Fry v. St. John's (City), (2015) 366 Nfld. & P.E.I.R. 42 (NLPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: February 03, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 366 Nfld. & P.E.I.R. 42 (NLPC);2015 NLPC 0114

Fry v. St. John's (2015), 366 Nfld. & P.E.I.R. 42 (NLPC);

      1144 A.P.R. 42

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AP.004

Katherine M. Fry (plaintiff) v. City of St John's (defendant)

(2015 NLPC 0114C00201)

Indexed As: Fry v. St. John's (City)

Newfoundland and Labrador Provincial Court

Small Claims Division

Orr, P.C.J.

March 25, 2015.

Summary:

Fry owned 51 Drake Crescent in the City of St. John's. Fry wanted to divide the property into two more or less equal halves and retain the house on the north east side of the lot and sell the other half. The City planning department approved her proposal. Fry arranged to sell her new building lot to Clift. Clift arranged for the construction of a house on the lot. When excavation started, the construction crew dug up the water and sewer pipes (the lateral pipes) coming out of Fry's house that joined the house onto the City water and sewer mains in the street. It was discovered that the lateral pipes were not joined to the mains via the front of the house but instead ran diagonally across the building lot. The house Clift was constructing could not be constructed over the pipes leading to Fry's residence. They agreed to reconfigure the pipes and install new pipes to join the original house and, using the same trench, to install lateral pipes for Clift's new house. The cost to Fry of installing the new pipes was $6,255.05. She claimed that amount against the City plus $1,000 for landscaping.

The Newfoundland and Labrador Provincial Court, Small Claims Division, dismissed the claim.

Municipal Law - Topic 1807

Liability of municipalities - Negligence - Standard of care - Re water lines, sewers, drains, service barrel caps, etc. - [See Torts - Topic 9155 ].

Municipal Law - Topic 1865

Liability of municipalities - Nuisance - Water and sewerage system - General - [See Torts - Topic 9155 ].

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - [See Torts - Topic 9155 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - Fry owned 51 Drake Crescent in the City of St. John's - She wanted to divide the property, retain the house on the north east side of the lot, and sell the other half - The City planning department approved her proposal - Fry arranged to sell the new building lot to Clift - Clift arranged for the construction of a house on the lot - When excavation started, the construction crew dug up the water and sewer pipes (the lateral pipes) coming out of Fry's house that joined the house onto the City water and sewer mains - It was discovered that the lateral pipes were not joined to the mains via the front of the house but instead ran diagonally across the building lot - Clift's house could not be constructed over the pipes leading to Fry's residence - They agreed to reconfigure the pipes and install new pipes to join the original house and, using the same trench, to install lateral pipes for Clift's new house - The cost to Fry of installing the new pipes was $6,255.05 - She claimed that amount against the City plus $1,000 for landscaping - Fry alleged that the City was negligent in failing to warn her of the possibility that her lateral pipes needed to be located - The Newfoundland and Labrador Provincial Court, Small Claims Division, dismissed the claim - Fry failed to prove that she had suffered any damage - It seemed unlikely given the location of the pipes that the property could have been subdivided in any manner other than in the way that it was - The cost of moving the pipes was not caused or created by any action of the City - Further, the City's employee was not required to inspect Fry's existing house or to locate her lateral pipes - There was no negligence on the part of the City - The exemption provided by s. 179.1 of the City of St. John's Act would also provide a defence for the City against any claim for nuisance in these circumstances.

Cases Noticed:

Lake v. St. John's (City) (2000), 192 Nfld. & P.E.I.R. 84; 580 A.P.R. 84; 191 D.L.R.(4th) 616 (Nfld. C.A.), refd to. [para. 13].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 15].

Statutes Noticed:

City of St. John' s Act, R.S.N.L.1990, c. C-17, sect. 116 [para. 9]; sect. 179 [para. 12]; sect. 368 [para. 10].

Authors and Works Noticed:

Linden, Allen M., Linden on Torts, p. 114 [para. 7].

Counsel:

Katherine M. Fry, plaintiff, on her own behalf;

Linda Bishop, for the defendant.

This claim was heard on February 3, 2015, at St. John's, N.L., before Orr, P.C.J., of the Newfoundland and Labrador Provincial Court, Small Claims Division, who delivered the following judgment on March 25, 2015.