Beaman v. Renwick Date:, 2011 BCPC 70

Citation: Beaman v. Renwick Date: 20110321 2011 BCPC 0070 File No: 65213 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOHN BEAMAN and JOHN LEVAR CLAIMANT AND: ROBERT RENWICK and SANDRA MAHAFFY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. O'C. WINGHAM Counsel for the Claimants: Self-Represented Counsel for the Defendants: Andrei Mincov, Articled Student Place of Hearing: Surrey , B.C.

Dates of Hearing: November 1, 2010; January 27, 2011 Date of Judgment: March 21, 2011 INTRODUCTION [ 1 ] This is a ruling on an application by the Defendants for an order dismissing the Claimants’ action against them. [ 2 ] The Defendants seek dismissal of the claim on a number of grounds. The first is that the Provincial Court lacks jurisdiction to hear the claim. The second is that there is no evidence to support the allegations of the Claimants. Lastly, the Defendants say that the Claimants’ claim has no basis in law. FACTS [ 3 ] The Defendants are the owners of property in Langley, B.C.

They have owned the property since December, 1999. Their property has a creek (Murray Creek) running through it. The Claimants own properties which are upstream on Murray Creek from the property owned by the Defendants. Murray Creek is a natural watercourse which eventually empties into the Nikomekl River. It falls under the protection of the Department of Fisheries and Oceans. [ 4 ] The Defendants say that since they purchased their property in 1999, the back of their property and the other properties around it have flooded in the winter.

The Defendants have never interfered with the natural flow of Murray Creek through their property. [ 5 ] The Claimant John Levar purchased his property in November, 2006. The Claimant John Beaman purchased his property in May, 2007. When they observed the flooding which occurred on their properties during the winter, they asked the Defendants to interfere with the natural flow of the stream. The Defendants did not wish to do so but did offer to allow the Claimants onto their property to deepen the channel of Murray Creek by .5 meters upon approval from the Department of Fisheries and Oceans, the B.C.

Environment Ministry and The District of Langley, and upon agreeing to indemnify the Defendants for any claims, including legal costs, from down stream property owners.

ISSUES Jurisdiction of the Provincial Court to Hear the Claim [ 6 ] The Defendants submit that, while the Claimants’ claim is framed as a claim for damages, the real purpose of the action is to force the Defendants to interfere with the natural flow of the stream to benefit the Claimants. The Defendants say that the Claimants need to apply for an injunction to accomplish that and that, therefore, their claim should be heard in the Supreme Court as this Court has no jurisdiction to issue injunctions. [ 7 ] I am not persuaded by that argument.

The Claimants claim damages for loss of use and enjoyment of their respective properties as a result of what they allege is a nuisance on the Defendants’ property. That claim is within the jurisdiction of this Court even though it may be that the Claimants would have been better advised to proceed to Supreme Court. Is There Evidence to Support the Allegations of the Claimants? [ 8 ] The Claimants allege in their Notice of Claim that there is a private nuisance on the Defendants’ property which has caused damage (flooding) to the Claimants’ properties.

They say that the Defendants’ inaction in failing to clear the stream of debris and their failure to return the stream to its 1994 topography has caused continuous and increasing damage to their properties. [ 9 ] The Defendants say that the Claimants have failed to provide any evidence that any action or inaction of the Defendants was the cause of the flooding on the Claimants’ properties.

In particular, the Defendants say the Claimants have not produced any expert evidence which would indicate that the cause of the flooding on the Claimants’ properties was caused by the state of Murray Creek on the Defendants’ lands. [ 10 ] The record of proceedings in this case indicates that there have been three Settlement/Pre-trial conferences in this case. The record indicates that in at lease two of those conferences orders were made for the exchange of documents including expert reports.

On November 13, 2009, Judge MacGregor ordered that each party provide the other with the name, address and telephone number and a

summary of the evidence of all witnesses, including any expert witness within 60 days. [ 11 ] On April 12, 2010, Judge Arthur-Leung made a similar order with a deadline of June 15, 2010. She stated that the order was a “final opportunity” to exchange documentation and any expert reports. [ 12 ] The only report filed by the Defendants was dated February 22, 2010, and was filed in Court on November 10, 2010. It is a report of an engineer, Glenn Bell, and expresses the opinion that fill placed on the Claimant Mr.

