NEWS FILE PHOTO The Supreme Court of Canada will not hear the City of Medicine Hat's argument that it should not be responsible to take over operations of the sewage lift station at the River Ridge Estates condominium complex in Medicine Hat.
cgallant@medicinehatnews.com@CollinGallant
The Supreme Court of Canada will not hear an appeal launched by the City of Medicine Hat over the River Ridge sewer lift station.
That represents the final say in decade-long legal wranglings with the owners of a condo complex who say they were unwittingly made the utility provider for their neighbours.
That leaves final an Alberta Court of Appeal ruling that ordered the city to take over ownership and responsibility for the facility, plus pay the legal costs of the River Ridge Condo corporation and related parties.
“We’re very pleased,” said Pat Kraus, a River Ridge condo resident and spokesperson for a “deep utilities committee” made up of members from the condo and two neighbouring properties.
“At this point we’ll let the lawyers do what they to, and we’ll do what we do best, which is wait.”
The top court officially declined to hear the case on Feb. 13, and ordered the city to cover the legal costs of both parties.
Such an application to the top court begins by determining its willingness to hear the case. Only a small number of cases are selected based on merit and other factors.
City officials issued a statement on Wednesday expressing “disappointment” with the court’s decision not to hear the case, but would continue to lobby the provincial government to clarify rules and definitions that proved central to lower court decisions.
At the same time as the top court appeal was launched, the city requested the province provide more detailed interpretation of public utility ownership, especially in situations where infrastructure crosses private property.
“We will continue our advocacy with (Alberta) Municipal Affairs to modify (and clarify) the Municipal Government Act,” the city’s statement on Wednesday read in part.
“In the interim the City of Medicine Hat will comply with the court decision as it pertains to the safe operation of servicing infrastructure.”
Kraus said she is awaiting to hear from municipal officials about how to proceed with the transfer.
City officials estimated in 2012 that the facility, which doesn’t meet required city operating standards, would have to be replaced at a $1.2-million cost if it were to be brought on to the city’s operations.
In 2014, city councillors agreed to cover that cost as a “last, best offer” to end the dispute, but on condition that the five affected properties came to a joint-use agreement to maintain other underground pipes that cross the various private properties.
Lawyers for three of the entities that use the sewer station argued in 2018 that those schematics and definitions in provincial regulations for municipalities and utilities meant the local government had failed to uphold its responsibilities.
The station was built by developer Medican in the early 2000s on land in western Riverside. Over time, five different housing developments were subdivided, built and put onto the localized sewer system that joined the city’s system off site.
Such a practice can be common for developers of bareland condos, but in this case the station serves all five properties without a joint-use agreement in place to pay to maintain and operate it.
Since the facility is located on River Ridge Condo land, ownership fell to them when the corporation was established, though Medican operated it for some time.
Owners there have argued for years it is unfair for them to pay their neighbours’ sewer tab after unwittingly becoming a public utility due to the other’s negligence. Medican renounced responsibility for the privately built station, then went bankrupt several years later.
Since private individuals or corporations cannot under law provide public utility service, lawyers argued the city would be logically responsible.
The condo owners lost that judgment but won an appeal in mid-2019, after which the city applied to have the case heard by the Supreme Court.
The Alberta Court of Appeal unanimously overturned a lower court ruling with all three members of the appeal judge panel ruling to reverse the decision, ordering the city to begin the process to assume the station, but also awarded costs be paid by the city.
The initial Queen’s Bench judgment found in the city’s favour on the ownership question, stating the developer might be liable, but that did not make it the city’s responsibility.
Condo owners argued that failings in the city planning department during the early stages of the development created the situation.
“What the courts have done is, essentially, certify the (city’s site) drawings,” said Kraus this week. “It’s very basic.”
But the dispute became public and complex over the years, including wrangling and statements from both sides.
City officials said they shouldn’t be held responsible for a private developer’s actions or shortcomings.
Condo lawyers told the News when the Supreme Court appeal was launched that the city is ultimately responsible for its planning and development, as well as providing public utility service.
“They turned a blind eye to it, stamped it (the plan), approved it,” said Barry Miskuski of the local law firm Niblock and Company, which represented the condo owners during the early stages of the case. “You can’t say it’s accidental that they became liable.”
