Kent Grabatin v. Monika Grabatin, 2013 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 026 Date: February 14, 2013 File: SC# 274 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Kent Grabatin and Monika Grabatin - and - Lawrence Harasym and Bunnie Harasym Kent and Monika Grabatin For the Plaintiffs Ms.

Ashley Smith For the Defendants _____________________________________________________________________________ DECISION ON NON-SUIT MOTION D.C SCOTT , J _____________________________________________________________________________ Introduction [ 1 ] The plaintiffs Kent Grabatin and Monika Grabatin claim the defendants Lawrence Harasym and Bunnie Harasym pumped water from their property into a ditch and dammed spring surface water run-off in 2011 by obstructing culverts.

They allege the defendants ’ actions diverted the flow of water onto the plaintiffs ’ property flooding it and causing damage which resulted in loss.

[2] At trial, both plaintiffs and their expert Dr. C. P. Hwang testified. At the conclusion of the plaintiffs’ case, the defendants’counsel made a motion for non-suit. The plaintiffs, who are unrepresented by legal counsel, were caught by surprise, having expectedthe opportunity to establish their case in part through cross-examination of the defendants. [3] The plaintiffs were unaware the defendants were not required to testify and could bring a non-suit motion.

Further, there isno pre-trial procedure in Small Claims Court whereby a party may compel another party to submit to examinations for discovery prior totrial. Therefore, I exercised my discretion as trial judge, to allow the plaintiffs to reopen their case to call the defendants as their ownwitnesses, explaining the limitations of this procedure. [4] The plaintiffs called both defendants as their witnesses. They then closed their case and the defendants’ counsel renewed thenon-suit motion. This is my decision on that application.

The Law [5] The Court of Queen’s Bench Rule 278A entitles a defendant to move for dismissal of a plaintiff’s claim without callingevidence. There is no similar provision in The Small Claims Act, 1997 c. S-50.11, which sets out the procedure governing civilproceedings in this Court. Nonetheless, I am satisfied that this Court has the authority to hear and determine a motion for non-suit (seePollock v. Remenda, [1989] S.J. No. 131 (Q.B.); Manz v. Loewen, [1999] S.J. No. 141 (Q.B.)). [6] According to Baynton J. in Kvello v. Miazga, 2003 SKQB 451 , [2003] S.J.

No. 650; 2003 SKQB 451,the well established test to be applied in determining such applications is whether a prima facie case has been made out at the conclusionof the plaintiffs’ case, such that the Court could find in the plaintiffs’ favour on the basis of the uncontradicted evidence adduced (para.16).

The applicants must demonstrate the absence of “sufficient” evidence, which if left uncontradicted, could satisfy a reasonable trierof fact that the case has been made out on a balance of probabilities (para. 17). [7] The Court must consider the evidence in the manner most favourable to the plaintiffs and must draw reasonable inferencesfrom the evidence to determine whether the trier of fact would be able to make a decision based upon the evidence presented (Kvello,para. 19).

Determinations of credibility or believability of the evidence are to be made only if the non-suit application fails (Kvello, para.17). [8] Baynton J. commented that non-suit motions “strike at the heart of the plaintiffs’ action”. They also have the effect ofprolonging the trial and duplicating in part the legal and factual submissions made to the Court (Kvello, para. 10).

Analysis [9] While focusing primarily on the evidence, the Court must also determine what causes of action are relied upon by theplaintiffs and what constitutes the various elements of those causes of action, so that the Court may determine whether there is sufficientevidence respecting each of those elements (Kvello, para. 21). [10] As is often the case in Small Claims Court, the plaintiffs’ statement of claim does not expressly refer to the cause of actionupon which it has been brought. Here the alleged facts raise questions related to the Rylands v.

