Smed v. Priddis Greens Golf & Country Club, 2011 ABQB 5

Court of Queen ’ s Bench of Alberta Citation: Smed v. Priddis Greens Golf & Country Club, 2011 ABQB 5 Date: 20110104 Docket: 9701 10406 Registry: Calgary Between: Kristine Smed Plaintiff - and - Priddis Greens Golf & Country Club and Priddis Greens Services Co-op Ltd. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A.

Hughes _______________________________________________________ INTRODUCTION [ 1 ] Kristine Smed, the plaintiff, owns property south and east of the property of the defendant, Priddis Greens Golf & Country Club (“Priddis Greens”). Ms. Smed alleges the defendants, Priddis Greens and Priddis Greens Services Co-op Ltd. (“the Co-op”), discharged water, including effluent from Priddis Greens waste water ponds, onto her property which caused damage to her land. Ms. Smed alleges this damage includes permanent flooding, erosion and contamination; further, she has been unable to use these lands.

Priddis Greens and the Co-op acknowledge water discharged from the golf course flowed onto Ms. Smed’s land. However, Priddis Greens and the Co-op submits this discharge of water did not cause permanent flooding, erosion and/or contamination. [ 2 ] The issues I must decide are:

1. What causes of action are pled in Ms. Smed’s Amended Statement of Claim? Ms. Smed submits her Amended Statement of Claim includes the torts of trespass, nuisance and negligence. Priddis Greens and the Co-op submit trespass is not open to the plaintiff in light of the pleadings and evidence. 2. Has Ms. Smed proven any of the torts pled in the Amended Statement of Claim. 3. If I find Ms. Smed has established any one of the torts, should I allow the defendants’ application to amend their pleadings to plead the Limitation of Actions Act . 4. What damages have been proven by Ms. Smed.

FACTS [ 3 ] The majority of facts are not in dispute in this case. Where facts are in dispute, findings of fact are made by me. [ 4 ] Priddis Greens Golf and Country Club is a golf club, west of Calgary, Alberta in the area of Priddis. Ronald Hood is the chief operating officer and general manager of Priddis Greens and has held these positions since 1989. During the relevant periods of time, Mr. Hood was the general manager of the Co-op. [ 5 ] Construction of the golf course began in the early 1980s with the first nine holes of golf - the South Nine - opening for play in 1985.

The second set of nine holes opened in 1986 - the East Nine - and the third nine - the North Nine - opened for play in 1992. Also constructed on the Priddis Greens lands were: 1. a clubhouse and other service buildings, 2. 36 condominiums and 12 single family residences on Sunrise Way, and 3. 68 condominiums on Sunset Way. [ 6 ] The southern edge of the Priddis Greens lands is bordered by Priddis Greens Drive, a roadway which runs east and west. [ 7 ] In 1987, Ms. Smed and her then husband, Colin Brown, purchased a quarter

section of land (the Smed lands). The northern edge of Ms. Smed’s land borders Priddis Greens Drive. Priddis Greens Drive physically separates these two neighbours. The northwest corner of Ms. Smed’s land is kitty corner to the southeast corner of the Priddis Greens lands. [ 8 ] As this case involves allegations respecting Priddis Greens and the Co-op flooding the Smed lands, one must understand the topography of the area and the waste water and the irrigation systems of the golf course, especially between 1991-1997 inclusive. [ 9 ] At the time Ms.

Smed purchased her land, Priddis Greens was an 18 hole golf course. The natural topography of the area is such that the golf course is at a higher elevation than the Smed lands. The natural water drainage for rain and snow run-off is south and east from the golf course lands onto the Smed lands. [ 10 ] The drinking or potable water for the golf course and residences on the golf course comes from three wells on the Priddis Greens lands. The water is pumped from the wells to a water treatment plant where the water is treated and stored for the residences, the club house and other related service buildings.

[ 11 ] Priddis Greens uses an irrigation system to irrigate the golf course and the lawns of the residences. Until 1992, the irrigation water came solely from a reservoir created during the construction of the initial nine holes of the golf course. Priddis Greens has a licence from Alberta Environment to remove water from the reservoir for this purpose. The water is pumped from the reservoir to a pond which is a water hazard on the East Nine - 9-East - and then travels by gravity through a natural ravine down to a second pump station at 2-East.

This station charges all the main and secondary lines of the irrigation system for the south and east courses as well as the residences. [ 12 ] From 2-East, the water continues to travel by gravity from the area of the second pump station through a series of golf course ponds on the east and south courses, ending at the pond on the 6 th hole of the south course - 6-South. This pond was created in the construction of the south course and can be emptied by the removal of a plug. 1991 [ 13 ] Until 1991, all sewage was trucked from the Priddis Greens lands and transported to Calgary.

However in 1991, a licence was obtained from Alberta Environment to operate a waste water collection system and a waste water treatment facility on the Priddis Greens lands for the clubhouse and related buildings, and the residences. [ 14 ] The waste water treatment facility was constructed on the lands of the North Nine golf course. The licence permitted treated effluent from the facility to be discharged into an irrigation storage pond. This pond operates as a water hazard on the North Nine and is known as 7-North. [ 15 ] The licence also permitted: 1.

