If a BC Supreme Court finding is correct, Victorians need to demand assurances from the City of Victoria about the safety of its water.
DO YOU KNOW IF THERE’S LEAD in your home’s water supply? A 2017 BC Supreme Court judgment about the quality of water in the Shoal Point condominium complex provides an intriguing window into the difficulty of obtaining a reliable answer to that question.
The judgment followed a trial in which a Shoal Point owner, Donald Shields, sued his strata council over the poor quality of water in his home and the council’s failure to rectify the problem over a period of nine years.
The Shoal Point condominium complex on Victoria Harbour
According to court records, Shields’ water had two things wrong with it. First, the liquid coming out of hot water taps was grossly discoloured. Secondly, both the incoming water to the building and the water supplied to Shields’ unit had repeatedly been tested and were shown to have unacceptably high levels of metals, including lead.
Some of the expert testimony relied on by Justice Anthony Saunders in making his determination of responsibility for the discolouration and contamination seems clearly at odds with what CRD and City of Victoria officials say about Victoria’s water supply. If Saunders’ decision was based on misinformation, he probably came to the wrong conclusion about what entity is responsible for Shields’ water problems. But if he’s correct, then all Victorians ought to be concerned about their water and demand an explanation from the City of Victoria and the CRD.
Shields, a retired engineer and professor of civil engineering, bought the condo at Shoal Point in 2006, just three years after the first phase of the project was completed. Potable water is distributed to each Phase-One unit through a system that contains ductile iron pipe. To prevent internal corrosion, this type of pipe has a quarter-inch thick “concrete” lining (Justice Saunders’ description). Shields found that when he returned from being away from his luxury home for a period of time, the hot water from his taps was a “disgusting” brown colour.
According to Saunders’ 38-page written judgment, Shields “first noticed dirty brown water coming out of the hot water taps in the bathrooms, and sometimes the kitchen hot water as well, around 2007. He complained to the maintenance manager, who said he would flush the water supply lines.”
Saunders then provided an extensive account of Shields’ repeated appeals for help, recommendations from experts, and actions taken by the building’s strata council or its appointees.
In 2013, six years after his initial complaint about discoloured water, the strata council’s building committee ordered testing for metals in Shields’ water and the water in a suite on the floor above, whose owner was also complaining about discoloured water.
The tests showed the level of lead in Shields’ suite was nearly two times higher than the maximum allowed by federal guidelines (the Guidelines). Justice Saunders noted that, in spite of that reading, “the excessive level of lead in Mr Shields’ suite was not disclosed or discussed” outside of the building committee. That is, neither Shields nor the other suite’s owner were informed.
In response to further complaints from the suite on the floor above Shields, additional testing for contaminants was undertaken about four months later, in April 2014. That suite’s water tested high for lead again, this time about 1.5 times higher than the maximum allowable under the Guidelines. However, one sample taken in the mechanical room from the water supply line into the building showed highly elevated levels of lead, aluminum, manganese, copper and iron. The lead level in that sample, for example, was 22 times higher than the maximum allowed by the Guidelines. A second sample, taken after flushing about five gallons through the sampling outlet, showed acceptable levels of metals.
The expert who took these samples recommended “that independent testing for lead be conducted by the City and the CRD.”
The expert concluded that both the discolouration of the water and the elevated metals content was coming from the City of Victoria’s water supply. He recommended that Shoal Point install a large filter on the water supply line.
The City of Victoria’s engineering department disagreed. Justice Saunders noted, “the City’s Engineering Department was of the view that the drop-off in concentrations between the two mechanical room samples strongly indicated that the elevated concentrations were due to the building’s piping, not the water supply. (I note that evidence, of course, not for the truth of its content, but as going to the information that the defendant reasonably would have relied upon.)”
The City did agree to flush the mains leading to Shoal Point, and a subsequent set of samples showed a reduction in the level of metals. This seems to suggest that the City’s supply was at least part of the source of the elevated metals in Shields’ and others’ suites. Otherwise, flushing the City mains would have made no difference. But Shoal Point did not act on the initial recommendation to install a large filter on the building’s water supply line until a second expert had made a similar recommendation in 2015. A new filtration system was installed and other changes were made in 2015, but did not become fully operational until August 2016.
Those changes didn’t appear to have much effect. Returning to his home after being away, Shields found the water was still discoloured. He took his own samples that August and sent them off to a lab for analysis. They showed lead levels as high as 26 times the maximum allowable under the Guidelines. One sample contained 50 times as much iron as the Guidelines specify. This sampling was included in Saunders’ judgment.
A set of samples taken a few months later, in November 2016, were even more shocking. Maxxam Analytics found the level of lead in Shields’ hot water lines was up to 41 times higher than the Guidelines allow. Other metals were higher than the Guidelines, too: Iron was 128 times higher, copper 34 times higher, aluminum 23 times higher and manganese 77 times higher. Although this sampling was provided as evidence at the trial, it was not mentioned in Saunders’ written judgment.
With Shoal Point’s strata council apparently unwilling to make changes that would provide Shields with water of acceptable quality, he launched legal action. He and his wife Arlette Baker were represented by his son John Shields.