Fletcher doctrine of strict liability;negligence; and nuisance. [11] I will consider the evidence in light of the elements of each cause of action to determine whether the non-suit application hasbeen made out. However, my assessment of the evidence will be of a general nature and will not involve fact-finding. As stated by

Baynton J. in Kvello : 46. It is neither necessary nor desirable at this stage of the case that I outline in detail the evidence I have relied upon for my decision to dismiss, for the most part, the non-suit applications...[M]y task at this stage is not to determine whether the elements...have been established by the evidence nor is it my role to determine the credibility of the evidence. Rather it is to determine if there is a prima facie case.

In other words, it is to determine if there is sufficient evidence on which a reasonable person could conclude that the case has been made out on a balance of probabilities.

Accordingly, it is important to bear in mind that the evidence I relate is “evidence” adduced in the case and is not “fact” that I have found from the evidence. 47. ...To relate at this stage every material piece of evidence I have relied upon in coming to my conclusion, would be duplicitous, would significantly lengthen this judgment and would trench on the task that lies before me at the conclusion of the trial. [ 12 ] I adopt the approach taken in Kvello . I now turn to consideration of the evidence in respect of the elements for each cause of action.

Strict Liability [ 13 ] According to Linden and Feldthusen, in Canadian Tort Law , 8 th ed. at pp. 531-2: Under the traditional view of Rylands v. Fletcher , a strict liability will be imposed if two elements are present: (

a) a non-natural use of land, and (

b) an escape. [ 14 ] This principle was considered by Brown J. in Alfarano v. Regina , [2012] O.J. No. 993 (Ont. S.C.) : 58. As to the responsibilities owed by adjacent landowners to each other for the passage of water from one property to the other, Rylands v. Fletcher sketched out two key principles: (

i) Where water naturally accumulates on one property and, by “ operation of the laws of nature ” passes to the adjoining property, either on the surface or underground, the owner of the receiving land has no legal complaint.

If he wants to guard himself against the natural flow of water onto his land, he must interpose some barrier between his land and the adjoining land to prevent the operation of the laws of nature; and (ii) On the other hand, if an owner of land brings onto his land and collects and keeps there water which is likely to do mischief if it escapes (such as the creation of a reservoir of water), then if the water escapes onto the adjoining land causing injury, liability will arise regardless of whether the landowner has acted with due care and caution. [ 15 ] In this context, “non-natural” use of land has been interpreted to mean special, exceptional, unusual or out of the ordinary, and “natural” to mean normal, common, everyday or ordinary ( Alfarano , para. 60; Canadian Tort Law , p. 532).

In interpreting whether an “escape” has occurred the Courts have taken a liberal approach ( Canadian Tort Law , p. 538). [ 16 ] The defendants’ property is adjacent to that of the plaintiffs in the Rural Municipality of Corman Park. It is common ground between the parties that there had been widespread flooding in the R.M. during the spring of 2011 and 2012. [ 17 ] There is evidence before the Court that the defendant Lawrence Harasym pumped water from their property into the common ditch running perpendicular to the plaintiffs’ and defendants’ property. Further, evidence was presented that Mr.

Harasym used cement blocks to partially and completely dam culverts located in the common ditch in front of the defendants’ property and in close proximity to that of the plaintiffs. The plaintiffs testified that water diverted by the defendants to the ditch where the culverts were located caused the water to back up onto their property, thereby flooding 20 acres of farm land.

[ 18 ] During heavy flooding, the deliberate blocking of two culverts, which are designed to facilitate the flow of water, with cement blocks could reasonably be characterized as evidence of an exceptional or unusual measure and as such, a non-natural use of the property. [ 19 ] The resulting back up of water onto the plaintiffs’ property could reasonably be considered evidence of an “escape”. The defendant Lawrence Harasym acknowledged he took steps to control and divert the water’s flow from their property by pumping into the common ditches and by blocking the culverts. Dr.

Hwang concluded that once the ditches filled there was nowhere for the water to go but onto the plaintiffs’ property. Mr.