Treated effluent in the 7-North pond to be used for irrigation of the North Nine golf course. 2. If treated effluent was used for irrigation, the: - Landowners adjacent to the golf course shall be notified that treated sewage effluent is being used to irrigate the golf course. - Signs shall be posed in the clubhouse and at appropriate locations over the course notifying golfers that treated sewage effluent is being used to irrigate the golf course.

Any irrigation standpipes or outlets on the golf course shall be posted to indicate that they are part of the wastewater irrigation system and not part of the potable water distribution system. 3. Effluent used for irrigation shall have a total coliform density of less than 1,000 per 100 ml and a fecal coliform density of less than 200 per 100 ml. 4. Irrigation with effluent shall take place normally between 2200 hours and 0700 hours. Day time irrigation will be permitted only during extremely warm days under strict supervision. 5.

At the end of each irrigation season, a short letter or report shall be submitted to the Director of Standards and Approval outlining the approximate volume of effluent used for irrigation and the results of all bacteriological analysis of irrigation water.

Said report should also summarize any problems encountered, including any public acceptance problems. [ 16 ] In addition, the licence required weekly sampling of the effluent used for irrigation, and monthly and yearly reporting to Alberta Environment. [ 17 ] Priddis Greens Services Co-op Ltd. (the Co-op) was created in the early 1990s and its primary function was to provide potable water and sewage treatment for the golf club as well as the residents on both Sunrise Way and Sunset Way. Mr. Hood was the general manager of the Co-op from its creation until 2002. [ 18 ] As described by Mr.

Hood, Priddis Greens and the residents on the Priddis Greens lands need the Co-op for potable water and sewage treatment and the Co-op needs Priddis Greens to dispose of the treated effluent through its irrigation of the golf course.

[ 19 ] The license to operate the waste water collection system and the waste water treatment facility was put into the name of the Co-op in 1993. The terms and conditions of this license were, in all material aspects, identical to the one issued in 1991. [ 20 ] From the time Ms. Smed purchased her land in 1987 until 1991, Ms. Smed’s only road access to her land was via her neighbour’s property to the east. In 1991, construction of a west access road onto the Smed lands from Priddis Greens Drive commenced. During construction of the west access road, Ms.

Smed was advised by her contractor to put a culvert under the road, which she did. Prior to the commencement of the road construction, I find Ms. Smed had not viewed this portion of her land. I also find that prior to 1991, Ms. Smed had no knowledge of the condition of the northern part of her land. [ 21 ] After the west access road was constructed, Ms. Smed observed water running from the area of the 6-South pond on the golf course onto her land, primarily in the spring and fall. 1992 [ 22 ] In 1992, Ms. Smed began construction of a second road onto her property from Priddis Greens Drive.

This road, the east access road, proceeded to an area on the Smed lands where Ms. Smed later began construction of a seniors complex. Both the west access road and the east access road cross areas of the Smed lands Ms. Smed alleges have been damaged by Priddis Greens and the Co-op. The west access road crosses a small area of land Ms. Smed alleges has been damaged. The east access road crosses a much larger area Ms.

Smed alleges has been damaged. [ 23 ] In July 1992, Priddis Greens sought permission to transfer treated effluent from its storage pond/water hazard at 7-North to three other ponds/water hazards at: 1. 2/3-North 2. 2-East 3. 8-South Priddis Greens made the application because the water contained higher levels of sodium than Priddis Greens wished for irrigating its grass.

The identified source of the sodium was water softening units in the club house and residences. [ 24 ] By this time each year, the effluent in the 7-North pond had been diluted by the addition of rain water, snow run-off and reservoir water. [ 25 ] On July 9, 1992, Alberta Environment gave permission to transfer the effluent to the three water hazards. One of the conditions under which permission was granted was that steps would be taken in the future by Priddis Greens to limit the sodium level in the effluent.

The transfer of the effluent was effected between July 11 to 15, 1992. [ 26 ] Approximately 3 months later, Ms. Smed’s ex-husband, Mr. Brown, sent a letter to Priddis Greens which read: October 7, 1992 PRIDDIS GREENS GOLF & COUNTRY CLUB BOX 27, SITE 13, R.R.1 PRIDDIS, ALBERTA T0L 1W0

ATTENTION: MR. HOOD Dear Mr. Hood; All water that is pumped through the golf course ends up draining through my property. There are two separate culverts that handle this drainage through my land. At certain times during the course of a year this water runs dirty. The most common times for this is during filling the ponds in the spring and draining the ponds in the fall, also during heavy rainy periods. The first culvert that handles this water that enters my property drains into a pond we have on our property. Consequently when this water is running dirty it ends up in my pond.

My request is that Priddis Greens Golf & Country Club put a shut off gate on the first culvert, so I can control the quality of water running into this pond. Your course superintendant, Mr. Don Pell has agreed to call me when filling or draining ponds. A shut off gate being put in the culvert prior to the ponds being drained this fall is important for obvious reasons. Please answer this request prior to draining the ponds. Sincerely, [signature] Colin R. Brown [ 27 ] As a result of this letter, Mr. Hood met with Mr. Brown. Also present at the meeting were Mr. Pell, and Bob Machum, an employee of Ms. Smed and Mr.

