THUNDER BAY -- Anyone who hasn't disconnected their downspout from city sewers should be aware that they could face consequences.
But the lead lawyer in a class action lawsuit against the city over the May 2012 flood says it's just a mean-spirited way of re-victimizing homeowners.
Between 1999 and 2005 the city reached out to property owners that had downspouts heading directly to sewers to let them know it conflicted with city bylaws. To-date there are around 200 properties in the city that haven't complied.
A class action lawsuit from the 2012 flood says the city was negligent by not forcing those properties to comply and helping cause the overflow of the Atlantic Avenue Sewage Treatment Plant. City manager Tim Commisso said he doesn't think that's the case but if a decision doesn't go the city's way, those property owners will have to take action.
"Essentially we're putting those property owners on notice that if there's any merit to that claim that they city will be taking action to protect our interests," he said.
"We don't belive that in any significant way 200 properties would contribute to the situation, particularly at the Atlantic Avenue treatment plant."
The city contacted, advised and followed up with homeowners about the bylaw. It's up to them to comply with it.
"We don't go out and actively all of the bylaws in terms of compliance. We typically deal with bylaw enforcement on a complaint driven basis," Commisso said.
But lawyer Sandy Zaitzeff says the Ontario Court of Appeal already found the city negligent and liable for allowing direct downspouts to overflow sewers in a case from 1994. It's now included in the class action suit, which Zaitzeff is ready to go to trial anytime. But he wants to be clear that it will be the city's insurance company, not property owners, that would take a financial hit.
""These individual homeowners really have nothing to fear from this. This is a tactic (on the city's part)," he said.
The city is encouraging property owners with direct downspouts to contact their insurance company or the city.
A media release issued by the City of Thunder Bay can be read below:
City of Thunder Bay Media Release
Update on 2012 Flood Class Action Proceedings
City Serving Third Party Notice to Approximately 200 Property Owners
Regarding Failure to Disconnect Rainwater Leaders or Downspouts
September 1, 2015 – The claimants have recently agreed to discontinue a second Flood Class Action against the City, which started about two years after the initial action. Both actions arose out of the May 28, 2012 flood disaster.
As a result, several of the allegations in the second claim have now been incorporated in the first Class Action suit. Specifically, the claimants allege that the City contributed to the overloading of the Atlantic Avenue Plant by not enforcing its Downspout Disconnection By-Law. The claimants now allege that the City was negligent in failing to prosecute the claimants to disconnect their rainwater leaders.
The City disputes this claim. An estimated 200 roof rainwater leaders, or downspouts, had not yet been disconnected following the City’s efforts from 1999 to 2005 to bring about disconnection. However, under the By-law, it is the owners’ responsibility to comply. Also, it is highly unlikely that the water from connected downspouts contributed in any significant way to the overflows to the plant. These issues are presently being addressed by experts retained to assist the City in its defence.
Although the City does not accept the allegations, if a Court finds merit in them, at all times it remained the responsibility of the claimants to meet the Downspout Disconnection By-Law and, for that reason, the third party proceedings would seek contribution from them for damages incurred.
Claimants who receive the third party claim legal documents should contact their insurer or lawyer for assistance.
