Bavelas v. Copley et al., 2001 BCCA 160

• Judge: Rowles, Prowse and Finch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 08, 2001
• Jurisdiction: British Columbia
• Citations: 2001 BCCA 160;(2001), 150 B.C.A.C. 290 (CA)

Bavelas v. Copley (2001), 150 B.C.A.C. 290 (CA);

    245 W.A.C. 290

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. AP.004

Janet Bavelas (plaintiff/respondent) v. The Corporation of the District of Saanich (defendant/appellant) and Robert T. Copley, Jean Copley, Darren Copley, Lane Copley and Copley Bros. Construction Ltd. (defendants)

(V03467; 2001 BCCA 160)

Indexed As: Bavelas v. Copley et al.

British Columbia Court of Appeal

Rowles, Prowse and Finch, JJ.A.

March 5, 2001.

Summary:

The plaintiff owned a property, a substantial part of which was a marsh or pond, which formed part of a lake to river drainage system. The defendants (the Copleys) owned property across the road from the plaintiff upon which they built a new home. The plaintiff claimed that in order to facilitate the passage of rain water away from the defendants' property, the defendants trespassed upon the plaintiff's property and dug an artificial ditch in the direction of the marsh, destroying brush and natural vegetation in the process. The plaintiff claimed that this act of trespass resulted in an illegal and unauthorized diversion or modification of the existing drainage system and patterns both within the municipal road right-of-way and over her property. The plaintiff claimed further that the local municipality was also liable for nuisance for failing to take action to divert or eliminate the increased flow of water resulting from the development on the Copley property. The plaintiff sued for damages.

The British Columbia Supreme Court, in a decision reported in 10 B.C.T.C. 371, allowed the action. The court held that the actions of the Copleys created a nuisance. Further, the municipality participated in the creation of this nuisance. The court awarded damages against the Copleys and the municipality and ordered the Copleys to take steps to change the drainage system. The court also awarded $10,000 punitive damages against the Copleys. The municipality appealed on the issue of whether s. 596(6) of the Municipal Act afforded it statutory immunity from the tort of nuisance.

The British Columbia Court of Appeal allowed the appeal.

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - A landowner's property included a marsh (part of a lake to river drainage system) - Opposite neighbours built a new house and installed a new catch basin in a ditch - With heavy rain, water backed up onto the neighbours' property - A blocked culvert was cleared out and a ditch dug towards and onto the landowner's property towards the marsh - The drainage work increased peak water flows onto the landowner's property, erosion and siltation in the marsh and degraded the water quality - The landowner sued the municipality, as the proprietor of the lands from where the water emanated, in nuisance - The British Columbia Court of Appeal held that the Municipal Act, s. 596(6), completely barred the action - See paragraphs 21 to 37.

Torts - Topic 1800

Nuisance - Defences - Statutory authority - [See Municipal Law - Topic 1875 ].

Cases Noticed:

North Vancouver (District) v. McKenzie Barge & Marineways Ltd. (1965), 51 W.W.R.(N.S.) 193 (S.C.C.), appld. [para. 17].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, not appld. [para. 18].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, not appld. [para. 18].

Kerlenmar Holdings Ltd. v. Matsqui et al. (1991), 56 B.C.L.R.(2d) 377 (C.A.), refd to. [para. 18].

Peace Portal Properties Ltd. v. Surrey (District) (1990), 70 D.L.R.(4th) 525 (B.C.C.A.), refd to. [para. 18].

Medomist Farms Ltd. et al. v. Surrey (District) (1991), 8 B.C.A.C. 189; 17 W.A.C. 189; 62 B.C.L.R.(2d) 168 (C.A.), refd to. [para. 18].

Statutes Noticed:

Municipal Act, R.S.B.C. 1979, c. 290, sect. 596(1), sect. 596(6) [para. 1].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (5th Ed. 1977), p. 423, paras. 83-84 [para. 27].

Counsel:

G. McDannold, for the appellant;

L.J. Alexander, for the intervenors, Association of B.C. Landowners Courtland/Hastings Agricultural Preservation Society;

N.E. Brown, for the Amicus Attorney General for B.C.

This appeal was heard in Victoria, British Columbia, before Rowles, Prowse and Finch, JJ.A., of the British Columbia Court of Appeal, on January 8, 2001. The decision of the court was delivered at Vancouver, British Columbia on March 5, 2001, by Finch, J.A.