Denys v. Gabel, (2002) 235 Sask.R. 1 (PC)

• Judge: Halderman, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 16, 2002
• Jurisdiction: Saskatchewan
• Citations: (2002), 235 Sask.R. 1 (PC);2003 SKPC 97

Denys v. Gabel (2002), 235 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. JL.004

Ross Denys and Raymond Denys (plaintiffs) v. Don Gabel (defendant)

(2003 SKPC 97)

Indexed As: Denys v. Gabel

Saskatchewan Provincial Court

Halderman, P.C.J.

June 16, 2002.

Summary:

A fire originated on the defendant's land and moved to adjacent land farmed by the first plaintiff and owned by the second plaintiff. The plaintiffs sued the defendant, alleging strict liability (rule in Rylands v. Fletcher) and, alternatively, negligence.

The Saskatchewan Provincial Court held that the rule in Rylands v. Fletcher did not apply. The court allowed the action in negligence.

Courts - Topic 8146

Provincial courts - Saskatchewan - Small claims - Jurisdiction - Debt or damages - A fire moved from the defendant's land to the plaintiffs' land, destroying trees and shrubs - The plaintiffs sued the defendant in Small Claims Court - The defendant submitted that the damage to the trees on the property amounted to a claim in trespass to land, and questioned whether such a claim was within the court's jurisdiction - The Saskatchewan Provincial Court held that damages for tree loss was within its jurisdiction - Section 3(a) of the Small Claims Act provided that the Act applied to any claim for debt or damages - The provision of the predecessor Small Claims Enforcement Act which provided that no action could be brought in which the title to land was brought into question, was not included in the new Act - See paragraphs 47 to 50.

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - In May 2002, a fire moved from the defendant's land to the plaintiffs' land, through a large slough bottom - The plaintiffs sued the defendant alleging, inter alia, that the defendant was strictly liable - The Saskatchewan Provincial Court found that the fire originated from a fire set by the defendant in a small slough in the Fall of 2001, which had not been properly extinguished and had ignited a brush pile near the large slough - However, the defendant was not strictly liable - The piling and burning of brush was the most common way to clear land in the area - Thus, the defendant was making "ordinary use of the land", not a "special use" - Therefore, the rule in Rylands v. Fletcher did not apply - See paragraphs 21 to 25.

Torts - Topic 2045

Strict liability - Fire - Resulting from natural use of land - [See Torts - Topic 2004 ].

Torts - Topic 4582

Dangerous activities - Fire - Extinguishing fires - In May 2002, a fire moved from the defendant's land to the plaintiffs' land, through a large slough bottom - The Saskatchewan Provincial Court held that the defendant's negligence caused the fire - He had set a fire in a small slough in the Fall of 2001, had not properly extinguished it and it had ignited a brush pile near the large slough, either directly or through the spread of ground fire - The defendant did not know the potential dangers that the fire presented based on the particular type of subsoil and surrounding environment - He found the fire still burning in midwinter, but neglected to find out what further precautions he should take - Finally, in May 2002 when he discovered a partially-burned brush pile in the area of the slough fire, he should have known that this suggested the spread and overholding of fire in a potentially-dangerous location - See paragraphs 26 to 40.

Torts - Topic 4588

Dangerous activities - Fire - Required precautionary measures - [See Torts - Topic 4582 ].

Cases Noticed:

Elder v. City of Kingston, [1953] 3 D.L.R. 369 (Ont. C.A.), refd to. [para. 19].

Canadian Pacific Railway v. Kerr (1913), 14 D.L.R. 40 (S.C.C.), refd to. [para. 19].

Kerrybrooke Development Ltd. and Simpson-Sears Ltd. v. Ellis-Don Ltd. and Westeel-Rosco Ltd. et al. (1986), 46 Sask.R. 47 (Q.B.), refd to. [para. 19].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330, refd to. [para. 21].

Mihalchuk v. Ratke, [1966] S.J. No. 43 (Q.B.), folld. [para. 21].

Filliter v. Phippard (1847), 11 Q.B. 347, refd to. [para. 22].

Hallick v. Doroschuk (1985), 41 Sask.R. 151 (Q.B.), refd to. [para. 22].

Curtis v. Lutes, [1953] 4 D.L.R. 188 (Ont. C.A.), refd to. [para. 24].

Port Coquitlam (City) v. Wilson, 1922 CarswellBC 109; [1923] 1 W.W.R. 1025 (S.C.C.), appld. [para. 37].

Walt v. Newton Motors, 1950 CarswellSask 24; [1950] 1 W.W.R. 721 (C.A.), refd to. [para. 39].

Murray v. Saskatoon (City) (1951), 4 W.W.R.(N.S.) 234 (Sask. C.A.), refd to. [para. 51].

Authors and Works Noticed:

Fleming on Torts (8th Ed. 1992), generally [para. 26].

Salmond on Torts (14th Ed.), p. 441 [para. 21].

Counsel:

Ross Denys, for the plaintiffs;

Henry Kloppenburg, Q.C., for the defendant.

This action was heard by Halderman, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on June 16, 2002.