Jim Ward - v. -, 2016 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 073 Date: May 16, 2016 File: 125/15 Location: Melville _____________________________________________________________________________ Between: Jim Ward - and - Scott Wilson Neil Halford For the Plaintiff Steven Neal For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I.

WHAT IS THIS CASE ABOUT? [ 1 ] The spring of 2014 was a wet one in the Lemberg area, where Jim Ward and Scott Wilson are neighbours and live on farm properties south of Highway 10. Because of the flooding that occurred, water flowed south over Highway 10 onto Mr. Wilson’s land. Mr. Wilson came to believe - reasonably I accept - that he had to dig a trench across a public grid road near to his house in order to save his house from being flooded. The flood in this area was evidenced by a series of pictures which Mr. Wilson filed during his testimony at the trial (Exhibits D-3, D-4 and D-5).

[ 2 ] As a result of the risk of flood to his house, Mr. Wilson went to see Gary Lubachowski, a counselor for the local Rural Municipality of McLeod #185 (RM). According to Mr. Wilson, Mr. Lubachowski, who was not a witness at the trial, verbally gave him permission, on behalf of the RM, to cut a trench through the grid road with a back how. Mr. Halford, for Mr. Ward, accepts that the councillor verbally gave permission to Mr. Wilson to trench the road, but does not accept that this was lawful authority to do the trenching, as Mr.

Wilson did not obtain prior written approval from the Water Security Agency as required by The Water Security Agency Act . [ 3 ] In June of 2014, Mr. Wilson dug a trench through this grid road. A year after Mr. Wilson trenched this road, the RM repaired it. No water flowed onto Mr. Ward’s land before or after Mr. Wilson trenched this road. However, as a result of the trenched road being impassable, Mr. Ward had to take a longer route to get to and from Highway 10.

This amounted to an extra distance of four miles a day, which occurred sixteen days a month for one year (for a total distance of 768 miles of extra driving for him). [ 4 ] Given his assertion that Mr. Wilson had no legal right to trench through this grid road without first complying with The Water Security Agency Act , Mr. Ward claims damages of $1,000 (reduced from the initial claim of $2,500 in his Summons) to compensate him for the extra distance traveled by himself and his family and friends who came to see him over this year. [ 5 ] Mr.

Wilson denies that he unlawfully trenched the road, but rather says he had lawful authority to do so based on the permission given to him by the RM through its councilor Mr. Lubachowski. In argument, Mr. Neal submitted that the RM has authority over this grid road under The Municipalities Act . [1] II. HAS MR. WARD ESTABLISHED A CAUSE OF ACTION AGAINST MR. WILSON? [ 6 ] There is no mention in the Summons, or in the written argument filed by Mr. Halford, that this claim is made in the tort of negligence.

If it was, the Supreme Court’s decision in Canada v Saskatchewan Wheat Pool [2] would have been the governing authority. In that case the Court said that while evidence of a statutory breach could support a claim in negligence, the plaintiff would nevertheless still have to prove all the elements of the tort (i.e. duty of care, causation, damages, etc.). [ 7 ] The Summons, rather than claiming negligence by Mr. Wilson, claimed that he had no legal right to trench the road. Further, Mr. Halford’s brief of argument stated that Mr.

Wilson failed to comply with The Water Security Agency Act (as he did not get written approval from the Water Security Agency before trenching the road). As a result, this claim is based on a breach, by Mr. Wilson, of a statutory duty imposed by that Act . [ 8 ] It is clear from the evidence Mr. Wilson did not get written approval from the Water Security Agency before he trenched the road. Having reviewed the relevant sections of The Water Security Agency Act , I am satisfied that Mr. Wilson did not technically comply with the Act . That is because:

(1) Mr. Wilson’s actions in digging a trench through the grid road to divert water away from his residence constituted a “work” as defined in s. 2 of The Water Security Agency Act . In that section, “works” is defined as including “drains, ditches, canals ... or any other contrivance for carrying or conducting water...”; and (2) S. 59(1) of the Act , in effect, provides that no one shall start the construction, extension, alteration or operation of any works unless they have first obtained the written approval of the Water Security Agency, which Mr. Wilson did not do. [ 9 ] Mr. Halford submits that Mr.

