William Lemisko v. Lynn Lemisko, 2016 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 107 Date: August 19, 2016 File: SC#270 of 2013 Location: Saskatoon _____________________________________________________________________________ Between: William Lemisko and Lynn Lemisko - and - Saskatchewan Watershed Authority/Water Security Agency Self-represented For the Plaintiffs Robert G. Kennedy, Q.C. For the Defendant _____________________________________________________________________________ JUDGMENT R. D.

JACKSON , J _____________________________________________________________________________ I INTRODUCTION [ 1 ] At all times material to this action, the Plaintiffs owned and operated a commercial mixed vegetable and fruit farming business located on the banks of the South Saskatchewan River approximately five miles up river from the City of Saskatoon.

[ 2 ] In the latter part of June 2011 the Plaintiffs’ entire 35 acre operation was submerged when the South Saskatchewan River overflowed its banks. The damages sustained were economically catastrophic to the Plaintiffs, virtually destroying all of the vegetable crops, the majority of trees and fruit orchards, as well as several pieces of farming equipment, including two tractors. Estimates of current and future loss provided at trial totalled far in excess of this court’s statutory limit of $30,000.00. For the purpose of this action, the Plaintiffs have reduced their claim to the statutory maximum.

The Defendant conceded that the Plaintiffs’ damages exceeded this amount. [ 3 ] The Plaintiffs assert the legal cause of their economic loss was the direct result of overwhelming and irresponsible water release from the Gardiner Dam arising from the mismanagement and negligent operating policies established and implemented by the Defendant, Saskatchewan Watershed Authority (SWA).

In particular, the Plaintiffs point to the lack of planning and foresight as well as the failure to modify operating procedures to better attenuate potential extreme inflows to the dam reservoir since they had the prior knowledge and experience of similar flooding incidents as recent as 2005.

Such failure to do so, they maintain, constitutes negligence and bad faith for which they stand liable for the resulting harm caused to those downstream. [ 4 ] The Defendant, SWA, counters that it operated the Gardiner Dam in a safe and reasonable manner according to existing policy and that all such decisions were made in good faith having regard to the highly extreme weather events and confluence of existing circumstances preceding the flooding event. [ 5 ] SWA contends also that the Plaintiffs are statute barred in their claim under The Limitations Act of Saskatchewan [1] .

Further, they rely upon the tenets of negligence at common law as well as s. 95 of The Saskatchewan Watershed Authority Act [2] whereby statutory immunity is granted to Crown agents acting in the scope of duty in good faith. [ 6 ] In the result, SWA maintains that the evidence presented by the Plaintiffs does not reach the level of establishing even a prima facie case and should be dismissed by way of non-suit. Alternatively, the Plaintiffs have failed to prove their case on a balance of probabilities. [ 7 ] The Plaintiffs called Mr.

Lemisko as well as John Fahlman, Acting Executive Director of Engineering and Geoscience for WSA, and Dr. John Pomeroy, Canada Research Chair in Water Resources and Climate Change and Professor of Geography at the University of Saskatchewan. Dr. Pomeroy was also the principal author of Exhibit P-9, Review of Lake Diefenbaker Operations 2010 - 2011. The Defence called one witness, Martin Grajczyk, Professional Engineer, employed by SWA currently Senior Hydrologist Basin Operations Branch.

II THE GARDINER DAM [ 8 ] The Gardiner Dam was started in 1959 and completed in 1967 as a joint project of the federal and provincial government named after the then current premier of Saskatchewan, James Gardiner. It is situated approximately 25 kilometers north of the Village of Elbow and roughly 133 kilometers upstream of the City of Saskatoon. The purpose of its construction was to create a multi-use water storage facility, the primary mandate of which was for irrigation and water supply as well as hydro electric power generation.

Other secondary benefits included flood protection, recreational use on the reservoir and creation of shoreline wildlife habitat. [ 9 ] The resulting reservoir created by the Gardiner Dam was named Lake Diefenbaker after John Diefenbaker, the participating Federal Prime Minister, and consisted of a large body of water roughly 225 kilometres (140 mi) long with approximately 800 kilometres (500 mi) of shoreline. It has a maximum depth of 66 metres (217 ft).

The scope and enormity of the reservoir volume can be gauged by the sobering fact gleaned from expert testimony that catastrophic failure of the dam would result in flooding to the City of Saskatoon to the extent of the second or third floor of the Bessborough Hotel [3] situate on the banks of the downtown river district.

[ 10 ] The dam itself by any measure was an engineering marvel hailed as the largest earthen dam in the world by volume to that date. Five hydroelectric turbine channel tunnels were built for commercial electricity generation and 11 spillways for water release as and when required above normal outflow capacity of the hydroelectric turbines.

