Kent v. Monika Grabatin, 2013 SKPC 130

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 130 Date: July 29, 2013 File: SC#274 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Kent and Monika Grabatin - and - Lawrence Harasym Kent and Monika Grabatin For the Plaintiffs Ms. Ashley Smith and Mr. Kenneth Howe For the Defendant _____________________________________________________________________________ JUDGMENT D.C.

SCOTT , J _____________________________________________________________________________ Introduction [ 1 ] The Grabatins and the Harasyms are neighbours in the Rural Municipality of Corman Park. The plaintiffs Kent Grabatin and Monika Grabatin claim that during the years 2010, 2011 and 2012, the defendant Lawrence Harasym pumped water; allowed water to leak from a hose; and diverted water so that it backed up onto their property thereby flooding it. They claim damages for lost income and the cost to restore the flooded portion of their land.

[2] The defendant asserts that any damage or loss sustained is the result of widespread flooding, the natural flow of water andthe plaintiffs’ failure to take active steps to re-route the water from their property or mitigate their loss. [3] At the close of the plaintiffs’ case in the trial of these proceedings, the defendant’s counsel brought a motion for non-suit. The Court’s decision in that application is reported at 2013 SKPC 26 , 2013 SKPC 026. The Court found that the plaintiffsfailed to make a prima facie case against the defendant Bunnie Harasym and their claim against her was dismissed in its entirety.

However, the Court found that the plaintiffs had made out a prima facie case against Lawrence Harasym. [4] The plaintiffs’ claim raises issues related to the Rylands v. Fletcher doctrine of strict liability; negligence; and nuisance. Background [5] Flooding was a widespread problem for the residents of the R.M. of Corman Park in the years 2010, 2011 and 2012. Duringthose years there was excessive snowfall or rainfall in their area.

This is confirmed by the testimony of the witnesses and exhibitsincluding photographs, newspaper articles, R.M. bulletins, provincial government contingency planning and other publications. [6] The plaintiffs own 200 acres of farmland, on which they grow alfalfa for hay to be used as feed for their cattle. Theirproperty is adjacent to that of the defendant—the defendant’s property is east of the plaintiffs, and they share a property line. [7] The plaintiffs allege that in 2010, the defendant pumped water from his property directly onto the plaintiffs’ property.

Theytestified that they heard the defendant pumping water for approximately three days and discovered a hose running from the defendant’sproperty onto their own. The plaintiffs stated they brought it to the attention of the defendant, who apologized. No further action wastaken with respect to the matter at the time. [8] In the spring of 2011, the defendant pumped water from his property into the ditch along road 380, which runs in front of theplaintiffs’ and the defendant’s property. The pump’s hose ran along the property line toward the ditch.

The plaintiffs observed waterspraying approximately14 feet into the air from the hose attached to the defendant’s pump. It appeared to the plaintiffs that the hose hadbeen damaged and taped, but continued to leak. According to the plaintiffs, the hose broke flooding their property. [9] As well in 2011, the plaintiffs claim that the defendant deliberately blocked culverts in road 380 with plywood, sandbags andconcrete blocks, although they did not see the defendant doing so.

They state that because the culverts were plugged, the water filled theditches and backed up onto their property, flooding it. [10] As indicated on a Google map of the area (ex. P2), four culverts cross road 380 in the vicinity of the parties’ property: culvert1 situated in front of the plaintiffs’ property; culvert 2 located close to the property line between the plaintiffs’ and defendant’s property;and culverts 3 and 4 positioned closer to the east boundary of the defendant’s property.

The plaintiffs allege they observed culverts 2and 4 blocked with plywood and sandbags and culvert 3 blocked with cement blocks. [11] In the fall of 2011, the defendant built a berm at the front of his property and a trench along the property line between hisproperty and that of the plaintiffs. In the spring of 2012, the defendant pumped water from his property to the trench, which drained intothe ditch.

According to the plaintiffs, the defendant pumped water for eight hours each day for eight days, using two pumps. [12] The plaintiffs believe the defendant did not have the necessary approvals to pump water from his property. In theClark’s Crossing Gazette dated February 17, 2011 (ex. P17), the R.M. of Corman Park published an

article advising residents withrespect to flood preparations in 2011. Residents were informed that written approval would be required from neighbours affected bypumping or diversion of water and from the Saskatchewan Watershed Authority (as it was known at the time). The publication alsoadvised of a provincial government assistance program available to residents toward flood-prevention measures in 2011.