Harasym monitored the flow of water from his property and was aware of the water flowing onto the plaintiffs’ property, explaining that flooding onto the plaintiffs’ property would have been much worse had he not blocked the culverts. [ 20 ] It should be noted there is no evidence before the Court that the defendant Bunnie Harasym took any steps with respect to the pumping of water or blocking of culverts. [ 21 ] I find the defendants have failed to demonstrate an absence of sufficient evidence with respect to a non-natural use of property by the defendant Lawrence Harasym resulting in the escape of water onto the plaintiffs’ property.

However, the defendants have demonstrated an absence of any such evidence with respect to the defendant Bunnie Harasym. Negligence [ 22 ] An action in negligence arises if the following elements are present: 1. The claimant must suffer some damage; 2. The damage suffered must be caused by the conduct of the defendant; 3. The defendant’s conduct must be negligent, that is, in breach of the standard of care established by the law; 4. There must be a duty recognized by the law to avoid this damage; 5.

The conduct of the defendant must be a proximate cause of the loss; the damage should not be too remote a result of the defendant’s conduct; 6. The conduct of the plaintiff (such as contributory negligence or voluntary assumption of risk) should not be such as to bar or reduce recovery of damage. ( Canadian Tort Law , p. 109) [ 23 ] The plaintiffs and defendants are actual neighbours and as such the defendants owed a duty to the plaintiffs to use care in relation to the plaintiffs’ property.

The standard of care applicable to the defendants was to manage the flow of water from their property so that it did not result in damage to the plaintiffs’ property. There was evidence that the residents of the R.M. were advised by officials of the importance of maintaining unclogged ditches and culverts to ensure better water flow.

As well, evidence was presented that the Saskatchewan Watershed Authority informed residents they were required to obtain approval from neighbours and the Authority before pumping water from their property. [ 24 ] There is evidence from which it could be concluded that the defendant Lawrence Harasym’s conduct fell below the standard of care. As discussed, the plaintiffs presented evidence that the defendants pumped water from their property into ditches for an extended period of time and blocked culverts in close proximity to the plaintiffs’ land.

There is no evidence that approval was given to the defendants by the plaintiffs or the Watershed Authority. [ 25 ] A causal link between the conduct of the defendants and the resulting damage sustained by the plaintiffs is a necessary element of each cause of action. The defendants argued the evidence of causation was insufficient. [ 26 ] The plaintiffs’ expert Dr.

Hwang, a civil engineer with expertise in the pumping and resulting flow of water, testified that based upon information provided to him by the plaintiff Monika Grabatin regarding the size and type of pump used by the defendants, the dimensions of the ditch, the placement of the culverts, and their proximity to the plaintiffs’ property, water pumped from the defendants’ property would have first filled the ditches and then backed up onto the plaintiffs’ property. It was Dr. Hwang’s opinion that once the pumped water filled the ditch it would have had nowhere to flow other than onto the plaintiffs’ property.

Using a series of

calculations, he concluded that 14 acres of the plaintiffs’ property would have been flooded in this way. [27] It is not open to me to assess the credibility or believability of Dr. Hwang’s testimony or decide the substantive issue ofcausation at this stage in the proceedings (Reid v. Kraus, 2000 SKCA 32 , [2000] S.J. No. 142 (Q.B.)). If Dr.

Hwang’stestimony remains uncontroverted, a reasonable trier of fact properly instructed could find a causal connection between the defendants’actions and the damage sustained by the plaintiffs. [28] The plaintiffs presented evidence with respect to damage suffered, being the flooding of between 14 and 20 acres of farmland,typically used for growing alfalfa. A spreadsheet tendered into evidence, prepared by the plaintiff Monika Grabatin, who managed thefinancial affairs of the plaintiffs’ farming operation, purported to demonstrate loss of income and the cost to bring back into productionthe flooded acres.

The spreadsheet was supported by some receipts and invoices. There is evidence upon which a reasonable conclusioncould be drawn that the loss of income and cost to repair the land were direct and foreseeable consequences of the flooding and fromwhich damages could be assessed. [29] Although not considerations in this application, I note there is evidence before the Court that the plaintiffs took no steps toprevent the water from backing up onto their property. Neither did they appear to take advantage of financial assistance programs thatmay have been available to them.

