DIANNE WAIT, DAVID SIMPSON v. BRENDA SIMPSON, 2003 SKQB 128

2003 SKQB 128 Q.B. A.D. 2001 No. 114 J.C. P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: DIANNE WAIT, DAVID SIMPSON and BRENDA SIMPSON PLAINTIFFS - and - CITY OF PRINCE ALBERT DEFENDANT B. M. Delehanty for the plaintiffs M. J. Holash for the defendant JUDGMENT RYAN-FROSLIE J. March 20, 2003 [ 1 ] The plaintiffs sue the City of Prince Albert for damages as a result of a sewer backup which occurred on March 14, 2000. The City denies liability. The issues are whether the City was negligent or liable in nuisance for the damages suffered. Preliminary Matters (

a) Affidavit of Don Logan [ 2 ] As a preliminary matter, the plaintiffs object to paras. 7, 8 and 9 of the affidavit of Don Logan sworn June 24, 2002. Mr. Logan is an equipment operator in the collection and distribution department for the City of Prince Albert. He was called in to work on March 14, 2000 to pressure clear the blockage in issue. The plaintiffs object to paras. 7, 8 and 9 of Mr. Logan’s affidavit on the basis that

those paragraphs express opinion, that Mr. Logan has not been tendered as an expert and has no specialized knowledge that would render such opinions admissible. I agree with the plaintiffs’ position with regard to paras. 7 and 9. I find, however, that para. 8 is based on Mr. Logan’s personal knowledge of the blockage in question. Even if I am wrong and Mr. Logan could express the opinions set out in paras. 7 and 9, they would be given little or no weight by this Court as there is nothing before me to indicate the basis of Mr. Logan’s knowledge or expertise in the areas cited. Paragraphs 7 and 9 of Mr.

Logan’s affidavit shall be disregarded by this Court in accordance with Rule 319 of The Queen’s Bench Rules of Court . (

b) Affidavit of Kevin Callaghan [ 3 ] The plaintiffs also challenge portions of the affidavit of Kevin Callaghan sworn January 24, 2002. Mr. Callaghan is the collection and distribution manager for the City of Prince Albert. The portions of Mr. Callaghan’s affidavit in issue are the last sentences of paras. 8, 10 and 30 and all of paras. 9, 13, 14, 16, 17, 18, 29, 31, 34, 37, 38, 40, 41, 42, 43, 44, 45 and 46. The plaintiffs argue these paragraphs are either opinions, conclusion, speculation or argument and therefore offend Rule 319 of The Queen’s Bench Rules of Court . [ 4 ] The City purports to qualify Mr.

Callaghan as an expert in the area of construction, function, servicing, monitoring and maintenance of sewer and water systems. It argues the information provided in the challenged paragraphs is within Mr. Callaghan’s expertise and as such is admissible. The plaintiffs counter that Mr. Callaghan is not an expert and if he has specialized knowledge which would qualify him as an expert, it is limited to the technical operation of the City’s sewer system. [ 5 ] As a general rule, witnesses are limited to testifying about facts in their personal knowledge. There are two exceptions to this rule.

A lay witness will be allowed to express an opinion with respect to matters of common experience. In R. v. German , 1947 CanLII 76 (ON CA) , [1947] O.R. 395 (Ont. C.A.) at pages 409-410 , Robertson, C.J.O. outlined the circumstances in which such opinions would be allowed. He stated: No doubt, the general rule is that it is only persons who are qualified by some special skill, training or experience who can be asked their opinion upon a matter in issue. That rule is not, however, an absolute one.

There are a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has personal knowledge. Such matters as the identity of individuals, the apparent age of a person, the speed of a vehicle, are among the matters upon which witnesses have been allowed to express an opinion, notwithstanding that they have no special qualifications, other than the fact that they have personal knowledge of the subject matter, to enable them to form an opinion....

Persons with specialized knowledge or training may be qualified as experts in a particular field and render opinions including inferences and conclusions within their area of expertise. The Saskatchewan Court of Appeal dealt with the admission of expert evidence in Rieger et al. v. Burgess (1988), 1988 CanLII 209 (SK CA) , 66 Sask. R. 1 (C.A.) .

