Wade Lohse - v. -, 2016 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 025 Date: February 22, 2016 File: SCW 38/14 Location: Weyburn _____________________________________________________________________________ Between: Wade Lohse - and - The Rural Municipality of Lake Alma No. 8 Kevin C. Mellor For the Plaintiff Michael Morris For the Defendant _____________________________________________________________________________ DECISION L.WIEGERS, J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff, Mr. Lohse, claims compensatory and punitive damages against the defendant based on statutory non-compliance, negligence, and trespass.

[ 2 ] In reply, the defendant asserts Mr. Lohse’s claim is statute-barred and, in any event, that the plaintiff has failed to establish liability on any ground. [ 3 ] I conclude the plaintiff’s action is statute-barred and must be dismissed. Accordingly, it is unnecessary to decide the other issues raised by the plaintiff. Factual Background [ 4 ] Mr Lohse farms land near Lake Alma and has done so for 42 years. [ 5 ] The defendant is a rural municipality that is responsible for the roadways located around Mr.

Loshe’s farmland. [ 6 ] Of particular interest in this case are two dirt roads that intersect to form a “T- intersection”. The defendant is responsible for maintenance of both roads. The farmland to the north of the T-intersection is owned by Mr. Lohse. The land to the southeast of the T- intersection is ranch-land owned by Mr. Lohse’s brother. For ease of reference, I will refer to the brother’s land as “the adjacent land.” [1] [ 7 ] In years that are marked by high amounts of precipitation, the low areas on Mr. Lohse’s land and the adjacent land capture water and form sloughs.

Most importantly, as revealed by an overhead image of the area taken in 2012, in wet years the northwest corner of the adjacent land - that presses against the intersection - collects large amounts of water. [2] [ 8 ] During the summer of 2013, Ken Klassen was a councillor for the defendant. According to Mr. Klassen he received complaints from landowners in the area about the large build up of water in the described area. The landowners asked him to monitor the situation. When he attended at the location, he was concerned to see the water level had risen to within three or four inches of the road surface.

Subsequently, he raised the issue with other councillors who shared his concern that the high water level on the adjacent land threatened to wash out the road that separated Mr. Lohse’s land from the adjacent land. Consequently, the defendant’s council decided to install a culvert beneath the road. [ 9 ] The culvert installation work began at mid-morning on 12 August 2013, and was completed around noon. Unsurprisingly, Mr. Klassen immediately observed a large amount of water rush through the culvert northward onto Mr. Lohse’s land. [3] It was, however, a surprise to Mr.

Lohse because the defendant had not notified him of its intentions. Within an hour, Mr. Lohse approached Mr. Klassen and told him that he would be “hearing from his lawyer”. [ 10 ] The defendant’s actions deeply concerned Mr. Lohse. He was alarmed by the potential for damage to his land. He also viewed the defendant’s actions as unnecessary. Although Mr. Lohse was aware there had been an abnormally high amount of precipitation leading to the 2013 crop growing season, Mr.

Lohse felt water levels posed no concern to road conditions; he had travelled that road almost daily for 40 years and had never seen the road washed out. To make his point, he indicated a series of overhead images that reflect a variance in water levels from time to time. [4] He also suggested that a large amount of water on the adjacent land would have been beneficial to his brother’s cattle ranching operation. [ 11 ] Mr. Lohse believed that if he had been given notice of the defendant’s intention, he could have posed an acceptable alternative to the culvert installation. Mr.

Lohse observed that there was a second large slough on the adjacent land that was a safe distance from the road. He opined the defendant could have laid its concerns to rest by draining the body of water near the road into the large slough that was perhaps 200 feet away. He states this could have been accomplished through the construction of a trench joining the two bodies of water [5] . In fact, the overhead images demonstrate that at one time there was a trench between the two sloughs, however, the defendant

led evidence at trial suggesting that if such a trench was constructed it would naturally empty into the slough that was nearest the road. [6] In any event, Mr. Lohse testified that if trenching would not have solved the problem then the defendant could have transferred the water to the second slough by pump. [ 12 ] Mr. Lohse testified the culvert installation immediately flooded nine acres of his land. Eight of the nine acres were usually seeded with organic crops. The one acre that was nearest the new culvert was not used for crop growth.