The dam rises 64 metres (209 feet) in height, and has a width of 1.5 km (0.93 mi) at its base. [ 11 ] Operation and management of the dam was initially undertaken by both the federal and provincial government and later ceded to the province in 1997 under the auspices of The Saskatchewan Watershed Authority Act and attendant regulations. III OPERATING POLICY [ 12 ] The volume of reservoir water is measured in meters above sea level. When the lake reaches 556.87 meters, it is considered to be at Full Supply Level (FSL).

The target to achieve FSL is July 1 as to best accommodate and balance expected draw down of reservoir water throughout the year.

As expected, water usage starting in fall and throughout the winter causes storage decline through to early spring when infilling begins to increase, peaking in late spring and early summer. [ 13 ] To achieve operating objectives, SWA relies upon historical and current data together with computerized forecasting models to best anticipate and monitor inflow and outflow from the dam. [ 14 ] The trial evidence detailed an ongoing balancing to best serve all of the competing interests emphasizing the primary goal of limiting risk to water supply in order to maximize economic benefits to the province.

In this regard, according to Plaintiffs’ witness, John Fahlman, flood control has never been ranked on an equal level with water retention and supply. This assessment was subsequently concurred by both Dr. John Pomeroy and Defence witness, Martin Grajczyk. [ 15 ] Mr. Fahlman on this point testified: Q So you don’t rank flood control at the same level as water supply? A Not with my experience, no. And further: Q If I was to put it to you this way, and the problem is one between operations in hindsight and operations in foresight?

If you are operating in hindsight, and you knew - had perfect knowledge of what had taken place, you could operate the dam such that you could basically solve the flooding problem and have it at FSL. A Yes. Q But if you’re not operating with perfect knowledge, and if you draw down the dam too far and you don’t get the flooding event - A Yes.

Q - then it won’t refill. A Yes. Q You’ve protected the flooding but you don’t have the water supply security that you want. A Yes. Q And if you put a priority of water supply and security, then the bias, if I can call it that, is to operate it as close to FSL as possible. A Yes. Q But even at FSL there is - depending upon the discharges that you use, there is some flood control that is available. A Yes. [4] [ 16 ] Martin Grajczyk’s evidence reflected as follows: Q And so during that time of year, there is no expressed intent to be at FSL; is that correct?

A The reservoir is operated to optimize the benefits to the province. If there was inflow in April and May sufficient to fill it, we would operate - we would ensure that we are going to be full at the end of that event or that - we would ensure that we would fill that year assuming our best projections of inflows going forward. Q So by drawing down the reservoir during the winter and leaving room for the April to June inflows you would then be fulfilling your secondary function of providing flood control by having space in the dam; is that correct? A I wouldn’t word it that way.

We draw down the reservoir to use the water and to make room for what we project is coming in the following year. And doing so provides flood control, but we don’t do it for flood protection. We do it to optimize the benefits to the province by using the water and providing flood control in the filling period. [5] [ 17 ] Accordingly, the goal of filling the reservoir is paramount to maximize economic benefit and to ensure adequate water supply throughout the year bearing in mind the stated objectives of the dam operation.

By contrast, where dams are constructed mainly to attenuate downstream flooding, reservoir levels would be kept to a minimum to capture and store large inflows regulating water release thereby preventing or minimizing flooding. IV THE FLOOD [ 18 ] Each year, Lake Diefenbaker is replenished principally by two means, the prairie melt or runoff and the inflow of waters from the Old Man and Bow Rivers in Alberta. The ratio between the two are roughly 20% prairie melt and 80% river inflow on average year to year.

Each is influenced by existing conditions when runoff occurs as well as subsequent rainfall events, both local and in the

headwater areas of the contributing rivers. In the latter case, there is an approximate seven day lag between a heavy rainfall event and arrival of the ensuing upsurge into Lake Diefenbaker. The overall window where reservoir inflow peaks is early to late spring and thereafter significantly declines through the summer, fall and winter months [6] . [ 19 ] By the end of April 2011, the reservoir level stood approximately two meters higher than normal. Several factors contributed to this starting in summer 2010 which saw heavier than usual precipitation.

Then in the fall discharges were reduced to accommodate construction of the South Saskatchewan bridge in Saskatoon and the companion Coffer Dam. Thereafter, one of the turbines at the Gardiner Dam was disabled for maintenance and then unexpectedly, a second turbine went down in January for a brief period reducing outflow discharge to one turbine only. Further, higher than normal prairie run-off was experienced in March and April due to heavy snow pack. [ 20 ] By early May, SWA recognized potential overfill concerns requiring proactive measures relating to reservoir discharge.

