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Thinking of joining the class action against the PUC?

Wednesday, December 11, 2013   by: Kenneth Armstrong

Local resident Mark Brown has been taking the PUC to task recently regarding brown water issues in the east end of Sault Ste. Marie and claiming a general lack of customer service on the part of the utility.

More recently, Brown has been gathering support for a class action lawsuit to recover costs he claims are associated with the problems.

“I have organized this because people need to be aware that they are not powerless in dealing with large monopolies, like the PUC, especially the ones who are charged with the responsibility of providing us with drinkable water,” says Brown.

A class action lawsuit allows multiple plaintiffs to resolve their claim in one single proceeding and eliminates the need to have repetitive cases being heard by the courts.

“The intended benefit of a class proceeding is, essentially, efficiency” says Christian Provenzano of Provenzano Law, who are not involved in this action. “If a number of people have a common issue with a specific party, they can raise the issue collectively. Instead of multiple actions (law suits) that will determine whether a specific party is liable to each person, the class action legislation allows you to bring one action to determine if that party is liable to the entire group.”

Mr. Provenzano is speaking about class action lawsuits in general and not about this specific case.

He has been involved in other class action cases throughout his career.

Individuals involved in a class action suit should all have a common claim, in this case the cost of water filtration and usage costs associated with running taps to clear the pipes.

For any case to be considered a class action it requires an Order for Certification from the court, which will determine if there is an identifiable class (group) and there is a cause of action (case).

“That is an additional legal process and it costs money. It can also be quite a lengthy and complicated process depending on the nature of the claim and the group of people involved in it. If you are not successful, there is risk of greater costs awarded against you,” says Provenzano. 

Many people who enter into a class action lawsuit may not be aware that in Ontario, should they lose their case, the representative plaintiff is required to pay a portion of the legal fees of the defense.

This can be a great risk when trying to win a case against a large corporation or government, as the legal fees they accrue can reach into the tens or hundreds of thousands of dollars or more over the life of a case.

For example, in a 2011 case which involved three Ontario residents taking on ScotiaBank, TD Bank and BMO, the banks were seeking $810,000 in legal costs from the litigants.

In that case, the plaintiffs hadn’t even gotten the case to court, the judge had thrown out the Order of Certification and refused to have it heard as a class action.

In the end, the court required the plaintiffs to pay $175,000 in costs to the banks.

If this judgement was split evenly, that is almost $60,000 a person to be paid by the litigants.

“I would make sure that the client understands the entire process involved in starting a class action. I would make sure that they understand that it can be quite lengthy and time consuming,” says Provenzano.

Mark Brown has been in contact with Siskinds LLP, a London, Ontario law firm who were considering taking on the class action against the PUC.

All class members may be required to share the risk, depending on how the documents are presented by the counsel of the plaintiff, especially because currently there appears to be no representative plaintiff.

“My name will not be on the Class Action lawsuit. I have received drinkable water from the PUC for about two years now,” says Brown.

What isn’t clear is whether the possibility of having to pay PUC’s legal fees is worth the risk to dissatisfied customers compared with being awarded the cost of filtration and usage fees.

**Photo provided by a PUC customer who wishes to remain anonymous.

Comments
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Note: Comments that appear on the site are not the opinion of SooToday.com. Keep discussions civil and on topic. Refrain from obscenity and don't post anything that your grandmother would be ashamed to read. Those who do not abide by these guidelines will have their membership revoked without notice. If you see an abusive post, please click the link beside the post to report it.
Koss 12/11/2013 3:57:16 PM Report

so no law firm yet and Mark Brown isn't even going to be a plaintiff? This isn't even news.
Big Deal 12/11/2013 4:08:12 PM Report

That water is DISGUSTING!!! I can't believe people are PAYING for this water!!! SHAME ON THE PUC....SHAME SHAME SHAME!!!
Dead End Kid 12/11/2013 4:09:19 PM Report

If the above picture is not generic I believe we have a problem.
damzull1 12/11/2013 4:31:17 PM Report

Im wondering if any of the PUC employees live in the East End of town and if they do if this would have continued, its pretty bad with the big rising cost of the water that they have to drink and bathe in brown water while there sitting back in there $4,000,000 building that the poeple of sault ste marie are paying for and wondering if there drinking brown water
OMGWTF 12/11/2013 4:41:27 PM Report

Or the lawyer/law firm can take a percentage of the final claim as payment. If they don't want to do this find one that will. No risk , no reward. The issue of paying for losing is something else but again no risk no reward. Key here is getting a good lawyer willing to invest in it based on their understanding of the laws around the case and their feelings about winning it. If they want you to pay walk away - you're in a loosing position.
bbcat 12/11/2013 5:36:13 PM Report

take a hint puc ,when people start talking lawsuits, the water must really suck big time
Lone24 12/11/2013 5:46:54 PM Report