All the affected acres were situated on his land between the culvert and a slough. A large number of weeds grew in the area of the culvert and around the perimeter of the slough. With these acres under water, Mr. Lohse could not effectively deal with the weeds at a time when they were about to go to seed. As a result, he envisioned substantial weed control problems for a considerable length of time. As well, in the spring of 2014 the eight acres were not sufficiently dry to be seeded. [7] At the same time he also noted a large deposit of alkali on his affected acres. [8] [ 13 ] Mr.

Lohse estimates the cost of his crop loss on the affected acres in 2014 at $6,289.00 less input costs. [ 14 ] Under cross-examination, Mr. Lohse agreed that in 2013 - prior to the insertion of the culvert - the affected acres were too wet to seed that year as well. He also acknowledged that he seeds areas of land every other year and in 2014 the affected acres were not scheduled to be seeded. He added, however, that he had wanted to seed the affected acres in 2014 because he had not been able to do so in 2013.

Analysis [ 15 ] The Municipalities Act [9] prohibits any action against a municipality that is commenced more than one year “from the time when the damages were sustained”. The relevant provision, subsection 344(1), reads: Notwithstanding The Limitations Act , no action is to be brought against a municipality for the recovery of damages after the expiration of one year from the time when the damages were sustained, and no such action is to be continued unless service of the statement of claim is made within that one-year period. [ 16 ] As mentioned, the flooding of Mr. Lohse’s land occurred on 12 August 2013.

His statement of claim was issued on 23 September 2014, and not served on the defendant until 20 November 2014, a date one year and 100 days after the culvert installation. [ 17 ] The limitation period was not necessarily triggered on the date the culvert was installed.

At common law, limitation periods commence on the date when the plaintiff either discovered the cause of action or ought to have discovered the cause of action through the exercise of due diligence. [10] The “discoverability principle”, as it is known, is read into statutory limitation periods unless the statutory language clearly displaces the application of the principle. [11] I note that in this jurisdiction, limitation periods that refer to the date when “ the damages were sustained” have been found to be subject to the discoverability rule. [12] Where, as here, an action is brought on a date after the expiration of the statutory limitation period and the defendant raises the limitation period as a defence, then the plaintiff bears the burden of proving when the cause of action was discoverable, that the limitation period should be extended to reflect the date of discovery, and that his or her claim falls within the adjusted limitation period. [13] [ 18 ] Mr.

Lohse submits that the damage he sustained was his inability to grow crops on the affected acres in 2014. He argues he could not have discovered the problem before the spring of 2014 when it was obvious the affected acres were too wet to seed. That, he asserts, is when the limitation period began to run. [ 19 ] The defendant submits that on 12 August 2013, the limitation period was triggered because on that date Mr. Lohse was aware the defendant’s installation of the culvert had caused flooding on his land and consequential damage.

In the alternative, the defendant argues the limitation period was triggered no later than 28 October 2013, when Mr. Lohse filed a claim for damages against the defendant with the Saskatchewan Association of Rural Municipalities.

[20] Later in my analysis, I will provide additional factual detail regarding this issue. That detail coupled with Mr. Lohse’s argumentreduces the issue to a single question: how much detail regarding his or her damages must a plaintiff possess before the damage hasbeen discovered? [21] Mr. Lohse argues that discovery requires a substantial awareness of his damages. In support of his position, he relies heavily onthe Supreme Court’s decision in K.(M.) v H.(M.), (SCC), [1992] 3 SCR 6 [ K.(M.)].