Exhibit P-8 [7] reflects five different options contemplated attempting to best guess expected inflow prior to July 1 balanced against projected economic impact of each: For Comparison Only - all values contain large errors and are based on numerous assumptions Option / Water Management Goal (Scenario) June Flood Protection July Target Elev., Flood Protection *Economic Implications if only expected inflows occur (“current best estimate inflow”) June 1 Target Event needed for spill ​1200 cms July 1 Target SaskPower SWA 1 WS+Forecasted Peak 555.7 F10 FSL nil nil 2 WS+Some June FP 555.0 F15 FSL $300K-$400K $30K 3 WS+Enhanced June FP 554.6 F20 FSL $500K $40K 4 (3) + some July FP 556.0 $4M $300K 5 Significant June FP 553.0 F50 N / A $8.2M $1M Note: * Should June flows not materialize as expected, there will be significant additional generation lost potential in all Scenario. [ 21 ] SWA ultimately chose Option #2 whereby the target would see the reservoir drawn down to 555.0 meters by June 1.

This objective would require a greater than 1 in 15 year flood event to exceed discharge of 1,200 cubic meters/second which was the threshold SWA believed for downstream flooding. As noted, the lower the reservoir is depleted, the greater potential economic impact to SaskPower and SWA if expected June inflow were to occur. If less than expected, then these projected losses would increase accordingly. [ 22 ] Three significant rainfall events then occurred at the end of May through June in the Alberta mountain headwaters which created resultant upsurge of infill to the reservoir. According to Mr.

Fahlman (reflected in Exhibit D-3 [8] ) the inflow peak on June 2 reached 2,200 cubic meters/second and then later in June, 1,700 cubic meters/second, none of which was anticipated. These inflows by mid-June as noted in Exhibit P-9 occurred when the reservoir was approaching FSL necessitating increased discharge which approximated 1,350 - 1,400 cubic meters/second.

[ 23 ] The Plaintiffs’ evidence was that the rising waters on their property commenced June 15 and by June 18, virtually all of their land was under water. The water continued to rise until July 9 when some draining was observed.

Pumping then took place between July 15 and the end of the month when all of the water was finally drained off. [ 24 ] Wide spread stakeholder concerns following the flooding events led the Saskatchewan Government to commission a comprehensive operation and policy review by the University of Saskatchewan Centre for Hydrology entitled Review of Lake Diefenbaker operations 2010-11 ( infra ). V DETERMINATION Application for Non-suit [ 25 ] At the conclusion of the Plaintiffs’ evidence, the Defendant brought application for non-suit based upon the following:

a) the claim was commenced outside the two year limitation period set out in s. 5 of The Limitations Act , c. L-16.1;

b) decisions made by the SWA regarding water management in relation to the Gardiner Dam were based upon principles of public policy which does not give rise, at law, to duty of care in favour of the Plaintiffs;

c) by virtue of s. 95 of The Water Security Agency Act , the WSA, servants or agents, are protected from liability to third parties by its actions unless such actions were performed in bad faith. [ 26 ] At its base, the non-suit is a motion to have the Court assess the Plaintiffs’ evidence in the most favourable light possible and determine that even at its highest, the evidence does not support a prima facie case against the Defendant.

Having so concluded, the Court is then obliged to dismiss the case without the necessity of the Defendant having to respond. [9] [ 27 ] Although this court has no formal rules of procedure, there is nonetheless precedent to make such a determination of non-suit based on similar principles of Queen’s Bench Rule 7-5 (formerly 278A). In Grabatin v Harasym [10] , Scott J discerned at para 5: [5] The Court of Queen ’ s Bench Rule 278A entitles a defendant to move for dismissal of a plaintiff ’ s claim without calling evidence. There is no similar provision in The Small Claims Act, 1997 c.

S-50.11, which sets out the procedure governing civil proceedings in this Court. Nonetheless, I am satisfied that this Court has the authority to hear and determine a motion for non-suit (see Pollock v. Remenda , [1989] S.J. No. 131 (Q.B.) ; Manz v. Loewen , [1999] S.J. No. 141 (Q.B.) ). [ 28 ] In the instant case however, the Court is of the view that it would be inappropriate to entertain the application for several reasons. [ 29 ] First and foremost, the Defendants’ initial ground is based upon The Limitations Act as a pre-emptive means of disposing of the action.

In SGI v Williams [11] however our Court of Appeal ruled that the Provincial Court should not have heard such application at the outset, but rather only after all of the trial evidence had been tendered in order to prevent bifurcation of proceedings where live issues remain to be determined. Accordingly, looking at the second ground for non-suit advanced by the Plaintiff, determinations of negligence and bad faith constitute live issues to be adjudicated upon so the limitation issue must be heard at the conclusion of all of the evidence, according to Williams .

