Bowes v. Edmonton (City) et al., 2005 ABQB 502

• Judge: Clackson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 09, 2005
• Citations: 2005 ABQB 502;(2005), 386 A.R. 1 (QB)

Bowes v. Edmonton (2005), 386 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JL.188

Kenneth Bowes and Ruth Bowes (plaintiffs) v. The City of Edmonton, Shelby Engineering Ltd., and G.G. Hunter (defendants) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, personal representatives of the Estate of Eric Douglass (third parties) and Constance Reid, Muriel Skinner (formerly Muriel Bryant), Kenneth Bowes and Ruth Bowes (fourth party)

Muriel Skinner (formerly Muriel Bryant) (plaintiff) v. The City of Edmonton (defendant) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, personal representatives of the Estate of Eric Douglass (third parties) and Constance Reid, Muriel Skinner (formerly Muriel Bryant), Kenneth Bowes and Ruth Bowes (fourth parties)

Constance Reid (plaintiff) v. The City of Edmonton (defendant) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, Personal Representatives of the Estate of Eric Douglass (third parties) and Constance Reid, Muriel Skinner (formerly Muriel Bryant), Kenneth Bowes and Ruth Bowes (fourth parties)

(0003 12407; 0003 12408; 0003 12409; 2005 ABQB 502)

Indexed As: Bowes v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Clackson, J.

July 7, 2005.

Summary:

Each plaintiff bought land from or through Douglass, before December 1986. When purchasing, each plaintiff was warned about the instability of a bank on the properties. Each plaintiff excavated fill from their property and constructed a house. All of the houses were completed by the end of 1988. In 1999, a landslide destroyed the houses and made the remaining lands unusable. In 2000, each plaintiff sued Douglass's estate and the City of Edmonton. In one action, an engineering firm (Shelby) and one of its employees (Hunter) were also sued. Douglass's estate sought summary judgment based on a limitation defence.

The Alberta Court of Queen's Bench, in a decision reported at 333 A.R. 332, allowed the motion and dismissed the actions against Douglass's estate. At the very latest, by the time that their houses were finished, the plaintiffs knew everything they needed to know, and everything they needed to instruct an expert to find out for them, about the potential dangers of fill on the lots acquired from Douglass. The same time frame applied to any representations on subdivision approval, failure to warn about dangerous geological conditions and misrepresentations. The action against Shelby and Hunter was settled at the commencement of the trial. The action proceeded against the City.

The Alberta Court of Queen's Bench dismissed the action. The plaintiffs' claim in negligence against the City was barred by the ultimate limitation contained in s. 3(1)(b) of the Limitations Act. Their claims in nuisance were dismissed on the basis that if actionable nuisance existed in Canada for the failure to prevent one's land from naturally occurring subsidence, that result was not reasonably foreseeable nor economically remediable. The court also dismissed the City's third party claims against Douglass's estate.

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - A landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The plaintiffs sued the city and others - They alleged that the city negligently failed to consider and disclose a geotechnical report which might have resulted in a denial of their application to develop and build, or in their exercising other choices respecting the development of their river bank properties - The Alberta Court of Queen's Bench dismissed the action - Respecting damages, the court stated, inter alia, that this was not a case that would attract punitive damages - The high handed manner in which the city ultimately obtained access to the slide area (over the plaintiffs' lands and protests) and the city's lawsuit against the land owners for the costs of demolishing their homes, while in poor taste, did not justify punitive damages - Those actions, while perhaps inconsiderate and even rude, were not punishable - See paragraph 175.

