High Country Outfitters v. Pitt Meadows (City) Date:, 2012 BCPC 308

Citation: High Country Outfitters v. Pitt Meadows (City) Date: 20120904 2012 BCPC 0308 File No: C9795 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HIGH COUNTRY OUTFITTERS INC. CLAIMANT AND: CITY OF PITT MEADOWS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing for the Claimant: W. Norton Counsel for the Defendant: M. Chorlton and P. Bruce Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: November 26, 2010; May 18-20, September 2 and 30, 2011 Date of Filing of Claimant's Written Submission: December 1, 2011 Date of Filing of Defendant's Written Submission: February 3, 2012 Date of Filing of Claimant's Reply Submission: February 22, 2012 Date of Oral Submissions by all Parties: April 13, 2012 Date of Judgment: September 4, 2012

INTRODUCTION [ 1 ] The claimant High Country Outfitters Inc. (“HCO”) brings action in these proceedings against the City of Pitt Meadows (the “City”), principally in negligence. HCO claims it has suffered losses resulting from the flow and seepage of water onto developed rural property it owns at 18681 McQuarrie Road, Pitt Meadows, B.C. (the “McQuarrie Road Property”). [ 2 ] The McQuarrie Road Property is situated on flatlands within the part of Pitt Meadows known as the Pitt Polder. Those flatlands constitute a flood plain. As to elevation, they sit very near to sea level.

Because watercourses such as the Pitt River and the Alouette River run through the Pitt Polder—both of which are tributaries of the Fraser River and, thus, manifest daily, tidally induced inflows and outflows—the flatlands are highly vulnerable to flooding. Seasonal factors—the most important of which is the “freshet” or increased water volume in the Fraser River and its tributaries resulting from the spring runoff each year—also expose the Pitt Polder flatlands periodically to rising water levels and concomitant flood risk.

Indeed, as HCO’s witnesses themselves acknowledged, the Pitt Polder (and the McQuarrie Road Property that lies within it) would not be habitable or workable as farmland without a network of dikes maintained by the City (the “Dike System”) that protects them against the flooding that would otherwise result from the periodic rising and falling of the water levels in the Pitt and Alouette Rivers. [ 3 ] A

section of one of the dikes in the Dike System that runs roughly north/south along the western boundary of the McQuarrie Road Property separates it from the Pitt River. It is surmounted at the southwest corner of the property by a ramp leading up to its crown from McQuarrie Road. I shall refer collectively in these reasons to that dike

section with its incorporated road ramp as the “Subject Dike”. [ 4 ] It bears repeating that but for the presence of the Subject Dike, the McQuarrie Road Property would flood repeatedly, sometimes twice per day given tidal fluctuations in the water level of the Pitt River.

It is runoff from, and seepage through, the Subject Dike—coupled with allegedly inadequate provision made for drainage—that are cited by HCO as the bases for its claims against the City. [ 5 ] Both HCO and the City accept that, since 2002 (when HCO acquired the McQuarrie Road Property) and in all likelihood for a long time before then, there has been a chronic pattern of water accumulation in a low area at the southwest corner of that property that is bounded by the Subject Dike proper on the west and the aforementioned ramp leading west from McQuarrie Road up onto the Subject Dike on the south (the “Triangular Area”).

However, HCO acknowledges that, until 2008, no structures located in the Triangular Area suffered any water-related damage. [ 6 ] In 2007, an unusually high spring freshet was projected by the provincial Ministry of the Environment and, accordingly, provincial government monies were made available to municipalities, including the City, to improve their defences against the increased risk of freshet-related flooding. (In the words of the project documentation, the funds were intended to “reduce the threat to people and property” from flooding.

They were targeted mainly at increasing the height of dikes and they expressly excluded work to improve drainage on adjacent properties: Exhibit 1, tab 6.) [ 7 ] Taking advantage of that extraordinary but circumscribed funding, the City engaged contractors, supervised by engineers, to perform improvements to the Dike System. Insofar as the monies to fund them were limited, the improvements were carried out in the spring of 2007 to address the elements of the Dike System that were judged to be in greatest need of enhancement.

