By COLLIN GALLANT on August 3, 2019.
The Alberta Court of Appeal has ruled in favour of Medicine Hat condo owners and ordered the city to take responsibility for a disputed lift station that services several adjoining properties.
The decade-long, often testy legal battle involves the River Ridge Condo Association, which argued in court last fall it unwittingly became the owner of the sewage pumping facility when the developer walked away in the late 2000s.
It also serves several adjoining developments that bear no legal responsibility for it, and lawyers argued that made it a public utility which Alberta law states cannot be provided by private companies.
The lower court disagreed, but in a judgment posted Friday morning, a panel of three justices on the Court of Appeal reversed the decision. They were unanimous in ordering the city to take over the station, as well as pipes and storm drains that crisscross the properties.
The city reserved comment on Friday, stating officials were still studying the judgment.
Three condominium corporations had launched the appeal. Representatives from the Garden Homes, River Ridge and Riverstone complexes did not return calls seeking comment.
A letter to residents of the Garden Homes sent by board president Al Plante, and obtained by the News, paints a picture of victory after a lengthy legal saga.
“This is incredibly good news,” it reads. “There are many issues that will now occupy our time,” it states, citing a potential reimbursement of legal and operating costs, as well as a “transition plan needed to successfully move the responsibility of the deep utilities to their rightful owner.”
The judgment itself falls short of issuing a write of Mandamus (a legal term forcing a government to uphold its responsibilities), which condo lawyers had sought.
It does however, say the city’s argument that it’s unfair to general taxpayers to take over substandard infrastructure after a private developer failed in its commitments didn’t outweigh the city’s responsibility operate public utilities for its citizens.
In her 2018 judgement Justice Marriot stated that the responsibility laid with the developer, Medican, and while she may sympathize with the condo owners, that didn’t make it the city’s problem.
The appeal court justices stated that “the unfairness… lies in making landowners responsible for the maintenance and operation of infrastructure that serves parcels other than their own.”
The appeal judgment also alludes to potential cost recovery options for the city, which could impose a local improvement tax to residents to cover costs for upgrades.
That was one potential solution suggested at city committee meetings when the issue flared in 2011 when it was determined that the station would have to be rebuilt to meet municipal standards, and the cost could be split.
In 2014 council offered to pay the entire cost of a new station and operate it as a city facility if the neighbouring groups came to an agreement on other infrastructure in the area, namely water and sewer pipes and storm drains that criss-cross the private properties.
Those became the basis of the condo owner’s winning legal argument.
The lift station was built to service the bareland condominium complex and several adjoining properties all built by local builder Medican, though no operation, access or maintenance agreements between the legally separate developments was drawn up.
It was to be privately operated by that company – a common practice in some condos – but the operation fell to the River Ridge Condo Corp after Medican went into receivership and was then dissolved.
The site plan shows a complex network of utility lines, including some that cross through private property to other properties without registered easements.
The appeal action was handled by Peter Linder, of the Calgary litigation firm of Peacock Linder Halt & Mack LLP, for the applicants.
Outside council, Gwendolyn Stewart-Palmer of the firm Shores jardine, represented the city.