What started as a simple request three years ago for the Town of Comox to help defray a homeowner’s expense to remediate a creek bank has since uncovered a litany of town-related problems and, as of last week, turned into a BC Supreme Court case valued at nearly a quarter-million dollars.

As reported by Decafnation in January, Norine and Ken McDonald launched a BC Small Claims Court action in June of 2016 to recover some of the $30,000 they spent to shore up a portion of Golf Creek that flows through their Jane Place property.

They took the legal action after discovering the erosion was caused by excessive municipal stormwater flowing into the creek, and because the town refused to take responsibility for the damage.

For three years, the McDonalds and the Town of Comox have been locked in a legal battle to settle the matter. The McDonalds have requested meetings to negotiate a resolution, and have been turned down. The town has responded by trying to have the case dismissed, and were denied in court.

FURTHER READING: Stormwater: it’s killing our water

But in the process of preparing their case against the town, the McDonalds have learned that Golf Creek is not only plagued by high volumes of stormwater flowing into the creek, but that the water is highly polluted with heavy metals and fecal coliform counts up to 230 times higher than the provincial water quality standards. E Coli counts have exceeded provincial maximums by 500 percent.

For the McDonalds, the toxic water in their backyard created a new financial problem.

According to section 5-13 of the rules of the Real Estate Council of BC (enforced under the BC Real Estate Act), a homeowner must disclose a material latent defect that renders the property “dangerous or potentially dangerous to the occupants” or “a defect that would involve great expense to remedy.”

“Now that we are aware of the pollution problem, we are obligated to disclose that problem to any prospective future buyer as well,” Ken McDonald told Decafnation. “That disclosure will certainly impact property value.”

So the McDonalds recently asked the court to amend the compensation they are seeking to nearly $250,000, the value of the portion of their property affected by the Creek (about 29 percent), and to move their case to the BC Supreme Court.

On Friday, May 31, Civil Court Judge Hutcheson granted the McDonald’s request.

This ruling escalates the financial risk for Town of Comox taxpayers.

In a letter to the town and to the attention of Mayor Russ Arnott, the McDonalds lawyer wrote that “… other property owners and occupants in the Town of Comox may have suffered similar damages, and are considering the potential for a class action lawsuit to hold the town accountable….”

McDonald also believes the case might have province-wide significance for other property owners near urban streams.

Background

The McDonalds’ house at the end of the Jane Place cul de sac was originally built by John and Christine Robertsen in 1991. The Robertsens commissioned BBT Hardy Engineering to do a geotechnical study to determine the feasibility of building on property that included the Golf Creek ravine, and were issued a building permit and final occupancy permit by the town even though no erosion control measures were undertaken, as recommended in the study.

In 1992, the town commissioned a study by KPA Engineering that recommended four erosion control options — including a detention pond on the Comox Golf Course — to protect properties along Golf Creek. None were implemented, according to documents supplied by Ken McDonald.

Ken McDonald stands in front of his $30,000 geotextile wall to prevent further erosion from Golf Creek. The Town of Comox’s refusal to help him pay for the remediation has turned into a nearly $250,000 BC Supreme Court lawsuit

Seven years later, a 1999 a KPA Engineering study gave Golf Creek the highest environmental sensitivity rating in their investigation and recommended remedial action and water quality monitoring. Neither were implemented, accord to McDonald’s documents.

From 1991 to 2005, Town of Comox population grew by 70 percent, increasing stormwater flows into Golf Creek.

In 2005, the Robertsens communicated concerns about increased erosion of their property, and the town denied responsibility. The Robertsens then paid for a second geotechnical study — this one by Lewkowich Engineering — that repeated the need for “some preventative measures.” None were implemented.

A 2013 assessment by McElhanney Engineering raised concerns about increased stormwater volumes and recommended the town “mitigate the impacts of discharging stormwater into sensitive receiving environments.” The town did not implement the recommendations in the McElhanney report, according to McDonald.

When the Robertsens decided to sell their house in 2014, they commissioned a third geotechnical study, which reaffirmed the need for creek bank remediation.

After purchasing the house, the McDonalds hired a contractor to do the creek bank remediation, and were told by the town that erosion damage was entirely their own responsibility.

McDonald says he did not realize Golf Creek was no longer a natural waterway until June 2016 when a downstream neighbor mentioned his erosion problems and the old engineering reports indicating the creek was a key component of the town’s stormwater management system. The neighbor told McDonald that the town had installed a five meter-long rock wall along his creek bank.

So the McDonalds started a BC Small Claims Court action to recover some of the cost of remediating their own section of the creek.

Two years into that legal action, McDonald had the water quality in the creek tested. The test results showed fecal coliform levels nearing that of raw sewage and concentrations of heavy metals, including mercury, that exceeded provincial guidelines.

In many cases, the level of contaminants exceeded government guidelines by more than 1,000 percent.

Last month, McDonald had the creek’s water retested. While the fecal coliform tested down to 150 times provincial standards, the results showed the more dangerous E Coli levels at 2,000 Fecal Coliform Units per 100 ml. BC and Health Canada guidelines put the maximum safe level for human recreational contact with E Coli in a single sample at 400 FCU/100 ml.

E Coli in Golf Creek registered 500 percent over the BC maximum.

McDonald said the provincial environment ministry has also recently tested the creek’s water, but has not yet released their results.

Attempts to meet with Town Council

McDonald says that litigation is not his preferred approach to resolving the issue, but that repeated attempts to meet with town staff and the mayor and council have been rebuffed by the town.

Prior to last fall’s municipal election, McDonald filed an application to the court requesting postponement of a trial date so that he could present his case to the new mayor and council. The town opposed the postponement, but it was granted. No meeting has taken place.

In October, before the election, McDonald asked candidate Russ Arnott if council would entertain a meeting. Arnott declined in an email message.

“I did bring it up with Richard (Kanigan, the town’s Chief Administrative Officer) and was advised it was in the hands of their insurance people and that it best not to engage at this particular time,” Arnott replied to McDonald via email.

McDonald said two subsequent informal encounters with Arnott met with the same response.

What’s next

The McDonalds are now in the process of preparing their case for the Supreme Court.

“Our object is to solve a major environmental problem that has destroyed the fresh water streams in Comox and is contaminating our marine environment,” McDonald told Decafnation. “There are practical solutions to the problem. What is needed is an administration and a council that acknowledges that there is a problem and is willing to change their stormwater management practices.”

Decafnation briefed Comox Mayor Russ Arnott and CAO Richard Kanigan on the content of this story prior to publication, but neither responded to an invitation to comment or provide additional information.