At paras. 87 and 88 of that decision, the Court set out the general principles relating to expert evidence as follows: An expert is generally called to testify to provide information to enable the court or a jury to understand technical and scientific issues raised in the litigation. They are also called upon to provide opinions and conclusions in areas where the courts or jury are unable to make the necessary inferences from the technical facts presented. The role of the expert is circumscribed by his area of expertise.

It is essential that the witness be shown to possess the necessary qualifications and skill in the area or field in which his opinion is sought. Those qualifications and skill can be based on or derived from academic study or practical experience. ... [ 6 ] The Supreme Court of Canada in R. v. Mohan , 1994 CanLII 80 (SCC) , [1994] 2 S.C.R. 9 set out at para. 17 the criteria necessary to admit expert evidence.

That criteria includes: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. [ 7 ] In cross-examination it was established that Mr. Callaghan has his Grade XII but no formal secondary training other than some correspondence courses on survey fundamentals. His training has been obtained from practical experience. Prior to obtaining employment with the City, Mr. Callaghan worked for six months as a “plumber’s helper”. He described that position as a “gopher” and acknowledged that he has no special training in the plumbing field.

Mr. Callaghan has worked for the City of Prince Albert for 25 years. In the last three to four years he has “assisted” in designing systems and doing cost estimates for the City of Prince Albert. He acknowledged his “assistance” has mainly consisted of being a “liaison” between the professional engineers and those who construct the system. Mr. Callaghan acknowledged he has no special knowledge of the operation of sewer and water systems other than the City’s nor does he have any training in the construction or design of such systems. Mr. Callaghan acknowledged that he has never designed a sewer

system nor has he ever been responsible for the preparation of such plans. He acknowledges that his only experience with backwater valves is the one installed in his own home. I find Mr. Callaghan’s expertise is limited to the functioning, servicing and maintenance of the City of Prince Albert’s sewer and water system.

He is not qualified to render opinions on backwater valves, sewer systems in general or the inevitability of blockages in such systems nor is he qualified to render opinions relating to legislation, regulation or standards pertaining to the operation or design of such systems or public health or safety issues. Based on my findings, Mr. Callaghan shall be qualified as an expert in the servicing, maintenance and operation of the City’s sewage system only. The weight this Court gives to his testimony is influenced by the fact Mr.

Callaghan is an employee of the City and that in cross-examination he appeared unwilling to concede anything that might adversely reflect on his employer. For example, when cross-examined on whether tree roots or fibres might cause blockages in the City’s system, he was reluctant to concede that point even though it was evident from Exhibit P-7 and other evidence presented to the Court. [ 8 ] Based on the limited area of Mr. Callaghan’s expertise, I find that the last sentences of paras. 8, 10 and 30, the first sentences of paras. 9 and 13, all of para. 13(

b) except for the first sentence thereof, and all of paras. 17, 18, 29, 31 and 40 should be disregarded. [ 9 ] A factual foundation must be laid before an expert can render an opinion. That factual foundation may consist of the expert’s personal knowledge of the facts or if he lacks such personal knowledge, from facts provided in evidence by others or as a result of hypothetical questions. No evidence was adduced to establish the facts upon which the opinions rendered by Mr. Callaghan in paras. 34, 38 and 40 were based. Mr. Callaghan has been employed by the City of Prince Albert for the last 25 years.

No evidence was tendered to establish when the City of Prince Albert first required backwater valves be installed in residences, nor was there any evidence whether the plaintiffs’ residence was subject to such a requirement. Mr. Callaghan has no special knowledge that would allow him to express opinions on whether the plaintiffs’ residence complied with laws or standards at the time it was built. [ 10 ] The opinion expressed by Mr. Callaghan in para. 38 of his affidavit appears to be based on the observations of the duty foreman.