Brown. The four men discussed the letter and then examined the “first culvert” – that being the culvert constructed under Priddis Greens Drive, as water discharged from the golf course flows into the northern ditch of Priddis Greens Drive, through this culvert and onto the Smed lands. [ 28 ] Mr. Brown asked Priddis Greens to install a sluice gate on this first culvert so he could regulate the flow of water through the Smed lands. I find Mr. Hood told Mr. Brown Priddis Greens was prepared to install this gate but Mr. Brown must first get the permission of the Municipal District, the owner of Priddis Greens Drive.

As a result of this conversation, Mr. Hood believed Mr. Brown would seek the necessary approvals and get back to him. However, Mr. Hood heard nothing further from Mr. Brown. [ 29 ] I accept Mr. Hood’s evidence as to this meeting and what transpired, noting Mr. Hood’s handwritten notes on the letter dated October 7, 1992 are confirmatory of the conversation. 1993 [ 30 ] 1993 was a year with above average rainfall. As a result, the golf course did not require as much irrigating which in turn, resulted in the Co-op’s inability to discharge as much effluent as planned from the storage pond/water hazard at 7-North.

Therefore, the Co-op, through its engineering consultant, applied to Alberta Environment to transfer treated effluent from the water hazard at the 7- North into its ponds on the east and south courses. [ 31 ] Alberta Environment granted approval of this transfer. As a result, the Co-op and Priddis Greens drained its ponds on the east and south courses between September 23 and 30 by pulling the plug on the 6-South pond. This discharged water travelled from the 6-

South pond, through the culvert under Priddis Greens Drive onto the Smed lands and ultimately into Priddis Creek. [ 32 ] After the ponds were drained, the effluent was transferred into them. 1994 [ 33 ] Priddis Greens’ and the Co-op’s engineering consultant made an application to Alberta Environment, on behalf of the Co-op, to amend its license to allow it to irrigate all 27 holes of the golf course with the effluent stored in the pond at 7-North. Within the week, Alberta Environment granted the Co-op an amended license that allowed it to do this.

The amended license included conditions identical to the 1993 licence. [ 34 ] Two days after the Co-op received its amended license, Mr. Hood advised all residence owners of this change and when the irrigation would take place. [ 35 ] Neither Priddis Greens nor the Co-op received permission from Alberta Environment to discharge any effluent in 1994. 1995 [ 36 ] 1995 was another year with above average rainfall. As a result of the rains in July, the Co-op made two emergency discharges of effluent as permitted by their license from the 7-North pond to the 2-East pond.

The first discharge occurred on July 13 th when 100,000 gallons of effluent were discharged; the second was July 24 th and 200,000 gallons of effluent were discharged. [ 37 ] Immediately following the second discharge, the Co-op’s engineering consultant made an application to Alberta Environment to amend the Co-op’s license to “... allow for greater flexibility to be exercised under conditions where irrigation of the north course is insufficient to allow for the disposal of the treated effluent in the effluent pond”. The intent of the amendments were twofold: 1.

To provide for disposal of treated effluent on all 27 holes of the golf course, and 2. To provide for an alternate treated effluent disposal mechanism during wet seasons when disposal by effluent irrigation on the golf courses is no longer feasible or effective. [ 38 ] The consulting firm explained the rationale for the second amendment as follows: Under conditions where irrigation of all 27 holes of the facility is impossible, a mechanism for release of treated effluent off-site must be considered.

The treated effluent in the pond on 7-North can be introduced into the natural drainage system of the course which would see it travel through ponds on 9-East, 2-East, 8-South and finally 6-South. We would propose that - as performed in both 1992 and 1993 - the pond on 6-South be drained and allowed to pass at a controlled rate into Priddis Creek. Once sufficiently drained, the treated effluent held in the effluent pond on 7-North would be allowed to flow by gravity to the pond on 6-south and held at that location.

Typically, this would happen during the later part of the irrigation season once it was determined that increased rainfall will make irrigation an unlikely disposal method. This would indicate that flows from the pond on 6-South would be added to Priddis Creek in later Summer or in Fall and the treated effluent taking its place for the Winter, Spring and early summer months. [ 39 ] By letter dated August 3, 1995, Alberta Environment advised the Co-op that it viewed its application to be complete subject to public notice of the application.

As a result, the Co-op placed ads in the Calgary Herald and the Okotoks Western Wheel and posted notices of same in the Priddis Greens club house. [ 40 ] On October 3, 1995 the Co-op received approval for the amendments it sought. I find Priddis Greens and the Co-op were advised of this approval prior to the date of the letter because 6 days prior, Priddis Greens and the Co-op pulled the plug on the 6-South

pond and allowed it to empty and flow onto the Smed lands over a six day period. After the 6-South pond was emptied, Priddis Greens and the Co-op transferred effluent from 7-North pond to the 6-South pond. 1996 [ 41 ] 1996 was a dry year. Mr. Hood advised Alberta Environment by letter dated September 24, 1996: ... the Co-op is advising Alberta Environment that the Co-op will be transferring about 1,000,000 gallons of effluent from Pond #7 to Pond #9 East from September 27 th to October 5 th .

