Stachniak v. Thorhild No. 7 (County), 2001 ABPC 65

• Judge: Skitsko, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 30, 2001
• Citations: 2001 ABPC 65;(2001), 285 A.R. 1 (ProvCt)

Stachniak v. Thorhild (2001), 285 A.R. 1 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AP.100

Philip Stachniak (plaintiff) v. County of Thorhild No. 7 (defendant)

(P9990302914; 2001 ABPC 65)

Indexed As: Stachniak v. Thorhild No. 7 (County)

Alberta Provincial Court

Skitsko, P.C.J.

March 30, 2001.

Summary:

A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project. The county raised a number of defences.

The Alberta Provincial Court held that the county was liable to the farmer in negligence. The court awarded the farmer $7,500 in damages.

Estoppel - Topic 1022

Estoppel in pais (by conduct) - By agreement - What constitutes - [See Municipal Law - Topic 1817.1 ].

Municipal Law - Topic 1764

Liability of municipalities - Torts - Trespass - Section 528 of the Municipal Government Act provided that "A municipality is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention or negligence, if the damage arises, directly or indirectly, from roads or from the operation or non-operation of (a) a public utility, or (b) a dike, ditch or dam" - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court held that the county was not liable in trespass where, inter alia, s. 528 provided the county with a defence to the claim in trespass - See paragraphs 29 to 34, 45 to 54.

Municipal Law - Topic 1764

Liability of municipalities - Torts - Trespass - [See Torts - Topic 3029 ].

Municipal Law - Topic 1807

Liability of municipalities - Negligence - Standard of care - Construction and maintenance of water lines, sewers and drains - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court held that the county was liable to the farmer in negligence - Flooding, as a result of the county providing for an increased discharge rate upstream of the farmer's lands through the channelization project, met the test of foreseeability - The county had a common law duty to the farmer - The breach of this duty was found in the flood, which caused harm to the farmer which was compensable in damages - See paragraphs 35 to 44 and 75.

Municipal Law - Topic 1817.1

Liability of municipalities - Negligence - Defences - Consent - A farmer sued a county in negligence, inter alia, for damages resulting from a flood, allegedly caused by a county channelization project -The county alleged that the farmer was estopped from claiming damages because he had entered into an easement agreement allowing the county to access his land for the purpose of completing the project - The Alberta Provincial Court rejected the consent defence - The easement did not evidence that the farmer bargained, or even agreed with actual knowledge, to the entirety of the scheme, project design or limitations, or that he was in essence a party to the development and implementation of the work - Further, the easement did not indicate that the farmer had bargained in the context of the project whatsoever, nor was there any evidence that he had a choice but to grant the easement - See paragraphs 66 to 67.

Municipal Law - Topic 1817.2

Liability of municipalities - Negligence - Defences - Noncompliance with bylaw - A farmer sued a county in negligence, inter alia, for damages resulting from a flood, allegedly caused by a county channelization project - The county defended on the basis, inter alia, that the farmer had not complied with land use (setback) bylaws - The Alberta Provincial Court held that there was no failure to comply - In any event, the setback provision was not material to his claim - The county was not legally obliged to enforce its bylaws, nor did it claim that it had attempted to do so and failed - Further, the bylaw could not be relied upon as a sword, or a shield, to either estop or serve as a defence to the farmer's claims - Compliance would not have prevented the damage - See paragraphs 69 to 71.

Municipal Law - Topic 1866

Liability of municipalities - Nuisance - Interference with flow of surface water - Section 528 of the Municipal Government Act provided that "A municipality is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention or negligence, if the damage arises, directly or indirectly, from roads or from the operation or non-operation of (a) a public utility, or (b) a dike, ditch or dam" - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project -The Alberta Provincial Court held that, but for s. 528, the county would have been liable to the farmer in nuisance - See paragraphs 29 to 34 and 45 to 54 and 75.

Municipal Law - Topic 1875

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

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court held that a defence of statutory authority in a nuisance action or an action based on the rule in Rylands v. Fletcher required: 1) specificity as to manner and location of the authorized thing; 2) inevitability of the nuisance; and 3) an absence of negligence - The defendant had to prove all three elements -The court rejected the defence in this case where: 1) there was no specific statutory authority; 2) the nuisance was not inevitable since flooding on the farmer's lands was considered during project design and could have been addressed through design modifications; and 3) the absence of negligence was not proven - See paragraphs 59 to 65.

Municipal Law - Topic 1876

Liability of municipalities - Nuisance - Defences - Act of God - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court rejected the county's defence of act of God - To rely on the defence, the following conditions had to be met: (1) the harm was due to natural causes entirely, (2) the causal event was of an extraordinary nature, and (3) the conditions were such that the harm could not be anticipated or provided against - Here, the first and third elements were not met - Further, the event was not shown to be extraordinary - See paragraphs 56 to 58.

Statutes - Topic 6744

Operation and effect - Commencement, duration and repeal - Prospective enactments - What constitutes - Section 528 of the Municipal Government Act provided that "A municipality is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention or negligence, if the damage arises, directly or indirectly, from roads or from the operation or non-operation of (a) a public utility, or (b) a dike, ditch or dam" - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project -The farmer alleged that s. 528 did not apply because it was not in force during the time that the project was planned and constructed - The Alberta Provincial Court applied the "prospectivity" test and held that s. 528 applied where it was in force prior to the harm - See paragraphs 47 to 48.

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court held that the defendant was not liable to the plaintiff pursuant to the rule in Rylands v. Fletcher - See paragraph 26 to 28.

Torts - Topic 3029

Trespass - Trespass to land - Requirement of possession or control - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project - The Alberta Provincial Court held that the county was not liable in trespass where, inter alia, it was not in control of the substance or event or other thing that harmed the farmer - See paragraphs 29 to 34 and 73.

Torts - Topic 6730

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

Torts - Topic 6802

Defences - Act of God - What constitutes an act of God - [See Municipal Law - Topic 1876 ].

Waters - Topic 1308

Surface waters - Natural drainage - Artificial increase in rate of flow of drainage - [See Municipal Law - Topic 1807 ].

Waters - Topic 1364

Surface waters - Artificial drainage - Lower landowners - [See Municipal Law - Topic 1807 ].

Waters - Topic 1489

Surface waters - Persons liable - Municipalities - A farmer sued a county for damages resulting from a flood, allegedly caused by a county channelization project -The county argued that the province had designed the project and had merely licensed the county under the Water Resources Act to carry out its construction, operation and maintenance, and the county should not be liable for the province's design flaws - The Alberta Provincial Court rejected the defence - The county chose not to third party the province - Further, under the licence, the county was responsible for the time and manner in which water was released and for any damages that might result therefrom - The county accepted this term, and was now estopped from denying liability - Further, the harm resulted from the operation of the project, not merely its design - See paragraph 72.

Words and Phrases

Drainage - The Alberta Provincial Court discussed the meaning of the word "drainage" as found in s. 1(1)(y)(v) of the Municipal Government Act, R.S.A. 1980, c. M-26.1 - See paragraph 49.

Cases Noticed:

Heddinger and Kotyshyn v. Calgary (City) (1992), 129 A.R. 261; 2 Alta. L.R.(3d) 224 (Q.B.), refd to. [para. 25].

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; 64 D.L.R.(4th) 620, refd to. [para. 27].

Soleiko v. Canada (1988), 22 F.T.R. 20 (T.D.), refd to. [para. 29].

Royal Anne Hotel Co. Ltd. v. Ashcroft (Village) (1979), 95 D.L.R.(3d) 756 (B.C.C.A.), refd to. [para. 29].

Groat v. Edmonton (City), [1928] S.C.R. 522, refd to. [para. 30].

Rylands v. Fletcher (1866), L.R. 1 Ex. 265, affd. (1868), 37 L.J. Ex. 161; L.R. 3 H.L. 330; [1861-1873] All E.R. Rep. 1; 19 L.T. 220; 33 J.P. 70 (H.L.), refd to. [para. 30].

Mazurkewich v. Alberta, [1982] A.J. No. 336 (Q.B.), refd to. [para. 33].

Oosthoek v. Thunder Bay (City) (1996), 93 O.A.C. 131; 133 D.L.R.(4th) 611 (C.A.), leave to appeal denied (1997), 223 N.R. 225; 104 O.A.C. 240 (S.C.C.), refd to. [para. 33].

Medomist Farms Ltd. et al. v. Surrey (District) (1990), 1 M.P.L.R.(2d) 46 (B.C.S.C.), appld. [para. 33].

Blyth v. Birmingham Waterworks Co. (1856), 11 Ex. 781; 156 E.R. 1047, refd to. [para. 36].

Ryan v. Victoria (City) et al. (1996), 82 B.C.A.C. 40; 133 W.A.C. 40 (C.A.), revd. [1997] 1 S.C.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103; 6 W.W.R. 61, refd to. [para. 37].

Williams v. Brantford Gas Co. (1909), 13 O.W.R. 605 (Master), refd to. [para. 38].

Montreal Rolling Mills Co. v. Corcoran (1896), 26 S.C.R. 595, refd to. [para. 38].

Canadian National Railway v. LePage, [1927] S.C.R. 575; 3 D.L.R. 1030 (S.C.C.), leave to appeal denied [1927] W.N. (P.C.), refd to. [para. 39].

Glasgow Corp. v. Muir, [1943] A.C. 448; 2 All E.R. 44 (H.L.), refd to. [para. 39].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 10 D.L.R.(4th) 641; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 40].

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, revsing. [1987] 2 W.W.R. 231; 10 B.C.L.R.(2d) 223; 40 C.C.L.T. 160; 1 M.V.R.(2d) 357 (C.A.), affing. [1985] 5 W.W.R. 570; 33 C.C.L.T. 49; 64 B.C.L.R. 349; 34 M.V.R. 124 (S.C.), refd to. [para. 40].

Anns v. Merton Londonborough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 40].

Moyer v. Port Alberni (City) (1999), 6 B.C.T.C. 183; 65 B.C.L.R.(3d) 352; 2 M.P.L.R.(3d) 74 (S.C.), refd to. [para. 40].

Edmonton Flying Club et al. v. Northward Aviation Ltd. et al., Warner et al., Northwestern Utilities Ltd. et al. and Comstock International Ltd., [1979] 6 W.W.R. 663; 17 A.R. 507 (C.A.), leave to appeal denied (1979), 21 A.R. 270 (S.C.C.), refd to. [para. 41].

School District of Assiniboine South No. 3 v. Hoffer and Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746; 1 N.R. 34; 21 D.L.R.(3d) 608 (Man. C.A.), affd. [1973] 6 W.W.R. 765; 1 N.R. 32; 40 D.L.R.(3d) 480 (S.C.C.), refd to. [para. 42].

Hoffer v. Assiniboine South School District - see School District of Assiniboine South No. 3 v. Hoffer and Greater Winnipeg Gas Co.

Danjanovich v. Buma, [1970] 3 O.R. 604; 13 D.L.R.(3d) 556 (C.A.), refd to. [para. 42].

Canada Bread Co. v. Grigg, [1946] 2 D.L.R. 374 (Ont. C.A.), refd to. [para. 43].

Overseas Tankship (U.K.) v. Mort's Dock and Engineering Co. (Wagon Mound No. 1), [1961] A.C. 388; [1961] 1 All E.R. 404 (P.C.), refd to. [para. 44].

Moran et al. v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122; 43 D.L.R.(3d) 239, refd to. [para. 44].

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. (Wagon Mound No. 2), [1967] 1 A.C. 617 (P.C.), refd to. [para. 44].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. Ltd. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289; 11 C.C.L.T.(2d) 1, refd to. [para. 44].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 44].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85, refd to. [para. 47].

Canada v. Martin (1892), 20 S.C.R. 40, refd to. [para. 48].

Sanocki v. Alberta (Minister of Transportation and Utilities), [1997] A.R. Uned. 202; 41 M.P.L.R.(2d) 90 (Q.B.), refd to. [para. 54].

Seneka et al. v. Leduc (1985), 59 A.R. 284 (Q.B.), refd to. [para. 56].

Greencock Corp. v. Caledonian Railway, [1917] A.C. 556 (H.L.), refd to. [para. 56].

Manchester v. Farnworth, [1930] A.C. 171 (H.L.), refd to. [para. 60].

Portage La Prairie (City) v. British Columbia Pea Growers Ltd., [1966] S.C.R. 150; 54 D.L.R.(2d) 503, refd to. [para. 62].

Prescott v. Connell (1893), 22 S.C.R. 147, refd to. [para. 68].

Papadopoulos et al. v. Edmonton (City) (2000), 260 A.R. 273; 11 M.P.L.R.(3d) 144 (Q.B.), refd to. [para. 68].

Lamont No. 30 (County) v. Smith and MacLean (1997), 210 A.R. 156; 67 Alta. L.R.(3d) 135 (Q.B.), refd to. [para. 72].

Costello and Dickoff v. Calgary (City) (1995), 163 A.R. 241; 25 M.P.L.R.(2d) 24 (Q.B.), varied (1997), 209 A.R. 1; 160 W.A.C. 1; 53 Alta. L.R.(3d) 15; 41 M.P.L.R.(2d) 155 (C.A.), appld. [para. 73].

Statutes Noticed:

Municipal Government Act, S.A. 1994, c. M-26.1, sect. 1(1)(y)(v) [para. 49]; sect. 528 [para. 46].

Authors and Works Noticed:

Benidickson, J., Environmental Law (1997), generally [para. 26].

Côté, Pierre-André, Interpretation of Legislation in Canada (2nd Ed. 1991), pp. 126 to 133 [para. 48].

Craies on Statute Law (7th Ed. 1971), pp. 387, 388 and 398 to 401 [para. 48].

Counsel:

Gary D. Sciur, for the plaintiff;

John R. Carlson, for the defendant.

This action was heard by Skitsko, P.C.J., of the Alberta Provincial Court, who delivered the following decision on March 30, 2001.