Srochenski v Alberta, 2012 ABQB 511

Court of Queen ’ s Bench of Alberta Citation: Srochenski v Alberta, 2012 ABQB 511 Date: 20120808 Docket: 1103 15960 Registry: Edmonton Between: Edward Srochenski Plaintiff - and - Her Majesty the Queen In Right of Alberta Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Master Wacowich summarily dismissed Mr. Srochenski’s claim on the basis that it was commenced after the expiry of the limitation period. Mr. Srochenski appeals. [ 2 ] Mr.

Srochenski filed the original Statement of Claim in this action on October 7, 2011. Master Smart struck out the claim as disclosing no cause of action but granted Mr. Srochenski leave to file an Amended Statement of Claim which he did on December 6, 2011. [ 3 ] In the Amended Statement of Claim Mr. Srochenski chronicles the lengthy history of his dealings with Alberta

Transportation beginning in June 2003. The dealings concerned access to, and later the flooding of, 73 acres of land he purchased near Riviere Qui Barre, Alberta, about 50 km northwest of Edmonton. The land is at the intersection of Highways 37 and 44. [ 4 ] The principal allegations in the Statement of Claim are: - In June 2003 Mr. Srochenski built an access road from Highway 37 onto his land.

He did so with the authorization and approval of Alberta Transportation. - In November 28, 2003 Alberta Transportation advised him that the access road he had built would have to be removed. - In the spring of 2004 Alberta Transportation trespassed on his land and excavated a ditch from a culvert on Highway 44 “ causing flood waters to trespass completely flooding land home and equipment ” . - In September 2004, after he complained to the Premier ’ s office, someone from the office of the Minister of Transportation assured him that the access he had built from Highway 37 “ would not be disturbed and that any relocation of access would be at the total cost of Alberta Transportation ” . - In the spring of 2005 he complained to Alberta Transportation about water flooding his land and causing major damage to his home and property. - In May 2006 Alberta Transportation advised him by letter that in connection with the twinning of Highway 37 the access to his land from that highway would be moved at government expense.

The Highway 37 access was removed and a new access from Highway 44 was made but no road from the access to the part of his land where his home was located was built, so the new access was not useable. - In 2007 his children were forced out of school “ because of conditions created by Alberta Transportation, no access to Home, flooding waters and water contaminated by sewer flooding ” .

He built a road from the Highway 44 access to his house. - Building materials for a new house which had been delivered in 2006 but which could not be moved to the building site because of the lack of a road were unusable by 2008 and were wasted. - He built dugouts to attempt to manage the flood waters. - In 2008 the 6 foot culvert brought “ millions of gallons of water per day in the spring onto Srochenski property that should in fact go to the Sturgeon River ” . - In the spring of 2009 he got an air photo which showed his land being flooded and natural water being blocked by Highway 37. - On March 25, 2009 he wrote to Alberta Transportation seeking compensation for the cost of building the road on his property on the basis of Alberta Transportation ’ s agreement to pay that cost. - On March 31, 2009 Alberta Transportation refused to honour that commitment.

- In the summer of 2009 he levelled huge ditches which had been dug by Alberta Transportation on his property to slow down the flood waters. - The holder of the mortgage on his property, Transwest Financial, foreclosed because he had not built a house on the property. Transwest took title to the property. Mr.

Srochenski remains in possession. [ 5 ] All of the events described in the above list occurred more than 2 years prior to the commencement of the action. [ 6 ] The Amended Statement of Claim includes the following allegations in relation to events that occurred less than 2 years prior to the commencement of the action: 39. As per Alberta Transportation June 2011 Dan Majeau using huge equipment digs ditch eight feet by 38 feet and causes water to completely flood Srochenski and Transwest Financial land. Causing damage to home, materials, equipment and water and sewer. 40.

Ed Srochenski uses large rocks to slow down flood waters caused by Alberta Transportation. Alberta Environment demands that rocks be removed, Summer 2011. [ 7 ] Mr. Srochenski claims 11 forms of relief at the end of the Amended Statement of Claim. Ten of these relate to events which occurred more than 2 years prior to the commencement of the action. Only one, item 8, relates to the allegations contained in paragraphs 39 and 40 of the Amended Statement of Claim: 8.

