Digest: Chilly's Water and Septic Inc. v Saskatchewan (Government), 2018 SKQB 254

• Date: September 18, 2019

Reported as: 2018 SKQB 254

Docket Number: QBG 646/16 JCR , QB18247

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

• Chicoine

Subjects:

• Civil Procedure � Amendment to Statement of Claim
• Civil Procedure � Application to Strike Statement of Claim � No Reasonable Cause of Action
• Civil Procedure � Application to Strike Statement of Claim � Statutorily Barred
• Civil Procedure � Queen�s Bench Rule 3-72
• Statutes � Interpretation � Highway Traffic Act
• Statutes � Interpretation � Environmental Management and Protection Act

Digest: The plaintiff owned land that it operated its business from. Adjacent to the land was the defendant government�s land, where it stored road salt, oil and asphalt material. The plaintiff alleged that the government spilled the materials, called pollutants by the plaintiff, causing them to migrate onto its land and interfering with its ability to use the land. The plaintiff alleged that it could not use or consume well water from the land. The plaintiff�s original claim included claims of the tort of nuisance, breach of duty of care, and a claim that the government had a statutory duty to avoid causing environmental contamination pursuant to s. 8(1) of The Environmental Management and Protection Act (EMPA). The plaintiff claimed that allowing the pollutants to be discharged into the soil on the government and plaintiff lands was a breach of statutory duty. In its statement of defence, the government denied that the material penetrated the soil or migrated onto the plaintiff�s land. The government also pleaded, pursuant to s. 52 of The Highway Traffic Act (HTA), that it was using the lands to further the duty under s. 9 of the HTA to keep public highways reasonably safe. Because their employees acted in good faith, the government said that s. 52 of the HTA was a complete bar to the plaintiff�s claim. The plaintiff already amended its statement of claim once by consent to correct inconsequential errors. The government would not consent to any further amendments of the statement of claim, so the plaintiff had to obtain leave to do so. The government applied for an order to strike the statement of claim because the claim was barred by s. 52 of the HTA and also because the EMPA does not create a civil cause of action, and if it did, the breach of a statute is not a tort known to law. The plaintiff applied for leave to amend its statement of claim to introduce an element of bad faith, which was...