PUBLIC UTILITIES - Negligence - Limitation of liability

Appeal by the plaintiffs from the dismissal of their action against the Water Commission for negligence and nuisance. Their houses suffered sewage backup from trenching work done by the Commission on the stormwater system when the Commission’s equipment damaged the appellants’ sewer laterals. The trial judge held that the appellants had not proven negligence, had established nuisance, but that the Commission could rely on statutory defences to nuisance in s. 26(b) and s. 27A of the Halifax Regional Water Commission Act. The evidence did not support a finding that the Commission knew or ought to have known that there was a problem with the laterals that should reasonably have been repaired. There was no evidence to establish that the nuisance could have been avoided by any other practically feasible method of constructing the installation of the stormwater pipe in front of the properties.

HELD: Appeal allowed in part. The dismissal of the nuisance claim was set aside. The appellants, not the Commission, were required to disprove gross negligence. There was no evidential basis for this court to say the trial judge should have inferred the Commission committed the reckless or marked disregard which was required for gross negligence. There was, however, neither a statutory nor an evidential basis to overturn the proven nuisance. The trial judge erred in law by ruling s. 26(b) applied to nuisance. Section 26(b) did not afford a defence to the torts of nuisance committed by the Commission against the appellants’ properties. The onus to establish the defence in s. 27A rested on the Commission.

Pettigrew v. Halifax Regional Water Commission, [2020] N.S.J. No. 465, Nova Scotia Court of Appeal, P. Bryson, J.E. Fichaud and C.A. Bourgeois JJ.A., December 15, 2020. Digest No. TLD-February82021006