[ 13 ] The plaintiffs allege that as a result of the defendant’s actions in pumping water and blocking the culverts, water backed up onto their property causing damage. Particularly affected were 20 acres at the southeast corner of their property. Land that was once productive was no longer capable of cultivation and alfalfa production. In turn, because they could not produce as much hay, they could not keep as many cattle, resulting in a loss of income. They also sustained costs related to the repair of the land to bring it back to a productive state.

They claim damages in the approximate amount of $14,000.00. [ 14 ] The plaintiffs acknowledged that they did not investigate nor make any claim for provincial disaster relief. Neither did they take advantage of the berm program offered by the R.M. They did not take steps to pump water from their property into their dugout or into the ditch, during these problem years. [ 15 ] Mr. Garry Boe, a resident of the R.M. of Corman Park, confirmed that there was widespread flooding and a lot of pumping of water throughout the R.M. at the time.

In 2011, he observed the defendant pumping water over top of two blocked culverts. He also confirmed that residents in the area had farmable land until the rainy years. [ 16 ] The defendant Lawrence Harasym flatly denies he directly pumped water onto the plaintiffs’ property in 2010 or apologized for doing so. It is noted that no photographic or other supporting evidence was presented with respect to this allegation. [ 17 ] The defendant testified that during the years 2010, 2011 and 2012, there was what he described as a state of emergency in the R.M. of Corman Park.

He said that people in the area panicked and cited many examples of residents who pumped water from their property into ditches and onto roadways in order to save their homes. [ 18 ] Mr. Harasym built a berm designed by an engineering firm in 2011, which assisted in damming the water and preventing further flooding of his property. Assistance was available from the province and other residents in the area also built berms, which according to Mr. Harasym made a positive difference. [ 19 ] The defendant testified he received verbal permission from the Reeve of the R.M. to pump, though no written approval.

The defendant used two pumps for moving water in 2011 and 2012. He used a small 1.5 horsepower pump, with a 300 foot garden hose attached to it, which he used to pump water from the land into their dugout. In 2011 he ran this pump for 10 to 12 days. In 2012, it ran for14 days. [ 20 ] He also used a 6.5 – 7.5 horsepower pump with a 1,000 foot corrugated hose attached, to pump from his property into the ditch. In 2011, he pumped for 2.5 hours in the morning and 2.5 hours in the evening for approximately14 days. In 2012, it ran for10 days. [ 21 ] Mr.

Harasym acknowledged that, as a result of what he believed to be a manufacturer’s defect, the hose on their pump came apart and he repaired it with tape as soon as it came to his attention. A fine mist was emitted from the hose. He denies placing it onto the plaintiffs’ property. [ 22 ] Mr. Harasym admits that in 2011 he blocked culvert 2 and partially blocked culvert 4, with cindercrete blocks for four days. He did so to contain and slow the flow of water. It was his opinion that if he did not block the culverts, his property and that of the plaintiffs would have been totally flooded.

He believed by blocking the culverts he was assisting the Grabatins as well as himself. [ 23 ] Mr. Harasym testified that he monitored the blocked culverts “constantly” and at no time did he observe water flow from the ditch onto the plaintiffs’ property. Rather, he observed the water in the ditch flow in an easterly direction, away from the plaintiffs’ property. He did not block culverts in 2012. [ 24 ] Mr. Ronald Elder resided near the plaintiffs and defendant for approximately eight years. He testified that in the spring of

2011 he pumped water for the defendant from his dugout east through a culvert to the road breach at the intersection. He did the same for other residents in the vicinity. According to Mr. Elder, the water level was high and dugouts were full. Many residents pumped to the ditch in order to drop the water table and take pressure off of home basements. Discussion [ 25 ] As mentioned, the evidence in these proceedings raises issues related to the Rylands v. Fletcher doctrine of strict liability; negligence; and nuisance. [ 26 ] According to the Rylands v. Fletcher doctrine, a strict liability will be imposed if two elements are present: (

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

b) an escape (Linden and Fledthusen, Canadian Tort Law (8 th ed.) at pp. 531-2). An escape of water from one property to another, arising out of a non-natural use of land, thereby causing damage, will attract liability. [ 27 ] To be found liable in negligence, a defendant must owe a duty of care to the plaintiff; his conduct must breach a standard of care; and must be the proximate cause of the loss sustained by the plaintiff.

