Justin John Fall Michael David Fall - v. -, 2012 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 070 Date: April 20, 2012 File: SC 07-11 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Justin John Fall Michael David Fall - and - The Municipal Corporation of the City of Moose Jaw Mr. Virgil Thompson For the Plaintiff Ms. Gail Wartman For the Defendant _____________________________________________________________________________ DECISION M.T.

GORDON , J _____________________________________________________________________________ [ 1 ] The Plaintiffs, Justin Fall and Michael David Fall, claim that the City of Moose Jaw is liable in contract and tort for flooding their property in May 2010 and making construction impossible.

[ 2 ] The Plaintiff entered into an agreement, dated March 18, 2010, with the City to purchase a lot with a civic address of 903 Oxford Street East, Moose Jaw, and to construct a house on the said lot within one year. [ 3 ] The City disputes the claim by way of a counterclaim and requests vacant possession of the property and a registered transfer authorization in favour of the City.

Evidence [ 4 ] Michael Fall is the registered owner of the lot at 903 Oxford Street East and he gave his son, Justin Fall, permission and authority to build on the lot. [ 5 ] Justin Fall entered into an agreement for sale and purchase of the residential city lot, being 903 Oxford Street East in Moose Jaw, for a purchase price of $8,200.00 plus GST. He paid an architect $1,000.00 to draw house plans and applied for and obtained a building permit from the City for $895.00. He entered into a contract with Schick Construction to build his house.

He made a $25,000.00 non-refundable deposit to Schick Construction. [ 6 ] The basement was dug and the preliminary work had been completed in early May 2010. All was ready for the concrete to be poured when Doug Schick telephoned Mr. Fall, advising the basement was full of water. [ 7 ] Mr. Fall called the City of Moose Jaw when he learned that the City had conducted its annual water main flushing in this area on May 7, 2010. The City trucks came and pumped out most of the water. [ 8 ] According to Mr. Fall, six to eight inches of water remained.

Some of the forms had shifted and some were floating on the water. [ 9 ] Mr. Fall stated he monitored the site daily and had the excavation hole pumped out several times. During the course of the summer, the City, by letter, advised Mr. Fall that he had to pump out all the water from the excavation and keep it dry, or erect safety fencing. Finally, by letter dated September 24, 2010, the City warned that it would pump out the water at Mr. Fall’s expense. The City also intended to backfill the lot. If Mr.

Fall signed a transfer back to the City there would be no charge for the backfill. [ 10 ] In October 2010 the Plaintiff backfilled the lot. He paid Schick Construction $9,240.00 which included $1,200.00 for the backfill work. All the construction work needs to be redone except the driveway. [ 11 ] Mr. Fall paid the property taxes for 2011 in the amount of $174.64. [ 12 ] On cross-examination, Mr. Fall denied looking for an inexpensive lot, and denied that he was told that drainage could be a problem on this lot. [ 13 ] He stated that the City pumped out most of the water but left six to eight inches.

There was above normal rainfall the rest of the summer (see Exhibit P-2). [ 14 ] He admitted he was not aware of what needed to be done with the lot after the rains, to prepare for the pouring of the concrete. He was of the understanding that virgin untouched soil was needed for construction to continue. Mr. Fall disagrees with the City’s assessment of the situation outlined in a letter marked Exhibit P-8. Mr. Fall was ready to proceed with the house construction. Exhibits P-1 to P-7 show he had taken all the necessary steps to have the construction proceed. Mr. Fall suggested other options to the

City, such as a storm sewer. This was too costly a solution for the City. [ 15 ] Justin Fall was adamant that this lot was never dry enough for construction. He agreed there was no berm or dyke around the excavation. He intended to complete the basement excavation and house building that year. [ 16 ] Douglas Schick testified that he contracted with Justin Fall to build a house at 903 Oxford Street East in 2010. He anticipated Justin would be able to move in by October. Mr. Schick lives one block away from this site. He has operated his own construction business, building homes in the Moose Jaw area since 1987.

