Neuman v. Parkland (County),

• Judge: Maher
• Neutral Citation: 2004 ABPC 58
• Citation: 2004 ABPC 58,(2004), 355 A.R. 169 (PC),355 AR 169,(2004), 355 AR 169 (PC),355 A.R. 169
• Date: 14 July 2003
• Court: Provincial Court of Alberta (Canada)

Neuman v. Parkland (2004), 355 A.R. 169 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. AP.112

Esther Neuman (plaintiff) v. Parkland County (defendant)

(P0204200325; 2004 ABPC 58)

Indexed As: Neuman v. Parkland (County)

Alberta Provincial Court

Maher, A.C.J.P.C.

April 19, 2004.

Summary:

The plaintiff owned land within a municipality. A creek ran through the property. The plaintiff built retention ponds and used the water in the ponds for household use. The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding in the general area of the plaintiff's property. The system, inter alia, used two partially capped culverts to permit low flows of water to continue to go down the creek. Subsequently, the municipality's administration received one complaint that the flooding problem continued. The administration fully capped the culverts. The natural flow of water down the creek was significantly reduced in quantity and rate of flow. The plaintiff sued the municipality for interference with her riparian rights, negligence and nuisance.

The Alberta Provincial Court held that the municipality interfered with the plaintiff's riparian rights and was negligent. The court dismissed the claim for nuisance. The court awarded the plaintiff damages.

Damage Awards - Topic 543

Torts - Injury to land and buildings - Interference with flow of natural watercourse - A creek ran through the plaintiff's property within a municipality - The plaintiff built retention ponds and used the water for household use - The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding - The system, inter alia, permitted low flows of water to continue to go down the creek - The municipality's administration subsequently altered the system - The natural flow of water down the creek was significantly reduced in quantity and rate of flow - The plaintiff constructed weirs to raise the water level, purchased plastic tanks and purchased water over the winter months - The Alberta Provincial Court held that the municipality interfered with the plaintiff's riparian rights and was negligent - The court awarded the plaintiff $2,500 general damages - The award took into account the plaintiff's time and inconvenience related to purchasing the tanks and water and constructing the weirs - See paragraphs 86 to 88.

Municipal Law - Topic 1813.3

Liability of municipalities - Negligence - Re watercourse - A creek ran through the plaintiff's property within a municipality - The plaintiff built retention ponds and used the water for household use - The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding in the general area of the plaintiff's property - The system, inter alia, used two partially capped culverts to permit low flows of water to continue to go down the creek - Subsequently, the municipality's administration received one complaint that the flooding problem continued - The administration, without seeking political approval or input from residents, fully capped the culverts - The natural flow of water down the creek was significantly reduced in quantity and rate of flow - The Alberta Provincial Court held that the municipality interfered with the plaintiff's riparian rights - Further, by fully capping the culverts without further expert consultation, by ignoring the engineer's design recommendation and by failing to provide an alternative mechanism to ensure continued flow in the creek bed, the municipality failed to exercise a reasonable standard of care and breached its duty to the plaintiff - See paragraphs 42 to 64.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - A creek ran through the plaintiff's property within a municipality - The plaintiff built retention ponds and used the water for household use - The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding in the general area of the plaintiff's property - The system, inter alia, used two partially capped culverts to permit low flows of water to continue to go down the creek - Subsequently, the municipality's administration received one complaint that the flooding problem continued - The administration, without seeking political approval or input from residents, fully capped the culverts - The natural flow of water down the creek was significantly reduced in quantity and rate of flow - The plaintiff sued the municipality for, inter alia, negligence - The Alberta Provincial Court held that although the decision to implement the system was a policy decision, the decision to ignore the engineer's design and recommendation and fully cap the culverts was not a policy decision, but an operational decision made by the administration to accommodate an isolated complaint - See paragraphs 32, 60 and 61.

Municipal Law - Topic 1866

Liability of municipalities - Nuisance - Interference with flow of water - A creek ran through the plaintiff's property within a municipality - The plaintiff built retention ponds and used the water for household use - The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding in the general area of the plaintiff's property - The system, inter alia, used two partially capped culverts to permit low flows of water to continue to go down the creek - Subsequently, the municipality's administration received one complaint that the flooding problem continued - The administration, without seeking political approval or input from residents, fully capped the culverts - The natural flow of water down the creek was significantly reduced in quantity and rate of flow - The Alberta Provincial Court held that the municipality created a private nuisance by fully capping the culverts - However, the nuisance claim failed because s. 528 of the Municipal Government Act provided that a municipality was not liable in nuisance for damages arising from the operation or non-operation of, inter alia, a public utility - The system was a drainage project and, therefore, a public utility - The plaintiff's damages resulted from the operation or non-operation of the drainage project - See paragraphs 65 and 70 to 72.

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - A creek ran through the plaintiff's property within a municipality - The plaintiff built retention ponds and used the water for household use - The municipality constructed a system, which was designed and recommended by an engineer, to alleviate flooding - The system, inter alia, permitted low flows of water to continue to go down the creek - The municipality's administration subsequently altered the system - The natural flow of water down the creek was significantly reduced in quantity and rate of flow - The plaintiff sued the municipality for, inter alia, nuisance - The Alberta Provincial Court rejected the defence of statutory authority - The municipality had failed to establish that the complete capping was an "inevitable result" of its efforts to drain, or that it was "practically impossible" to do anything else to achieve the hoped for drainage - It was at best a convenience to totally cap the culverts - There was no evidence that it was necessary, let alone evidence that there had been any inquiry made as to the effects of a total closure - See paragraphs 66 to 69.

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - [See Municipal Law - Topic 1866 ].

Waters - Topic 130

Natural watercourses - Riparian rights - General - Right to natural flow - [See Municipal Law - Topic 1813.3 ].

Waters - Topic 135

Natural watercourses - Riparian rights - General - Interference or diversion of water flow - [See Municipal Law - Topic 1813.3 ].

Cases Noticed:

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, refd to. [para. 54].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 112 D.L.R.(4th) 1, refd to. [para. 60].

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, refd to. [para. 67].

Stachniak v. Thorhild No. 7 (County) (2001), 285 A.R. 1 (Prov. Ct.), refd to. [para. 71].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), p. 332 [para. 59].

La Forest, G.V., Water Law in Canada: The Atlantic Provinces (1973), pp. 200, 206 [para. 42]; 217 [para. 68].

Counsel:

Jason M. Unger, for the plaintiff;

Alison Peel, for the defendant.

This action was heard at Stony Plain, Alberta, on July 14, 2003, by Maher, A.C.J.P.C., of the Alberta Provincial Court, who delivered the following decision on April 19, 2004.