Terry Kelln - v. -, 2013 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 163 Date: December 4 , 2013 Small Claim #: 15/2013 Location: Swift Current, SK _____________________________________________________________________________ Between: Terry Kelln - and - City of Swift Current Ms. Terry Kelln For the Plaintiff Mr. Murray Walter, Q.C. For the Defendant JUDGMENT L.A. MATSALLA , J [ 1 ] Ms. Kelln has made a claim against the City of Swift Current for water damage to the basement of her house. The Position of the Plaintiff

[ 2 ] The plaintiff has lived at 390 Alder Place for about seven years. The house is a split-level home. It so happens that the lane behind her residence was paved by the City between June and July of 2010. Upon returning from work on March 30, 2011, she noticed that the rug in the lower level (or basement) of her home was wet. The next day she noticed more water in the same area. [ 3 ] She promptly called a business to assist her to remove the water and she unsuccessfully tried to reach persons at the city office that same evening.

It appears that about 50 gallons of water was removed from the basement and that double that amount was removed from the adjacent patio area outside the residence. Photographs filed by her show a relatively dry back lane except for some water that had accumulated in areas of the lane adjacent to her fence. There was an asphalt ridge that had been constructed along the edge of the paved lane for the entire length of her fence line, however the curb was interrupted at a point where her back gate opened into the lane.

The photos also show a considerable snow build up along the inside of her fence covering about one-half of her back yard. As it happens, her back yard slopes to her house. Three cement steps lead down to her patio where it is evident that some considerable amount of water had accumulated. It is her contention that, due to the absence of a curb below her back gate, water from the back lane flowed onto her property then down the slope of her back yard and down the steps to her patio such that it eventually found its way into the south side of her basement.

She responded by placing sandbags along the bottom of her gate. On April 1, she spoke to persons at the City about the problem and, by the time that she had returned from work, the City had apparently placed a paved curb along the bottom of her back gate. [ 4 ] At some point (the date is uncertain) the City attended to the lane and proceeded to scrape the surface to, it appears, apply more asphalt to the surface. [ 5 ] On April 6, 2011, Ms.

Kelln instructed her lawyer to formally advise the City that she had suffered damages due to the absence of the curb, that she was in the process of obtaining estimates to repair the damage and that she would contact the City further. Over the next six months, the parties exchanged correspondence. At the request of the City she provided two damage estimates. By February 4, 2013, she advised the City by letter that she intended to take legal action. The statement of claim is dated March 21, 2013 and the summons was issued on March 22, 2013, with a return date of May 7.

Service was executed on April 11, 2013. [ 6 ] Considerable water damage was done to the south side of Ms. Kelln’s basement where a bedroom and bathroom were located. After drying out the basement, the lower half of the finished basement wall had to be repaired and cedar panelling was replaced. Flooring also was replaced. Unfortunately, to make matters worse, she discovered that she had asbestos insulation in her basement and so there was additional cost to determine the extent of asbestos, to remove it, to contain it and then to replace the insulation. Finally drywall was applied to finish the wall.

To the date of trial Ms. Kelln had spent $12,972.10 on repairs and she has yet to complete the flooring and the installation of the baseboards and trim which, she estimates, will cost an additional $1,000.00 - $1,500.00. [ 7 ] Ms. Kelln holds the defendant responsible for the cost of the repair work that she had to have completed because, she says, it negligently constructed the curb along the paved back lane. The City takes the position that the damage was caused by water accumulating from the melting of snow in her yard. In any event,

section 308 of The Cities Act , S.S. 2002, c.-C-11.1 (the Act ) absolves the City from liability and, furthermore, section 307(1) of the Act requires that the plaintiff bring an action within one year from the time that the damages were sustained. The Law [ 8 ] The relevant sections of the Act read as follows: 307(1) Notwithstanding The Limitations Act , no action is to be brought against a city for the recovery of damages after the expiration of one year from the time when the damages were sustained, and no action is to be continued unless service of the statement of claim is made within that one-year period. and, 308 A city is not liable for damage caused: (

a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device or barrier; or

(

b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or on a street that is not on the travelled portion of the street. Analysis [ 9 ] It has been decided that it is permissible for a local authority such as a municipality to be absolved of liability where damage is caused by an object or the activity set out in

section 308 [1] . [ 10 ] No case has been brought to my attention that is particularly helpful in applying

section 308 . While the point was not argued before me, one might make the argument that a built-up asphalt ridge is not a curb in the normally accepted sense of the word such that

section 308 may not have application. It might be said that a “lane” comes within the definition of “street” in

section 2 (gg) of the Act which, by definition, is intended for or used by the general public for the passage of vehicles or pedestrians and, as such, it could be argued that the built-up ridge was a part of the travelled portion of the street. However, in light of the conclusion that I have reached in this case, further examination of

section 308 is not necessary. [ 11 ]

Section 307 of the Act provides a complete answer to the claim. The period set out in the Act commences when the damages were sustained. Popescul J. has said this: ... what matters is when the material facts on which the plaintiff’s claim is based were discovered or ought to have been discovered by the exercise of reasonable diligence. [2] In this case, the plaintiff became aware of the damages to her property on or about March 30, 2011. She promptly provided the City with notice of her claim but her action was not commenced until March 22, 2013 - almost two years after discovering the water damage, and service of the summons took place on April 11, 2013. [ 12 ]

Section 307 specifies a time limitation for the commencement of an action. As Hunter J.A. noted: 11 A statutory limitation period is generally interpreted to extinguish a remedy not a substantive legal right. In Presco Industrial Ltd. v. Saskatchewan Government Insurance Office, Culliton C.J.S. distinguished between those situations where a person must give notice of a claim as compared to instituting an action. He noted that the Court has power to grant relief from forfeiture with respect to giving notices of claim but not when a time limitation is imposed. In respect of time limitations he stated “...it does not bar any right - it only bars a remedy...” [3] Furthermore, the wording of the

section prevails over the two year limitation period set out in

section 5 of The Limitations Act , S.S. 2004, c.L-16.1 because the latter is specifically excluded by the section. [4] Conclusion [ 13 ]

Section 307 cannot be ignored. She cannot maintain her action against the City since the proceedings were commenced and service effected more than one year after the damages were incurred. While it is not necessary for me to deal with any further issues in this case, it is not clear from the evidence whether the water damage was caused entirely by the state of the pavement in the lane along the plaintiff’s fence or whether the damage was caused in whole or in part by the melting snow that was in the plaintiff’s back yard. In any event, I have concluded that the action must be dismissed. ____________________________ L.A. Matsalla, J

[1] Truong v. City of Saskatoon, 2001 SKQB 419 referring to Lewis v. British Columbia, (SCC), [1997] S.C.J. No. 109. [2] United Enterprises Ltd. v. North Battleford (City), 2007 SKQB 335 , [2007] S.J. No. 538; 301 Sask. R. 134; 2007 SKQB 335, at para. 13. [3] McPherson Engineering Inc. v. Regina (City), [2008] S.J. No. 692 at para. 11. [4] Schneider v. Humboldt (City), [2007] S.J. No. 54 at para. 7.