Ken McDonald, where Golf Creek flows through his property  /  Decafnation file photo

Comox passes $250,000 lawsuit over to global insurance firm

Aug 29, 2019 | Latest Feature, Stormwater

By Pat Carl

The Town of Comox has handed off Norine and Ken McDonald’s $250,000 lawsuit to one of the world’s largest independent providers of claims management solutions, Crawford and Company.

The Municipal Insurance Agent of BC was handling the town’s case, scheduled for the BC Supreme Court, but earlier this year moved their liability insurance to AON Canada. Now, it’s been passed on to Crawford and Company, which may be best known for handling liability claims with regard to the 2000 E.coli outbreak in Walkerton, Ontario. As of 2018, some of those liability claims are still pending.

Meanwhile, the McDonalds’ stress level builds as the two-year battle over the pollution and excessive stormwater flow in Golf Creek, which runs through their property and has eroded chunks of it.

The McDonalds have decided to take up arms against the Town of Comox because, as McDonald says, “We can’t un-know what we know” about Golf Creek.

They know that Golf Creek, which now, in late summer, is a trickle, will become a torrent during the winter rainy season because it flows through pipes laid by the Town that reach from the Comox Golf Course to Comox Bay. The creek flows under the Comox Mall and the Berwick Retirement Community, and resurfaces again as it passes through seven riparian properties privately owned by Comox residents, including the McDonalds.

When they purchased their home, they knew about the erosion problem caused by stormwater run-off that swells Golf Creek.

The little bit of Golf Creek that remains natural disappears into large stormwater pipes and a torrent of flow during rain storms

“There’s only about three metres, about 10 feet, between our back door and the sheer drop down to Golf Creek” and it’s eroding more with each heavy winter rain event, he says.

Nevertheless, since the town laid the pipes that turned a peaceful meandering creek into a powerful rush of water swelled by 23 separate municipal stormwater pipes, the McDonalds thought the town should pay some of the cost they incurred when they shored up the portion of their property next to Golf Creek.

The town disagreed. The McDonalds took up arms by taking the town to small claims court.

The erosion is one thing. But the pollution in the creek is another.

Once filled with fish and shellfish, Golf Creek is now dead and, in fact, deadly. The McDonalds had the creek waters professionally tested and the tests interpreted by a biochemist who found “high concentrations of nine metal ions, including mercury and copper…an extremely high fecal coliform count,” which translates into “E. coli counts exceeding provincial maximums by 500 percent.”

This information, and the fact, they say, that Comox staff and Town Council have refused to discuss their small claims court filing, drove the McDonalds to upgrade their small claims court filing to an actual suit against the Town for an amount that equals the loss in value of their property affected by Golf Creek.

But what drives the McDonalds to face off against the deep taxpayer pockets of the town is more complicated than personal property loss. According to Ken, “We are speaking for other creatures who can’t speak and for the next generations.”

The Town commissioned numerous reports, one dating back 26 years, suggesting ways to mitigate Golf Creek’s flow rates and volume and to help settle contaminants, all of which were ignored by the town. One report suggested the construction of a retention pond above Comox Golf Club.

“Just dig a hole,” McDonald says, his frustration bubbling to the surface.

The Town has missed other opportunities, he says. For example, the recent rehabilitation of the Comox Mall and the expansion of the Berwick. He wonders why the town didn’t recommend working with developers to daylight portions of Golf Creek, as has been done with Bowker Creek, which runs through portions of Saanich, Victoria, and Oak Bay.

“Why doesn’t Comox vote to suspend legal action and have a conversation with us about how to settle our claim?” McDonald said.

The McDonalds claim they want to talk with council and even asked for a postponement of a trial date to do so. The judge hearing the case agreed, even though the town opposed the postponement and, to date, has not met with the McDonalds.

“Who makes decisions like this?” McDonald said. He wonders who is advising council to steer clear of the McDonalds even though talking with them may be the best way to resolve their suit as well as the issue of Golf Creek and stormwater run-off?

Contacted for comment on this story, neither Mayor Russ Arnott or Town CAO Richard Kanigan responded.

But many municipalities receive advice from the Municipal Insurance Association of BC (MIABC), which provided the Town’s liability insurance up until January 1, 2019.

Up until that time, Comox has had very little incentive to settle claims against it. In fact, because of its membership in the MIABC, it has been disincentivized to settle claims, even ones as small and as reasonable as the McDonalds’ original small claims court filing.

The MIABC rewards municipalities that have few liability claims through its Experience Rating Program. This translates into $190,000 in premium subsidies being applied to Comox’s MIABC liability insurance rate.

Additionally, the MIABC delivers training to member municipalities that directs town staff on how to handle liability claims, which basically counsels staff to not engage with claimants. That training also makes clear that elected councillors should not communicate with claimants.

“It’s very undemocratic the way no one is listening to us,” McDonald said.

If the McDonalds’ suit is heard by a judge and if the suit is decided in the McDonalds’ favour, then a legal precedent is set which could allow other claimants in other BC municipalities to seek reimbursement for their properties and could force municipalities to rehabilitate creeks that they’ve covered over and polluted.

McDonald said he wonders why the Town, the insurance provider and defense counsel want to litigate rather than settle out of court.

Pat Carl, a Comox residents, is a contributor for the Comox Valley Civic Journalism Project. She can be reached at pat.carl0808@gmail.com

 

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