He has some training at SIAST, as well as working for Cardinal Construction for eight years. [ 17 ] Mr. Schick explained the procedure with respect to digging the basement at Justin Fall’s property. He only dug a three foot hole to ensure that there were no moisture problems. Before the concrete is poured the hole needs to be dry enough to walk on. Mr. Schick had built a dirt ramp into the excavation which allowed for safer, easier access. It was his assessment that a berm around the excavation was unnecessary. He dug a basement at 900 Ross Street in Moose Jaw, five feet and eight inches deep, which is standard.

He had also dug a hole on Athabasca Street without a berm. Once the footings and rock-fill is in place, three to four inches of rain is alright, but three feet of water presents problems. [ 18 ] Mr. Schick was ready to pour the footings May 7, 2010. It was not his practice to put a berm around an excavated lot. After the city flushing on May 7, 2010, he observed the forms were floating in water. He saw water flowing from a nearby hydrant into the basement hole. [ 19 ] Later in the day, the City pumped out the water and supplied a load of gravel. Once the gravel was in the rain had less effect. Mr.

Schick put an electric sump pump in the hole to get rid of the remaining water. Mr. Schick checked the area every morning. He claimed it was so wet you could not walk in the hole. The saturation was unbelievable. One would have to dig eight inches before there was no saturation. [ 20 ] Once the area was dry he would have to start over again, rebuilding the forms, et cetera, before the concrete was poured. He poured several basements that summer, even with the higher rainfall in Moose Jaw. He pumped out this basement hole four times over the summer. Mr.

Schick concluded his examination-in-chief by stating that if he had been able to start as scheduled on May 7, the rains of May 22 and 25 would have had no effect. [ 21 ] He stated that the building costs would increase every year by five to seven percent per year. Exhibit P-10 was the final invoice he sent to Mr. Fall in the amount of $9,240.00. [ 22 ] On cross-examination, Mr. Schick acknowledged that he knew the lot needed a lot of fill. He also thought Justin had paid too much for the property. [ 23 ] Mr. Schick said the excavation hole filled again after the heavy rains.

However, rain usually dries itself out. However, later he stated that if the City had not flooded the hole, he could not say what effect a major rainfall would have had. [ 24 ] It was his conclusion that rainfall was not the problem. The water from the flushing caused the entire problem. It filled the hole. He admitted he did not see water from the hydrant but saw wet flattened grass leading from the hydrant. [ 25 ] He stated that more water went into this basement hole when the City was washing the streets in June 2010. Mr. Schick had to pump out water again.

He did not agree that the excavated dirt changed the natural water flow in this area. He did not agree that the building process was abandoned in July 2010. Later, Mr. Schick also built a dyke to deflect the water. However, the City entered the property and pushed the dirt in as the dirt pile was affecting the neighbours.

[ 26 ] In closing, Mr. Schick stated he tried many approaches, including pumping out the basement on numerous occasions. He stated that Justin was putting pressure on him to proceed. Defence Evidence [ 27 ] The City of Moose Jaw called three witnesses, all city employees. [ 28 ] Laurie Wilkinson has been an employee with the City for approximately eight years. She testified that Justin Fall had come to her office several times inquiring about available residential or commercial lots. She advised him that “there were issues with the lot” and it was a “low lying lot”. The lot needed a lot of fill.

As a result the price of the lot was reduced. [ 29 ] She noted that grade sheets would have been provided by the building permit staff. [ 30 ] On cross-examination, Ms. Wilkinson indicated she knew this lot as she used to live nearby. She was adamant that she told Justin the lot could have water issues and required additional work. However, it was still a buildable lot. [ 31 ] Ms. Wilkinson stated she deals with builders on a regular basis, and to her knowledge, the rain did not hamper other building projects that summer.

Specifically, construction of the Victoria Apartments on Woodlily proceeded that summer. [ 32 ] On cross-examination, Ms. Wilkinson admitted that a previous offer for sale for this lot with another individual did not proceed. [ 33 ] She stated that she told Justin that the lot could have water issues and that the lot needed additional work.

It was zoned residential and classified as a buildable lot. [ 34 ] She agreed that Justin’s building plans (Exhibit P-5) which included a basement, had been approved by the City. [ 35 ] Staci Dobrescu has been employed as a public works supervisor of water and waste water for the City of Moose Jaw for the past four years. She has many years experience working in various positions for the City. She has her Level II in water and waste water distribution. [ 36 ] Ms. Dobrescu directed the annual flushing process for the City. She was not present on May 7, 2010 when the lines were flushed near the Plaintiff’s lot. Ms.