The improvements included a modification to the Subject Dike proper, raising its height by approximately 18 inches, together with a corresponding increase in the height of the ramp leading from McQuarrie Road to the dike to permit the road to reach its newly elevated upper surface.

I shall refer to these specific improvements, collectively, as the “2007 Subject Dike Improvements”. [ 8 ] As I have noted, HCO alleges that acts and omissions associated with the performance of the 2007 Subject Dike Improvements —which improvements were carried out by City contractors under the supervision of the City and its agents—in fact caused or enabled the flow and seepage of water onto the McQuarrie Road Property to increase to the point where accumulations caused damage to the septic system located in the Triangular Area of the property (the “Subject Septic System”). [ 9 ] In particular, HCO contends that added runoff from the Subject Dike, as raised, and increased seepage through it, caused excessive saturation of the soil in the Triangular Area, destabilising the Subject Septic System.

That runoff and seepage, HCO says, called for the provision of a drainage infrastructure that the City never supplied as part of the 2007 Subject Dike Improvements project. HCO argues that when the soil surrounding the Subject Septic System became more saturated with water resulting from increased runoff and seepage, the components of the Subject Septic System began to float. It contends that the concrete septic tank proper sank down several inches relative to the position of the pipe that fed into it.

Thus, HCO’s argument goes, the rigid connection between the septic tank proper and the pipe came under stress and ultimately fractured, allowing the pipe to separate entirely from the tank, thereby permitting effluent to escape and rendering the entire Subject Septic System inoperable. [ 10 ] A further aspect of HCO’s claim is based on its contention that, to some degree, the absence of an adequate drainage system for the Subject Dike resulted in the oversaturation of the soil in the Triangular Area of the McQuarrie Road Property for a period of years prior to the performance of the 2007 Subject Dike Improvements.

It argues that when undertaking the 2007 Subject Dike Improvements the City was bound by law to take all necessary steps to deal with any Subject Dike-related drainage needs that were already in existence as a result of past defaults, as well as those that were occasioned by the 2007 Subject Dike Improvements themselves.

HCO alleges that the City made no drainage improvements to address those needs, to HCO’s ultimate detriment. [ 11 ] For these reasons, HCO seeks to recover as against the City $24,000—the cost of having a replacement system for the Subject Septic System supplied and installed—plus court ordered interest (to be calculated) and filing and service fees of $156 and $60, respectively.

[ 12 ] HCO was represented at trial, and over the course of all pre-trial appearances in this matter, by its principal, William Norton (“Mr. Norton”). Mr. Norton is a layman, not trained in the law. By acknowledging that simple fact I mean him no disrespect. Mr. Norton is a man of many abilities and accomplishments and to recognise that he is not a lawyer does not carry, and ought not to be taken to carry, any critical implication. It is merely an incontestable fact. [ 13 ] That said, the Notice of Claim that Mr. Norton has drawn on behalf of HCO is conspicuously a layman’s pleading. Mostly, it alleges facts.

It does not make specific reference to any cause of action, not even negligence. However, I think it fair to say that apart from obliquely raising a claim in negligence, HCO’s Notice of Claim implicitly invokes a cause of action in trespass. Also implicit in that pleading are claims based upon the doctrine in Rylands v.

Fletcher (1868), L.R. 3 H.L. 330 and a further cause of action in nuisance. [ 14 ] To its credit the City, in final submissions filed by its counsel, acknowledges that notwithstanding the somewhat inchoate nature of HCO’s Notice of Claim and written argument, all four of the above-noted causes of action are there to be defended. [ 15 ] The City defends the action brought against it by HCO on a number of grounds. I summarise the main ones below. [ 16 ] First, the City challenges some of the factual premises that lie behind HCO’s submissions.