[ 30 ] As far as the second ground of the non-suit application is concerned, a broader view (more fully canvassed infra commencing at para 57) is not to simply categorize the allegation of negligence on policy considerations alone. Rather, operational conduct of the dam by the Defendant is also raised to found liability. [ 31 ] In relation to the third argument involving the s. 95 immunity defence, Elson J in Deren v SaskPower [12] on almost identical facts involving Sask Water Authority and dam flooding, did apply s. 95 in granting

summary judgment dismissing the action. But for Williams , the Court may have been more disposed to apply this case to the non-suit application. [ 32 ] Other factors are at play however, specific to Provincial Court, which could impact granting of such relief generally. Principally, our Court has no pre-trial under oath discovery process enjoyed by the Court of Queen’s Bench. As such, the Plaintiffs would have no ability to explore the evidence and obtain binding admissions and document/information production to possibly support their claim - in this case, allegations of bad faith.

Further, the Court must be cognizant not to unduly restrict or thwart access to justice principles particularly where, as here, the litigants are self-represented. In some cases, more latitude may have to be given in exercising judicial discretion when deciding such applications. [13] [ 33 ] At the Defendant’s request, the application was deferred to the close of the case. For all intents and purposes, however, this simply now merges the merits of this argument into the determination on the whole of the evidence based upon the standard of proof on a balance of probabilities.

Limitation Period [ 34 ] Before assessing the merits of the claim and defences raised, the Court must first decide whether the Plaintiffs are statute- barred by failing to file their claim within the proper time. [ 35 ] The time frame to initiate an action from the date that the loss or damage discovered is two years, as legislated by The Limitations Act , articulated in ss. 5 and 6: Limitation Periods Basic limitation period 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered.

Discovery of claim 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim;

(

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission onwhich the claim is based took place, unless the contrary is proved. [36] According to the Plaintiffs’ viva voce and photographic evidence, their land was fully submerged by June 17 and very shortlythereafter, that near total crop and plant loss had occurred. Notations in Mr. Lemisko’s personal diary included “. . .

June 22 - all lilacskilled”, June 28 “all crops are now gone”, July 4 “caraganas dead, so are lilacs, raspberries and asparagus, rhubarb, strawberries”, July15 “consulted with lawyer”. [37] Section 6(1) of The Limitations Act is clear in that discovery of the loss occurs the “. . . first day when the claimant . . . knewor ought to have known . . . (

a) that the injury, loss or damage had occurred and (b). . . caused by or contributed to by

an act that is thesubject of this claim.” [38] Based upon the Plaintiffs’ own evidence, the first day that the loss or injury would have been ascertained would be June 28when it was observed that “all crops are now gone”.

Even if one were to take a generous approach and extend this to July 15, 2011when the Plaintiffs sought legal advice, the claim was not commenced until August 8, 2013, clearly past the two year deadline. [39] The Plaintiffs maintain the damage to various trees could not be ascertained until early September which would therebyextend the time to file the claim to bring it within the two year window.

Section 6(1) is clear however in that it is the first day when theinjury, loss or damage occurred - not when the full extent of the loss is known. [40] The Saskatchewan Court of Queen’s Bench discussed this issue in Condominium Plan No. 81R14133 & 81R14134 vMuxlow Development Corp., 2008 SKQB 462 at paras. 36-37: 36 The delay in commencing the limitation period in order to determine the full extent of damage suffered is not required by law. TheSupreme Court of Canada states in Peixeiro v.

Haberman, (SCC), [1997] 3 S.C.R. 549 (S.C.C.) at para. 18 thefollowing: 18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not does not delay time under alimitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action toaccrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & SonsLtd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), (ON CA), 57 O.R. (2d) 129 (C.A.)), thecause of action has accrued.

Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject toomuch uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the generallimitation period. 37 The Supreme Court also discusses the principles underlying limitation statutes and their applicability. At para. 34 the court says: 34 Short limitation periods indicate that the legislature put a premium on their function as a statute of repose.

This is one of the threerationales which serve society and the courts' continued interest in maintaining the respect of these statutes. Whatever interest adefendant may have in the universal application of a limitation period must be balanced against the concerns of fairness to the plaintiffwho was unaware that his injuries met the conditions precedent to commencing an action: Murphy v. Welsh, supra; M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6. All the rationales were set out in M.(K.) v.

M.(H.), where this Court considered the LimitationsAct, R.S.O. 1980, c. 240 (now R.S.O. 1990, c.L.15) in order to determine the time of accrual of the cause of action in a manner consistentwith its purposes (at pp. 29-30): There are three, and they may be described as the certainty, evidentiary, and diligence rationales ...

Statutes of limitation have long been said to be statutes of repose ... The reasoning is straightforward enough. There comes a time, it issaid, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations... The second rationale is evidentiary and concerns the desire to foreclose claims based upon stale evidence. Once the limitation period haslapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim ...

Finally, plaintiffs are expected to act diligently and not "sleep on their rights", statutes of limitation are an incentive for plaintiffs to bringsuit in a timely fashion. [41] Further, Wiegers J of our Court in the recent decision of Wade Lohse and The Rural Municipality of Lake Alma No. 8 stated: [17] The limitation period was not necessarily triggered on the date the culvert was installed.