Contributory negligence by the plaintiff may reduce any recovery ( Canadian Tort Law , supra , p. 109). [ 28 ] Nuisance is an unreasonable interference with the use and enjoyment of land which causes harm. It describes a type of harm suffered rather than a form of conduct undertaken. It is the causing of harm which is sufficient to attract liability (Fleming, The Law of Torts (9 th ed.) at 457; Pelletier v. Collins , [2012] S.J. No. 521 (Sask. Q.B.) ; Fridman, The Law of Torts in Canada (3 rd ed.) at 151). [ 29 ] Common to these causes of action is the element of causation of damage.

The Court accepts that during the years 2010, 2011 and 2012, the plaintiffs suffered damage to their property as the result of flooding.

Liability in this case hinges upon whether the evidence establishes on a balance of probabilities that the actions of the defendant caused the flooding which gave rise to the loss sustained by the plaintiffs. [ 30 ] Each of the parties called an expert witness with respect to the cause of the flooding on the plaintiffs’ property. [ 31 ] The plaintiffs called Chen-Ping Hwang, a professional civil engineer with expertise in waste water treatment systems, disposal systems and their operations. [ 32 ] Mr. Hwang drew the following conclusions: 1.

The culverts should not have been blocked as doing so would stop the water flowing in the ditch. Under normal conditions, the water in this area flows toward the South Saskatchewan River. 2. Due to blockage of the culverts at the defendant ’ s property, the water had no place to be discharged resulting in the flooding of the plaintiffs ’ property of approximately 20 acres in April 2011. 3. The defendant should not have pumped water from his property to the ditch, as it was illegal to do so without proper approvals and permits. 4. The conclusion of Mr.

Halliday [the defendant ’ s expert] with respect to the capacity of the pump required to move water from the defendant ’ s property was questionable. A 1.26 horsepower pump was all that was needed. 5. Assuming the defendant used a 7 horsepower pump for eight hours per day for eight days in June 2012; 2,880,458 litres of water backed up onto the plaintiffs ’ property.

6. Assuming a water depth of two inches, an area of approximately 14 acres of the plaintiffs ’ property would have been flooded. 7. The defendant ’ s act of pumping water to the ditch caused the excess quantity of water to back up onto the plaintiffs ’ land. [ 33 ] It was Mr. Hwang’s opinion that the blocking of the culverts adjacent to the defendant’s property redirected the normal flow of water in a north/south direction and stopped the flow through the ditch.

As such, he concluded that once the pumped water from the defendant’s property filled the ditch it would have had nowhere to flow other than onto the plaintiffs’ property. Mr. Hwang calculated that 14 acres located at the southeast corner of the plaintiffs’ property, would have been flooded in this way. [ 34 ] He prepared a report for the plaintiffs dated August 30, 2012 after considering the defendant’s expert report and information provided to him by Monika Grabatin. In particular, Ms. Grabatin informed Mr.

Hwang of the size and type of pump used by the defendant, the dimensions of the ditch along road 380, the placement of the culverts and their proximity to the plaintiffs’ property and the actual location on their property that was flooded. [ 35 ] Mr. Hwang did not personally observe the plaintiffs’ or the defendant’s property, prior to completing the report, though he did attend the property in December 2012, before testifying at the trial.

After attending the property, he concluded that the dimensions of the ditches provided to him by the plaintiff were “more or less accurate”. [ 36 ] Based upon the information Mr. Hwang was given with respect to the size and capacity of the pump and taking into account other factors including the natural direction in which water flows unobstructed, he calculated that 3,832,010 litres of water would have been pumped during an eight day period. He calculated that 951,552 litres would have been retained in the ditch and that the remaining water, 2,880,458 litres would have backed up onto the plaintiffs’ property.

Assuming a water depth of two inches, he calculated that approximately14 acres of the plaintiffs’ property would have been flooded in this way. [ 37 ] Mr. Hwang acknowledged that his report and diagram, which was not drawn to scale, identified the location of the flooding based upon what he had been told by the plaintiffs and not upon his independent conclusion as to where the flooding would have occurred. [ 38 ] He also acknowledged in cross-examination that when completing his report, he did not take into account if the ground was frozen at the time or whether an extreme flooding situation was occurring.

