Bowes v. Edmonton (City) et al.,

• Judge: C,Conrad,Ross
• Neutral Citation: 2007 ABCA 347
• Citation: 2007 ABCA 347,(2007), 425 A.R. 123 (CA),[2008] 5 WWR 70,425 AR 123,86 Alta LR (4th) 47,[2007] CarswellAlta 1851,[2007] AJ No 1500 (QL),42 MPLR (4th) 192,425 A.R. 123,[2007] A.J. No 1500 (QL),(2007), 425 AR 123 (CA)
• Date: 06 September 2007
• Court: Court of Appeal (Alberta)

Bowes v. Edmonton (2007), 425 A.R. 123 (CA);

      418 W.A.C. 123

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.093

Kenneth Bowes and Ruth Bowes (appellants/plaintiffs) v. The City of Edmonton, and Shelby Engineering Ltd. and G.G. Hunter (respondents/defendants) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, Personal Representatives of the Estate of Eric Douglass (not parties to the appeal/third parties) and Constance Reid, Muriel Skinner, formerly Muriel Bryant, Kenneth Bowes and Ruth Bowes (not parties to the appeal/fourth parties)

(0003-12407)

Muriel Skinner, formerly Muriel Bryant (appellant/plaintiff) v. The City of Edmonton (respondent/defendant) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, Personal Representatives of the Estate of Eric Douglass (not parties to the appeal/third parties) and Constance Reid, Muriel Skinner, formerly Muriel Bryant, Kenneth Bowes and Ruth Bowes (not parties to the appeal/fourth parties)

(0003-12408)

Constance Reid (appellant/plaintiff) v. The City of Edmonton (respondent/defendant) and Helena Mary Douglass, C. Hugh Fraser, and Carl H. Rolf, Personal Representatives of the Estate of Eric Douglass (not parties to the appeal/third parties) and Constance Reid, Muriel Skinner, formerly Muriel Bryant, Kenneth Bowes and Ruth Bowes (not parties to the appeal/fourth parties)

(0003-12409; 2007 ABCA 347)

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

Alberta Court of Appeal

Côté and Conrad, JJ.A., and Ross, J.(ad hoc)

December 28, 2007.

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, in a decision reported at 386 A.R. 1, 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. The plaintiffs appealed. The City cross-appealed.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal, Côté, J.A., dissenting in part, allowed the cross-appeal in part.

Limitation of Actions - Topic 1901

Actions - General - The Alberta Court of Appeal, per Côté, J.A., discussed the harm that limitations legislation was trying to eliminate - He stated that the alteration of limitations law by judicial discoverability decisions seemed to create the worst of all possible worlds - There was much litigation about a new topic, time of discoverability - Ultimately, limitations legislation was reformed - The new legislation adopted two different limitation periods: two years for discoverability and a 10-year unconditional ultimate limitation - See paragraphs 116 to 139.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - 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 trial judge dismissed the action, holding, inter alia, that the plaintiffs' claim in negligence against the city was barred by the ultimate limitation contained in s. 3(1)(b) of the Limitations Act - The Alberta Court of Appeal agreed - See paragraphs 113 to 178 and 208.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - [See Statutes - Topic 521 and Statutes Topic 6703 ].

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 Appeal discussed the city's standard of care - The court held that the standard was that of the ordinary, reasonable and prudent development officer dealing with an application for a building or development permit at a location with marginal stability - See paragraphs 212 to 216.

Municipal Law - Topic 1812

Liability of municipalities - Negligence - Negligent issue of permits - [See 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 trial judge 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% - The Alberta Court of Appeal, per Côté, J.A., held that the trial judge erred in applying voluntary assumption of risk - Ross, J.(ad hoc) (Conrad, J.A., concurring), agreed - However, where they had also found negligence by the city, they stated that the error respecting voluntary assumption of risk could be answered easily by the application of contributory negligence principles, with 5% liability being apportioned to the owners - See paragraphs 5 to 112 and 250.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - A defendant got partial single costs, despite the fact that the plaintiffs did not beat the defendant's offer made under the Rules - Further, the defendant had to pay partial costs - The Alberta Court of Appeal, per Côté, J.A., stated that the fact that the defendant won because of a public limitations statute in its favour was not a special circumstance for denying double costs within the meaning of rule 174 - That was especially true when the issue was well known long before the trial began - It was not for the court to second guess the policy of the Legislature, or to deem judge-made law more just, or of a higher nature, than legislation - See paragraphs 183 to 185.

Statutes - Topic 518

Interpretation - General principles - Mischief rule - The Alberta Court of Appeal, per Côté, J.A., stated that "The Rule in Heydon's Case is alive and well now. ... What is that Rule? When interpreting legislation, the court must look to what was the mischief in the old law which the new legislation was aimed at. Then the court must see what solution the new legislation was intended to adopt." - See paragraph 143.