Dobrescu explained the directional flushing process to clear out all the main lines. On May 7, 2010, the hydrant at 10 th Street and Ross was opened, and water flowed in the hoses down the alley, across the west corner of the lot and into the “hole” being the basement excavation. Dirt mounds back around the excavation impeded some of the water. [ 37 ] Upon notification of the problem, the City promptly pumped out the water. A vacuum truck removed as much water as possible. There was minimal water left. [ 38 ] One to two weeks later there was a significant rainfall and the “hole” again filled up with water.

The City refused to pump out the basement, as the City did not cause the problem. The City had safety concerns and sent a letter (Exhibit D-3) requiring that the water be pumped out or the area fenced.

[ 39 ] The hole was pumped out and filled in as requested. However, the extra dirt interfered with the water flow and water was running to the neighbours. In the fall of 2011, the City levelled the area and opened the culvert (Exhibit D-7). [ 40 ] On cross-examination, Ms. Dobrescu was adamant that the correct procedure that is to attach a hose to the hydrant when flushing was followed. The hose, in this case, should have crossed the road and this is consistent with the water damage she observed. There were no signs of water from the hydrant in the grass or ditch.

There would have been more damage if the hose had not been hooked up to the hydrant. [ 41 ] Wes McDonald was the sub-foreman and he had a crew of four to five workers. On re-examination, Ms. Dobrescu testified that all the documentation she has with respect to the flushing at the time, in that area, indicates proper procedures were followed. [ 42 ] Dwayne Grado is the public works manager for the City. He has been in this position for twelve years and worked in the engineering department for thirty-eight years.

He has technical training in Applied Science and Technology. [ 43 ] He explained the street cleaning process that occurs for eight to ten weeks each spring. For the last fifteen years, a process requiring a reduced amount of water is used. There is a “very light flush”. [ 44 ] The actual water on the street is minimal. Street cleaning would have had no effect on this excavation. All programs involving water are monitored very carefully. [ 45 ] Mr. Grado was told by Ms. Dobrescu that there were several calls concerning the unsafe situation at 903 Oxford Street East on May 7, 2010.

His response was to deal immediately with an unsafe situation. He had two pumps going to pump out the water in the basement hole. He said it was uneven ground so the pump out was not perfect and there likely were small pockets of water. However, if he had seen eight to ten inches of water he would have had the crews return. [ 46 ] He stated that every construction season there are some water problems but within three to five days the area is usually dried out.

He testified as to various ways to minimize rain water problems such as using new rock material and geotextiles or building a berm around the excavation. [ 47 ] He admitted that the City went on the edge of Mr. Fall’s property without permission to do emergency work for public safety reasons. [ 48 ] Mr. Grado is very familiar with water flow patterns and knows the history of the water tables and drainage patterns in the city. He noted the water table fluctuates in Moose Jaw and he always emphasizes this to any contractors. When natural drainage or designed drainage is blocked, damage results to other property.

Water backs up and then goes to the lowest place. [ 49 ] Mr. Grado had a discussion with Mr. Fall about storm sewers in this area. This is an expensive project that would have to proceed under The Local Improvement Act . Mr. Grado stated, in his view, the surface drainage ditches, while not perfect, do the job in this area. Mr. Grado recognized and acknowledged that flushing was part of the problem, and that is why he directed his crews to pump out on May 7, 2010. [ 50 ] On cross-examination Mr. Grado acknowledged Justin Fall called the City in the summer of 2010. Mr. Grado drove by the lot “unofficially”. Mr.

Grado’s superintendent was on site. Mr. Grado surveyed the ditch before cleaning it out. Material was moved out of the lane and ditch and then put back on the Fall property. [ 51 ] Mr. Grado said he watches very closely any city work using water, due to costs. He could not imagine the seven member pump out crew and supervisor that were involved in the pump out of the lot, all involved in any “cover-up”.

Submissions of Counsel Plaintiff’s Submissions [52] Plaintiff’s counsel submits that the City is liable in the tort of negligence and for breach of contract (Exhibit P-2). [53] It is argued that the City owed a duty of care to operate its works properly and not cause damage to property.