This effluent will be mixed with the Club’s irrigation water and used to irrigate all 27 of the Club’s golf holes plus the neighboring condominiums, who have been notified of the impending change. (See enclosed notice which was placed on the communities T.V. system on September 23 rd ). As a further notice, the Co-op is pleased to report that Pond #6 South will not be required to hold effluent this year as the Club was able to lose the majority of effluent/dam water on the North 9 holes of golf, due to the dry season. [ 42 ] The following month, October 1996, then counsel for Ms.

Smed sent a letter to Priddis Greens asking that Priddis Greens “cease and desist” discharging any water from the golf course onto the Smed lands. 1997 [ 43 ] As a result of Ms. Smed’s letter, Priddis Greens made arrangements and obtained the necessary approvals to re-route the flow of its water to Priddis Creek without crossing Ms. Smed’s lands.

I find no water flowed from the Priddis Greens golf course onto the Smed lands in 1997 and the years following other than natural water drainage. [ 44 ] It is clear from the above chronology, Priddis Greens and the Co-op did discharge water from the golf course that flowed through the Smed lands. This volume of water can be determined based upon the size of the ponds. [ 45 ] Other, much smaller volumes of water flowed from the Priddis Greens lands onto the Smed lands as a result of the day to day operation of the golf course and weather conditions, such as melting snow and rain.

However, I am unable to find on the evidence what the average volume of this water would have been. [ 46 ] I do not find any of these discharges caused “flooding” of the Smed lands as a result of the number of days over which discharges occurred. I also do not find that any of the flows described in the above paragraph caused “flooding”. I accept the discharges, as well as overflow as a result of heavy rains, caused the water in the pond or burrow on the Smed lands to become dirty as described by Mr. Brown in his letter dated October 7, 1992. ANALYSIS 1. What causes of action are pled in Ms.

Smed’s Amended Statement of Claim? Ms. Smed submits her Amended Statement of Claim includes the torts of trespass, nuisance and negligence. Priddis Greens and the Co-op submit trespass is not open to the plaintiff in light of the pleadings and evidence. 2. Has Ms. Smed proven any of the torts pled in the Amended Statement of Claim. Trespass [ 47 ] Trespass to land is defined in G.H.L. Fridman, The Law of Torts in Canada , 2 nd ed., (Toronto: Carswell, 2002) at p. 37-38:

Trespass to land consists of entering upon the land of another without lawful justification, or placing, throwing or erecting some materialobject thereon without the legal right to do so. Such interference must be direct rather than consequential. To constitute trespass thedefendant must in some direct way interfere with the land possessed by the plaintiff. The requirement of directness differentiates trespassfrom nuisance, which is committed when the defendant makes a use of his land that indirectly affects the land of the plaintiff. (AnmoreDevelopment Corp. v.

Burnaby (City), 2005 BCSC 1477). [48] Professor Philip H. Osborne, in his text, The Law of Torts, 3d ed., (Toronto: Irwin Law Inc., 2007) discusses the elements ofthis intentional tort. As noted in the above definition, one of the elements of this tort is that the interference or intrusion must be direct.Professor Osborne observed at p. 279: There are a number of essential elements to the tort of trespass to land. The intrusion onto the land must be direct. ... The element ofdirectness diminishes the power of trespass of land to deal with some environmental pollution.

Oil spills that wash onto the plaintiff’sland, waste that is carried down rivers to the plaintiff’s land, and herbicides, pesticides, and airborne pollutants that drift in the wind tothe plaintiff’s land are likely to be regarded as indirect interferences with land. Damage caused by indirect interference may beactionable as a nuisance. See also Philips v. California Standard Company, Seismotech Ltd. and Sohio Petroleum Company (1960), (AB KB),31 W.W.R. 331 (Alta. Sup. Ct.) at p. 334. [49] The pleadings do not allege any direct interference with or intrusion onto the plaintiff’s land by the defendants.

Further, noevidence was tendered at the trial of either defendant directly interfering with or intruding on to the Smed lands. Rather, the position ofMs. Smed, and confirmed by the evidence, is that when water was discharged from the golf course, it left the Priddis Greens lands,travelled through a ditch along Priddis Greens Drive, entered the culvert under the road, and then entered onto the Smed lands. [50] I find based on both the pleadings and the evidence, the tort of trespass is not available to Ms. Smed.

Nuisance [51] The tort of nuisance is defined as “... an activity which results in an unreasonable and substantial interference with the use and enjoyment of land.” Tort Law, 4th ed., Lewis N. Klar Q.C. (Toronto: Thomson Carswell, 2008) at p. 726. [52] This tort is “[p]rincipally concerned with regulating the conflicting uses of land which invariably arise in an increasinglyurbanized ... society...” Klar, at p. 715. See also Tock v. St.

