nan SC#: 453[2006] 2007 SKPC 90 IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION SASKATOON, SASKATCHEWAN BETWEEN: NORMA ISAAC V. TOWN OF MARTENSVILLE DEFENDANT Self and Jennifer Isaac(daughter) For the plaintiff Brad Weiss and Steven Haichert, SGI For the defendant R.D. Jackson, PCJ JUDGMENT July 30, 2007 BACKGROUND [1] The plaintiff brings action for water damage sustained to her former residence located at 233 - 1st Street South, Martensville, when frozen pipes burst. Her contention is that she instructed the Town Office to shut off her water supply and the failure to do so led to the damages being sustained. [2] The Town of Martensville disputes that such instructions were given and that, in any event, the cause of the pipes bursting was not as result of the water not being turned off, but rather because the plaintiff had the power and heat disconnected. II EVIDENCE ON BEHALF OF THE PLAINTIFF Norma Isaac [3] Ms. Isaac testified that she purchased rental property in 1999 at 233 1st Street South, Martensville. She rented the house to her son for $500.00 per month up until September, 2005, when her son vacated the premises. Her intent was to sell the property to her daughter, Jennifer and her husband, David, who were then living in Saskatoon. She believed they were ultimately going to rebuild on the site after renting out the property for time and perhaps selling the house and having it moved as lake cabin. [4] To this end, Ms. Isaac attended at the Town Office in Martensville on November 28, 2005, and terminated her water account. Her recollection was that she instructed the water be shut off effective the day she was in because she was having the power cut off shortly thereafter, which was effective on December 10. [5] She did not recall signing any authorization to this effect. Rather, it was verbal discussion with the lady at the counter. She stated there was no discussion surrounding the issue “she didn’t respond presumed had made myself clear.” She then produced and entered into evidence the final bill for the water dated December 1, 2005, which she believed she received about the middle of December. [6] On December 23, 2005, Ms. Isaac received cheque from her daughter, Jennifer, for the purchase of the house for $50,000.00. She then made arrangements to travel to Red Deer with her family for Christmas. On December 24, 2005, she received call from her brother-in-law, Dave, advising that the house had received extensive flood damage apparently from burst pipes in the basement. Photographs were entered into evidence detailing the flood damage. [7] Ms. Isaac stated that prior to leaving for Red Deer, she and her husband had checked the house and everything was fine. She indicated they looked in on the house about once week on at least two occasions after the water had been shut off, spending only few minutes each time. She had made no arrangements for anyone to come by the house when they were away in Red Deer. Her brother-in-law had been alerted to the damage by neighbour who witnessed the water coming out the front door. Upon subsequent inspection it was determined that water pipe had burst in the basement causing the basement and main floor to flood. local contractor estimated it would take $25,000.00 to repair. [8] Ms. Isaac testified that no adjustment on the purchase price was ever discussed with her daughter and that transfer of title proceeded in the ordinary course registering into her daughter and son-in-law’s names on January 3, 2006. In September, 2006, her daughter had the house demolished and new home constructed on the property. [9] In cross-examination, Ms. Isaac acknowledged that she had not drained the water lines nor emptied the water tank and knew that there was still water in the lines after the power had been cut off. She maintained she was not disputing that the lines froze and burst just the extent of the damage caused because the town had neglected to turn off the water. [10] She further conceded she may have signed release for final billing acknowledging her signature on the document which was dated November 24, 2005. She also conceded that after January 3, 2006, she did not own the house and that she was taking this action on behalf of her daughter. Jennifer Webster [11] Ms. Webster is the daughter of the plaintiff. She confirmed that she and her husband purchased the subject property with the intent of future development involving possibly duplex, fourplex or personal residence. [12] It was her hope to rent out the property in the interim or sell the house as lake cabin. She purchased the house on December 23, she recalled for $50,000.00. She registered the transfer documents herself and did not discuss any adjustment of the purchase price as result of the flood damage. Rather, they decided to pursue the damages against the Town of Martensville for failing to shut the water off. [13] Ms. Webster recalled speaking with someone at the Town Office named “Bonnie” regarding notice to be given if the new owners were considering demolition of the property. She recalled no other discussion and did not remember telling the town to leave the water on or being told gas and water meters would have to be moved if the property was demolished. III EVIDENCE ON BEHALF OF THE DEFENCE Erin Sackmann [14] Ms. Sackmann is the utility clerk for the Town of Martensville, post she has held since September, 2005. She explained the process