Beaman’s property was not the cause of the flooding, and states that “any elevation rise in the natural boundary or horizontal displacement of the natural boundary (of Murray Creek) would have been caused by some other condition, such as the obstruction of the watercourse downstream from this property causing the watercourse to “back-up” and rise on this property”. [ 13 ] In addition, the Claimants have not provided particulars of the damages they say that they have suffered.

Judge MacGregor ordered particulars of the damages claimed to be provided within 60 days of November 13, 2009. [ 14 ] The Defendant submits that because there is no expert evidence as to causation, I should exercise my discretion as a “gatekeeper” and dismiss the claim under Rule 7(14)(

i) of the Small Claims Rules . That Rule provides: 7(14) At a settlement conference, a judge may do one or more of the following: I. Dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, a judge determines that it (

i) Is without reasonable grounds, (ii) Discloses no triable issue, or (iii) Is frivolous or an abuse of the court’s process; [ 15 ] Rule 7 was considered by Judge Dhillon of this Court in Burton v. Vancouver, [2003] BCJ No. 2962 . At paras. [19] – [20] she stated: The role of the judge in an application for dismissal under Rule 7 is to act as a gatekeeper in determining if the case can proceed to trial.

The judge does not weigh the evidence but simply determines, as a judge of the law, whether the Certificate of Readiness contains some evidence from which a trier of fact could infer that a breach of duty, causation or damage has occurred. In my view, the ability of the court to dismiss at the settlement conference stage would be in keeping with the purpose of the Small Claims Act and Rules, which is to encourage the just, speedy, inexpensive and simple resolution of claims.

It is not in keeping with that purpose to allow cases to proceed to trial if the case, as filed, does not establish at least a prima facie case on a central issue. [ 16 ] In Barton, Judge Dhillon was dealing with a personal injury case. She stated that in personal injury cases, particularly those alleging psychological or psychiatric injury, there must be some medical or expert psychological evidence capable of establishing such harm. She referred to Rule 7 which requires a Certificate of Readiness which attaches medical reports.

Analysis Is the Claim Frivolous, an Abuse of the Court’s Process or without Reasonable Grounds? [ 17 ] The claim cannot be said to be without reasonable grounds. Nor, in my view, can it be said to be frivolous or an abuse of the

Court’s process. Seasonal flooding is occurring on the Claimants’ properties. [ 18 ] While the engineer’s report prepared by Glenn Bell may not be sufficient to establish that the cause of the flooding is related to any action or inaction of the Defendants, it does provide some indication that the flooding is caused by some condition downstream on Murray Creek from the Claimants’ properties.

Is there a Triable Issue/Is there a Cause of Action? [ 19 ] The Defendants say that the claim discloses no triable issue and that it has no basis in law. [ 20 ] The Claimants submit that Murray Creek, where it runs through the Defendants’ property, creates a hazard of upstream flooding on the Claimants’ properties. They said that the Defendants have a duty to take steps to overcome that risk or hazard. They rely on Leakey v.

National Trust, [1797] EWCA Civ 5 (Court of Appeal of England and Wales, Civil Division). [ 21 ] In Leakey, the Court described the duty on property owners in a case such as this where a natural nuisance arises. At pp. 14 – 15 Lord Justice MeGaw stated: So here. The defendant’s duty is to do that which it is reasonable for him to do.

The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant.

But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant. Take, by way of example, the hypothetical instance which I gave earlier: the landowner through those land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours.

If the risk is one which can readily be overcome or lessened – for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does neither or does too little.

But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, “you have my permission to come on to my land and to do agreed works at your expense” or, it may be, “on the basis of a fair sharing of expense”….. At p. 15 Lord Justice Shaw stated: ….. The underlying theory of this approach is the correlation of control and responsibility.

As the owner of land is normally in the best position to obviate or to contain or to reduce the effect of nuisances arising naturally on his land, he should be primarily responsible for avoiding the consequences of such nuisances or for compensating those who suffer by their occurring. The principle is reflected in the judgment of Mr. Justice McMullin in the New Zealand case of French v. Auckland City Corporation

(1974) New Zealand Law Reports 340 . [ 22 ] The authorities provided by counsel for the Defendants suggest that the applicability of Leakey in Canada is questionable (see Lynd v. Runge, [2002] B.C.J. No. 2565 (BCSC) at para. [21] ). In the Lynd case, McKinnon, J. reviewed the Canadian law and referred to 270233 Ontario Ltd. v. Weall and Cullen Nurseries Ltd. (1993), 17 C.C.L.T. (2d) 176 (Ont. Gen. Div) , aff’d (1997) 41 C.C.L.T. (2d) 239 (Ont. C.A.) .