John’s (City) Metropolitan Area Board, (SCC), [1989] 2S.C.R. 1181, at p. 1191. [53] Nuisance is a strict liability tort; as a result, conduct that is not negligent may still attract liability under this tort. See, forexample, Tock v. St. John’s. [54] In Royal Anne Hotel Co. v. Ashcroft, (BC CA), [1979] 2 W.W.R. 462 (B.C.

C.A.) McIntyre J.A., as hethen was, posed the question “when has the tort of nuisance been committed?” He answered the question this way at p. 466: A helpful proposition is advanced by the learned author of Street on Torts, at p. 215, in these terms: A person then may be said to have committed the tort of private nuisance when he is held to be responsible for

an act indirectly causingphysical injury to land or substantially interfering with the use or enjoyment of land or an interest in land, where, in the light of all thesurrounding circumstances, this injury or interference is held to be unreasonable.

The test then is, has the defendant’s use of this land interfered with the use and enjoyment of the plaintiff’s land and is that interference unreasonable? Where, as in the case at bar, actual physical damage occurs it is not difficult to decide that the interference is in fact unreasonable. Greater difficulty will be found where interference results in lessor or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes.

No finding is required regarding the exercise of care by the defendant and, while its conduct may frequently be such that a finding of negligence could be made, it is not necessary and the existence of due care will afford no defence if the other ingredients are present. [ 55 ] There is no issue that Priddis Greens and the Co-op discharged water, including treated effluent, from the golf course. As noted earlier, this water flowed from the golf course into the north ditch of Priddis Greens Drive, through the culvert under the road before it entered the Smed lands. [ 56 ] The primary issue is whether Ms.

Smed has established that the discharged water caused actual physical damage to her land. In particular, the plaintiff alleges the defendants’ discharges of water from the golf course caused permanent flooding and contamination of approximately 8 - 9 acres of her land. [ 57 ] Both Ms. Smed and the defendants called expert evidence on this issue. [ 58 ] Ms. Smed called Jack Kao, the principal of Global Engineering & Testing Ltd. (“Global”). Mr. Kao inspected Ms. Smed’s property in November, 2000; water and soil testing were also conducted. Mr.

Kao opined that the defendants’ discharge of water, including the effluent, caused damage to the plaintiff’s land and its natural vegetation. In particular, he wrote: At this time, a large portion of the site area has been destroyed and contaminated by the chemicals and bacteria. Large swamp area has become an environmental and health hazard, caused ecological problems at the site and has become a nest for mosquitoes and insects.

Before the contamination spreading wider and further decreasing of the trees growing area, the proper remedial action and treatment must be taken, including the decontamination of the soil and groundwater in the subject land. [ 59 ] Mr. Kao recommended at page 5 of his report that a specialist in vegetation and bacteria be called in to supplement his investigation. That recommendation does not appear to have been followed by the plaintiff. [ 60 ] Mr.

Kao opined: · “the discharge and resulting flooding has caused damage to the land”; · “after the numerous times of flooding with effluent, many trees gradually died”; · “a large portion of the land in the subject site was gradually transformed from the woods into the swamp”. [64] Some of Mr. Kao’s opinion is based upon the following facts he was provided: 1. During the wet season, the water pond on the golf course was drained constantly. 2. Large volumes of water were dumped seasonally. 3. The effluent from the pond consisted of fertilizers and pesticides. 4.

The drainage of this water from the pond caused numerous occasions of flooding. [65] I find Mr. Kao’s opinion evidence is weakened because he was not provided accurate information upon which he based his opinion. For example, as I found above, the ponds on the golf course were not drained constantly and there were not numerous occasions

of flooding. There is no evidence to support his conclusion the effluent consisted of fertilizers, pesticides, herbicides and/or insecticides. Indeed, as Mr. Kao noted in his report, one soil sample was tested for herbicides but the test indicated that the herbicide level was “low”. There was also no evidence tendered to suggest Priddis Greens and the Co-op ever failed to meet the water quality levels set for them by Alberta Environment. [66] The evidence establishes that Priddis Greens and the Co-op used effluent to irrigate its golf course and the lawns of the residences.

Common sense would suggest that if the Smed lands were “destroyed by the chemicals and bacteria” in the effluent, one would observe similar damage to the golf course lands. One would assume that had this damage occurred Priddis Greens would have stopped using effluent for irrigation. Priddis Greens continues to use effluent to irrigate to this day. [67] Mr. Kao testified his retainer did not allow him to do a historical review of the Smed lands. This was important because Ms. Smed could not provide that information to him as Ms.

Smed herself did not see the area in question until some four years after she purchased the land. [68] In addition, Mr. Kao recognized the limits of his expertise when he wrote: We would recommend that the specialist of the vegetation and bacteria should be call for [in this] investigation.

The vegetation and trees on the site should be monitored in the future. [69] The defendants submit there is no evidence of physical damage to the Smed lands relying upon the expert evidence they called. [70] The defendants called three experts from Golder Associates (“Golder”) - Mel Zwierink, a landscape specialist, Marc Bowles, a hydrologist, and Murray Fitch, a water resources engineer. [71] Golder inspected the Smed lands in June, 2010. In particular, they focussed their inspection upon the area of the Smed lands Ms. Smed alleges must be remediated because of the damage.