At common law, limitation periodscommence on the date when the plaintiff either discovered the cause of action or ought to have discovered the cause of action throughthe exercise of due diligence.[10] The “discoverability principle”, as it is known, is read into statutory limitation periods unless thestatutory language clearly displaces the application of the principle. [11] I note that in this jurisdiction, limitation periods that refer to thedate when “ the damages were sustained” have been found to be subject to the discoverability rule.[12] Where, as here, an action isbrought on a date after the expiration of the statutory limitation period and the defendant raises the limitation period as a defence, thenthe plaintiff bears the burden of proving when the cause of action was discoverable, that the limitation period should be extended toreflect the date of discovery, and that his or her claim falls within the adjusted limitation period.[13] [10] Nielson v Kamloops (City), (SCC), [1984] 2 SCR 2; Central Trust Co. v Rafuse, (SCC), [1986] 2SCR 147. [11] Peixero v Haberman, (SCC), [1997] 3 SCR 549, para 38; Ryan v Moore, 2005 SCC 38 , paras 21-27, 2SCR 53; Gamey v Langenburg (Town), 2010 SKCA 11 , SJ No 25 [Gamey]; Lecaine v Canada (Indian and Northern AffairsRegistrar), 2015 SKCA 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 QB), [1995] 5 WWR 14 (Sask QB). [13] Gamey, at note 11 above, paras 28, 34. [14] [42] The result is that the Court must conclude that the Plaintiffs failed to bring their claim in time thereby triggering s. 19 of TheLimitations Act: Proceedings commenced after expiry 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before thecommencement of the proceeding, the claim is barred and the proceeding shall not be maintained. [43] Should the Court be in error in this regard, the remainder of the issues raised shall be addressed.

Section 95 Immunity defence [ 44 ] The WSA operates as a Crown corporation and is governed by The Water Security Agency Act .

Section 95 of this Act reads: Immunity 95 No action or proceeding lies or shall be commenced against the Crown, the minister, the corporation, any member of the corporation, any officer or employee of the corporation or any person authorized by the corporation, if that person is acting pursuant to the authority of this Act or the regulations, for anything in good faith done, attempted to be done or omitted to be done by that person or by any of those persons pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [ 45 ] In assessing whether this

section applied to SWA, Elson J in Deren , supra, stated at para 150 : [150] In my view, there is little doubt that s. 95 applies to the actions of the SWA, as described herein. Its management and operation of the control structures in the Souris River basin falls squarely within its mandate, as well as the powers needed to serve that mandate, all as described in ss. 5 and 6 of the Watershed Authority Act .

The same rationale would apply to this case. [ 46 ] Further, how s. 95 is to be interpreted in the context of bad faith, the following is stated at paras 156 and 157 of the judgment: [156] It is reasonably clear that, if this action were to proceed to a trial, the Plaintiffs would be obliged to meet three requirements in order to succeed, broadly speaking. First, they must prove that one or more of the tortious acts or omissions alleged against the Defendants actually occurred. Second, they must prove that the Defendant’s tortious conduct caused the flooding and the resulting damage.

Thirdly, they must prove that the tortious conduct occurred in circumstances amounting to an absence of good faith, or the presence of bad faith. The third requirement is an overarching one - without which the entire action must fail, irrespective of how persuasive the evidence may be on the first two requirements. [157] This application is squarely directed to the third requirement . . . Speaking more directly to the absence of good faith . . . the burden of proving the Defendants’ tortious conduct arose from one or more of the following circumstances:

a) an intention to do harm;

b) a lack of a bona fide belief in facts that, if true, would stand as justification for the Defendants’ behaviour;

c) dishonesty of intention;

d) knowledge of circumstances which ought to put the Defendant with that knowledge on inquiry;

e) behaviour that is so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that it was demonstrated in good faith.

[ 47 ] The Court must then examine the impugned actions of the Defendant in the present case to determine whether this cloak of legislative immunity based upon the principles of good faith should not apply. Conversely, whether or not the Defendant acted in bad faith in its decision-making and implementation process preceding the flooding event. [ 48 ] Statute based good faith immunity defences are not uncommon, particularly relating to civic employees such as police officers, paramedics, firefighters, court officers and municipal workers to name a few [15] .

The intention in all cases is to provide legal protection to such agencies and its servants when carrying out duties in an honest fashion within the scope of their employment duties.

This is the essence of the concept of good faith, defined by Black’s Legal Dictionary (7 th ed) [16] as follows: A state of mind consisting in (1) honesty and belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. [ 49 ] Our Court of Appeal in Lang v Burch and Carlson [17] endorsed that lack of good faith would be “ . . . of such a nature that is wholly wide of any statutory or public duty i.e. wholly unauthorized . . .”.