In the Weall case, the court found that the plaintiff could not recover in nuisance because the defendant’s use of the land fell under the natural user exception but queried, at para. 64, whether “it is coherent to conclude that a party has no liability in nuisance for natural waterflow over a neighbour’s property but may have a duty of care in respect of the waterflow?” Spence J. stated at para. 72: To hold that an owner of land can be liable in negligence for damage caused by natural waterflow from the property of the owner affected by the owner's natural use of the property would potentially eliminate, for all practical purposes, the natural user exception to the law of nuisance with respect to natural waterflow.

On the other hand, to preclude entirely the possibility of liability in negligence might seem unduly harsh. Certainly it would seem incompatible with any view of the law of negligence as a law of general application concerning the civil responsibilities of persons in our society to one another. Some assistance in developing an intermediate position may be found in the Nicholls case above concerning the degree of the precautions to be taken, and in the suggestions in the cases on nuisance that in some cases it is necessary to recognize a "give and take" or "live and let live" principle.

In the light of the status of the natural user exception and the other considerations, it seems reasonable that the defendant in this case should be held liable in negligence, if at all, only if it has failed to meet a standard of care which is modified or adjusted in some measure to take account of the natural user exemption. Thus, I would suggest that the defendant should not be liable for the alleged damage to the plaintiff's property unless and until it was in position to foresee damage of that type.

I consider that the defendant was not in that position until after it was brought to the attention of one of his employees by Mr. Diggins. I would also suggest that the defendant's responsibility at that stage was to take, in a reasonably timely way, those steps that are consistent with the proper care and maintenance of its own property and do not involve a fundamental or substantial change in use.

With respect to the prospective costs of such measures to be taken, I think it is necessary to take into account the circumstances of the plaintiff's property and the measures that may be available to be taken on that property and their comparative cost. It is appropriate to expect the adjacent owner to undertake some part of the cost of the measures, at least where it can be said that circumstances on its property contributed to the damage. This is consistent with the principle of contributory negligence on the part of an injured party.

With respect to the continuing incremental damage from the run-off which it is said still occurs from the defendant's property, some additional considerations should come into play. That damage should be clearly attributable in large measure to the defendant's conduct and should be materially greater than the damage that would be reasonably expected if the defendant's land were vacant or were used in a way that was known not to produce the injurious consequences complained of. [ 23 ] Even if, as suggested in Lynd , the natural user exception to the law of nuisance continues to be the law in Canada, and is

applicable on the facts of this case, there remains the possibility of liability in negligence if the Defendants failed to meet the modified standard of care contemplated in the Weall case. That, in my view, raises a triable issue in this case if causation is proven.

Summary and Conclusions [ 24 ] I conclude that the claims in this case fall within the jurisdiction of this Court and that they do not fall within any of the categories of claims described in Rule 7(14)(

i) of the Rules. I also find that there is a cause of action disclosed by the claims in either nuisance or negligence. [ 25 ] As a result, subject to the following, I find that the claims should be set for trial where evidence will be heard and tested by cross-examination. [ 26 ] There is a concern that the Claimants, despite having been ordered to do so within specified time periods, have failed to obtain an expert report concerning the cause of the flooding on their properties.

Had they obtained such a report, the application by the Claimants may have been unnecessary. [ 27 ] To address that concern, there will be an order that the Claimants are to obtain an expert report concerning causation of the seasonal flooding of their properties within 90 days of the date of this Judgment, and provide a copy of that report along with a

summary of the qualifications of the author of the report to the Defendants within that time. [ 28 ] As a result of the Claimants’ failure to obtain and provide an expert report in a timely fashion, the Defendants were put to the time and expense of bringing this application.

The Claimants are to pay to the Defendants $500.00 as compensation within 60 days of the date of this order. [ 29 ] Should the Claimants fail to provide the expert report or pay the compensation within the time periods specified, their claims will be dismissed. [ 30 ] The Claimants seek an order that various third parties be made defendants in this action. In my view the appropriate procedure would be for them to apply to add those persons as third parties rather than the Court adding them as defendants.

The Claimants will have thirty days from the date of this Judgment to add third parties to this action. _____________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia