Stachniak v. Thorhild No. 7 (County), 2006 ABPC 182

• Judge: Ingram, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 14, 2006
• Citations: 2006 ABPC 182;(2006), 402 A.R. 349 (PC)

Stachniak v. Thorhild (2006), 402 A.R. 349 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.068

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

(P0390303528; 2006 ABPC 182)

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

Alberta Provincial Court

Ingram, P.C.J.

July 25, 2006.

Summary:

Between 1977 and 1986, the County of Thorhild No. 7 performed work on a creek upstream from the plaintiff's land. The plaintiff alleged that in the course of doing the work, the County caused the plaintiff's farm to become infested with a noxious weed (common tansy) and that, subsequent to the work, the County failed to eliminate or control the common tansy on the plaintiff's land. The plaintiff sued the County for damages for work done to control the common tansy during the years 2001 to 2004.

The Alberta Provincial Court dismissed the action.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - Between 1977 and 1986, the defendant County performed work on a creek upstream from the plaintiff's land - The plaintiff alleged that in the course of doing the work, the County caused the plaintiff's farm to become infested with a noxious weed (common tansy) and that, subsequent to the work, the County failed to eliminate or control the common tansy on the plaintiff's land - The plaintiff sued for damages for work done to control the common tansy during 2001 to 2004 - The Alberta Provincial Court held that the County was not liable to the plaintiff with respect to the initial infestation of his land by common tansy as the act or conduct which allegedly caused that infestation occurred more than 10 years before the commencement of the action - The claim fell within s. 3(3)(b) of the Limitation Act and the 10 year limitation period was an ultimate limitation period - It was not dependent on when the claim was discovered or the damages arose - However, the County's ongoing failure or refusal to destroy the common tansy on the plaintiff's land was not subject to the 10 year limitation defence as the damage allegedly occurred in 2001 to 2004 - See paragraphs 19 to 22.

Municipal Law - Topic 1801

Liability of municipalities - Negligence - What constitutes negligence - The defendant County performed work on a creek upstream from the plaintiff's land - The plaintiff alleged that in the course of performing the work, the County caused the plaintiff's farm to become infested with a noxious weed (common tansy) and that, subsequent to the work, the County failed to eliminate or control the common tansy on the plaintiff's land - The plaintiff sued for damages for work done to control the common tansy - The Alberta Provincial Court dismissed the action - An infestation by a noxious weed was a nuisance - The County could not rely on the common law defence of statutory authority where it did not show that the infestation of common tansy on the plaintiff's land was an inevitable consequence of its work - However, under the provisions of the Municipal Government Act, the County was not liable in an action based on nuisance and it would only be liable for negligence - The plaintiff did not establish negligence - The decision to carry out the work was a policy decision in respect of which the County owed no duty to the plaintiff - There was no evidence which tended to show that the County carried out the work in a negligent manner - See paragraphs 12 to 16.

Municipal Law - Topic 1801

Liability of municipalities - Negligence - What constitutes negligence - The defendant County performed work on a creek upstream from the plaintiff's land - The plaintiff alleged that in the course of performing the work, the County caused the plaintiff's farm to become infested with a noxious weed (common tansy) and that, subsequent to the work, the County failed to eliminate or control the common tansy on the plaintiff's land - The plaintiff sued for damages for work done to control the common tansy - The plaintiff argued that the County had a common law duty as well as duties under the Municipal Government Act and the Weed Control Act to destroy, control or at least prevent the spread of common tansy - The Alberta Provincial Court dismissed the action - The County had no duty to any landowner to destroy or prevent the proliferation of noxious weeds on private land - Nothing in the Weed Control Act required the County to destroy, control or prevent the spread of weeds on the plaintiff's land - The steps taken by the County in connection with weed control were the result of policy decisions made by the County within its authority and for which it was not answerable to the plaintiff - See paragraphs 22 to 27.

Municipal Law - Topic 1818.1

Liability of municipalities - Negligence - Defences - Policy decisions - [See both Municipal Law - Topic 1801 ].

Municipal Law - Topic 1875

Liability of municipalities - Nuisance - Defences - Statutory immunity or authority - [See first Municipal Law - Topic 1801 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The defendant County performed work on a creek upstream from the plaintiff's land - The plaintiff alleged that in the course of doing the work, the County caused the plaintiff's farm to become infested with a noxious weed (common tansy) and that, subsequent to the work, the County failed to eliminate or control the common tansy on the plaintiff's land - The plaintiff sued for damages - The Alberta Provincial Court held that causation was established - The evidence showed that the disturbance of upstream banks where common tansy grew created the risk that the weed would be spread to lands downstream - It therefore appeared more probable than not that the County's work materially increased the risk of weeds being carried down stream and it was more probable than not that it caused the spread of the common tansy seed to the plaintiff's land - See paragraphs 7 to 11.

Torts - Topic 1418

Nuisance - Injury to property - Neighbouring owners - Escape of weeds - [See first Municipal Law - Topic 1801 ].

Torts - Topic 1800

Nuisance - Defences - Statutory authority - [See first Municipal Law - Topic 1801 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See both Municipal Law - Topic 1801 ].

Cases Noticed:

Stachniak v. Thorhild No. 7 (County) (2001), 285 A.R. 1; 2001 ABPC 65, refd to. [para. 4].

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, refd to. [para. 9].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 10].

Fontaine v. British Columbia (Official Administrator) - see Fontaine v. Loewen Estate.

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; 168 D.L.R.(4th) 513, refd to. [para. 12].

Bowes v. Edmonton (City) (2005), 386 A.R. 1; 2005 ABQB 502, refd to. [para. 21].

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. 21].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1)(b), sect. 3(3) [para. 20].

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 527.2, sect. 528, sect. 529, sect. 530(1) [para. 14].

Counsel:

Renn M. Moodley (Prowse Chowne LLP), for the plaintiff;

Derek J. King (Brownlee LLP), for the defendant.

This action was heard on June 14, 2006, before Ingram, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on July 25, 2006.