So otherwise if your a big corporation with lots of money you have it made. You can get away with anything and not be liable for it. Just like the crooks in the government.
Hill Billy 12/11/2013 6:18:58 PM Report

I don't want to pay for legal costs run up by a few impatient people who need to realize that this situation is going to take time and cost money. We don't need our water bills to go up even more by a waste of time law suit. The courts have more important things to deal with than this.
j.r.98 12/11/2013 7:27:21 PM Report

So Mark wants clean drinking water. No wait a minute his water is fine. He wants you and I to file a lawsuit. He does not want to be part of a lawsuit. So my question is to Mark Brown. Mark , what are you stirring the pot of water for exactly?
Lone24 12/11/2013 7:36:49 PM Report

Whether there is a lawsuit or not the cost of water is going to keep rising every year. Believe it or not.
bbcat 12/11/2013 8:41:47 PM Report

you are right lone 24, when you control enough money ,you do exactly what you want,government or corporation and forget about protesting unless you enjoy pepper spray or a good clubbing
Mark Brown 12/11/2013 8:42:49 PM Report

Hi all,

The PUC Board Chair generously gave me a few minutes to address the PUC Board of Directors after questions about Walkerton from Councillor Fata and Dr. Lawson.

Bottom line: No Resolution was passed while I was in attendance that would see the PUC fix ongoing undrinkable water problems immediately for customers who currently get water that even a dog won't drink.

With all due respect to Mr. Provenzano, people who sign on to the Class Action lawsuit will not have to pay anything, win or lose, if Siskinds LLP agrees to take on the Class Action lawsuit.

NO COST WHATSOEVER to people who sign on.

But people are correct when they say that a Class Action lawsuit is not in the best interests of anyone, with the possible exception of the people who have been forced to pay for home filtration systems and filters, and/or hundreds of dollars of bottled water each year, and/or Brita jugs and filters, and/or Culligan water, etc..

The PUC Shareholder will have to pay big time to compensate these PUC customers for their out of pocket expenses they were willing to incur if they only had to wait two years, but then they realized they are going to have to continue to pay for the drinkable water the PUC is NOT providing them on a daily basis for many more years.

That's why I can't understand why the Board of Directors would choose to have some of their customers pursue a Class Action lawsuit where the Shareholder might have to pay for years of out of pocket water expenses?

In any case, here is the exact correspondence between myself and Siskinds LLP to prove that they will be taking on the case on a contingent, "they pay for everything, win or lose, but they get a portion of the settlement if they win", basis:

-------------------------------------------

Hi I'm wondering if you are interested in representing a large number of residents in the east end of Sault Ste. Marie who have been waiting for our local public utility to fix daily colour, taste and smell issues after switching their water treatment process over two years ago, and which they say will take another few years to completely fix, and for which the east end residents have had to stop drinking the unpalatable water and replace with bottled water, or Brita Filtered water, or purchase home filtration systems in order to get the clear, odourless, sweet tasting water the rest of the citizens of Sault Ste. Marie are getting, and have been getting, for quite some time now? N.B. we all pay the same rates for water.

MB

-------------------------------------------

Hi Mark,

Thanks for your inquiry. Unfortunately this is not the type of action we are in a position to fund on a contingent basis. Hopefully they do decide to fix the problem, but based on this article, it does not seem like there is much support:

http://www.city.sault-ste-marie.on.ca/contentadmin/UserFiles/File/CityDepartments/Clerks/MediaArchive/2013/Sault%20Star/0203SaultWater.pdf

Siskinds Representative (SISKINDS)

-------------------------------------------

Hi SISKINDS,

Thank you for looking into the east end of Sault Ste. Marie's ongoing water concern of over two years.

With all due respect, the pertinent article that you should be looking at, which has a much better indication of the depth and breadth of support of legal action by PUC customers, is this one of two weeks ago: https://www.sootoday.com/content/news/details.asp?c=64635

There simply is a ton of support for this law suit.

I can forward you approximately twenty direct emails that I have received in the last couple of hours from people who either continue to endure the ongoing water issues brought on by our PUC's change in the water treatment, or who were forced to purchase water treatment systems and filters to protect their families' drinking and bathing water as a result of the PUC's change in water treatment over two years ago.

I'll quote the text of one of those emails:

"Hello,
My name is ************* and I am interested in this class action suit.

***************************************************. I recently needed to install a water filtration system for sediment/chlorine control a few months ago (over $1000). My next door neighbour installed a filtration system a few months before me for the same reason. This was a direct result of having water lines plugged from sediment and concern over damage to appliances and faucets, not to mention for drinking. I would estimate that I have spent about $1700 directly due to the poor water quality for the filtration system and plumber. I continue to pay approximately $90 / month to replace the filters.

...

My wife/family will not drink the tap water due to the color and strong chlorine smell. We still incur costs for bottled water, even with the filtration system. I would guess that buying bottled would place my total expense at approximately $2000 for 2013. I have kept all of my receipts.