required to have water service terminated and disconnected which was to sign the back of the work order. There was no specific form otherwise instructing disconnect request, although such forms are now used to this effect. It was their practice to ensure the signatures were obtained on the back, which she said they did each time. [15] Generally, requests for disconnects would come in summer and very rarely, in winter. They would dissuade any such requests in winter due to the possibility of damage occurring. It was “big issue” she explained to have water disconnected in winter so she would have recalled any such request from Ms. Isaac. [16] Ms. Sackmann testified to having telephone conversation with Ms. Webster in early December and that the possibility of demolition was discussed. If this were to occur, she advised Ms. Webster, then the water had to be disconnected. She recalls Ms. Webster instructing her to keep the water on in case they decided to rent it. The issue of the heat being turned off did not arise, and if it had, Ms. Sackmann would have then ensured the water be disconnected. [17] Ultimately, Ms. Webster did apply for demolition permit on the property on August 2, 2006. Prior to that time, no discussions took place concerning the damage to the property. Angela Kalynuik [18] Ms. Kalynuik was the receptionist at the Town Office who dealt with Ms. Isaac when she came in to terminate her utility account. She had her fill out the work order, sign and date it. She did not request the water be disconnected and accordingly no signature was required or obtained on the back of the form. Neither did Ms. Isaac advise the power was being shut off. [19] Ms. Kalynuik testified she had just started at the Town Office in September of that year and had been thoroughly trained on the proper procedure for disconnection requests. She stated these were uncommon and generally involved “snowbirds” going south or persons doing renovations. Bonnie Gorelitza [20] Ms. Gorelitza is the planning director for Martensville. She too spoke with Ms. Webster by telephone which she noted on her file to be November 21, 2005. The nature of the call concerned possible demolition of the subject property. Ms. Gorelitza informed Ms. Webster that if the property was to be demolished or moved, permit would be required and the proper disconnects would have to be made. She noted on her file that Ms. Webster advised that the property would either be moved or demolished in the spring. IV ANALYSIS [21] After carefully considering the testimony of the witnesses and the exhibits filed herein, the Court concludes that the plaintiff’s action cannot succeed for the following reasons: a) The Court cannot find on the evidence that clear instructions were given by the plaintiff to the town to disconnect the water service. To the contrary, the form executed by the plaintiff clearly indicates request for final billing. The evidence demonstrates misunderstanding at best between what the plaintiff believed she was requesting and what in fact she did instruct. This however cannot be construed as negligence in the circumstances by the town nor does the fact that specific forms are now utilized for disconnect purposes, elevate the matter on the facts before the Court, to negligence by the Town of Martensville; b) The proximate cause of the damage was turning off the heat and power without ensuring that water lines, toilets, and the water tank had been properly drained. It was inevitable in such circumstances that the pipes would freeze and in all likelihood burst thereby causing damage to the subject premises. How much damage this would have caused is difficult, if not impossible, to assess compared to the damage occasioned to the point of being attended to by the neighbour; c) The plaintiff sustained no damages herself. She negotiated the sale price of $50,000.00 with her daughter prior to any damage being sustained to the subject property. No adjustment had to be made to her daughter thereafter for any “loss” occasioned, and accordingly, she was not out of pocket whatsoever; d) She admitted she was bringing action for the benefit of her daughter which was long past the date of transfer of the property to her in January, 2006, the claim being issued August 17, 2006. Accordingly, any claim at this point would have to be made by her daughter, not her, as she had no further standing, having legally divested title and not received any less value on the sale of the property in the process. [22] The plaintiff’s claim is dismissed. There is no order as to costs. PCJ R.D. Jackson
The plaintiff sues the defendant town for water damage sustained to her former residence when frozen pipes burst. The plaintiff claims she told the Town Office to shut off her water supply and the failure to do so let to the damages being sustained. HELD: The claim is dismissed. 1) There is no evidence that the plaintiff gave clear instructions to the town to shut off her water. 2) The proximate cause of the damage was turning off the heat and power without ensuring that water line, toilets, and the water tank had been properly drained. 3) The plaintiff sustained no damages herself. She admits she negotiated the sale price of $50,000 with her daughter prior to any damage being sustained to the property. No adjustment had to be made to her daughter thereafter for any 'loss' occasioned. Any claim would have to be made by her daughter not her.