The affidavit of Allan Carrier filed on behalf of the City indicates that he was the duty foreman at the time of the incident in question. Mr. Carrier did not provide any evidence about the extent of the backup through the sewage system. As such, there is no foundation for the opinion expressed by Mr. Callaghan in para. 38 of his affidavit. [ 11 ] Mr. Callaghan’s lack of knowledge with regard to backwater valves will go to the weight this Court gives to his evidence as set out in paras. 40 and 41 of his affidavit. [ 12 ] Paragraph 46 of Mr.

Callaghan’s affidavit is clearly argumentative and should be disregarded. [ 13 ] In

summary, the following portions of Mr. Callaghan’s affidavit shall be disregarded, namely: the last sentences of paras. 8, 10 and 30; the first sentence of paras. 9 and 13; all of para. 13(

b) except for the first sentence thereof; all of paras. 17, 18, 29, 31, 34, 38, 42, 43 and 46. The balance of the paragraphs challenged shall be accepted in evidence. FACTS [ 14 ] For the most part, the facts are not in dispute. It is clear that on March 14, 2000 the sewer system servicing the plaintiffs’ residence located at 1904-1st Avenue East, Prince Albert, Saskatchewan, backed up causing the basement of the premises to flood. It is not known whether that residence was equipped with a backwater valve.

The purpose of a backwater valve is to prevent sewage from the main City line backing up into a residence. [ 15 ] The City of Prince Albert acknowledges that a blockage occurred in the main City line 55 feet north of the plaintiffs’ connection to that line. Don Logan, the City’s equipment operator cleared the blockage. He attested that the blockage was caused by a cloth rag, plastic and grease or animal fat. The plaintiffs argued root fibres may also have contributed to the blockage. Mr. Callaghan testified for the City, denying this.

While the plaintiffs entered a videotape of the line that was blocked showing the existence of root fibres, that videotape was made on May 23, 2001, more than a year after the blockage in issue. There is no evidence to support the contention that root fibres contributed to the blockage in this case. Based on the evidence, I find the blockage was caused by a cloth rag, plastic and grease or animal fat. 1. Was the City negligent?

[ 16 ] In order to establish negligence there must be a duty of care, a breach of that duty and damages must result which are reasonably foreseeable. The plaintiffs claim the City is negligent because it had a duty, pursuant to s. 154 of The Urban Municipality Act, 1984 , S.S. 1983-84, c. U-11 to provide a sewer system to its residents and to keep such system in a reasonable state of repair. The City of Prince Albert acknowledges that s. 154 of The Urban Municipality Act, 1984 imposes upon it a duty of care to maintain its sewer lines.

The plaintiffs allege the City was negligent in that it failed to provide an adequate program of sewer maintenance and inspection and failed to use proper procedures to break up the blockage which occurred on March 14, 2000. [ 17 ] The evidence establishes that the City, on an annual basis, high pressure cleaned and/or flushed the line in question. The City responded to the plaintiffs’ request in an efficient and expedient manner. The initial complaint was recorded as being received by the City at 6:15 p.m. The blockage was cleared by approximately 6:45 p.m.

There is no evidence that the blockage occurred as a result of anything the City did nor is there any evidence to substantiate that the blockage occurred because the City failed to maintain an adequate program of sewer maintenance and inspection or failed to use proper procedures to break up the blockage in issue. Based on the evidence, I cannot find the City of Prince Albert negligent. 2. Is the City liable in nuisance? [ 18 ] Nuisance has been defined by Allen M. Linden in his text Canadian Tort Law (7th ed.) (Markham: Butterworths, 2001) at page 517 as follows: Nuisance is a field of liability.

It describes a type of harm that is suffered, rather than a kind of conduct that is forbidden. In general, a nuisance is an unreasonable interference with the use and enjoyment of land by its occupier... For the most part, whether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence, as long as the harm can be categorized as a nuisance.

This is understandable if one considers that the French word nuisance , derived from the Latin nocumentum , which means annoyance, inconvenience, or hurt, was imported unchanged into English law. [ 19 ] A number of cases have held municipal corporations liable in nuisance where sewer and water systems have overflown causing damage. The leading case is Royal Anne Hotel Ltd. v. Ashcroft , 1979 CanLII 2776 (BC CA) , [1979] 2 W.W.R. 462 (B.C. C.A.) where the plaintiff’s premises were damaged as a result of a random blockage in the municipal sewer system.

