The relationship between the city and a local condo association has remained professional since the Supreme Court of Canada two years ago chose not to 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.--NEWS FILE PHOTO
cgallant@medicinehatnews.com@CollinGallant
At the two-year anniversary of the River Ridge Sewer Lift winding up before the Supreme Court of Canada, the controversial utility system has been operated by the City of Medicine Hat, with no complaints from a group of condo owners which successfully sued the city.
“I haven’t had to wake up at 2 a.m. and run out there for two years – I’m doing great,” said Pat Kraus, a condo resident and spokesperson for the condo’s deep utilities committee.
That group was at the forefront of a decade long legal battle, arguing poor policy at city planning made them responsible for pipes, lines and the sewage station to default under their property and several neighbours in the late 2000s.
But in February 2020 the Supreme Court declined to hear the city’s appeal of an Alberta court decision that made it liable to operate what was later certified as a public utility system.
At that point, the station was blended into the city’s utility operations.
“It’s in the city’s hands, and they’re following the court order, and there just hasn’t been a need for us to be in deep, deep discussions with them,” said Kraus.
City infrastructure director Pat Bohan as well described the relationship as professional and generally quiet.
He told the News that a potential plan to rebuild the station off site – an option put forward by the city in 2014 – at a cost of $1.2 million, is being considered, but will be among a number of projects when work is prioritized ahead of next fall’s two-year budget.
“We’re doing what we can to make sure the operations are safe, and still looking at the potential of a new lift station (off site), it’s a staged approach,” said Bohan, saying the city has performed some advanced maintenance, but most of the work in the area is routine.
City workers maintain the station, which pumps sewage from five adjacent properties in western Riverside to the cities sanitary sewer mains, as well as fire hydrants, storm sewer and potable water lines, which crisscross private property to individual lots.
That’s unusual for a bareland condominium, typically created to keep initial building costs low by building privately owned infrastructure.
Unique however, is that the systems cross more than one property, and were originally to be operated by the developer of the whole parcel, Medican Construction.
That company however, folded in early 2010s without setting in place a maintenance and servicing agreement between the condo corporations, which had become their own legal entities. Since River Ridge land housed the station, the condo corporation became the owner.
The Court of Queens bench sided with the city’s position that the strange situation required a joint servicing agreement between the parties, not public takeover of the system.
Lawyers for the condo argued private companies are legally barred from operating public utilities, and the design of the system under River Ridge and four adjoining properties all developed by Median Construction, made it a public utility by definition.
The Alberta Court of Appeal later ruled that regardless of fault, the city had the responsibility to take over the system, while the city appealed the ruling to the Supreme Court of Canada. That represented the final appeal, but it was lost when the top court declined to hear the case. As is standard, no reason was given.
The city also planned to lobby the provincial government on clarifying the definitions of public utility.
Legal experts focused on municipal and development issues, and have since argued that the ruling would have ramifications that could see cities refuse private utility service on bareland condo properties, or require standardized infrastructure that met city requirements in case they would eventually be taken over.
That could lead to higher costs for development or a chill among city planners
A summary written by associates at the firm Brownlee LLP, suggested municipalities take greater care to insulate themselves from such situations involving multiple parcel projects, and assume they may need to eventually take over their operations.
“The full impact of the principles established by (the case) may not be clear for many years, in terms of the limits of where they may apply,” wrote authors Kelley Fiske-Nielson and Marni Paul in late 2020.
“Overall, what is clear is that caution and legal review are recommended in any scenario proposing private servicing arrangements involving multiple parcels.”