The City shouldhave been aware of this construction project or at least that there were a number of construction projects going on and to check beforeflushing in an area. [54] The evidence of Doug Schick indicates that the water came directly from the hydrant next to the property and the City wasnegligent to allow the water to flow down the alley. The Plaintiff relied on the cases of Just v. B.C., 2 S.C.R. 1228 and Brown v. B.C., (SCC), [1994] 1 S.C.R. 420, that discuss policy as opposed to operational decisions of government.

The Plaintiff states“flushing” can be characterized as policy and the way it is carried out as operational. Thus the City is liable in tort for flushing in anegligent manner. [55] The Plaintiff argued that the City is in breach of an implied term of the purchase agreement (Exhibit P-2) that a propertyowner is to have quiet enjoyment of the property. The actions of the City in flooding the Plaintiff’s basement substantially interferedwith the Plaintiff’s use of the property. The Plaintiff cites the B.C.C.A. case, Schun Cheong Holdings B.C. Ltd. v.

Gold Ocean CitySupermarket Ltd., 2002 BCCA 451. [56] The Plaintiff looks to the Defendant for compensation and asks for monetary damages. The Plaintiff states but for the actionsof the City the basement would have been finished before the rain. The Plaintiff’s building costs would increase by at least 5%, hisbuilding permit has expired and he had to pay Mr. Schick an extra $7,000.00 for work that had to be redone. This totals $20,195.00. [57] Counsel for the Plaintiff submitted Justin Fall tried to mitigate the damages. He had made all arrangements to proceed. Defendant’s Submissions [58] Ms.

Wartman, counsel for the City, stated the issues as follows: 1) was there negligence by the City?

If so, is there sufficientcausal connection to the damages suffered by Justin Fall; 2) was there a breach of contract by the City, and 3) if either of the above twoquestions are answered in the affirmative, what is the proper amount of compensation? [59] The Defendant relies on and agrees with the cases filed by the Plaintiff with respect to the law as it applies to municipalcorporations. [60] The Defendant states the City acknowledged that as a result of its annual flushing in the area, on May 7, 2010, water wentinto the Plaintiff’s basement excavation.

However, on being notified of the problem, city crews attended and pumped out the water. TheCity fixed their mistake. [61] The flushing itself was carried out in a proper manner. This is the operational side. Staci Dobrescu explained in detail theprocedure and any breaches would have been noted and investigated. [62] Doug Schick’s evidence about the water flowing directly from the hydrant does not make sense given the procedure followedand lack of any observable signs.

[63] In addition, Mr. Schick’s evidence that the problem was exacerbated by the street cleaning process is simply unbelievablegiven the evidence of Mr. Grado. Mr. Schick had not made any mention of this previously and Ms. Wartman suggested this discreditshis entire testimony. [64] Ms. Wilkinson testified as to the negotiations with Justin Fall and the fact he wanted an inexpensive lot. He was advised thatthis lot was low lying but buildable. The purchase price was less than other similar city lots. [65] Dwayne Grado’s evidence was that work continued on various construction sites during the rainy summer of 2010.

Heexplained that the street cleaning process uses little water. [66] Counsel for the City argued that in the final analysis the Plaintiff has not proved that the flushing in May 2010 was theproximate cause of all the Plaintiff’s problems. The City took appropriate and timely remedial action. What happened subsequently wasnot due to the actions of the City and therefore the City bears no responsibility. [67] Ms. Wartman concluded by stating that the City endeavoured to come to a reasonable solution with the Plaintiff, and theentire neighborhood (See Exhibit P-8).

The City terminated the agreement (Exhibit P-2) by notice to the Plaintiff in May 2011. Shesubmitted that the Plaintiff has not proved his case and his action should be dismissed with costs to the City.

Analysis [68] The Plaintiff must prove his case on the civil burden being the balance of probabilities. [69] The Plaintiff sues in contract or tort arguing that but for the actions of the Defendant, the City of Moose Jaw, in conducting itsannual flushing, the Plaintiff would have been able to build his house as required by the agreement at 903 Oxford Street East. [70] The Municipalities Act, S.S. 2005, cM-36.1 governs municipal liability. [71] Municipalities, such as the City of Moose Jaw, make policy and operational decisions. Both counsel addressed this andreferred to the same cases, namely Just v.