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - Each plaintiff bought land from or through Douglass, before December 1986 - Each plaintiff constructed a house, all of which were completed by the end of 1988 - In 1999, a landslide destroyed the houses and made the remaining lands unusable - In 2000, each plaintiff sued Douglass's estate and the city - The plaintiffs alleged that the city negligently failed to consider and disclose a 1977 geotechnical report which might have resulted in a denial of the plaintiffs' applications to develop and build, or resulted in their exercising other choices in relation to the development of their river bank properties - The Alberta Court of Queen's Bench found that the evidence did not establish wilfulness on the city's part or any effort to hide its negligence or the injury suffered by the plaintiffs - Rather, this was a case of oversight, which did not justify the fraud moniker - Accordingly, the city was entitled to immunity from liability for negligence on the basis of the ultimate bar contained in s. 3(1)(b) of the Limitations Act - See paragraphs 129 to 167.

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - [See Limitation of Actions - Topic 9324 ].

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - A landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The plaintiffs sued the city and others - They alleged that the city negligently failed to consider and disclose a 1977 geotechnical report which might have resulted in a denial of their application to develop and build, or in their exercising other choices respecting the development of their river bank properties - The Alberta Court of Queen's Bench held that the city made a policy decision to control development and once that decision was made, the city was under a duty to exercise reasonable care in its review of development applications - The city's failure to consult an available study which advised against development in the area due to instability of the soils and its failure to disclose the existence of that study to the plaintiff applicants were operational (not policy) failures that breached the city's duty of care to the plaintiffs - See paragraphs 85 to 116 and 125 to 128.

Municipal Law - Topic 1812

Liability of municipalities - Negligence - Negligent issue of permits - [See Limitation of Actions - Topic 9324 and second Municipal Law - Topic 1804.2 ].

Municipal Law - Topic 1817.1

Liabilities of municipalities - Negligence - Defences - Consent - A landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The plaintiffs sued the city and others - They alleged that the defendant city negligently failed to consider and disclose a geotechnical report which might have resulted in a denial of their application to develop and build, or in their exercising other choices respecting the development of their river bank properties - The Alberta Court of Queen's Bench found that, before building their homes, the plaintiffs had access to another report that made it clear that the bank was only marginally stable - However, that report also suggested that the most reasonable scenario was one in which many years could pass before any loss of land would occur and the loss would be minimal - Therefore, a reasonable person could have considered that the risk assumed in building, while tangible, was minimal - The court held that the risk voluntarily assumed by the plaintiffs of a deep translational slide was 5% - See paragraphs 176 to 179.

Municipal Law - Topic 1818.1

Liabilities of municipalities - Negligence - Defences - Policy decisions - [See second Municipal Law - Topic 1804.2 ].

Releases - Topic 4003

Operation - General - Persons bound by release - A developer (Douglass) and a city entered into an agreement to protect the city from claims that he might suffer as a result of river bank slippage - The agreement was registered as a caveat against the land - The plaintiffs were Douglass's successors in title - A landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The Alberta Court of Queen's Bench held that the agreement did not contractually entitle the city to claim for contribution against Douglass's estate - In the agreement Douglass committed himself, his successors, successors-in-title and assigns - He did not commit his heirs - The agreement was directed at protecting the city from claims by Douglass for any loss he might suffer as a result of bank slippage - Those who succeeded Douglass in title were bound by the agreement - However, the city did not rely on the agreement in its defence to the plaintiffs' claims - Rather, it sought indemnity from Douglass's estate - The city's third party claim against the estate failed because the claim, even if meritorious, died with Douglass - See paragraphs 189 to 192.

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - Section 3(1)(b) of the Limitations Act established an "ultimate" limitation period - It provided that "Subject to section 11, if a claimant does not seek a remedial order within 10 years after the claim arose, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim." - The Alberta Court of Queen's Bench held that s. 3(1)(b) had retrospective effect - See paragraphs 138 to 164.

Statutes - Topic 6707

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Limitation of actions statutes or provisions - [See Statutes - Topic 6703 ].