It challenges the cogency and reliability of some of HCO’s evidence, particularly that of its experts. A central feature of a number of its arguments is the City’s contention that HCO has failed to discharge its burden of proving, to the civil standard, that the 2007 Subject Dike Improvements carried out for the purpose of reducing flood risk in fact produced legally significant increases in water accumulations in the Triangular Area of the McQuarrie Property.

The City also submits that, even if increased accumulations can be proven, HCO has failed to adduce credible evidence to show that those accumulations were the cause in fact of any damage to the Subject Septic System. [ 17 ] In defending HCO’s claim in trespass, the City adverts inter alia to authorities that stand for the proposition that control by a municipal defendant over water that ultimately enters onto a claimant’s lands is a prerequisite to a finding of liability.

The City argues that here the City had and has insufficient control over the water level in the Pitt River, the rainwater that falls onto and runs down the eastern flank of the Subject Dike, and any water that seeps through it, to enable a cause of action against the City in trespass to be made out. [ 18 ] In answer to HCO’s claim predicated on the doctrine in Rylands v.

Fletcher , the City first observes that the requirement of that cause of action that there be proof of a “single disastrous escape” as distinct from a “continuing or continuous escape or interference” is not established on the facts of the case at bar. The City also cites the public benefits that accrue to the use of drainage and floodwater management systems, noting that such systems amount to an “ordinary use of land”. In doing so it invokes authorities that exclude such systems, for those reasons, from Rylands v.

Fletcher liability. [ 19 ] With respect to HCO’s claim in nuisance, the City first says that its authority to construct and maintain the Subject Dike, and to carry out projects such as the 2007 Subject Dike Improvements—and any other improvements it has made to the Subject Dike—is sourced in legislation (the first element of any municipal defendant’s defence of such a claim).

Secondly, the City argues that if the court finds that the 2007 Subject Dike Improvements did cause harmful accumulations of water in the Triangular Area of the McQuarrie Property, contrary to its assertions on the facts, then, as the inevitable consequence of dike works conferring a benefit upon HCO and the wider community (given the anticipated higher freshets in that and future years), the accumulations and their consequences are excusable. [ 20 ] Lastly, with respect to negligence, while the City does not dispute that when it carried out the 2007 Subject Dike Improvements it stood in a position of legal proximity to HCO and thus owed it a duty of care, the City denies that either by act or omission it breached its duty of care not to cause HCO to suffer foreseeable and avoidable harm.

The City challenges HCO’s contention that the damage to the Subject Septic System can be linked causally to any tortious acts or omissions on the part of the City. It further argues that HCO has failed to lead evidence of the value of the Subject Septic System. As well the City says that HCO’s claim for the alleged cost of replacing that system fails to take account of the notion of betterment and, if awarded, a judgment in HCO’s favour in the claimed amount would for that reason overcompensate HCO.

SCOPE OF COVERAGE OF THE EVIDENCE IN THESE REASONS [ 21 ] The trial of HCO’s claims against the City in this action took six days to be heard. A number of witnesses on both sides gave testimony, and some of them testified for lengthy periods. Many, many documents were introduced as exhibits. [ 22 ] In managing the trial of HCO’s claims I took a somewhat (though not entirely) relaxed approach to the rules of evidence and the question of relevance, befitting the fact that HCO’s claims were being pursued in Provincial Court without the benefit of counsel.

One consequence of that somewhat relaxed approach, however, is that the court is left with a sprawling record that contains a great deal of evidence, not all of which bears upon the matters that the court must decide at the end of the day. [ 23 ] I acknowledge candidly therefore that I have not made reference to every item of evidence that came before me. I have, rather, referred to evidence that I consider it necessary to mention in connection with my factual findings and the legal conclusions that flow from them.