In his judgment, Justice Saunders found that a strata council is “responsible for the repair and maintenance of common property,” and that this obligation extends to “making good plumbing that causes discolouration” and “making good plumbing that is causing elevated heavy metal concentrations in water, relative to the Guidelines.”
Saunders’ decision seemed to rely heavily on the expert testimony of Martin P. Vogel, a senior chemical engineer practicing in environmental engineering with Golder Associates in Vancouver, who provided expert opinion on behalf of Shoal Point at the trial. In his judgment, Saunders wrote, “With respect to the contamination issue, I accept Mr Vogel’s conclusion that contamination of the hot water through elevated concentrations of aluminum, copper, and lead is most likely due to the corrosive effect on the building’s plumbing system of the naturally acidic water supplied to the building from the municipal water system.”
Vogel appears to be the only expert who provided an opinion that the City of Victoria’s water supply is “naturally acidic.”
Information from the CRD and the City of Victoria in the CRD’s Greater Victoria Drinking Water Quality Annual Report for each of the last several years puts the pH of City of Victoria water at around 7.0—essentially neutral. It’s not “naturally acidic” as described by Justice Saunders, who apparently got that idea from Vogel. Saunders’ judgment makes no reference to CRD-City of Victoria water quality reports. Neither the CRD nor the City of Victoria were called to testify at the trial.
A year before the trial, Ted Robbins, general manager of the CRD’s integrated water service, told the Times Colonist, in an article about the potential for lead to be a problem for Victoria’s drinking water, that “Greater Victoria has neutral water with low alkalinity.”
By “neutral water,” Robbins meant the pH was around 7—neither acid nor base. “Alkalinity” is a measure of water’s ability to buffer acidity. If alkalinity is too low, water that starts at a water treatment plant with “neutral” pH can have a somewhat different pH by the time it reaches an end user like Shoal Point or your home. But Justice Saunders’ judgment shows no indication that such a factor was considered. His acceptance of Vogel’s opinion that Victoria’s water is “naturally acidic,” and that high metal concentrations in Shields hot water were a consequence of acid leaching of Shoal Point’s plumbing system, is inconsistent with what the CRD and City of Victoria have reported about the water they provide to Victorians.
Either the City of Victoria and the CRD didn’t know the pH of the water they supplied, or Vogel didn’t.
What about the discolouration of the water in Shields’ and other suites? Here, again, Saunders’ written decision shows that he relied heavily on Vogel’s expert opinion: “Mr. Vogel has opined that the discolouration of the hot water in the unit is likely predominantly a result of oxidized and precipitated iron and manganese from the water supply due to low flow conditions in the hot water piping serving the plaintiff’s unit. I accept Mr. Vogel’s opinion.”
The “low flow conditions” Saunders alludes to were the result of Shields and Baker being absent from their home for months at a time.
Again, in Saunders’ judgment, it’s the City’s “water supply” that’s to blame: it has such large quantities of iron and manganese dissolved in it, according to Vogel’s theory, that if the water is left to sit in the supply pipe leading to Shields’ suite for weeks or months, these two metals precipitate out, creating the disgusting brown solution that comes out of his hot water taps.
This, too, seems suspect. A previously mentioned sample of City of Victoria water going into Shoal Point was found to have 5.9 micrograms of manganese and 137 micrograms of iron, per litre. Yet one sample from Shields’ hot water supply was analyzed by Maxxam Analytics and found to have 3,860 micrograms of manganese and 38,300 micrograms of iron, per litre. How these metals could become concentrated to that extent, in the small volume of standing water in the short length of pipe exclusive to Shields’ suite, was unexplained by either Vogel or Justice Saunders.
Shields and Baker testified that the discolouration diminished if the water was flushed for several minutes, but the discolouration returned after a short period—a week would do it.
Having accepted Vogel’s contention that Shields’ water quality problems were the result of the acidity of the City’s water, and metal contaminants in it, Saunders found that Shields and Baker were “entitled to damages for the loss of enjoyment of their unit, and the inconvenience of having to conduct flushes of the hot water lines.” They were awarded $15,000.
Saunders’ August 2017 decision noted: “Serious efforts towards mitigating water quality issues through upgrading the building’s plumbing are underway.” But in April 2019, Shields informed Shoal Point that he is still experiencing discoloured water. There’s no reason to believe the suite’s hot water isn’t still contaminated with metals.
One plausible alternative explanation for the poor quality of Shields’ hot water is that a section of the ductile iron pipe serving his suite with hot water has a damaged internal concrete liner and is corroding. Indeed, Saunders’ decision shows that he was provided evidence that a section of ductile iron pipe in Shoal Point’s parking area that had been easily accessible had been removed and the liner had been found to have “completely deteriorated.” Two experts had advised Shoal Point that failure of the pipe’s liner was the source of at least some of the water quality problems in Shields’ and others’ suites.
Yet Saunders’ written judgment shows that he gave more credence to an expert who appears to have provided the court with information that’s at odds with the CRD’s and City of Victoria’s characterization of regional and municipal water quality. Shields has recently informed Shoal Point that he does “not rule out commencing further litigation…”
David Broadland is the publisher of Focus Magazine.