British Columbia, [1987] 2 S.C.R. 1228 and Brown v. British Columbia, (SCC), [1994] 1 S.C.R. 420. [72] The flushing of the lines is clearly operational in nature. The evidence from the City of Moose Jaw employees clearlyestablished that the decision to flush is made on the basis of administrative direction and the opinion of senior qualified personnelfollowing reasonable standards. [73] The Plaintiff is within the categories that permit recovery in tort for pure economic loss, being negligent performance of aservice (See Winnipeg Condominium Corporation No. 36 v.

Bird Construction Co., (SCC), [1995] 1 S.C.R. 85(S.C.C.)). The elements of a negligence claim are set out by Chief Justice McLachlin in Mustapha v. Culligan of Canada Ltd., 2008SCC 27 at paragraph three: A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that thedefendant's behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in factand in law, by the defendant's breach. [74] The evidence established that the City, on an annual basis, flushes the sewer lines.

The City is divided into areas for theplanned flushing and the public is notified by announcements in the public media.

[ 75 ] Staci Dobrescu testified she is the public works supervisor for water and waste water. She explained the directional flushing process. In 2010 when the hydrant was opened at 10 th and Ross, water is to flow down the alley. In 2010 the water went into the Plaintiff’s excavation. There were dirt mounds at the back of the excavation that impeded some of the water. [ 76 ] The troubling aspect of the Plaintiff’s claim, as I see it, is the issue of causation. I find the Defendant’s initial conduct negligent, in the flushing of the system.

However, the Defendants, in my view, remedied the situation in a very timely manner. I was impressed with the evidence of Dwayne Grado, a senior employee of thirty-eight years with the engineering department. He testified that several calls were received from the public about water in this basement. As a result, he immediately sent out two city pump trucks to pump out the water. He stated that no excavation is perfectly level and there were likely pockets of water left.

However, he was satisfied that the City had remedied the situation. [ 77 ] There was heavy rainfall in the next one to two weeks and the excavation filled again. The City refused to pump it out as it was not responsible for “mother nature”. [ 78 ] The Plaintiff asks the Court to find that this clean-up or pump-out by the City was insufficient, and resulted in the Plaintiff not being able to commence construction. [ 79 ] A leading case on causation and proximate cause in Canada is Resurfice Corp. v. Henke, 2007 SCC 7 . Causation itself is a finding of fact.

McLachlin J. writing for the Court, confirms that the correct test to assess causation is the “but for” test; that is, but for the negligent conduct of the Defendant, would the Plaintiff have experienced the harm. [ 80 ] At paragraphs twenty-one through twenty-three, the Chief Justice explains this concept which is central to this case: 21 First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred.

Having done this, contributory negligence may be apportioned, as permitted by statute. 22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati , at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant." Similarly, as I noted in Blackwater v.

Plint , at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities." 23 The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell , at p. 327, per Sopinka J. [ 81 ] In Martin v.

Interbrook Ltd., 2011 SKQB 251 , Currie J. later dealt with the issue of factual and legal causation. After stating the elements of a negligence claim, he talks about damage at paragraphs eleven and twelve: 11 The reference to "damage" is a reference to harm that a plaintiff has sustained as a result of a defendant's breach of duty. This damage or harm must be established before the plaintiff can be awarded "damages" to compensate the plaintiff for having sustained the damage or harm. 12 As discussed by Justice Allen M.

Linden and Professor Bruce Feldthusen in Canadian Tort Law , 8th ed. (Markham, Ont: Butterworths, 2006) at page 360, the questions of factual causation of damage and legal causation of damage are distinct: Most of the difficulty in this area stems from an unfortunate blurring of two issues that should not be intermingled: (1) cause-in-fact, and (2) proximate cause or remoteness. If the cause-in-fact issue were kept separate from the proximate cause or remoteness issue, much of the confusion would vanish. In this book an attempt has been made to keep them distinct.