In places I have made mention of evidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in these reasons, the parties can both take comfort that the omission is not the result of my not having taken note of it. I have read all of the transcripts from end to end. I have done the same with all of the documentary exhibits. If witness testimony or documentary evidence do not come up for specific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to the facts that I have found and the arguments that are supported by those facts.

[24] That it is an acceptable practice for a trial judge to confine him or herself, in reasons for judgment, to a compressed andsomewhat selective canvassing of the evidence heard at trial is well established on the authorities. The law is clear that where there issubstantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make areversible error by failing to refer to every item of evidence that was adduced: see, for example, Buchan v. Ortho Pharmaceutical(Canada) Ltd. (1986), (ON CA), 54 O.R. (2d) 92 at 99 (C.A.) and Delgamuukw v.

R. (1993), (BCCA), 104 D.L.R. (4th) 470 at 563-564 (B.C.C.A.). THE UNCONTROVERSIAL BACKGROUND FACTS [25] The background facts which I have found and enumerate below are, to my understanding, not in controversy between theparties. (

a) HCO purchased the McQuarrie Road Property in 2002. It did so without first obtaining a pre-purchase assessment, by aninspector, of either the structures on the property or the land. It did so, as well, without obtaining from the previous owner any servicehistory for the Subject Septic System (such as the frequency with which its tank and lines had been flushed). Water accumulations in theTriangular Area were a patent feature of the McQuarrie Road Property and they were known to HCO when it acquired that property; (

b) The McQuarrie Road Property is protected by the Subject Dike from the waters of the Pitt River. The Subject Dike runsroughly north/south along the western boundary of the property and the Pitt River flows immediately to the west of it; (

c) Like all Pitt Polder properties, the McQuarrie Road Property has a very low elevation, sitting as it does on a flood plain. Consequently, that property has always had, and still has, a high baseline water table when compared to properties that are not situated ona flood plain, at higher elevations and at greater distances from watercourses; (

d) Septic systems can function in high water table environments but they are generally more prone to failure and have shorterservice life spans when they are installed in such environments; (

e) The level of the water table on properties throughout the Pitt Polder, including the McQuarrie Road Property, varies withfluctuations in rainfall and in the volumes of water that flow from time to time through watercourses like the Pitt River and the AlouetteRiver past the dikes, including the Subject Dike, that restrain them. The level of the water table on those properties is further affected bythe Dike System, as well as by the performance of a network of ditches and various other elements of the City’s ground watermanagement system, including pumping stations, that regulate ground water within the City.

The purpose of that system is to keep wateroff Pitt Polder properties that is unwanted but also to ensure that water is available in sufficient quantity in a network of ditches when itis needed for irrigation; (

f) The Dike System was constructed and is maintained by the City pursuant to authority granted to it pursuant to, inter alia, ss. 2and 555(2)(ii) of the Local Government Act, R.S.B.C. 1996, c. 323; (

g) A drainage ditch on the McQuarrie Road Property runs north/south in parallel with the Subject Dike alongside its eastern flank(the “North/South Ditch”). It flows north into a network of connected ditches on the McQuarrie Road Property that is sometimesreferred to by HCO, collectively, as a drainage “loop.” However, the North/South Ditch does not travel the entire distance south alongthe eastern flank of the Subject Dike. Thus, it does not reach the Triangular Area or connect with the east/west drainage ditch that runsparallel with McQuarrie Road (the “McQuarrie Road Ditch”).

It does not do either of these things in part because the house that issituated adjacent to the Triangular Area (the “House”)—which structure is served by the Subject Septic System, also in the TriangularArea—sits so close to the Subject Dike and the property line that were the North/South Ditch to have been extended south all the way tothe McQuarrie Road Ditch, it would actually intercept the House’s foundation; (