This area was identified in the report prepared by the Lombard North Group (“Lombard North”) for Ms. Smed. [72] In forming their opinion, Golder spoke to Ms. Smed, toured her property, conducted water and soil sampling, reviewed reports provided by Ms. Smed including Mr. Kao’s report, spoke with Mr. Hood and reviewed aerial photographs of the area. Each of the three experts – Mr. Zwierink, Mr. Bowles and Mr. Fitch - prepared their own

section of the report tendered in evidence. [73] Mr. Zwierink conducted the soils and vegetation assessment. He examined thirteen sites on the Smed lands. I find these sites were fairly chosen to represent the range of vegetation types. In addition, two soil pits were dug at two of the thirteen sites. [74] Another aspect of Mr. Zwierink’s investigation was a review of aerial photographs from 1966, 1990, 1992, 1998 and 2005 to determine what vegetative differences, if any, had occurred from 1996 to 2005 at each of the thirteen sites on the Smed lands. [75] Mr.

Zwierink made the following conclusions based upon his assessment: · Eleven of the thirteen inspection sites were poorly or very poorly drained and/or had a hydric, subhydric, or hydric soil moisture regime. Particular attention was paid to assessing poorly and very poorly drained sites and the associated vegetation since the area of concern was generally poorly or very poorly drained. There appeared to be little difference in soil moisture regimes between the eight sites located in the area of concern and the three sites that were outside of this area.

Sites in both areas had a range of vegetative communities including forested sites with greater than 50% tree canopy cover, open patchy forested/shrubby sites with little or no tree cover. · Two of the thirteen sites were imperfectly to

moderately well drained. The plant communities on these two sites were deciduous balsam poplar and coniferous white spruce stands. · Two soil pits dug in the area of concern are poorly drained Gleysols that pedogenically developed on the site over a long period of time (e.g., more than 50 years). There was also no observed evidence of recent fluval deposition or buried soil horizons that one would expect to find in an area subject to sediment laden flooding events. · A review of aerial photographs shows no substantive changes in the forest canopy cover and vegetative community mosaic from 1966 to 2005.

Two open non-treed poorly and very poorly drained areas were seen in the same locations on 1966, 1990, 1992, 1998, and 2005 imagery. Patchy open forest stands were observed in the same locations on aerial photography at these five time intervals. Spruce stands with greater than 50% crown closure were also observed in the same locations on aerial photographs at five time intervals between 1966 and 2005. These vegetation mosaics were found both within and outside of the area of concern.

The absence of change in the vegetation communities is expected, since the tree species inhabiting the poorly-drained areas are adapted to periodic flooding . (emphasis added) [80] I accept Mr. Zwierink’s evidence and find his analysis and conclusions to be very compelling. I make this finding as Mr. Zwierink’s opinion was partially based upon his review of the aerial photos, independent evidence that pre-dated this lawsuit. Further, his analysis of the photos and the opinions he formed from this analysis, can be readily viewed by the Court. As I have accepted Mr. Zwierink’s evidence, I do not accept Mr.

Kao’s findings and opinions found in

Section 3.0 of his report as they are not substantiated by the historical review. As I noted earlier, Mr. Kao testified his retainer did not allow him to do this historical review. [81] Golder also prepared a rebuttal report to the Global report. This report was prepared after Golder received the laboratory analytical report results prepared for Global during its examination of the Smed lands in 2000. I accept Mr. Zwierink’s opinion in the rebuttal report. [82] Mr. Zwierink wrote in his

section of the rebuttal report: Soil inspections carried out in June 2010 and a review of soil logs from 2000 indicate that there has been limited deposition of material in the area of investigation. Two soil pits were dug and described in June 2010. One soil was a poorly drained peaty Orthic Humic Gleysol, and the other was a poorly drained Orthic Luvic Gleysol. Pedogenic development indicated these soils have been poorly drained for a long period of time.

Buried soil horizons and recent deposition of fluvial material that one would expect in an area subject to recent flooding was not observed at these locations. A review of soil profile logs outlined in Global (2000) indicates that over 15 of the inspected sites had 2 feet or more of an organic layer, over 55 sites had 1 to 2 feet of an organic layer, over 50 sites had an organic layer less than 1 foot in thickness. Approximately 5 sites had a mineral layer at the soil surface and only 3 sites had a mineral soil over an organic layer.

It is not known if all the sites were located in the area of investigation; however, it is clear from these logs that accumulation of sediments atop organic soils as would be expected in areas of recent flooding and deposition is not widespread. With respect to the statement provided in Global’s (2001) report that suggests that coliform bacteria growth will result in the gradual destruction of trees, the authors are not aware of a link between increased coliform abundance and changes in terrestrial forest and plant community composition. [83] With reference to the above paragraph, Mr.

Zwierink testified there is no scientific literature to support Global’s statement that “coliform bacteria growth will result in the gradual destruction of trees.” I accept Mr. Zwierink’s evidence on this issue as well. [84] The conclusions of Mr. Fitch and Mr. Bowles are consistent with Mr. Zwierink’s conclusions. Thus, I accept their evidence in its entirety and do not accept the evidence of Global where it contradicts with the evidence of Mr. Zwierink, Mr. Fitch, and Mr. Bowles. [85] Mr.