The British Columbia Court of Appeal held the municipality liable. In doing so it set out a number of principles that apply to nuisance cases. It held that the tort of nuisance consists of an unreasonable interference with the use and enjoyment of another’s land, that such interference will be found to be unreasonable where actual physical damage occurs and that nuisance is not a branch of the law of negligence and therefore lack of negligence is no defence to a claim of nuisance. [ 20 ] The Saskatchewan Court of Appeal in Temple v. The City of Melfort , 1979 CanLII 2194 (SK CA) , [1979] 6 W.W.R. 257 (Sask.

C.A.) , found the municipality liable in nuisance when business premises were flooded as a result of a break in a water main. In that case the Court of Appeal followed the principles set out in Royal Anne Hotel . [ 21 ] Based on the evidence before me I find that the plaintiffs suffered damage when sewage backed up into their premises as a result of a blockage in the City of Prince Albert’s main line. This constituted an unreasonable interference with the use and enjoyment of their property. It is a nuisance for which the City of Prince Albert would ordinarily be liable. See also: Thompson v.

Grand Falls Windsor (Town) (1993), 1993 CanLII 8288 (NL SC) , 113 Nfld. & P.E.I.R. 256 (Nfld. S.C.) ; Eaton v. Corporation of the City of Woodstock (1983), 22 M.P.L.R. 291 (Ont. Co. Ct.) ; and Mahar v. Grand Bank (Town) (1986), 61 Nfld. & P.E.I. 264 (Nfld. Dist. Ct.) . Defence of “escape” [ 22 ] The City argues that it should not be held liable because the tort of nuisance requires that something “escape” from its property onto the plaintiffs’ land causing damage.

The City argues that the sewage which caused damage to the plaintiffs’ premises came from the plaintiffs’ own pipes, not from the City’s and therefore there was no “escape” of sewage from the City’s lines to the plaintiff’s property. They base this assertion on the extent of flooding that occurred in the plaintiffs’ basement. Mr. Callaghan, testifying for the City, acknowledged he has no idea how large the plaintiffs’ basement is nor did he or anyone from the City see the extent of the flooding.

His assertion that the amount of flooding indicates it came solely from the plaintiffs’ pipes is without any factual basis. Even if the sewage came solely from the plaintiffs’ own pipes, the reason for the backup was clearly the blockage of the City’s main line. [ 23 ] Moreover, the tort of nuisance does not require that something “escape” from the City’s property onto the plaintiffs’ property. Nuisance merely requires interference with the enjoyment of another’s land. As McIntyre J.A. stated on behalf of the British Columbia Court of Appeal in Royal Anne Hotel Co.

Ltd., supra, at page 464, nuisance is “...any thing done to the hurt or annoyance of

the lands, tenements, or hereditaments of another”. Justice McIntyre agreed with the trial judge in that case who stated: “...No use of property is reasonable which causes substantial discomfort to others or is a source of damage to their property....” Defence of Statutory Authority [ 24 ] The City argues the defence of statutory authority applies in this case to relieve it from any liability for nuisance. [ 25 ] The Supreme Court of Canada in Tock et al. v. St. John’s Metropolitan Area Board (1989), 1989 CanLII 15 (SCC) , 64 D.L.R. (4th) 620 (S.C.C.) , dealt with nuisance and the defence of statutory authority.

In that case the plaintiff suffered damages when a sewer system operated by the defendant backed up in heavy rain flooding the plaintiff’s basement. The flooding was due to a blockage of the storm sewer. The Supreme Court of Canada found the defendant liable in nuisance but the Court was split three ways on the approach to be taken to the defence of statutory authority. The first approach was enunciated by Justice Wilson (Justices Lamer and L’Heureux-Dube concurring), who held that the defence of statutory authority only applies if the legislation authorizes a work for a particular use in a particular area.