h) Apart from the contributions made to drainage by the North/South Ditch and the McQuarrie Road Ditch, there is a shallowswale that runs parallel to the Subject Dike’s eastern flank, outside HCO’s property line, that carries drainage water south into theMcQuarrie Road Ditch (the “City Swale”). Despite the presence of all of this drainage infrastructure, water has (as noted) chronicallytended to accumulate and pool to some degree in the Triangular Area of the McQuarrie Road Property. This pattern of accumulation wasmitigated to some extent by the installation, by HCO, of gravel and perforated pipe there that feeds ground water from the TriangularArea into the McQuarrie Road Ditch; (

i) A tendency for water to accumulate in the northwest corner of neighbouring property south of McQuarrie Road, near theSubject Dike and adjacent to the Triangular Area, has also been observed. The accumulations there are greater than those in theTriangular Area because the owner of the neighbouring property—having no structures comparable to the House or Subject SepticSystem nearby—has not installed any comparable local drainage infrastructure (such as gravel and perforated pipe) to mitigate theaccumulations; (

j) The Triangular Area is sloped somewhat toward the southwest and, thus, its elevation is lower than that of land immediatelyadjacent to the House. The Subject Septic System, which serves the House, is located in the Triangular Area between the House and thecorner where the McQuarrie Road ramp meets the Subject Dike; (

k) Drainage water that reaches the McQuarrie Road Ditch from the City Swale and from any other sources west of the McQuarrieRoad Property’s driveway must then flow eastward through a culvert over which the driveway entrance to the property passes. Thatculvert was installed by previous owners. Its openings on either side are not visible because the portions of the ditch that lie on eitherside of the culvert have been packed with large rock fill, porous to water, known as “riprap”. Some vegetation grows in and out of thatriprap and covers it to some extent. This configuration of riprap in a ditch is “non-standard,” although the City has not challenged its useat the McQuarrie Road Property; (

l) The Subject Dike has, in some form, been in existence for many years. It was originally built by Dutch farmers, prior to 1949,using the materials they had dug up to create a ditch. It was rebuilt in 1949 prior to the floods that occurred that year. Furtherimprovements were made to the Subject Dike from time to time thereafter, including in 1969 and 1986/87 as part of widespread

improvements to the Dike System aimed at enhancing its effectiveness in flood prevention in the face of increasing water levels at certain times of the year in the Fraser River tributaries, including the Pitt River. The most recent improvements, and the ones that are most centrally at issue in this case, are the 2007 Subject Dike Improvements, carried out during the spring of 2007 in anticipation of unusually high water levels in the Pitt River owing to the prediction of an unusually high spring freshet by the provincial Ministry of the Environment; (

m) The only improvements carried out to the Subject Dike during the currency of HCO’s ownership of the adjacent McQuarrie Road Property were the 2007 Subject Dike Improvements. Those improvements involved the raising of the height of the Subject Dike by approximately 18 inches and the corresponding raising of the McQuarrie Road ramp. Given the broad width of the Subject Dike at its crown prior to the 2007 Subject Dike Improvements, no structural alterations needed to be made to its sloping sides to permit its profile to be so raised; (

n) The raising of the Subject Dike by approximately 18 inches in the course of the 2007 Subject Dike Improvements increased the runoff—that is the amount of rainwater shed by the dike on its eastern flank onto the McQuarrie Road Property—by approximately 3½ to 4%; (

o) The 2007 Subject Dike Improvements made no specific provision for any additional drainage needs that might be occasioned by them. Neither were provincial funds made available to address any such additional drainage needs; (

p) The spring freshet in 2007, when it finally did occur, did not in fact reach the extraordinary levels that had been predicted by the provincial Ministry of the Environment; (

q) Since acquiring the McQuarrie Road Property in 2002, and before encountering difficulties with the Subject Septic System, HCO has made numerous modifications on and to the property.

