Skip to content
Join our Newsletter

A messy situation

Pemberton resident files lawsuit against municipality to recover sewage cleanup costs

Mark Hunter says something stinks in Pemberton, and it isn’t just the sewage that flooded his wife Vida’s property two summers ago.

Hunter explained that in June 2006, the Village sewer line between the Petro Canada gas station and the Wild Wood restaurant was clogged, and the sewage backed up into the neighbouring trailer court.

“Vida’s, I guess being the lowest trailer, ended up getting flooded underneath with just raw sewage,” said Hunter.=

Hunter immediately contacted the Village of Pemberton, who instructed him to get it cleaned up and send them the invoice.

“It was a huge mess,” said Hunter. “I mean … it was just flowing outside into her lawn. And oh, the smell. And this was in June, when it was pretty hot.”

The entire cleanup ended up costing about $6,800.

“They had to scrape up three to four inches of topsoil, plus all the sewage, and all the insulation underneath her trailer had to be removed and disposed of,” said Hunter.

What was more upsetting, he said, was the way the municipality reacted to the situation.

“None of the councillors have even talked to Vida… The Village did not even step foot on her property to even have a look at what it was like.”

As a resident of the community since 1984, Hunter says it’s a bit disheartening that the municipality didn’t try to help out.

“They just ignored the whole situation.”

As instructed, Hunter says he submitted all of the invoices for the cleanup to the municipality in the fall, and they passed them along to the Municipal Insurance Association (MIA) which represents 168 municipalities in B.C.

But he received word last spring that they won’t cover the costs of the cleanup because legislation in the Local Government Act states that municipalities have immunity against certain “nuisance actions”, which includes sewage malfunctions.

“In hindsight, they never did say they would pay for it,” said Hunter, adding that they were led to believe that the municipality’s insurance would cover the costs.

Now Hunter is trying to resolve the issue by taking the municipality to small claims court.

“So here they are, trying to escape. Even the mayor said, ‘oh, this is too much money for the Village to pay,’ yet this is almost half of Vida’s yearly income, and it wasn’t her fault,” said Hunter.

Representatives from the Village of Pemberton declined to comment on the matter, because of the ongoing legal proceedings.

But Tom Barnes, Executive Director of the MIA, says the legislation is meant to protect taxpayers.

He explained that back in the 70s in Ashcroft, a sewer system backed up and flooded a hotel. The local government said they didn’t do anything wrong, and weren’t negligent, so they shouldn’t be held responsible.

The matter went to the Supreme Court of Canada, where it was decided that they had created a nuisance, and should be held responsible for the damages.

The ruling opened the floodgates for lawsuits against municipalities.

“It caused a big huff back in the late 70s, early 80s when it was decided, because suddenly the taxpayers became the insurers when there was a sewer system problem because of this nuisance thing,” said Barnes.

So the province passed section 288 of the Local Government Act to provide municipal governments with immunity in situations like this.

“What the legislature has tried to do is make it fair and draw a balance between using the taxpayers as insurers and people using the insurance industry as insurers,” Barnes explained.

He went on to explain that if an apartment were to flood and damage the unit below, homeowner’s insurance would bear the cost of the repairs.

“What would normally happen is that the people below you would have insurance, and their insurance company would go and fix the damage, and then they would try and sue you to get reimbursement… and that’s kind of what’s happening here.”

Barnes says the flooding of Hunter’s trailer was an unfortunate accident, but, according to the law the Village of Pemberton isn’t responsible for paying for the cleanup.

“Sewers back up. It’s just part of life. No one has invented a perfect sewer yet, and nobody likes to be the person who’s living where the backup occurs. Its not pleasant, and nobody suggests it is,” said Barnes.

“If Pemberton had of done something wrong to cause the damage, different story. Then they’re negligent, and then you can sue them.”

But Hunter says the issue isn’t just a mere nuisance – he says the problem could have posed a serious health risk to Vida and the community.

“What we’re basically arguing is that this is not just a nuisance, this is a health issue,” said Hunter. “Sewage has to be removed.”

Hunter says the insurance association is also arguing that they took too long to file their paperwork in small claims court, but he counters that they had a legitimate reason – they were busy trying restoring the property back to it’s original condition.

There was a pretrial meeting held in January, and a court date is set for July 17. Hunter says he is confident their suit will be successful, and hopes their legal battle will inspire others to fight in similar situations.

“It’s good for people to know if they ever have problems like this, there is a system to go through to fight injustice,” he said.