The effect of this approach would be to eliminate the defence of statutory authority where the legislation authorizing the work was permissive as opposed to mandatory. The second approach was enunciated by Justice La Forest with Dixon J. concurring. That approach held that cases involving a public body should be treated in the same way as claims for nuisance between private individuals unless there was an express statutory exemption from liability. The effect of this approach was to virtually do away with the defence of statutory authorization. The third approach was that enunciated by Justice Sopinka.

He adopted the traditional view originally set out by Viscount Dunedin in The City of Manchester v. Farnworth , [1930] A.C. 171 (H.L.) at 183 : ...When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized.

The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in the view of situation and of expense. [ 26 ] Justice Sopinka stated at page 651 of the Toch decision: The burden of proof with respect to the defence of statutory authority is on the party advancing the defence. It is not an easy one.

The courts strain against a conclusion that private rights are intended to be sacrificed for the common good. The defendant must negative that there are alternate methods of carrying out the work . The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one.

While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant. [emphasis added] [ 27 ] Whether a defence of statutory authority exists was clarified by the Supreme Court of Canada in Ryan v. Victoria (City) , 1999 CanLII 706 (SCC) , [1999] 1 S.C.R. 201 . In that case, Justice Major, speaking for a unanimous Court, returned to the traditional approach voiced by Justice Sopinka.

In Ryan , the Supreme Court of Canada dealt with a situation where a motorcyclist was seriously injured when one of his tires lodged in a gap of a railway track. The plaintiff sued the railway company alleging negligence and nuisance. The railway company argued the defence of statutory authority. Justice Major, speaking for the Court quoted Sopinka’s position in Toch and stated at para. 54: Statutory authority provides, at best, a narrow defence to nuisance.

The traditional rule is that liability will not be imposed if an activity is authorized by statute and the defendant proves that the nuisance is the “inevitable result” or consequence of exercising that authority .... [emphasis added] To be successful in advancing the defence of statutory authority, the City of Prince Albert must prove (1) statutory authority for its sewer works; and (2) that the nuisance (i.e. the blockage of sewer lines) is an inevitable result or consequence of exercising that authority.

[ 28 ] In this case, the statutory authority for the construction of sewer works by the City of Prince Albert is to be found in s. 170.1 of The Urban Municipality Act, 1984 which reads as follows: 170.1 The council may construct and maintain any sewers, drains and ditches, either within or outside of the urban municipality, as may be required to secure the proper drainage of the urban municipality . [emphasis added] It is clear this

section is permissive. It does not mandate the construction of sewer works nor does it prescribe how or where such works are to be constructed. That is left up to the discretion of the municipal council. [ 29 ] Because the City of Prince Albert has complete discretion as to how and where its sewer system is constructed, in order to establish the defence of statutory authority, it must prove on a balance of probabilities that it has done everything possible to avoid the nuisance, in this case, the blockages of its line. This burden is a heavy one.

It is not discharged by the City merely presenting evidence that blockages normally and regularly occur in its system. It must go further and provide evidence that there are no feasible methods of constructing or operating its sewer system which would have avoided the blockage, or in the words of Justice Sopinka in Toch , “...that there are no alternative methods of carrying out the work” that would avoid the nuisance.

To do this the City would have to present evidence that current technology, design, practices and theories with regard to sewer systems would not eliminate blockages but rather that blockages are an “inevitable consequence” of the construction of sewer systems in general. Mr. Callaghan did not provide this evidence nor did he have the expertise to do so. Because the City failed to provide such evidence, it has not met the burden of establishing the defence of statutory authority. (See: Toch, supra at page 651; Ryan , supra at para. 54 ; Temple v. City of Melfort, supra ; Oosthoek v.