Damages as per Alberta Government trespassing and causing Damage employee Dan Majeau Spring 2011 1) Two line Trucks $49,800 2) Skid Steer 24,060 3) Replace Mobile Home 30,000 4) Refill Ditch 2,800 $105,660 (sic) 5) Water & Sewer renew 24,000 $129,660 (sic) [ 8 ] Any cause of action arising from the allegations relating to events which occurred more than 2 years prior to the commencement of the action are statute barred if Mr. Srochenski knew, or ought to have known, on a date more than 2 years prior to the commencement of the action: (

a) that the injury for which he seeks a remedy had occurred, (

b) that the injury was attributable to the conduct of the defendant, and (

c) that the injury, assuming liability on the defendant, warranted bringing a proceeding. [ 9 ] There can be no doubt that well before October 7, 2009, Mr. Srochenski knew of the injury he claims resulted from the

actions or omissions of Alberta Transportation which occurred more than 2 years prior to the date he commenced the action. This is clear from his statement of his allegations in the Amended Statement of Claim, from correspondence between Mr. Srochenski and Alberta Transportation more than 2 years prior to the commencement of the action, and from Mr. Srochenski ’ s affidavit in which he swears: The aforementioned flooding occurs each year, and has occurred every year since the aforementioned modifications [to Highway 44 which in the Amended Statement of Claim he alleges were made in 2004] were made.

I discussed these issues with Alberta Transportation immediately after they occurred and was given assurances that they would investigate the matter and correct any problems caused by their development of surrounding roadways. Elements (

a) and (

b) are present in respect of those claims. [ 10 ] As to element (c), it is also clear that well over 2 years prior to the commencement of the action Mr. Srochenski was of the view that the injuries he believes he has suffered as a result of the actions and omissions of Alberta Transportation warranted bringing proceedings. On August 19, 2009 he wrote to Alberta Transportation and Alberta Environment saying, in part: I Edward Srochenski am writing to make a formal complaint and am seeking compensation as per the blocking of the natural water contrary to the Water Act.

Alberta Transportation has built up highway 37 and has neglected to install a proper culvert so as to allow the natural water flow to the Sturgeon River. . . . Through negligent behaviour by Alberta Transportation and Alberta Environments ’ neglect of duty are jointly responsible for private property damage and have created a huge impact on natural environment, my farming neighbours, and myself, Edward Srochenski. Blocking the natural water flow has resulted in a six foot culvert dumping massive amounts of water each spring flooding my farm and others with water that would naturally flow into the Sturgeon River.

Negligent Actions by Alberta Transportation and Alberta Environment have caused myself Edward Srochenski undue stress, and loads of work including digging huge ditches to get to raise my farm to a usable nature. . . . [ 11 ] In my view it is clear that at least by August 19, 2009 Mr. Srochenski recognized that the wrongs which he believed had been occasioned upon him justified his claiming compensation. He clearly recognized that proceedings were warranted.

He claims that he understood that as long as discussions between Alberta Transportation and himself were continuing there was no need for him to commence litigation. There is no basis in law for that understanding. There is nothing in the evidence to indicate that Alberta Transportation ever represented to him that while discussions of his concerns continued the running of the limitation period would pause. [ 12 ] I conclude that the limitation period relating to all the causes of action arising from events which Mr.

Srochenski alleges occurred prior to October 7, 2009 had expired by October 7, 2011 when this action was commenced. [ 13 ] However the allegations made in paragraphs 39 and 40 of the Statement of Claim relate to wrongs Mr. Srochenski alleges were committed in the summer of 2011, well less than 2 years prior to the commencement of the action. His claims arising from those allegations and the remedy he seeks in relation to those allegations, which are set out in paragraph 8 of the prayer for relief in the Amended Statement of Claim, are not statute barred.

[ 14 ] I allow the appeal in part and dismiss it in part. I dismiss Mr. Srochenski ’ s claims arising out of anything that occurred prior to October 7, 2009. Accordingly I dismiss all causes of action and claims arising from the allegations contained in paragraphs 1 through 38 of the Amended Statement of Claim. I do not dismiss the cause of action and claim arising from the allegations contained in paragraphs 39 and 40 of the Amended Statement of Claim. I also dismiss all the claims made in the prayer for relief (which is entitled “ Remedies Sought ” in the Amended Statement of Claim) other than those contained in paragraph 8 of that

section of the Amended Statement of Claim. [ 15 ] I have not considered whether it makes any difference to the viability of Mr. Srochenski ’ s remaining claim that he did not hold title to the property when the events alleged in paragraphs 39 and 40 occurred. The implications of that fact were not argued in this application. Heard on the 13 th day of July 2012. Dated at the City of Edmonton, Alberta this 8 th day of August 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Edward Srochenski appeared without counsel. Sarah Dolgoy for the Defendant