THUNDER BAY — St. Joseph's Care Group has quietly abandoned its own lawsuit against the City of Thunder Bay over pinhole leaks in copper water pipes.
Instead, SJCG is now relying on the outcome of the class action against the city on behalf of thousands of potential claimants that was certified two years ago.
St. Joseph's Care Group originally sought damages of $350,000 after leaks occurred in dozens of units in the PR Cook apartment complex at St. Joseph's Heritage.
SJCG alleged the addition of sodium hydroxide to the city's water supply in 2018 was the source of the problem, and that the city had been negligent in failing to investigate the potential for damage both before and after using the chemical.
In a statement of defence, the city denied negligence, arguing the pipes in PR Cook Apartments were already beyond their life expectancy, and that they should have been replaced earlier.
SJCG's damage claim was later reduced to $205,000, and it continued to pursue its lawsuit independently, even after it became aware by March 2021 that a class action was in motion.
But it's now come to light that In March 2024 – eight months after the class action was certified in court – St. Joseph's Care Group changed direction and decided to rely on the outcome of the class, from which it had never opted out.
In an affidavit filed in the Superior Court of Justice earlier this year, SJCG said it initially believed it should sue the city on its own because the small size of its claim would expedite the case.
But it began to see things differently because of delays in getting the matter resolved, increasing costs, and the "burdensome" volume of documents being disclosed by the city.
"We did not expect to have our claim treated as if it were a $350 million proceeding...SJCG is not interested in paying to litigate a claim worth $205,000 as though it were a claim worth $350 million. This is simply a poor use of public funds," the affidavit stated. "SJCG is choosing to litigate its claim through the class proceeding because this is simply a more cost-effective approach in the circumstances."
City wanted compensation for 'costs thrown away' in the abandoned St. Joseph's Care Group case
The city responded by bringing a motion in court requesting it be reimbursed for almost $63,000 in "costs thrown away," which are costs incurred by a party in a dispute which may be attributed to wasted preparation for a trial that doesn't proceed.
Justice Robin Lepere, who heard the motion in Superior Court in Thunder Bay, denied the application.
The city sought reimbursement of almost $40,000 for costs related to developing a shorter list of documents relevant to SCCG's lawsuit, and a further $23,000 related to the cancellation of a scheduled examination for discovery – a process in which one party is allowed to pose questions to another under oath, including questions about the evidence to be presented once a trial begins.
Judge Lepere declined to award costs for the preparation of the documents list, saying the city had failed to provide a Bill of Costs to support the amount claimed, and failed to explain why the process took 118 hours.
She also noted that it was a judge, not SJCG, who had required the city to provide the new documents list, and that this was an exercise that should have been undertaken at the outset.
Finally, the judge found that since the city had submitted the same documents list in the class action, the review that removed thousands of irrelevant documents in the St. Joseph's case could not be construed as "a waste of time."
With regard to the city's claim for costs incurred for the November 2023 examination for discovery that ended up being cancelled, she said SJCG had notified the city in October that the meeting might not proceed.
Judge Lepere also observed that the city had failed to provide a Bill of Costs to corroborate the hours spent on witness preparation for the meeting, and failed to explain why witness preparation was still being done despite an email from St. Joseph Care Group's lawyer indicating no court reporter would be available.
In addition, she stated that some (if not all) the work preparing a witness for examinations in discovery wasn't necessarily a waste of time.
"The preparation for the examinations in the Class Action will likely be shorter because of this earlier preparation" the judge wrote in a decision released last month.
A date for the trial of the class action has not yet been announced.
In February of this year, the City of Thunder Bay was awarded $50,000 for its costs at an Ontario Court of Appeal hearing where a judge's decision to strike one part of the class action claim was upheld.
