A B.C. Supreme Court Justice has dismissed a Cluculz Lake cabin owner's lawsuit against the company hired to install a septic system in part because he dismantled the system before it was ever tested.
Frank Krafta had been seeking more than $180,000 in damages from FLEX Excavating Ltd. after a falling out with the company's owner, James Linton, who, in October 2008, partially installed a
gravity feed system on the 50435 Tapping Rd. property.
"The interesting feature of this case is that the septic system was never used," Justice Ron Tindale said in a reasons for decision issued Wednesday. "There is no evidence before me that the septic system itself would not work...the septic system was not fully completed or tested."
Tindale also found that Linton explained both the gravity feed septic system and pump system to Krafta and that the customer opted for the less-expensive gravity feed system, which Linton agreed to install for $7,100 plus tax.
Linton, who had been operating FLEX since 1995 and had installed 100 systems over that time, said he offered to install a system that included a pump for $9,000 in turn Krafta said he wanted to obtain parts at a lower cost through his employer. In the end, a gravity system was installed because Krafta had concerns about maintenance if a pump was used.
According to a summary of testimony given over six days in June, Krafta said he became concerned when he learned the line running from the system to the home would be above ground and worried it could subsequently freeze in the winter.
Linton's response was that he could run the line through a flower box and then into the home and suggested the pipe could be covered with ground cover to keep it from freezing.
Krafta did not like either proposal and decided he could run the pipe underground and cut the foundation of his house, where the plumbing had not yet been completed, for the purpose. At that point, Linton said he left the site, with the septic tank not filled in and the distribution box still to be completed, and waited for the plumbing work to be completed.
He returned 10 days later when he had not heard from Krafta and when he saw the tank was filled in, thought Krafta had completed the job himself. Krafta then said he would not pay the remainder of the bill until he had been given the design plans, despite not asking for them before allowing the work to go ahead.
Krafta then brought in a second registered on-site wastewater professional (ROWP), Christopher White, and on his advice removed the system in September 2009.
White was then hired to design a new system, but he and Krafta then parted ways when Krafta said he wanted White's design plans. Krafta then hired an engineering firm to design a system but to date no system has been installed on the property.
Prior to digging up the system Linton had installed, Krafta filed a complaint with the Applied Science Technologists and Technicians of British Columbia (ASTTBC), which certifies ROWPs. In response, an ASTTBC manager, Ron Hein, visited the property in spring 2009 but did not do a full inspection at the time, relying primarily on a report, letters and photographs provided by White.
Hein agreed with White's findings, and expressed a concern that Linton did not make a sufficient assessment of the seasonal high water table, leading to an inappropriate design.
Hein also said there were screws missing from the distribution box and the pipes leading out of it were uneven in length and grades. However, TIndale noted that because of the falling out, the system had not been completed by Linton.
There is also no evidence Northern Health had inspected the system, let alone concluded it would have created a health hazard, Tindale said.