In Enterprises Sibeca Inc. v Frelighsburg [18] the Supreme Court opined “. . . the concept of bad faith can encompass not only acts committed deliberately with intent to harm . . . but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith . . .”. [ 50 ] Closer to the within case, Baynton J considered the scope of a similar good faith immunity clause in Nelson v Saskatchewan Water Authority concluding “. . . that s. 74 prevents a claim against Sask Water for negligence provided it acted in good faith.

By ‘good faith’ I mean that it had a bona fide belief in facts, which if true, would make its conduct (or omission) lawful in the sense that it would be reasonable and thereby not negligent.” [ 51 ] The Plaintiffs argue that the actions of the Defendant, though not deliberate, were nonetheless so markedly inconsistent with the legislative intent to thereby constitute bad faith. These actions relate primarily to the decision making process surrounding the initial release of reservoir water in early May.

By not releasing enough water, the Defendant was creating an inadequate reservoir capacity given that the reservoir levels were already abnormally high and the majority of spring inflow was yet to come. [ 52 ] Dr. Pomeroy, on behalf of the Plaintiffs, was indeed critical of SWA as reflected at p 86 of Exhibit P-9 “ . . . SWA operated under a very unclear and ad hoc operating regime.” And that “. . . risk assessment was hampered by overconfident forecasting ability” as stated at p 92 of Exhibit P-9. [ 53 ] In cross-examination Dr.

Pomeroy conceded “. . . the difficulty of trying to operate a reservoir of limited capacity for water supply, hydroelectricity production and flood protection” and agreed with the proposition that “in hindsight operating dams is easy - the problem is operating dams in foresight.” [ 54 ] As far as responding to the potential problems looming due to unusually high reservoir levels in early May 2011, Exhibit P-8 ( supra at para 20) demonstrates that multiple proactive scenarios were considered by SWA having due regard to the various stakeholder interests.

The option ultimately chosen would have required a 1 in 15 year flood event for SWA to discharge above 1,200 cubic meters/second which was considered the downstream flood threshold. This option also provided increased flood attenuation for users

downstream to the economic detriment of both SaskPower and SWA assuming anticipated June inflow. [ 55 ] Such action cannot be said to be “. . . so markedly inconsistent with the legislative intent to thereby constitute bad faith”. [19] Ironically, had SWA chosen to spill sufficiently to reduce the reservoir level to 553.0 meters (best case scenario to address downstream flooding) such actions would have clearly been out of step with the operating policy geared to water retention, not to mention the likelihood of such attendant discharge, in itself, causing significant potential flooding. [ 56 ] In all respects, the Court cannot conclude that the actions taken in the circumstances by the Defendant were anything but reasonable and competent.

Accordingly, the Defendant is able to fit within the ‘good faith’ requirement of s. 95 and is thereby immune from civil prosecution in this case for its actions. Negligence [ 57 ] The essential thrust of the Plaintiffs’ case revolves around the policy/operation of the Gardiner Dam whereby insufficient reservoir capacity was maintained to properly address potential flooding of downstream properties.

This is really a blending of condemnation by adhering to a policy that does not adequately address flood control together with the actual operational procedures fact specific to this case, which caused, or significantly contributed to, the Plaintiffs’ loss. [ 58 ] The Defendant argues that actions based upon operational policy of a public entity such as the Gardiner Dam have been held to be immune from suit.

In Knight v Imperial Tobacco Canada Ltd. [20] , the Supreme Court of Canada stated: 90 I conclude that ‘core policy’ government decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith . . . A black and white test that will provide a ready and irrefutable answer for every decision in the infinite variety of decisions that government actors may produce is likely chimerical.

Nevertheless, most government decisions that represent a course or principle of action based on a balancing of economic, social and political considerations will be readily identifiable. [ 59 ] All expert viva voce and documentary evidence tendered emphasizes the fundamental policy objective of the Gardiner Dam - that being water retention for commercial usage first and foremost and on a lesser footing, flood control, recreational use and wildlife habitat.

The very purpose of the dam construction reflected this overriding objective. [ 60 ] According to Exhibit D-3, letter of February 22, 2012 from Cabinet Minister Dustin Duncan, existing government policy was under review following the flooding events in 2011. This letter in part read: As you will be aware, the Lake Diefenbaker reservoir and Gardiner Dam were constructed in the 1960s and are multi-purpose works. A predominant purpose in the policy underlying creation of the reservoir was to ensure water supply for irrigation, municipal use and hydroelectric power.

As well, the works provided significant downstream flood control. In fact, without the works, flooding would have occurred in nature roughly once in every two to three years. Since the construction of the works, flooding of the flood plain has been significantly reduced to approximately once in every ten years. Increased agricultural use upstream as well as retention of water in the Old Man Dam has resulted in significantly reduced inflows to the reservoir since the 1960s. As a result, the operations of the reservoir have been directed to increase retention for water supply.