Therein, the court considered aplaintiff’s claim for damages resulting from sexual abuse she suffered at the hands of her father. Her claim was issued when she was 28years old and related to abuse she suffered between the ages of 8 and 17 years. The abuse was repeated and extensive, including sexualintercourse. When she was a teenager, the plaintiff disclosed the abuse to a school counsellor and psychologist, however, her fatherpressured her to recant and so she did.

Years later, when she was an adult no longer living with her father, the plaintiff attended a supportgroup for incest victims and was referred to therapy. Once in therapy, she came to understand that she was not responsible for the abuseshe had suffered and that the abuse itself was the primary reason she had experienced many problems in life. Opinion evidence led attrial supported this conclusion. This context led the high court to reject the defendant’s submission that the four year limitation periodhad been triggered when she reached the age of majority.

Instead, the Court concluded the limitation period did not begin to run until theplaintiff attended the therapy sessions as an adult which enabled her to set aside her own feelings of guilt and realize her father wasresponsible for her injury. [22] With respect, the plaintiff’s reliance on K.(M.) is misplaced. In K. (M.), the nexus between the wrongdoing and the harm was notperceived by the plaintiff until she underwent therapy that convinced her it was her father who was responsible for her suffering and notherself. It is not difficult to understand why this would be the case.

In K.(M.) the wrongful act involved repeated, highly intrusiveassaults through which a father abused his position of trust over his young daughter. Her efforts to seek assistance were thwarted by herfather. K.(M.) and cases like it are exceptional. Put another way, incest cases typically involve uncommon dynamics that defy reasonand impede reasonable discovery. Context was crucial to the decision; for example, that is why the majority’s analysis of the issuebegins with the heading “ Application of the Discoverability rule to Incest” [emphasis added]. [23] By contrast, at the time Mr.

Lohse observed water pouring through the culvert onto his property, he was a clear-minded adultwith abundant farming experience. He was ideally situated to understand the risks associated with the defendant’s actions. [24] In Peixero v Haberman, (SCC), [1997] 3 SCR 549 [Peixero], the Supreme Court considered a claim fordamages sustained in a motor vehicle accident under a provincial no-fault automobile insurance statute. The plaintiff’s claim waslaunched three years and nine months after the accident, but the statute fixed the relevant limitation period at two years from the date“when the damages were sustained”.

The plaintiff knew he was injured immediately after the accident, but an x-ray did not revealanything unusual. The x-ray result was significant because the statute prohibited tort claims unless the accident caused “ permanentserious injury”. It was not until about three years after the accident that the plaintiff underwent a CT scan that revealed a herniated disc. After concluding that the discoverability principle applied to the limitation period, the Court concluded that the limitation period had tobe interpreted in light of the provision that restricted claims on the basis of the severity of injury.

In doing so, the Court held that thetriggering event occurred when the plaintiff knew or with the exercise of due diligence could have known his injury was sufficientlyserious to justify a tort claim. [25] Peixero, is important to the present case because one can safely infer that if the statute had not required a threshold ofpermanently serious injury then it would not have been necessary for the plaintiff to have specific knowledge of his injury before thelimitation period was triggered.

This is made plain at paragraph 18 of the decision: 18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitationperiod. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor... the cause of action has accrued. Neither theextent of damage nor the type of damage need be known.

To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period [emphasis added].[14] [26] To similar effect is United Enterprises v North Battleford (City), 2007 SKQB 335, SJ No 538 [United Enterprises]. Therein, the

defendant city’s water supply became contaminated and negatively affected the plaintiff’s hotel business. The problem prompted the provincial government’s intervention in the form of a boiled water advisory and order and ultimately the establishment of a commission of inquiry. The commission report was rendered about 10.5 months after the Commission was formed. At issue was when the time limitation began to run. The plaintiff argued the triggering event was the receipt of the commission’s final report.

Popescul J (as he then was), applied the discoverability principle and found the effective date was no later than the date the commission was established. With respect to the plaintiff’s knowledge of wrongdoing and damage and its connection to the triggering of the limitation period, at paragraph 17 of his decision, he states: 17 I disagree with United’s assertion that the triggering event from which the limitation period runs ought to be March 28, 2002, which is the date that the Commission released its report.

The reason for this is that there is a considerable difference between having knowledge of the material facts upon which a claim can be based and having the benefit of a detailed analysis from a commission of inquiry. The underlying principle for the “judge made” dicoverability principle is to avoid the injustice that would arise by barring actions from being commenced even before its existence is known to the persons who suffered the loss.

The principle does not, in my view, operate to suspend time to permit a potential plaintiff to await for conclusive proof of negligence or wrongdoing nor is it intended to permit a potential plaintiff to sit back and take no action without adverse consequences flowing in respect to limitation periods.

Therefore, while it may have been desirable, from United’s perspective, to await the issuance of the Commission’s report prior to commencing its claim, the fact that a commission of inquiry was mandated to issue a report does not in these circumstances affect the triggering of the limitation period [emphasis added] [ 27 ] I find that on 12 August 2013, Mr. Lohse was cognizant he had sustained some damage. I note he promptly warned Mr. Klassen that he was contemplating legal action. Under cross-examination he elaborated on his concerns.

He said that on 12 August 2013, prior to the culvert installation, he intended to cultivate the weeds in the affected area because the weeds soon would be going to seed, however, the influx of water prevented him from doing so. When questioned further, the following exchange occurred: Q. So, you anticipated then that you would have a problem with weeds at that location for some time to come until you could get them under control? A.

Exactly. [ 28 ] Further, certain assertions in his statement of claim issued on 23 September 2014, suggest the plaintiff - at the time the culvert was installed and the water was released - was aware his land had been damaged. For example, in his statement of claim he pleads the construction of the culvert alone damaged his land and that “upon completion of the construction the water was released through the culvert and water rushed onto the land causing damage to a portion of the land”.

He added that the defendant “knew or ought to have known” that the manner in which it released water through the culvert would cause damage to the land which suggests Mr. Lohse also held that belief at the time the water was released. [15] [ 29 ] If Mr. Lohse did not have knowledge he had sustained some form of damage on 12 August 2013, he certainly did by 28 October 2013.

On that date he filed a claim against the defendant with the Saskatchewan Association of Rural Municipalities in which he claimed, in part, the following: “ Before the draining of this slough, some unseeded acres had just become dry enough to cultivate. This land is CERTIFIED ORGANIC! To date, some of the acres are not yet dry enough to work up. So you can imagine the weed problem I will have to contend with for the next several years. This is why I am claiming for damages! 9 acres @ $1,000 (one thousand) per acre. Work to fill washout by water $500 (Five Hundred) unless the RM wants to fill it.

Total of $9500.00 (nine thousand five hundred). Wade Lohse” [16] The Association of Rural Municipalities rejected this claim on 26 November 2013. [ 30 ] Clearly, the quoted passage fixes the plaintiff with a belief he had suffered damage at the hands of the defendant and that his land would bear the negative effects of the defendant’s actions for years to come. Further, the relationship between uncontrolled weeds and crop yield would be well-established in the mind of a farmer with 42 years experience. The plaintiff did not require more specific

knowledge of his damages: as evidenced by his claim, the damage had been discovered. [17] [ 31 ] At the beginning of trial, Mr. Lohse filed an amended statement of claim. The amendment varied the original by limiting Mr. Lohse’s claim to the amount of crop losses incurred in 2014. In his original claim, Mr. Lohse sought greater damages for broader ills. Specifically, Mr. Lohse originally claimed the maximum allowable amount under The Small Claims Act [18] for the following reasons: 10.

The Land was now damaged to the point where it will not grow crops for many years and the Plaintiff will have to use economic resources including money, time, machinery and chemicals to restore that portion of the Land that was damaged to its pre-damaged state [emphasis added]. [ 32 ] Although, Mr. Lohse did not particularize his reasons for the amendments, I assume it was to avoid the limitations defence.