Thunder Bay (City) (1996) 1996 CanLII 1530 (ON CA) , 139 D.L.R. (4th) 611 (Ont. C.A.) at paras 14 to 21 and Gray’s Velvet Ice Cream Ltd. v. Campbellton (City) (1981), 1981 CanLII 2866 (NB CA) , 127 D.L.R. (3d) 436 (N.B. C.A.) at para. 12 ). Limitation of liability (

a) Bylaw No. 10 of 1995 [ 30 ] The City raises as a defence s. 4 of its bylaw No. 10 of 1995, which purports to restrict the liability of the City in cases of nuisance. Nothing in The Urban Municipality Act, 1984 gives the City authority to pass bylaws limiting or taking away the common law rights of individuals to sue. This case is similar to that dealt with by the Ontario Superior Court of Justice in Clemmens v. Kenora (1999), 6 M.P.L.R. (3d) 59 (Ont. S.C.J.) . In that case the plaintiff’s home was flooded as a result of a break in the sewer line.

The municipality argued that it was not liable in nuisance because of a bylaw passed by town council requiring back pressure valves be installed in houses and further stating that where back pressure valves were not in place, there could be no claim for damages against the municipality. The Court in that case held that the legislation governing the municipality did not confer upon it the power to limit the availability of civil causes of action against it and that the limitation contained in the bylaw was ultra vires . In doing so the Court quoted Iacobucci’s statement in R. v.

Greenbaum , 1993 CanLII 166 (SCC) , [1993] 1 S.C.R. 674 at page 687 : Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute. Following this case authority, I find the City of Prince Albert’s bylaw No. 10 of 1995 does not protect it from liability for nuisance in this case. (

b) Statutory [ 31 ] In its statement of defence the City raised the application of s. 313.1 of The Urban Municipality Act, 1984 and argued it limits the City’s liability to the plaintiffs.

Section 313.1 reads as follows: 313.1 No urban municipality is liable in an action based on nuisance for loss or damage suffered by any person by reason of the overflow of water in sewers, road drains or ditches or in sewers, drains, ditches or watercourses into which they flow, if the overflow is caused by an extraordinary natural event .

[emphasis added] In this case there is no evidence or suggestion that the backup of the sewage was caused by an extraordinary natural event.

Section 313.1 has no application to this case. Actions of a third party [ 32 ] The City of Prince Albert argues that the blockage in this case was caused by the cumulative effect of a cloth rag, plastic and grease or animal fat in its main sewer line. The City argues these items were put into its sewer system by an unknown third party contrary to the City’s bylaw No. 10 of 1995 and that the City should not be held liable for another’s “wrongful” act. [ 33 ] The plaintiffs argued that grease is a permitted discharge.

The terms of bylaw No. 10 of 1995 confirms this is true provided the grease is released into the system in the quantities set out in the bylaw. There was no evidence that the quantities of grease or animal fat which contributed to the blockage in this case were of a prohibited quantity. However, it is clear from reading bylaw No. 10 that rags and plastic are prohibited. [ 34 ] Allan M.

Linden describes the defence of actions by third parties in nuisance cases in his book Canadian Tort Law (7th ed.), supra , at page 547 where he states: “[t]he intervening act of a third party may be a defence if it is unforeseeable but not if it is the kind of act which should have been foreseen by the defendant”. In this case, the evidence of Mr. Callaghan, who testified on behalf of the City, establishes that the City was aware that third parties put things into the sewer system that would plug it. It is for this reason that in bylaw No. 10 of 1995 was passed.

The City’s own evidence establishes it “foresaw” that things such as rags, plastic and grease would in fact be put into the system by third parties. In Eaton et al v. Corporation of the City of Woodstock et al, supra , sticks and a rod were deliberately put into the City’s sewer system by an unknown third party causing water to back up into the plaintiff’s basement. The defendant was held liable in nuisance and at page 306, Justice Meisner of the Ontario County Court stated: In my view that deliberate act affords no defence.

Ordinarily tortious liability is imposed only for injury directly caused by the conduct of the defendant. The law of nuisance is however of wider application, and the defendant is answerable for the misconduct of others if he knew or ought to have known of the existence of that misconduct or of the likelihood of it occurring, and it it [ sic ] reasonably lay within his means to abate or prevent the nuisance that would arise from that misconduct.... Based on the evidence before me, I find that the third party actions were foreseeable by the City.