For example, it: i. added some structures; ii. demolished some structures (including a butcher shop and a second septic system that was associated with it); iii. placed fill in certain areas; iv. installed drainage for the riding arena, horse paddocks, barn perimeter and alley way to the riding arena, all using ¾ clear gravel and perforated drain pipes feeding drainage water into the drainage loop and, ultimately, into the McQuarrie Road Ditch; v. installed some of the aforementioned perforated pipe and ¾ inch clear gravel in the Triangular Area to divert the drainage water collected by it into the McQuarrie Road Ditch; vi. added eavestroughs and downspouts to the House that feed into other drainage features that, in turn, feed roof water, ultimately, into the McQuarrie Road Ditch; vii. installed a more sophisticated sump system to drain water from the Triangular Area into the adjacent ditches; viii. added an access road; ix. done some laser levelling and grading to ensure that for drainage purposes the land surrounding outbuildings on the property is sloped away from the buildings; and x. increased the parking area and its paved surfaces; (

r) These modifications have changed the drainage patterns on the McQuarrie Road Property—some of them as a matter of intention and some incidentally; (

s) It was not until February, 2008, that any problem was noted by HCO in the performance of the Subject Septic System. In fact, the problem first came to HCO’s attention as a result of a complaint received by the City regarding the discharge of domestic sewage from the McQuarrie Road Property into the adjacent McQuarrie Road Ditch. The City notified HCO of that complaint and, after conducting tracer dye testing, the City determined that domestic sewage emanating from the House and the Subject Septic System was discharging into the McQuarrie Road Ditch as confirmed by the presence of dye in that ditch.

An order was therefore made by the City requiring the immediate capping of the outlet from the septic tank and the removal of all sewage from it to prevent further discharges; (

t) HCO cooperated fully with the City and complied swiftly with that order. It was shortly after the complaint was lodged about discharge from the Subject Septic System into the McQuarrie Road Ditch (which resulted, ultimately, in the decommissioning of that system) that HCO first raised with the City its own complaint regarding water accumulations in the Triangular Area; (

u) The Subject Septic System was in good working order as of September 6, 2007—five months before it began leaking domestic sewage. On that date HCO had the tank contents pumped out by a tank cleaning contractor (a routine procedure). Nothing was seen to be amiss with the Subject Septic System by HCO or its contractor at that time; (

v) On January 2, 2008, about six weeks before the complaint was received regarding discharge of domestic sewage from the Subject Septic System into the adjacent McQuarrie Road Ditch, the City sent a letter to HCO reporting that it had received and confirmed a complaint regarding the dumping of horse manure onto the City Swale—that is, the swale which runs parallel to the Subject Dike’s eastern flank outside the property line and which carries drainage water south into the McQuarrie Road Ditch. The City ordered that the horse manure be removed but did not follow up on that order.

In August of 2008—some eight months later and with the City’s knowledge—HCO again dumped manure in that location to deal with standing water and its associated West Nile Virus risk. The City did not raise objection to the practice on that occasion.

THE FACTS IN CONTROVERSY Seepage Through the Subject Dike [ 26 ] While the issue of increased rainwater runoff from the Subject Dike following completion of the Subject Dike Improvements has been a live one from the outset of these proceedings, the issue of seepage through that dike truly only surfaced at trial. [ 27 ] It is noteworthy in this regard that while HCO’s Notice of Claim attributes causal significance regarding its water accumulation- related losses to runoff, it makes no mention of seepage whatsoever. “The City of Pitt Meadows did dike and road improvements which impacted my septic system.

The road next to my house was upgraded to meet the new height of the dike forming a “bowl” which causes water to run off into my backyard where my septic system sits ...” HCO’s Notice of Claim, filed February 13, 2009 [ 28 ] While HCO’s experts did not speak with one voice on the point, Sarafraz Baheri (“Mr.

Baheri”)—an architect who was qualified to give opinion evidence regarding the making of provision for drainage in the course of construction design—was clear that in his opinion HCO’s losses could be traced mainly to seepage of water through the Subject Dike coupled with the City’s failure to include drainage infrastructure to deal with that seepage. See, for example, the following exchange taken from his direct examination, in which he downplays the importance of runoff relative to that of seepage: “Q Okay. And my next question then is where is all this water coming from that's ending up in my backyard?