Bowles, who conducted the geochemical sampling of the soils and water on the Smed lands opined: Geochemical sampling of soils and water on the Smed Property: · has, with the possible exception of chloride results, failed to identify obvious or significant soil or water chemistry differences between areas within and outside the area of concern;

· has not identified Alberta Tier 1 Soil Remediation Guideline exceedances for any analyzed parameters; · has identified low level Alberta Tier 1 Groundwater Remediation Guideline exceedances for iron and manganese; however, these are tentatively attributed natural causes and would not generally be parameters associated with contamination emanating from a golf course; and · has identified expected Canadian Drinking Water Quality Guideline exceedances of microbiological parameters (viz. E. Coli and total coliforms) likely associated with animal feces, but these exceedances were present at all locations including the background sample. In

summary, it can be concluded from the geochemical sampling program that: · if the land ever was contaminated by surface water runoff from the golf course, it no longer is ; and, · based on the analytes tested, no soils requiring remediation were identified on the property .(emphasis added) [92] Mr. Fitch, who conducted the surface water hydrological assessment concluded: · Increased flooding of the area of concern likely occurred due to releases from the southeast golf course pond to the Smed property.

The ponds were released relatively infrequently, so the frequency of flooding in the area of concern was likely not changed substantially relative to pre-golf course conditions, but the severity of flooding was higher than would normally occur, with flow rates comparable to a flood with a return period between 2 and 5 years. The duration of increased flooding of the area would not be expected to be substantially more than the typical 10 day period of discharge of the pond. · Increased erosion of the ravine likely occurred between culverts CSP1 and CSP3, and possibly for a short distance downstream of CSP3.

Additional erosion above natural rates was unlikely in the flat area west of culvert CSP5. [CSP1 is the culvert under Priddis Greens Drive. CSP3 and CSP5 are culverts on the Smed lands;CSP3 is the culvert under the west access road.] · There is no evidence that historic flooding in the area of concern has increased the frequency or duration of present day flooding. · There is no evidence of increased current erosion due to past releases. However, the watercourse downstream of culvert CSP3 shows signs of recent bank and bed erosion (see Appendix A, Photo 11). During the site visit, Ms.

Smed indicated that she controls discharges from the upstream borrow pit by means of a valve that regulates flows through culvert CSP3. Given the absence of vegetation in this eroded area, it is likely that this erosion occurred within the last two or three years, and has almost certainly occurred since the cessation of discharges from the golf course. [97] The Golder report concluded as follows: In

summary, there are no apparent residual effects to the soils and water chemistry, soils and vegetation, or flooding potential of the area of concern resulting from historical releases from the golf course pond, with the exception of some erosion that likely occurred in the channel between Culvert CSP1 and CSP3. However, this channel is now stable.

Further it is concluded that the wetland identified as an area of concern was likely frequently inundated long before the golf course was built as it is located within a flood plain, and its formation did not result from golf course discharges as evidenced by the types of soils and vegetation present now and historically.

Finally, the investigation has not found any reason to undertake remediation or removal of soils or to stabilize the channels downstream of culverts CSP1 and CSP3. [98] The Golder’s Rebuttal report concluded after reviewing the testing conducted for Global in 2000: Based on work completed to date, it appears highly unlikely that flooding events associated with the discharge of the golf course ponds has drastically altered vegetation types or resulted in significant changes to landforms in the area of investigation.

Rather, it is thought that this area was imperfectly, poorly or very poorly drained for a long period of time and has been subject to period flooding that significantly predates the water releases from the golf course. Soil pedogenic development and plant community types have formed due to these long term site drainage characteristics.

Further, it would appear that Valhalla Village building is located close to an imperfectly, poorly or very poorly drained area that would,by its nature, be a breeding ground for mosquitoes and this area would not appear to have been contaminated by any elements orcompounds sourced from the golf course. [99] As I have accepted the evidence of Mr. Zwierink, Mr. Bowles and Mr. Fitch, I find the defendants did not cause the physicaldamage alleged by Ms. Smed. In particular, I find the water discharges from the golf course did not cause any permanent flooding and/orcontamination of Ms.

Smed’s land. [100] I do accept Mr. Fitch’s evidence that the defendants caused some erosion to the Smed lands between the culvert under PriddisGreens Drive and the culvert on Ms. Smed’s west access road but this channel is now stable. As observed in Royal Anne Hotel Co.,actual physical damage leads to an inference that the interference was unreasonable. [101] I also find that the water discharges caused Ms. Smed some limited loss of enjoyment of her land through her frustration withthe issue of the water discharges. [102] Based on the test in Royal Anne Hotel Co., I find Ms.

Smed had proven the tort of nuisance against the defendants. Negligence [103] In light of my findings with respect to the tort of nuisance, I do not find it necessary to address this claim. 3. If I find Ms. Smed has established any one of the torts, should I allow the defendants’ application to amend their pleadingsto plead the Limitation of Actions Act. [104] At a pre-trial conference before me, counsel for the defendants advised the defendants intended to apply to amend theirStatement of Defence to plead the Limitation of Actions Act. This application, as well as Ms.