Due to the extreme flow events in the last several years, I requested a report on operations in 2010 and 2011 which will be released shortly. That report and an upcoming consultation process with representatives of all those who benefit from the works including downstream landowners will be used to determine whether the current policy and the operations that serve it should be revisited. [ 61 ] As noted, the Saskatchewan government recognized the need to revisit its operational policy. To this end public meetings were held (which the Plaintiffs attended) and the report commissioned now in evidence as Exhibit P-9.

Several immediate and long term recommendations were made including inter alia (paraphrased), development of formal rules and priorities for dam operation, prioritizing for public benefit water supply and flood protection roles, increasing the number of hydrometric stations for better certainty of downstream impact relating to water discharge, better hydrological modelling capability and better monitoring and understanding of river ice cover as it relates to anticipated high flow events. [21] Currently, no policy changes have been implemented and the matter

remains “under review”. [22] [ 62 ] Accordingly, it is apparent that the Gardiner Dam operation has been guided by public policy considerations, both social and economic and that such policy is not without its detractors. However, change would be of the purview of a political forum, not, according to Knight , by way of litigation. [ 63 ] However, as noted, the Plaintiffs’ action is more broadly based in the Court’s view, taking aim also at the manner which the Defendant handled events leading up to the resultant flooding in June 2011 i.e. an argument based in negligence simpliciter regarding the dam operations.

In Knight , it was recognized that attempting to differentiate and categorize between policy and operations is not such an easy task: 86 . . . defining a core policy decision negatively as a decision that is not an ‘operational’ decision may not always be helpful as a stand- alone test. It posits a stark dichotomy between two watertight compartments - policy decisions and operational decisions.

In fact, decisions in real life may not fall neatly into one category or the other. [ 64 ] To succeed in this aspect of the argument, the Plaintiffs would have to demonstrate on the evidence that the Defendant’s conduct and actions fell below an accepted standard of a reasonably prudent operator of such a facility in issue here bearing in mind the overall policy objectives in each particular circumstance. For example, if flood attenuation was the primary operating objective of a dam reservoir, the actions of the operator would be judged against what was done or not done to achieve such objective.

This would envision a “dry dam” scenario whereby inflow capacity could be achieved without release thereby preventing or minimizing downstream flooding.

Correspondingly, where hydroelectric power generation and ancillary commercial priorities, as in the case here, are paramount, the standard of operation to reasonably achieve such objectives would represent the bar against which conduct would be judged. [ 65 ] Martin Grajczyk testifying for the Defendant, stated that part of SWA’s operational procedures included conducting hydrological and river hydraulic modelling studies - computer models to simulate or model different scenarios for operating the reservoir.

This encompassed “always watching for what’s coming - always watching the weather - upstream basins projecting what the flow is going to be - using that information to make our best estimate decisions on how we should operate”. [23] He stated further: We do what we can. But it’s not like you have full control. You can get the reservoir down to whatever elevation you like. You know, you have to go forward based on average.

Until we get long term forecasts which are of any accuracy, all you can assume is average and then you can make some small adjustments on the go, but it’s - relative to the size of the reservoir, you really can’t adjust - you can’t make significant adjustments. [24] [ 66 ] The Plaintiffs pressed vigorously that the Defendant mishandled its approach to manipulating the release of water in early May by failing to properly gauge and allow for anticipated spring inflow.

The evidence however illustrated that the Defendant recognized a higher than normal water level and began a calculated release to ameliorate the situation. What happened in the ensuing weeks were three consecutive water events far in excess of what would normally be anticipated. According to Martin Grajczyk by mid- June the cumulative effect of these three major inflows were considered on the magnitude of occurring once in a hundred years. Also the condensed timing of such events was crucial. [25] [ 67 ] The delicacy of predicting the possibility of such rainfall events was underscored by the evidence of Dr.

Pomeroy: Q Right. And weather, especially weather on a large land mass, range events and large land mass like the Great Plains in North America are inherently difficult to predict in terms of duration, actual location and amounts of precipitation that arrive? A The - this would be precipitation mainly over the mountains and foothills that we would - Q Okay.

A - interested in. The difficulty there is that it’s possible to forecast even ten days in advance that there’s going to be heavy rains somewhere in the Rockies, but to know that the storm is over the headwaters of the Bow or the Old Man - Q Right. A - or the Red Deer River is much more difficult. And if it shifts by 50 kilometers it would be flooding in British Columbia and not heading towards Saskatchewan. And that’s the difficulty. It’s a spacial accuracy at least.

Q So when you’re in a position of operating a dam in Saskatchewan that is fed by that kind of event in the Rocky mountains, you can - even if you’ve got the best prediction, ten days in advance that turns out to be accurate, you could completely miss the mark because it may have fallen forty miles in which direction in which case you’ll get none of that. And if it falls forty miles in another direction, you’re going to get all of that. A Yes.