Torts - Topic 45

Negligence - Standard of care - Particular persons and relationships - Landowners or occupiers of land - [See Municipal Law - Topic 1817.1 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - A city filed a caveat against river bank lands that were later purchased by the plaintiffs - The caveat stated: "The owner acknowledges that the following development restrictions shall apply to the said lands in order that the stability of the bank of the North Saskatchewan River may be maintained" - That general statement was followed by specific recommendations that had been made in a geotechnical report - The Alberta Court of Queen's Bench held that the filing of the caveat was not an act of kindness or offer of succour that engaged the principles of good samaritan negligence - The report did not suggest that its recommendations would enhance the bank's stability - Rather, the recommendations were intended to prevent additional sources of instability - The city, in the caveat, was not suggesting a method for keeping the plaintiffs safe - Rather, it was restricting their use of the property so as to prevent their actions from detracting from the bank's stability - See paragraphs 117 to 124.

Torts - Topic 1001

Nuisance - General principles and definitions - Nuisance v. negligence - In 1999 a deep translational landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The plaintiffs claimed against the city on the basis of, inter alia, the duty outlined in Leakey, an English Court of Appeal decision - The Alberta Court of Queen's Bench discussed the nature of a "Leakey claim" and opined that it was better seen as a negligence action than a nuisance action - The court stated, inter alia, that "categorization of non-action in this context as either nuisance or recurring negligence has the potential to substantially undermine limitations law in this province and to return us to the unacceptable uncertainty which marked litigation prior to proclamation of the Limitations Act." - See paragraph 210.

Torts - Topic 1001

Nuisance - General principles and definitions - Nuisance v. negligence - In 1999 a deep translational landslide destroyed the plaintiffs' houses and made the remaining lands unusable - The plaintiffs claimed against the city on the basis of, inter alia, the duty outlined in the Leakey decision (Eng. C.A.) - The Alberta Court of Queen's Bench discussed the nature of a "Leakey claim" and opined that it was better seen as a negligence action than a nuisance action - However, whatever the characterization, foreseeability and remoteness limited liability and were necessarily part of the duty analysis - In this case, the city did not owe a Leakey duty in relation to a bedrock initiated slide - The city did not have the requisite proximate knowledge until some time late in 1999 when it became apparent that a substantial deep seated slide was occurring - By that time, there was no realistic action that could have been taken to limit or abate the slide - See paragraphs 200 to 219.

Torts - Topic 6734.2

Defences - Consent - Assumption of risk - Implied consent - Land condition - [See Municipal Law - Topic 1817.1 ].

Torts - Topic 7420

Joint and concurrent tortfeasors - Contribution between tortfeasors - Settlement by one tortfeasor - The plaintiffs purchased a lot from Douglass and built a house on it - A landslide destroyed their house and made the remaining lands unusable - The plaintiffs sued their engineering firm (Shelby), one of its employees (Hunter), Douglass's estate and the city - The action against Douglass's estate was summarily dismissed on the basis of a limitations defence - The action against Shelby and Hunter was settled at the commencement of the trial - The Alberta Court of Queen's Bench dismissed the action against the city, also on the basis of a limitations defence - Had the action against the city been allowed, the court would have held that the city was entitled to a contribution from Shelby and Hunter in an amount equal to the settlement amount - See paragraphs 180 to 182.

Torts - Topic 7420

Joint and concurrent tortfeasors - Contribution between tortfeasors - Settlement by one tortfeasor - The Alberta Court of Queen's Bench held that a tortfeasor was not entitled to statutory contribution from another defendant where the action against the other defendant had been summarily dismissed on the basis of a limitations defence - A tortfeasor could not collect from a claimed contributor who not liable to the plaintiff - See paragraphs 184 to 188.

Torts - Topic 8741

Duty of care - Particular relationships - Claims against rescuers or volunteers - General - [See Torts - Topic 77 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See second Municipal Law - Topic 1804.2 , Torts - Topic 77 and second Torts - Topic 1001 ].