I am not satisfied that all feasible steps were taken by the City to prevent that foreseeable misuse. As such, this defence also fails. Contributory negligence [ 35 ] The City argues that The Contributory Negligence Act , R.S.S. 1978, c. C-31 applies to this case and that the plaintiffs were contributorily negligent in that: 1. They did not have a backwater valve installed on the premises; 2. Ms. Wait did not report the incident in a timely fashion; and 3. The efforts taken by Ms.

Wait to keep the effluent “down” caused the backflow. [ 36 ] It is not clear whether the defence of contributory negligence is available in nuisance actions. See: Alan M. Linden, Canadian Tort Law (7th ed.), supra , at page 546.

It is not necessary for me to determine this issue as the evidence does not establish the plaintiffs did anything that would amount to contributory negligence. [ 37 ] With reference to the first allegation that the plaintiffs did not have a backwater valve installed on their premises, the evidence does not establish that the plaintiffs had an obligation to install such a valve, nor does it establish that a valve was not present.

[ 38 ] With reference to the allegation that the plaintiffs did not report the incident in a timely fashion, I note the evidence is contradictory on this point. Dianne Wait, in her affidavit of September 25, 2001, attests that the backup occurred at approximately 5:00 p.m. on March 14, 2000 (See para. 6). She attests that at the time of the sewer backup she contacted the City of Prince Albert and that it took approximately 50 minutes for the City of Prince Albert to respond to the call (See para. 9). The City did not ask to cross-examine Ms.

Wait and accordingly it is not clear what she meant in her affidavit when she attested that she contacted the City “at the time of the sewer backup”. It is unclear whether that phrase means she contacted the City as soon as she saw the sewage backing up or whether it means she contacted them at the time the event was occurring. It stands to reason that it would take some time for her to assess what was happening and to identify that the problem rested with the City’s main line and not the plaintiffs’ own plumbing system.

John Bodnarchuk, in his affidavit of April 1, 2002, attested that Dianne Wait contacted him by telephone “on the afternoon of March 14, 2000". The City did not ask to cross-examine Mr. Bodnarchuk. It is not clear what Mr. Bodnarchuk meant when he used the word “afternoon”. “Afternoon” is defined in the Concise Oxford Dictionary (8th ed.) (Oxford: Clarendon Press, 1990) as “the time from noon or lunch-time to evening”. “Evening” is defined as “the end part of the day, esp. from about 6 p.m. to bedtime”. At best, Mr. Bodnarchuk’s evidence as to when he received Ms.

Wait’s phone call is sometime between noon and 6:00 p.m. [ 39 ] The City’s evidence on this point is contained in the affidavit of Kevin Callaghan sworn June 24, 2002. In para. 47 of that affidavit Mr. Callaghan attests that no calls were made to the City prior to closing time, being 5:00 p.m. The 911 call was received after hours (i.e. after 5:00 p.m.). No affidavit evidence was filed by the 911 operator to verify the time Ms. Wait’s call was actually received. The only evidence relating to the call was Exhibit “A” to Mr. Callaghan’s affidavit which is the Sanitary Sewage Blockage Report of Don Logan.

That report indicates the plaintiffs’ complaint was received by the City at 6:15 p.m. Based on the limited information before me, I am not prepared to find the plaintiffs failed to notify the City in a timely fashion. [ 40 ] Finally, I do not find on the evidence that Ms. Wait’s attempts to stem the tide of sewage backing into the premises amounted to contributory negligence or “caused” the backflow. There is no credible evidence to substantiate that allegation. Damages [ 41 ] The uncontroverted evidence establishes that sewage backed up into the plaintiffs’ residence flooding the basement and causing damage.

The plaintiffs provided evidence that the damages sustained total $15,437.22. While the City does not admit the quantum of damages, it did not provide any argument or evidence that those damages were not accurate. I accept the plaintiffs’ uncontroverted evidence that they suffered damages of $15,437.22. The City shall pay this amount to the plaintiffs together with interest pursuant to the provisions of The Pre-Judgment Interest Act , S.S. 1984-85-86, c. P-22.2 . [ 42 ] The City shall pay to the plaintiffs their taxable court costs. ____________________ J.