And if you were to release your water inadvertently because of an incorrect forecast and if there’s a subsequent drought, then there would be another set of problems - Q Right. A - occurring later that year. [26] [ 68 ] Therefore, the combination and magnitude of such rain events according to Dr.

Pomeroy, occurring within a short period of time and the unpredictability of whether this would or would not impact on reservoir inflow, means that this extreme upsurge would not have been reasonably foreseeable in these circumstances. [ 69 ] Indeed, the authors of the independent review of Lake Diefenbaker operations (Exhibit P-9) stated the following at p 84 concerning the actions taken by the Defendant employees relating to this incident: It should be noted that SWA forecasting staff did a superb job with limited tools and resources, complex operating system and unspecified operating rules available to them.

At no point was there any indication that forecasting staff did less than the optimum with the procedures, understanding and information available to them. [ 70 ] For all of the foregoing reasons, the Plaintiffs’ argument founded in negligence simpliciter cannot succeed. [ 71 ] The Court has also considered whether the doctrine of strict liability as espoused in Rylands v Fletcher [27] or the principles of nuisance or trespass could apply to assist the Plaintiffs in this action.

However, whether framed under such additional or alternate causes of action, the Defendant would still enjoy the same s. 95 statutory protection afforded to it as discussed supra , regardless. VI CONCLUSION [ 72 ] The Plaintiffs suffered near total financial loss. Additionally, non-tangible loss of enjoyment of their property included large profusion of breeding ponds creating unbearable mosquito populations as well as proliferation of invasive weed and grass species. In all respects, the flooding of 2011 left the Plaintiffs bereft emotionally and financially.

However, for the reasons stated herein, legal liability for their losses cannot attach to the Defendant. The Court takes this opportunity to compliment the Plaintiffs for their very thorough and competent presentation of their evidence. The high degree of professionalism and civility accorded to the Plaintiffs and the Court by Defendant counsel is also duly noted and greatly appreciated.

[73] The Plaintiffs’ claim is dismissed. There is no order as to costs. ___________________________ R.D. Jackson, J [1]

Chapter L-16.1 of the Statutes of Saskatchewan, 2004 (effective May 1, 2005), as amended by the Statutes of Saskatchewan, 2007,c.28 [2] Repealed by

Chapter S-35.03 of the Statutes of Saskatchewan, 2005. Formerly

Chapter S-35.02 of the Statutes of Saskatchewan, 2002 (effective October 1, 2002) as amended by the Statutes ofSaskatchewan 2004, c.W-17.2 and c.59. [3] Transcript p 373, lines 35 - 38, evidence of Martin Grajczyk in cross-examination. [4] Transcript October 19 p 74, lines 18 - 19, p 75, lines 17 - 41. [5] Transcript October 19, p 382, lines 17 - 32. [6] Exhibit P-5, pp 16-17 [7] Lake Diefenbaker - 2011 Operational Considerations (as at May 6, 2011) [8] Diefenbaker Lake 2010 to 2011 (inflow, outflow, elevation) chart. [9] Kvello v Miazga, 2003 SKQB 451 [10] 2013 SKPC 26 [11] 2011 SKCA 66, 371 Sask R 305 [12] 2015 SKQB 366, 2015 Carswell Sask 783 (QB) [13] See Grabatin, supra [14] 2016 SKPC 25, 2016 CarswellSask 101 [15] See for eg.

The Police Act, SS 1990, c P-15.01, s 10; The Fire Safety Act, SS 2015, c F-15.11, s 45; The Paramedics Act, SS 2007, cP-0.1, s 41; The Registered Nurses Act, SS 1988, c R-12.2, s 39; The Justices of the Peace Act, SS 1988, c J-5.1, s 12.9; The ProvincialCourt Act, SS 1998, c P-30.11, s 60; The Queen’s Bench Act, SS 1998, c Q-1.01, ss 44, 97; The Municipalities Act, SS 2005, c M-36.1,ss 242, 357; The Urban Municipal Administrators Act, SS 1980-81, c U-8.1, s 35 [16] Copyright 1999 by Westgroup Publishing Co. [17] (1983), (SK CA), 18 Sask R 99, [1983], WWR 55 at para 30 [18] 2004 SCC 61, [2004] 3 SCR 304 at para 26 [19] Enterprises Sibeca Inc. v Frelighsburg, supra [20] 2011 SCC 42, [2011] 3 SCR 45 at para 90 [21] Page 86 - 87, Exhibit P-9 [22] Exhibit D-3, supra

[23] Transcript, October 19 at p 306, line 41, p 307, lines 1 - 4. [24] Transcript, October 18 at p 318, lines 36 - 41. [25] Transcript October 19, p 332, lines 19 - 41. [26] Transcript October 19, page 126, lines 21 - 41, page 127 lines 1 - 9 [27] LR 3H 330; see also Alfarano v Regina 2010 ONSC 1538 , [2010] OJ No 993 (Ont SC)