Wilson is liable to Mr. Ward under s. 58 of this Act , which provides: 58 A person is liable to a civil action for damages at the instance of any person who suffers or may suffer loss or damage by reason of a diversion or construction mentioned in clauses (

a) and (b), if the person, without having obtained authority pursuant to this Act :

(

a) diverts surface water not flowing in a natural channel or contained in a natural bed; or (b)constructs or causes to be constructed any dam, dyke or other works for the diversion of water mentioned in clause (a). [ 10 ] While I have found that Mr. Wilson technically breached The Water Security Agency Act , does that breach, in itself and in these circumstances, give rise to a cause of action by Mr. Ward against Mr. Wilson?

For the reasons that follow, I am not satisfied that it does. [ 11 ] The legal requisites of a cause of action, based alone on a breach of a statutory duty, are set out in The Law of Torts in Canada (2 nd Edition) [3] by G.H.L.

Fridman, QC: .... no civil liability would follow unless the statute allowed such an action, the conduct in question came within the scope of the statute, the plaintiff belonged to the class that was particularly protected by the statute, and the damage incurred by the plaintiff was the kind of harm against which the statutory duty was designed to give protection and it was caused by the breach. [4] [ 12 ] In this case, I am satisfied that:

(1) The Water Security Agency Act , in s. 58, does allow for such an action; (2) the trenching work done by Mr. Wilson does constitute a “work” and therefore does fall within the scope of the statute; and

(3) Mr. Ward, as a neighbour to Mr. Wilson, did belong to a class that was particularly protected under the Act . [ 13 ] I am, however, not satisfied that the damage incurred by Mr. Ward - having to drive further to Highway 10 with no flooding or water damage to his property as a result of the trenching done by Mr. Wilson - was the kind of harm against which the statutory duty was designed to give Mr. Ward protection from.

That is because I am satisfied that the type of harm sought to be protected from under The Water Security Agency Act is damage from water as a result of the “work” done, as was the nature of damages alleged in Baynton v Mills & RM of Corman Park No. 344 [5] . As a result, I am not satisfied that a cause of action has been made out by Mr. Ward against Mr. Wilson for any breach by him of The Water Security Agency Act . [ 14 ] Given my finding that the technical breach of The Water Security Agency Act by Mr. Wilson does not, in these circumstances, constitute a cause of action by Mr. Ward against Mr.

Wilson, I need not further consider the issue of whether the permission granted to Mr. Wilson by Mr. Lubachowski, on behalf of the RM, was in itself lawful authority. I do note that the RM was not named as a party to this action, so the lawful authority of that body over this road, in the midst of a flood or otherwise, and under The Municipalities Act or The Emergency Planning Act - both statutes of which formed a core of the defendant’s argument but were not mentioned in his Dispute Note - need not be determined.

That said, the fact the RM fixed the road a year later would in my view be strong evidence that this was a road over which the RM had authority under s. 12(1) of The Municipalities Act . [ 15 ] Further, and again although it is not necessary for me to determine which statutory body - the RM or the Water Security Agency - had the ultimate authority in this case, it does appear to me that Mr. Wilson acted reasonably. He found himself in an urgent situation, with his house about to be flooded, and consulted his RM councilor, who verbally gave him permission of the RM to trench the road. III.

CONCLUSION [ 16 ] Because I am not satisfied that Mr. Ward has established a cause of action against Mr. Wilson for trenching the road, his claim is dismissed. There will be no order for costs.

R. Green, J [1] See s. 12(1). [2] (SCC), [1983] SCJ No. 14. [3] Carswell: Toronto, 2002. [4] At page 627. [5] 2008 SKQB 108, per Richards JA, Queen’s Bench Justice, ex officio (as he then was).