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Municipal - Liability - Nuisance and Sewage/Water [MA s.449]. Stadnyk v. Thunder Bay (City)
In Stadnyk v. Thunder Bay (City) (Ont CA, 2025) the Ontario Court of Appeal considered an unusual MA provision which bars nuisance tort claims in certain circumstances [MA 449 'Liability in nuisance re: water and sewage'], here in a class action context:[2] In a comprehensive decision, the motion judge declined to certify the nuisance claim. After setting out a fair summary of the law of nuisance, the motion judge addressed each of the conjunctive requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. He found it plain and obvious that the nuisance claim could not succeed, as it is caught by s. 449 of the Municipal Act, 2001, S.O. 2001, c. 24, a provision that bars all claims against municipalities based on “nuisance, in connection with the escape of water or sewage from sewage works or water works.” The motion judge found that the appellant’s claim was “doomed to fail”, stating: “In the immediate case, [the appellant] has brought a proceeding against a municipality. The proceeding is based in nuisance. Her nuisance claim is based on pinhole leaks that are in connection with the escape of water from the water works of the City of Thunder Bay.”
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[5] The appellant advances two main arguments on appeal: that the motion judge erred in declining to certify the claim in nuisance; and that he erred in not certifying the breach of contract claim. We are unable to accept either argument.
[6] It is only necessary to address one aspect of the appellant’s argument with respect to the nuisance claim; namely, that the motion judge erred in finding that s. 449 of the Municipal Act bars the claim such that it is plain and obvious that the pleadings do not disclose a cause of action. The appellant offers what we can only describe as a strained argument that the case is not about “leaks” or about “the escape of water”, but is rather about “corrosion” and the “integrity of the pipes”. Consequently, the appellant asserts that it is not plain and obvious that the claim would fail, such that the matter should proceed to trial for determination. The appellant emphasizes that government immunity clauses are to be interpreted literally and narrowly.
[7] This argument cannot succeed. We agree with the motion judge that this is a straightforward matter of statutory interpretation. At issue are water leaks from a sewage or water works that may have caused damage. In concluding that the appellant’s nuisance claim was doomed to fail, the motion judge stated, “[t]here are no ambiguities that have been identified. The interpretation is consistent with the obvious purpose of the statute, which was to eliminate certain types of damage claims connected with the water and sewer works of a municipality.” It is trite law that the starting point for modern statutory interpretation is to determine the ordinary meaning of the text. Ordinary meaning “refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context.” Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada 2014), as cited in R. v. Wookey, 2016 ONCA 611, 351 O.A.C. 14, at paras. 24, 25. The appellant effectively seeks to “read in” limitations to the statutory provision to narrow its applicability, which, on its face and “literally”, precludes a claim such as this. The motion judge did not err in finding that s. 449 of the Municipal Act barred the appellant’s nuisance claim. As the test under s. 5(1) of the CPA is conjunctive, this determination disposes of any need for us to deal with the appellant’s other grounds of appeal in relation to nuisance.
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