Please let me know if you require any further info. I have enclosed a picture of the water coming out of my tap the day the plumber was at my house (see attached).

Thanks for your efforts.

Kind Regards,"

I hope you will reconsider your position based on this information.

Thanks again SISKINDS.

Sincerely,
Mark Brown
Mark Brown 12/11/2013 8:43:07 PM Report

-------------------------------------------

Hi Mark,

Thanks for the additional information.

I have an environmental lawyer looking into the potential cause of action. Assuming there is one, the next step is to make sure the action would be economical. Class actions take many years and a lot of time in hours and expenses (experts etc.).

Please provide me with any information you have on the approximate number of people impacted by this.

Thanks!

SISKINDS

--------------------------------------------

Hi SISKINDS,

Thanks for having your people look into this.

I am asking people who emailed me yesterday with their water problems, and expenses, to contact their neighbours who are also affected by similar problems. I also have names, addresses, and water issues, of people who attended the recent city council meeting to hear SSM PUC CEO Dominic Parrella's explanation about what will be done about the ongoing water issues.

I have 34 names, addresses, and identified water issues in all, which gives me a good starting point to go door to door in the identified areas and ask people on those streets if they are interested in putting their names on a Class Action law suit.

I'll keep you posted as the numbers accumulate. Please let me know if there is anything else you need.

Sincerely,
Mark Brown
(h) ************
(c) ************

P.S. The brown water problem is the sediment that has been caused by the interaction of the chlorine with the old pipes in the system, and the chlorine taste and smell issues have been caused by the interaction of the chlorine with the water source in the east end of the city and the PUC's inability to date, after two years of using the "free chlorine" process, to have appropriate levels of "free chlorine" with that east end water source to keep the water safe AND odourless and tasteless... according to the PUC CEO.

-------------------------------------------

Thanks Mark,

It will certainly be helpful having those names, addresses and water issues, if this goes forward, but right now I need to better understand the total scope in general of what we are dealing with. It looks like the population of the city is around 70,000. What is your sense of the total number of people who would be impacted by this issue. Would it be over 10,000?

SISKINDS

-------------------------------------------

Hi SISKINDS,

Sorry for the delayed response... I just emailed you on my lunch break. I am home now.

The population of Sault Ste. Marie is 75,000+, and PUC CEO Dominic Parrella said there are 25,000 homes served by the PUC in the Sault at Monday night's City Council meeting.

I would say it is more like 20-30% of the people who have had to pay out of pocket expenses because of the ongoing water issues, or 15,000 to 22,500 people, and at least 25% of the homes, or 6,250 homes.

Those are conservative estimates. There are a lot of people who abandoned waiting for the PUC early on in the process... almost everybody I speak to from the east end uses a Brita, or bottled water for themselves and their pets.

Sincerely,
Mark Brown

-------------------------------------------

Thanks Mark, that is helpful information. I am in Toronto on another matter tomorrow, but will look into this further and discuss with a couple more people on Friday.

SISKINDS

-------------------------------------------

Hi Matthew,

I have had two media requests about the class action lawsuit. I haven't said anything about our correspondence as I wanted to consult with you before saying anything.

How would you like me to respond to these media inquiries about having secured legal counsel? I will do what you say, SISKINDS, please advise me of how you would like me to proceed with the media.

Not a sole knows that I have contacted you, not even my wife, and nobody will know, if that is what you decide.

Sincerely,
Mark Brown

-------------------------------------------

Hi Mark,

Thanks for the update.

I do not expect to be in a position to know if this is a case we would proceed with by Monday, but I certainly have no issue with you saying you have contacted us and that we are looking into it.

SISKINDS

------------------------------------------

If Siskinds LLP takes on the case there will only be CHEQUES for the people who sign on to the Class Action lawsuit.

NO COSTS whatsoever.

But this is the worst case scenario for everybody... there will be no quick fixes to the water problems if this option is chosen by the Board of Directors.

A far better, and much less expensive, solution is immediate installation of home filtration systems and ongoing filters until the water problems are solved in the long term.

The choice is the PUC Board of Directors'.

Sincerely and Respectfully,
Mark Brown
CitizensFirst@shaw.ca
Working Man 12/12/2013 2:11:17 PM Report

I haven't drank tap water in my life; except for maybe a glass or two, and i'm 1/3 of a century! It's always been well water, distilled water, and for the past decade it's been only Brita water and the occasional Aquafina. I always thought city water tasted like crap. You cant expect anyone to pay for your Brita water filters! That's kinda extreme. That would be $40/year that you would have paid anyway. I live in the east end also and am not experiencing that brown water. But I still buy filters. So do most people..

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Note: Comments that appear on the site are not the opinion of SooToday.com. Keep discussions civil and on topic. Refrain from obscenity and don't post anything that your grandmother would be ashamed to read. Those who do not abide by these guidelines will have their membership revoked without notice. If you see an abusive post, please click the link beside the post to report it.
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