Although one cannot totally and completely divorce the two issues, it can be said that cause-in-fact is fundamentally a question of fact, which can be treated relatively expeditiously in most tort litigation. Proximate cause or remoteness, on the other hand, cannot be handled so simply, because it deals with the limits of liability for negligent conduct, which involve more complicated legal analysis. This process of determining the extent or scope of liability (not its basis) demands delicate value judgments and the drawing of fine lines. It is more a question of law and policy than fact.

[82] Currie J. later refers and quotes McLachlin C.J. in Mustapha v. Culligan of Canada Ltd. In Mustapha McLachlin discusseswhether the breach in question caused the Plaintiff’s damage or whether it was too remote to warrant recovery. A discussion offoreseeability and the “foresight of the reasonable man”. [83] In Mustapha, McLachlin C.J. points out at paragraph sixteen: ...the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.

The law ofnegligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the linefor compensability of damage, not at perfection, but at reasonable foreseeability. [84] I conclude from all of the evidence that the City remedied the problem it caused to this basement by the flushing process. Iaccept Mr. Grado’s evidence that the City remedied the situation satisfactorily. The unusual heavy rainfall that occurred a little later inMay breaks the chain of causation. Mr.

Schick went so far as to suggest that the water in the basement may have been a result of theCity’s street cleaning operations. In light of the evidence of Mr. Grado, which I accept, this suggestion is ludicrous and in my view taintsMr. Schick’s entire testimony. I am not prepared to accept that the day of the flushing was the only day all spring and summer of 2011that the basement could be poured. [85] An intervening act occurred after the Defendant’s negligent act, and hastened or worsened the Plaintiff’s damage.

I find theintervening act, the rain, relieves the Defendant of responsibility. [86] The Municipalities Act, S.S. 2005, cM-36.1, governs municipal liability.

Section 340 specifically removes nuisance as acause of action. It is acknowledged that no such claim has been made. However, in reviewing cases involving sewer backup claims, it isnoted that most have failed in negligence, but have been successful in a nuisance claim. [87] The Plaintiff, in his amended statement of claim, pleads breach of contract. The Plaintiff argues that an implied term of theagreement with the City (Exhibit P-2) was that the Plaintiff would have quiet enjoyment of the property which was interrupted by theDefendant’s actions. The Plaintiff refers to the case of Schun Cheong Holdings B.C.

Ltd. v. Gold Ocean City Supermarket Ltd., 2002BCCA 451. It is noted that in this case, the Court refers to textbooks and other cases and adopts the position that “mere temporaryinconvenience is not enough” and that the Plaintiff must demonstrate “...that there has been some act which renders the premisessubstantially less fit for the purpose for which they were let” (Firth v. B.D. Management Ltd. (1990), (BC CA), 73 D.L.R. (4th) 375). [88] The Plaintiff has not met this requirement.

I am not convinced that between May 7, 2010 and when the building permitexpired in April 2011, that construction could not have occurred. [89] The Defendant, in its counterclaim, requested certain relief which is outside the jurisdiction of The Small Claims Act. Counselfor the City asked the Court to award costs in its favour on the basis that the letters filed as exhibits and the evidence of Ms. Wilkinson inparticular show that the City tried to reach a resolution with the Plaintiff for the benefit of all involved. [90] I decline to make an order for costs. It takes both sides to settle.

There was an issue to be tried. [91] Defendant’s counsel suggested that this Court could give some guidance on resolution of where matters stand now. [92] First of all, to be clear, I find the Plaintiff has failed to prove his claims on any basis and I dismiss the Plaintiff’s claim.

[ 93 ] Prior to trial, both parties met and exchanged proposals or offers of settlement. However, no agreement was reached. At the request of counsel, I am prepared to offer my view on a possible resolution, recognizing that it is a suggestion only and not binding on the parties. [ 94 ] The City could give Justin Fall another year to build on the same site, and extend the necessary approvals, without any further cost to Mr. Fall. The City could waive/reimburse the property taxes for 2010 and 2011. In the alternative, if Mr.

Fall did not want the property, the City could purchase the property for the price paid and refund Mr. Fall the cost of the building permit and application fee. The City could waive/reimburse the property taxes for 2010 and 2011. [ 95 ] I thank both counsel for their assistance in the conduct of the trial. Dated at Moose Jaw, Saskatchewan, this 20 th day of April, 2012. ____________________________________ M. T. Gordon, J