Statutes - Topic 521

Interpretation - General principles - Present tense - Section 3(1)(b) of the Limitations Act provided for an ultimate limitation period of 10 years after the claim arose - Section 3(3)(b) provided that "For the purposes of subsection (1)(b), a claim based on a breach of a duty arises when the conduct, act or omission occurs" - Plaintiffs argued that the Act that was passed by the Legislature was very similar to the draft legislation in one of the Institute reports, but while s. 3(3)(b) as enacted ended with the word "occurs", the earlier Institute draft had ended with the word "occurred" - The plaintiffs argued that this was an important change of tense - The Alberta Court of Appeal, per Côté, J.A., stated that he had considerable trouble seeing that either version could import the need for injury, or deprive s. 3(3)(b) of meaning - In any event, the use of the present tense throughout modern Alberta statutes was common, doubtless because it was the current Canadian drafting convention, and reflected the fact that statutes were intended to be always speaking, and applying from time to time as the relevant circumstances might arise - See paragraphs 150 to 155.

Statutes - Topic 683

Interpretation - Drafting - Tense of verbs - Use of present tense - [See Statutes - Topic 521 ].

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 of 10 years - The Limitations Act came into force on March 1, 1999 - Section 2(1) provided that "This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claim arises before, on or after March 1, 1999." - The Alberta Court of Appeal, per Côté, J.A., stated that "The statement of claim [in the present case] was issued in 2000, so the condition before the first comma is satisfied. To remove any doubt, the part of the paragraph after the last comma says that it does not matter when the claim arose (or will arise). The Act covers all such suits. It is hard to think of a clearer way to make the Act retroactive and retrospective." - See paragraph 161.

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 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - 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 Appeal stated that for the "material contribution" test to apply, first, it must be impossible for the plaintiff to prove that the defendant's negligence caused the injury using the "but for" test - This impossibility had to be due to factors outside of the plaintiff's control - Second, the defendant must have breached a duty of care owed to the plaintiff, thus exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury (i.e., the plaintiff's injury had to fall within the ambit of risk created by the defendant's breach) - The court held that the two criteria for applying the test were satisfied and causation was proven under the test here - See paragraphs 227 to 245.

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 trial judge 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 - The Alberta Court of Appeal held that the trial judge made no overriding or palpable error in relation to the foreseeability or remoteness of the injuries suffered by the owners - See paragraphs 246 to 249.

Torts - Topic 6601

Defences - Contributory negligence - General - What constitutes contributory negligence - [See Municipal Law - Topic 1817.1 ].

Torts - Topic 6611

Defences - Contributory negligence - Particular cases - Knowledge of premises or dangerous premises - [See Municipal Law - Topic 1817.1 ].

Torts - Topic 6734.2

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

Torts - Topic 9155

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

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562; 101 L.J.P.C. 119 (H.L.), refd to. [para. 15].

Kerr et al. v. Danier Leather Inc. et al. (2007), 368 N.R. 204; 231 O.A.C. 348; 2007 SCC 44, refd to. [paras. 42, 240].

Cragg v. Tone et al.(2007), 245 B.C.A.C. 302; 405 W.A.C. 302; 2007 BCCA 441, refd to. [para. 45].

Goldman v. Hargrave, [1967] 1 A.C. 645; [1966] 2 All E.R. 989 (Aust. P.C.), refd to. [para. 62].

Holbeck Hall Hotel Ltd. v. Scarborough Borough Council, [2000] Q.B. 836; [2000] 2 All E.R. 705 (C.A.), refd to. [paras. 62, 248].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 69 Alta. L.R.(4th) 1; 2007 SCC 7, refd to. [paras. 78, 229].

Kelly v. Lundgard et al., [2001] 9 W.W.R. 399; 286 A.R. 1; 253 W.A.C. 1; 95 Alta. L.R.(3d)11; 2001 ABCA 185, refd to. [paras. 96, 225].

Canadian Lift Truck Co. v. Deputy Minister of National Revenue (1955), 1 D.L.R.(2d) 497 (S.C.C.), refd to. [para. 97].

Edwards v. Bairstow et al., [1956] A.C. 14; [1953] 3 All E.R. 48 (H.L.), refd to. [para. 97].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 97].

Meyers v. Stanley et al. (2005), 363 A.R. 262; 343 W.A.C. 262; 40 Alta. L.R.(4th) 203; 2005 ABCA 114, leave to appeal refused (2005), 348 N.R. 198 (S.C.C.), refd to. [paras. 100, 221].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 100].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 100].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; [1997] 8 W.W.R. 303, refd to. [paras. 105, 233].

Ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para.127].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 127].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 142].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 142].

Heydon's Case (1612), 77 E.R. 1150, appld. [para. 143].

W.R. v. Alberta (Attorney General) et al. (2006), 391 A.R. 91; 377 W.A.C. 91; 62 Alta. L.R.(4th) 6; 2006 ABCA 219, refd to. [para. 143].

Québec (Communauté urbaine) et autres v. Corporation Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; 171 N.R. 161; 63 Q.A.C. 161, refd to. [para. 145].

Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2006] 1 S.C.R. 715; 348 N.R. 148; 210 O.A.C. 342; 2006 SCC 20, refd to. [para. 145].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 190, refd to. [para. 145].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, dist. [para. 148].

Alberta v. Canadian National Railway Co. et al. (2003), 320 A.R. 373; 288 W.A.C. 373; 2003 ABCA 69, refd to. [para. 149].

Stout Estate et al. v. Golinowski Estate et al., [2002] 4 W.W.R. 588; 299 A.R. 13; 266 W.A.C. 13; 2002 ABCA 49, refd to. [para. 149].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 151].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 152].

York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al. (2006), 79 O.R.(3d) 345 (C.A.), refd to. [para. 155].

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, leave to appeal dismissed (2005), 334 N.R. 194 (S.C.C.), refd to. [para. 55].

Armstrong v. West Vancouver (District) (2003), 178 B.C.A.C. 233; 292 W.A.C. 233; 2003 BCCA 73, refd to. [para. 155].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 2005 ABCA 448, refd to. [para. 155].

Zaidan Group Ltd. v. London (City) (1990), 36 O.A.C. 384; 71 O.R.(2d) 65 (C.A.), affd. [1991] 3 S.C.R. 593; 129 N.R. 227; 50 O.A.C. 1, refd to. [para. 157].

Stuffco v. Stuffco et al. (2006), 397 A.R. 111; 384 W.A.C. 111; 2006 ABCA 317, refd to. [para. 162].

Groat v. Edmonton (City), [1928] S.C.R. 522, refd to. [para. 167].

Verney v. Flecher (Mark) & Sons Ltd., [1909] 1 K.B. 444; 78 L.J.K.B. 292 (D.C.), refd to. [para. 168].

Leakey v. National Trust for Places of Historic Interest and Natural Beauty, [1980] 1 All E.R. 17; [1980] 1 Q.B. 485, refd to. [para. 204].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 211].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, appld. [para. 215].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 225].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 227].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1; 129 D.L.R.(4th) 609, refd to. [para. 223].

R. v. Lake (A.E.) (1996), 153 N.S.R.(2d) 44; 450 A.P.R. 44; 49 C.R.(4th) 224 (C.A.), refd to. [para. 241].

K.V.P. v. T.E. (2000), 136 B.C.A.C. 21; 222 W.A.C. 21; 184 D.L.R.(4th) 486; 74 B.C.L.R.(3d) 122; 2000 BCCA 167, revd. [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 242].

Gerencer v. Canada, [1978] 2 A.C.W.S. 181; 20 N.R. 528, affd. [1980] S.C.R. 403; 29 N.R. 181; 105 D.L.R.(3d) 284, refd to. [para. 243].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(3)(b) [para. 150].

Authors and Works Noticed:

Alberta, Institute of Law Research and Reform, Report on Limitations, Report No. 55 (1989), generally [paras. 143, 144, 153]; pp. 1, 2, 70 [para. 121].

Campion, John A., and Dimmer, Diana W., Professional Liability in Canada (2001 Looseleaf Update), pp. 6-21, 6-23 [para. 127].

Clerk, John F., and Lindsell, The Law of Torts (19th Ed. 2006), §§ 2-05 [para. 71]; 2-06 [para. 72]; 2-07 [para. 78]; 2-16 [para. 96]; 2-107 [para. 71]; 2-150 [para. 92].

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 391, 392 [para. 77]; 405 [para. 228]; 458, 476 [para. 107].

Prosser and Keeton, The Law of Torts (5th Ed. 1984), pp. 264, 266 [para. 78]; 280 [para. 45]; 281 [para. 71].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 355 [para. 152]; 580 [para. 154].

Counsel:

R.B. White, Q.C., and J.J. Fraser, for the appellants/plaintiffs;

D.G. Lopushinsky and L. Fenger, for the respondents/defendants.

This appeal was heard on September 6, 2007, by Côté and Conrad, JJ.A., and Ross, J.(ad hoc), of the Alberta Court of Appeal. The court delivered the following reasons for judgment on December 28, 2007, including the following opinions:

Côté, J.A. - see paragraphs 1 to 192;

Ross, J.(ad hoc) (Conrad, J.A., concurring) - see paragraphs 193 to 250.