Smed’s application to amend her AmendedStatement of Claim, came before me at the commencement of the trial. I heard Ms. Smed’s application and dismissed it, but for heramendment to increase the quantum of damages claimed, which I allowed. In dismissing her application, I found based on the affidavitsbefore me - those of Ms. Smed and Mr. Hood - the discharge of water by the defendants was not an issue for Ms. Smed in 1992, 1993 or1994. [105] The defendants’ application was put over for argument until the conclusion of the trial. [106] During the trial, Ms.

Smed testified to the effect that between 1992 to 1996 complaints were made to Priddis Greens everyspring and fall with respect to their discharge of water. However, in cross-examination, prior inconsistent statements of Ms.

Smed wereput to her such as, the discharge of water was not a significant problem in 1993, she had no personal contact with Priddis Greens in 1993and 1994 because she was involved in divorce proceedings, and she acknowledged there was no correspondence between herself andPriddis Greens in 1995 with respect to this issue. [107] Based upon all the evidence before me, I am not satisfied the discharge of water became an issue for Ms. Smed until sometimein 1995. [108] The defendants submit that their amendment should be granted relying on the general principles of law I discussed in decidingMs.

Smed’s amendment application, as well as the following statement of law from DiPalma v. Smart (1996) (ABKB), 43 Alta. L.R. (3d) 161 (Q.B.) at p. 166: I understand the law to be as stated by McInnes, J. in Theberge v. Salmon River Logging Co. (1956) (BC SC), 17

W.W.R. 659 (B.C.S.C.), at 661-2 where, quoting from and following the Court in Steward v. North Metropolitan Tramways Co. (1885),16 Q.B.D. 178, affirmed 55 L.J.Q.B. 157, His Lordship said: In these statements of the law just quoted the principle to be applied is clearly set forth. In that case the amendment if established at thetrial would have had the effect of depriving the plaintiff of his right of action against another party. In the present case the plaintiff haslost no such right.

If the proposed amendment sought by the defendants herein had been pleaded at the first opportunity it would, if it isa valid plea, have had the effect of defeating the plaintiff's claim just as effectually then as it would now. The plaintiff is therefore notprejudiced by the delay in applying for the amendment. (emphasis added) [109] I find the amendment should be allowed in this case based upon my findings and applying the above principle in DiPalma. Ms.Smed’s claim is limited to the 2 years preceding her issuance of her Statement of Claim on July 21, 1997. I also find that some of theerosion to Ms.

Smed’s land occurred during this time period. 4. What damages have been proven by Ms. Smed. [110] I found the defendants caused some erosion to the Smed lands but the defendants did not cause any permanent flooding and/orcontamination of the Smed lands. [111] The only evidence Ms. Smed called on the issue of damages related to a total reclamation of the land in question alleged to bepermanently flooded and contaminated. Ms. Smed hired the Lombard North to prepare contract documents for the reclamation of herproperty. Mr.

Douglas Thomson, the principal of the Lombard North, testified Lombard North obtained two bids for this work thatincluded “demolition of existing fences, supply and installation of silt fencing; dewatering; clearing and grubbing and disposal of existingtrees and ground cover; excavation and off-site disposal of contaminated soils, supply and installation of clean fill, supply and installationof new topsoil, planting of trees and shrubs, seeding, and maintenance of plant materials ... in accordance with the Contract Documents.”These two bids formed the basis for Ms. Smed’s damages claim. [112] Ms.

Smed did not call any evidence with respect to the cost, if any, to remediate the limited erosion in the area identified by Mr.Fitch. As there is no evidence on this, no damages are awarded for remediation. [113] The water discharges did cause some limited physical damage and some limited loss of enjoyment by Ms. Smed of her landthrough her frustration with the issue of the water discharges. The defendants provided case authority respecting the quantum of generaldamages in nuisance: see Pyke v. Tri Gro Enterprises Ltd., [1999] O.J. No. 5025 (Sup. Ct. of Jus.); Medomist Farms Ltd. v.

Surrey(District) (1991), (BC CA), 62 B.C.L.R. (2d) 168 (C.A.); Kraus v. Fech 2002 BCSC 714; Saelman v. Hill (2004), 20 R.P.R. (4th) 118 (Ont. Sup. Ct. of Jus.). Based on these cases, I award Ms. Smed the sum of $10,000.00 for the loss of enjoyment of theuse of her land. [114] Ms. Smed also claimed for punitive damages. Ms. Smed has not established the requisite elements for this claim and this claimis dismissed. CONCLUSION [115] I find Ms. Smed has established the tort of nuisance against the defendants and assess general damages for loss of enjoyment forthe use of land at $10,000.00.

The balance of her claim is dismissed. [116] The parties may speak to costs within 60 days.

Dated at the City of Calgary, Alberta this 4th day of January, 2011. E.A. Hughes J.C.Q.B.A. Appearances: Kristine Smed for the Plaintiff Daniel A. Downe, Q.C. J. W. Cowan Field LLP for the Defendants