connection needed to be installed from the new manhole 2S3290.

37According to Mr. Ivan, the work in the field was done in compliance with the plans prepared by the defendant. If Mr. Ivan had thought that the contractor was not completing the work in accordance with the drawings, his obligation would have been to call his supervisor. No such call was made as he thought the drawings were being followed.

38Under cross-examination, Mr. Ivan confirmed that his job is to read the drawings and inspect the work in the field to ensure that it is in compliance with the drawings and the City specifications. He watched Coco Paving do the work, noted the work that was done and then gave instructions for payment. He recorded work and materials for the purposes of calculating payment. He determined for what work the contractor ought to be paid.

39In respect of the intersection in question, Mr. Ivan said that the new manhole 2S3290 had only two holes for connecting pipes – one hole to accommodate the new sanitary sewer at the north end and one hole to connect the new sanitary sewer to the existing combined pipe. There was no hole to accommodate an overflow pipe.

40Mr. Ivan was challenged for his failure to sound the alarm when Coco Paving laid the new sanitary pipe right through existing manhole 2C239. Mr. Ivan said that there was no other way to lay the pipe. Coco Paving was following the existing trench and the pipe would not go around the manhole as PVC pipe does not bend. It was his view in the field that Coco Paving’s laying of the pipe through manhole 2C239 did not represent a change from the drawings. When Mr. Ivan was challenged on the removal of the existing combined sewer between manholes 2C239 and 2C238, he pointed out that that line was an existing combined sewer and the plans called for the existing combined sewer to be removed. There was nothing to indicate that that existing combined sewer needed to remain in place for overflow relief. He would have expected a note explaining exactly what to do.

Analysis

41In my ruling dated December 22, 2017, at para. 32, I set out the standard of care of a professional engineer in the preparation of drawings. I repeat my comments here:

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] 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] 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 of 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.

42In my view, Mr. Ivan’s evidence makes it clear that the plans prepared by the defendant did not specify the retention of the existing combined sewer line between manhole 2C239 and new manhole 2S3290 to act as an overflow. The plans instead say the opposite – that the existing combined sewer line is to be removed. There was no detail of an overflow to be maintained, or constructed, between the two manholes. There was no indication that an overflow was necessary. In my view, the plans did not provide sufficient clarity for Coco Paving and Mr. Ivan to be aware, in the field, of the need to maintain the connection between the two manholes to provide for overflow.

43This conclusion is consistent with the evidence of the plaintiff’s expert, Mr. Stirrup. He said that the defendant should have included “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 manhole 2C239”. It was Mr. Stirrup’s opinion that the drawings “did not provide sufficient instructions or details for the contractor to understand the exact intent of this component of their design” (namely the overflow component at manhole 2C239). I agree.

44Mr. Stirrup goes on to point out that the plaintiff was also negligent as the final reviewer of the drawings and the inspector of the constructed works. I agree. However, the fact that the plaintiff was negligent does not take away from the negligence of the defendants. According to s. 1 of the Negligence Act, I am to determine the degree in which each of the plaintiff and defendant are negligent. There is no evidence that one was more negligent than the other and I assess the respective degrees of negligence at 50 percent.

Disposition

45In my view, the suggestion of the plaintiff, namely that the defendant ought to pay for one half of the monies paid to the homeowners in compensation for their damages is appropriate.

46For the foregoing reasons, I order that the defendant pay to the plaintiff the sum of $36,935.45 plus prejudgment interest. In the event the parties are unable to agree on costs, they may make submissions in writing, to include a costs outline and any relevant offers to settle, according to the following timeline:

The plaintiff shall provide submissions within 20 days;
The defendant shall provide submissions within 20 days thereafter;
The plaintiff shall provide reply submissions, if any, within 10 days thereafter.

Original signed by Justice Pamela L. Hebner

Pamela L. Hebner Justice

Windsor (City) v. RC Spencer Associates Inc., 2019 ONSC 1083

Case Summary

Background Facts