Neither did he consider any weather conditions. He made no measurements of the ditch himself. [ 39 ] The defendant’s expert was Mr. Robert Halliday, a professional civil engineer with expertise in water resources planning and management as well as hydrological effects of climate change. [ 40 ] Mr. Halliday prepared a report for the defendant in these proceedings. Prior to completing his report, he attended at the property of the plaintiffs and defendant. [ 41 ] Mr. Halliday gathered data with respect to precipitation levels at the parties’ properties.

He testified that in 2010 there was double the annual normal precipitation and the highest annual level since records have been kept. Normal precipitation levels were exceeded in every month from April to September as well as in November. Total precipitation in 2011 was slightly less than normal, except in June and July when rainfall was significantly higher than the norm. [ 42 ] Mr. Halliday concluded that 2010 was an extraordinarily wet year. The saturated soil conditions at the end of 2010 would have carried over to 2011 and would have been exacerbated by the above normal summer precipitation.

He stated it would have been no surprise to find water ponding naturally on agricultural lands in the years 2010 and 2011.

[ 43 ] According to Mr. Halliday, in the absence of roads and ditches, the general direction of surface water movement in the area is in a southeasterly direction toward the South Saskatchewan River. Culverts are installed to permit local drainage through road 380 and any other access roads. As such, water would flow east in the ditches along township road 380. The natural flow of water would be from the Grabatin property toward the Harasym property and road 380. The road ditches serve to slightly reduce the flood risk to both properties. [ 44 ] Mr.

Halliday considered whether the defendant’s pumping water and blocking culverts could have affected the plaintiffs’ land, specifically the southeast portion of the property. He calculated the area of the 20 southeast acres to be approximately 871,200 square feet. Without taking into account either inflow or outflow of water into the soil, it would require 871,200 cubic feet of water to raise the water level on the land in question by one foot.

Applying this amount of water over a 30-day period would require the pumping of 29,040 cubic feet each day, using a pump in excess of 100 imperial gallons per minute, which is a relatively large pump. [ 45 ] Mr. Halliday’s report indicates that even if the water were pumped directly onto the plaintiffs’ property, the quantity of water pumped would have been very small in comparison to natural surface water flows onto and away from the property.

It was his opinion that in the absence of direct pumping onto the plaintiffs’ property, it would be inconceivable that leakage from hose connections would have provided sufficient water to add to the natural flooding of the plaintiffs’ property. [ 46 ] Mr. Halliday reviewed photographs of the blocked culverts. It was his opinion that while the materials used may reduce the flow of water through the culverts it would be unlikely to completely block the flow. [ 47 ] Mr. Halliday testified that the plaintiffs’ property is a semi-permanent wetland. The southeast corner of the plaintiffs’ property was the lowest spot.

Accordingly, it could be expected that water would pool in that location. When he attended at the property in 2013, he observed water pooling in that particular location again. It was his opinion in an average year, the 20 acre southeast corner of the plaintiffs’ property was capable of being cultivated and farmed, but not in a wet year. [ 48 ] To summarise, Mr. Halliday drew the following conclusions: 1. Weather conditions in 2010 were the wettest on record and the situation continued in 2011. 2. Because of the weather conditions, natural flooding of agricultural lands in both years could be expected. 3.

The natural movement of water in the R.M. of Corman Park is from the plaintiffs ’ land toward the defendant ’ s land and from the rear of those properties to the front of road 380, toward the South Saskatchewan River. 4. The presence of the ditch along road 380 slightly reduces water pooling on both properties. 5. Partially blocked culverts in the access road would not curtail flows sufficiently to aggravate natural flooding. 6.

His calculation leads to the conclusion that the defendant could not have changed the quantity of water pooled on the plaintiffs ’ land enough to cause harm even if the pumping had been directly onto the land. [ 49 ] Evidence was also presented that in 2012, the Saskatchewan Watershed Authority conducted an investigation into a complaint by Ms. Grabatin, alleging that a trench constructed on the defendant’s property and pumping from his property caused flooding on the plaintiffs’ property. In a letter dated August 27, 2012 (ex. D11) to the defendant in response to the complaint, Mr.

Al Keller of the Watershed Authority stated: You were pumping water from your yard over the berm and into the Rural Municipality of Corman Park ’ s road ditch. At the time of inspection water levels in the road ditch west of your property and in the low area of Grabatin ’ s field all appeared to be the same level. The low area in Grabatin ’ s field is a slough that receives natural runoff from the north and west.