Cases Noticed:

Leakey v. National Trust, [1980] 1 Q.B. 485 (C.A.), appld. [para. 2].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 91].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Holtslag v. Alberta (2004), 350 A.R. 161; 2004 ABQB 268, dist. [para. 95].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 98].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, appld. [para. 98].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 98].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 98].

Manolakos v. Vernon (City), [1989] 2 S.C.R. 1259; 102 N.R. 249; 63 D.L.R.(4th) 449, refd to. [para. 100].

Rothfield v. Manolakos - see Manolakos v. Vernon (City).

Papadopoulos et al. v. Edmonton (City) (2000), 260 A.R. 223; 2000 ABQB 171, refd to. [para. 104].

Tarjan v. Rockyview No. 44 (Municipal District) et al. (1992), 130 A.R. 181 (Q.B.), revd. (1993), 145 A.R. 73; 55 W.A.C. 73 (C.A.), refd to. [para. 105].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 206 D.L.R.(4th) 211, refd to. [para. 108].

J.N. v. G.J.K. et al. (2004), 361 A.R. 177; 339 W.A.C. 177; 2004 ABCA 394, refd to. [para. 133].

Bowes v. Edmonton (City) et al. (2003), 333 A.R. 332; 2003 ABQB 492, dist. [para. 135].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81; 42 C.R.R.(2d) 1, additional reasons [1997] 3 S.C.R. 389, refd to. [para. 141].

Maull v. Rodnunsky (2001), 287 A.R. 343; 2001 ABQB 309 (Master), refd to. [para. 158].

Komant v. Alberta (Minister of Infrastructure) et al. (2000), 269 A.R. 168; 2000 ABQB 940 (Master), refd to. [para. 158].

Komant v. Alberta (Minister of Infrastructure) et al. (2000), 290 A.R. 323; 2000 ABQB 433, refd to. [para. 158].

Manufacturers Life Insurance Co. v. Husky Oil Marketing Co. et al. (1999), 249 A.R. 305 (Q.B.), refd to. [para. 158].

Stengel v. Mabbott et al. (2000), 272 A.R. 296 (Q.B.), refd to. [para. 158].

Campbell Estate v. Fang (1994), 155 A.R. 270; 73 W.A.C. 270 (C.A.), refd to. [para. 160].

410727 B.C. Ltd. et al. v. Dayhu Investments Ltd. et al. (2004), 201 B.C.A.C. 122; 328 W.A.C. 122; 2004 BCCA 379, refd to. [para. 162].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 63 Alta. L.R.(2d) 193; [1989] 2 W.W.R. 56; 31 C.P.C.(2d) 267; 54 D.L.R.(4th) 372 (C.A.), refd to. [para. 165].

Stetar v. Poirier and County of Parkland No. 31, [1975] 2 S.C.R. 884; 3 N.R. 311; [1975] 1 W.W.R. 441, folld. [para. 185].

Hart v. Hall & Pickles Ltd., [1969] 1 Q.B. 405; [1968] 3 All E.R. 291, refd to. [para. 186].

Giffels Associates Ltd. v. Eastern Construction Co. et al., [1978] 2 S.C.R. 1346; 19 N.R. 298; 4 C.C.L.T. 143; 5 C.P.R.(2d) 223; 84 D.L.R.(3d) 344, refd to. [para. 187].

Wurtz v. Nobis, Rossi and Rossi (1980), 28 A.R. 574 (Q.B. Master), dist. [para. 188].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (H.L.), refd to. [para. 202].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1)(b) [para. 130].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 559, fn. 5, 562, fn. 5 [para. 142]; 620 [para. 156].

Counsel:

R.B. White, Q.C., M.A. Kirk, D.A. Wells and Jeremy D. Schick, for the plaintiffs and fourth parties;

D. Lopushinsky and L. Fenger, for the defendants;

D.C. Rolf, for the third parties;

S. Hammel, for Shelby Engineering and G.G. Hunter.

This action was heard at Edmonton, Alberta, on March 9, 2005, by Clackson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on July 7, 2005.