Contributory negligence and failure to mitigate are defences for which the defendants bear the onus ofproof. [30] Once again, there is no evidence before the Court the defendant Bunnie Harasym engaged in any conduct which would havefallen below the standard of care as a neighbour in these circumstances. However, the defendants have failed to demonstrate an absenceof sufficient evidence with respect to the plaintiffs’ claim in negligence against Lawrence Harasym.

Nuisance [31] According to Fleming, in The Law of Torts (9th ed.) at p. 457, “this branch of the law is primarily concerned with conflict overcompeting uses of land. It defines obligations of neighborliness.” [32] In identifying the elements of private nuisance, Dawson J. in Pelletier v. Collins, [2012] S.J. No. 521 (Q.B.) stated: 47. Nuisance describes a type of harm that is suffered, rather than the kind of conduct that is forbidden. (John G.

Fleming, The Law of Torts, 8th ed. (Sydney: The Law Book Co., 1992) page 457) In general, a nuisance, is an unreasonable interference with the use andenjoyment of land by its occupier. Private nuisance may be defined as an unreasonable interference with the use and enjoyment of theland. This may come about by physical damage to the land or interference with or injury to the health, comfort or convenience of the occupier. (Allen M.

Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ontario: LexisNexis Butterworths, 2006) p.568) The use of the term unreasonable indicates that the interference must be such that it would not be tolerated by the ordinaryoccupier. Also, the interference caused to the plaintiff’s use of the land must be substantial. No compensation will be awarded for trivialannoyances... [33] Whether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence, so long as it can becategorized as nuisance (Canadian Tort Law, p. 559).

Further, the damage to property will not be justified even if the cause was otherwise lawful or even necessary. According to Fridman, in The Law of Torts in Canada (3rd ed.) at p. 151: ...The causing of harm is of itself sufficient to impose liability in nuisance (as well perhaps in negligence, if negligence can beestablished). Whereas inconvenience will not necessarily suffice to ground an action in nuisance, damage to property will.

Nor can thecausation of damage to property be justified or excused by pleading that the defendant was making a lawful, reasonable, even a necessaryor essential use of his property...(emphasis added) [34] The onus of proof that the defendant caused an unreasonable interference with the use and enjoyment of the plaintiff’s landrests on the plaintiff, but once that is shown, the onus is on the defendant to establish that the use of the land was reasonable (CanadianTort Law, p. 569). [35] I am satisfied the defendants have failed to establish that the evidence is insufficient to enable a trier of fact to conclude theelements respecting the nuisance cause of action have been met.

It could reasonably be concluded that, even though the defendant

Lawrence Harasym believed it was necessary, the obstruction of culverts during heavy flooding such that the ditches filled and overflowed onto the plaintiffs’ property amounted to an unreasonable interference with the use of the plaintiffs’ land and that such interference caused significant harm to the plaintiffs. My consideration of the evidence in relation to causation in the negligence claim applies to the nuisance claim. [ 36 ] There is no evidence that the defendant Bunnie Harasym engaged in any conduct which could be considered unreasonable interference with the plaintiffs’ property.

Conclusion [ 37 ] I am satisfied there is insufficient evidence upon which a trier of fact could conclude that the defendant Bunnie Harasym is liable in negligence, nuisance or strict liability for loss sustained by the plaintiffs. I therefore dismiss their claim in its entirety against the defendant Bunnie Harasym. [ 38 ] However, I find the defendants have failed to establish that there is an absence of sufficient evidence upon which a trier of fact could conclude the defendant Lawrence Harasym is liable in negligence, nuisance or strict liability.

The non-suit motion with respect to these causes of action against the defendant Lawrence Harasym is denied. [ 39 ] I direct the clerk of the Small Claims Court to

schedule the continuation of this trial to allow the defendant Lawrence Harasym to present evidence. __________________________ D.C. Scott, J