The Authority was unable to determine whether water levels at the time of inspection were a result of pumping or a result of the precipitation event that just occurred. [ 50 ] The Grabatins disagreed with the assessment that their property was a slough. They had successfully farmed their land, including the 20 acres located in the southeast corner, for many years. [ 51 ] The plaintiffs have the burden of proving their claim on a balance of probabilities.

The evidence must establish that it is more likely than not the defendant’s actions in pumping water, using leaking hoses and blocking the culverts, caused the pooling of water on the 20 acres southeast corner and other areas on their property to such an extent that it caused damage resulting in losses to them. Of

particular importance is the evidence of the experts. [ 52 ] With respect to their qualifications, there is no basis upon which to prefer one expert over the other. However, Mr. Halliday was able to observe the parties’ property before making his report, whereas Mr. Hwang was not. Mr. Hwang’s assumptions were based upon the information given to him by Ms. Grabatin. He was unable to visually assess the flow of water in relation to the actual location of the culverts, the ditches and plaintiffs’ property. He was unable to confirm the ditch dimensions which were crucial to his calculations.

And, his conclusion with respect to the location of the pooling on the plaintiffs’ property was based upon what was told to him by the plaintiffs. [ 53 ] Both Mr. Hwang and Mr. Halliday agreed with respect to the general direction of natural water flow under ordinary conditions. They differ with respect to their conclusions regarding the flow of water created by pumping and the blocking of culverts. Mr. Hwang concluded the water backed up from full ditches onto the plaintiffs’ property, essentially flowing from east to west; Mr.

Halliday concluded the water would have continued to flow in a southeasterly direction, from the plaintiffs’ property toward the defendant’s property and the river. [ 54 ] The experts’ calculations differ with respect to the volume of water that would have been pumped from the defendant’s property. Mr. Hwang concluded the volume was sufficient to flood 14 acres of the plaintiffs’ property. Mr. Halliday concluded that in order to flood the 20 acres at the southeast corner, as alleged, a pump much larger than that used by the defendant would have been necessary. [ 55 ] I accept Mr.

Halliday’s conclusion that the pooling at the southeast corner was because it is a particularly low-lying point of the plaintiffs’ property. The Watershed Authority’s opinion that this area on the plaintiffs’ property is a slough confirms Mr. Halliday’s conclusion. The Grabatins disagree because they had successfully farmed that portion of their land for many years. However, Mr. Halliday explained that in an average year the land could be cultivated and productive, but the years in question were not average. Mr.

Boe, who had resided in the area for many years, confirmed that a number of residents in the area had farmable land until the rainy years. [ 56 ] It is evident that during the years 2010, 2011 and 2012, the R.M. of Corman Park experienced particularly high rainfall and snowfall levels. According to Mr. Halliday, because of the weather conditions, natural flooding of agricultural lands in both years could be expected.

It was his opinion that any pooling on the plaintiffs ’ land would not have been sufficient to cause harm, even had the defendant pumped water directly onto the plaintiffs ’ property. [ 57 ] I note the plaintiffs took few steps to mitigate their loss. They did not take advantage of provincial assistance to build a berm. Neither did they do any pumping into their dugout or the ditch. [ 58 ] The events giving rise to the plaintiffs’ claim are most unfortunate.

While I am sympathetic, based upon the totality of the evidence, I am unable to conclude that it is more likely than not the actions of the defendant caused the flooding on the plaintiffs’ property. There is a preponderance of evidence from which to conclude that most residents in the R.M. of Corman Park, including the plaintiffs and the defendant, were faced with extraordinary and disastrous circumstances due to excessive precipitation during the years in question.

While in average years the plaintiffs were able to successfully farm their land, in times of extreme flooding, the low-lying areas on their land were particularly affected. I conclude it is more likely that the damage the plaintiffs sustained to their property was caused by excessive precipitation, saturation of ground water, and the natural flow by the water. Conclusion [ 59 ] I find the plaintiffs Kent Grabatin and Monika Grabatin have failed to establish their claim on a balance of probabilities. Therefore, their claim against the defendant Lawrence Harasym is dismissed.

In all of the circumstances, including the divided success on the non-suit application and that the plaintiffs were unrepresented by counsel, there will be no order with respect to costs.

_______________________ D.C. Scott, J