The amendments invite the court to focus only on the plaintiff’s inability to seed the affected acres in 2014 due to excessive moisture, an event that he claims he could not have foreseen until it came time to seed. I hold the view, however, the amended claim does not strengthen Mr. Lohse’s position. As mentioned, at paragraphs 27 and 28 above, Mr. Lohse’s testimony and his original statement of claim demonstrate an awareness of damage at the time the water was released. His awareness included an expectation that future crop yields would be limited by the defendant’s actions of 12 August 2013.

By restricting his damage claim to a specific time period and amount, he does not alter his awareness on 12 August 2013. To hold otherwise, despite my findings, would be to allow Mr. Lohse to commence claims against the defendant in the future whenever he observed an injury to his land that he could connect to the flooding of 12 August 2013. That possibility calls to mind the following passage from United Enterprises : 22. Secondly, the phrase “damages are sustained”, when used in a limitation

section in a statute, must be interpreted to mean the later of the time when the damages were incurred or could have been known to have occurred. If the phrase was construed to mean that the trigger for a limitation period would be any time a plaintiff continued to suffer the consequences of an alleged wrongful act, the effect of the limitation periods would be rendered virtually useless. Conclusion [ 33 ] On 12 August 2013, Mr. Lohse became aware the defendant’s culvert installation caused flooding on part of his land.

At the same time, he was aware he had incurred damage because he expected the defendant’s actions to have a negative effect on future crop yields. This was sufficient knowledge to trigger the relevant limitation period. As his statement of claim was not served on the defendant until 20 November 2014, the one year limitation period had expired and his claim is statute-barred. __________________________ L.Wiegers, J

[1] The best view of this image can be found in the Exhibit Binder, Tab 1, exhibit P-2. [2] Exhibit Binder, Tab 1, P-2 [3] Exhibit Binder, Tab 2 photograph 15 depicts the road after the culvert was inserted. To the right is the adjacent land and to theleft is Mr. Lohse’s land. [4] Exhibit Binder,Tab1. [5] The bodies of water mentioned here can be seen in Exhibit P-4,

section 11. [6] Exhibit Book Tab 6, P-9, displays photographs of the area between the two bodies of water. [7] The affected land was circled in ink by Mr.

Lohse on Exhibit P-4. [8] Exhibit Book Tab 7, Exhibit P-10, though these photographs were taken in 2015. [9] SS 2005 c.M-36.1. [10] Nielson v Kamloops (City), (SCC), [1984] 2 SCR 2; Central Trust Co. v Rafuse, (SCC), [1986]2 SCR 147. [11] Peixero v Haberman, (SCC), [1997] 3 SCR 549, para 38; Ryan v Moore, 2005 SCC 38, paras 21-27, 2 SCR53; Gamey v Langenburg (Town), 2010 SKCA 11, SJ No 25 [Gamey]; Lecaine v Canada (Indian and Northern Affairs Registrar), 2015SKCA 43, paras 51-52, SJ No 203. [12] Gamey, at note 11 above; United Enterprises v North Battleford (City) 2007 SKQB 335, paras 11-13, SJ No 538; Young vPalliser Regional Care Centre, (SK KB), [1995] 5 WWR 14 (Sask QB). [13] Gamey, at note 11 above, paras 28, 34. [14] See also: Konotopski v Royal Canadian Mounted Police, 2000 SKQB 22, para 8, SJ No 80; Condominium Plan No. 81R14133 vMuxlow Development Corp., 2008 SKQB 462, para 36, SJ No 698. [15] Statement of claim filed 23 September 2014, paras 8,9,13. [16] Exhibit Binder, Tab 9 exhibit D-1. [17] B.(K.L.) v British Columbia, 2003 SCC 51, SCJ No 51, paras 53-59. [18] SS 1997 c.

S-50.11. The amount claimed was $20,000.00