A The -- the main water cause is from the seepage from the dyke, you know. It's not the runoff of an excessive runoff water because of bringing up the height of the dyke, you know .. .” (emphasis added) Transcript , May 19, 2011, p. 115. (See also, Transcript , May 20, 2011, pp. 16-17) [ 29 ] This perspective is apparently one that Mr. Norton of HCO shares. “THE COURT: You're saying they made changes to the dike that produced consequences for the neighbouring property owners and they didn't make adequate provision for the drainage consequences of their -- of their redesign of the dike. A That's correct.

And the reconstruction of the dike, the limited amount of runoff really isn't the point . Your Honour, is that I think in the report from Triton, which has been submitted, I think they came up with that the extra material added onto the dike created another four percent runoff or something, and that really isn't the point in this, Your Honour, as well, is that granted, it increased it a mere four percent. It's the 100 percent we're concerned with in conjunction with the freshet seasons that happen almost on an annual basis now. That's really where the rubber meets road from an engineering point of view.

So my -- that's basically all I've got to say with my little prop. THE COURT: All right. You have a two-page aide-mémoire and you've been speaking at this last few minutes about page 2. Did you have something you wanted to say about page 1? A I encompassed it in the discussion.

On page 2 what I was referring to was the pressure of the river during freshet season and the seepage that comes through the dike onto the other side from -- from the river , as well as rain falling on the dike and the runoff, and the combination of the two of them, or even just the freshet itself , creates basically, as we're knowing through CNN now, terms such as "sand boils", terms such as "liquefaction" when there is no rain even, and the rivers are running very high with respect to a dike ...” (emphasis added) Transcript , May 18, 2011, pp. 22-23 (But see the evidence of HCO engineering expert, Hamid Behmanesh (“Mr.

Behmanesh”) contra , at pp. 95-96,attributing most of the accumulations to water running off the Subject Dike.) [ 30 ] As the trial progressed, the seepage phenomenon attained greater and greater prominence in HCO’s case against the City. Indeed, at p. 2 of its written Reply submission it is referred to as “extreme seepage”.

As can be seen from the extracts above, HCO now contends that most of the water accumulations that it says destabilised the Subject Septic System have resulted from water that passed through the Subject Dike via the mechanism of seepage (as distinct from rainwater that ran off the dike’s eastern flank). Because this factual contention became, unexpectedly, such a central pillar of HCO’s case against the City, I shall spend some time with it in these reasons. [ 31 ] Do substantial quantities of water—that is, quantities sufficient to damage property in the way HCO alleges—in fact seep

through dikes whose entire purpose is to keep water at bay? The proposition is startling and manifestly counterintuitive. However, this is not an area of knowledge where a trial judge is permitted to forge ahead simply on the basis of intuition or commonsense alone. It is a domain of knowledge that lies outside ordinary experience. Thus, when considering evidence in such a domain, a trial judge must take such guidance as is available from the expert opinion that has been made available to the court. [ 32 ] The first point to bear in mind is that a dike is essentially a surface feature.

As such it does not directly control the movement of water beneath it. Some water is present in the earth that lies beneath a dike, and in the earth on either side of its base, whose movement is not controlled, and perforce not prevented, by the presence of the dike. Accordingly, the level of the water table on one side of a dike will covary to some degree with the water conditions on the other side of the dike. That was the burden of one aspect of the evidence given by Mr.

Behmanesh, the structural engineer called as a witness by HCO who was qualified as an expert in dike and road design and construction practices having regard to drainage and runoff issues. The City’s expert did not question or contradict that opinion evidence. [ 33 ] What follows is an extract from Mr. Behmanesh’s testimony, given on behalf of HCO, dealing with relative changes in water table levels on either side of the Subject Dike: “Q. ... Now, you’ll agree that the water table in the area of the property is influenced by the tide? Do you agree with that, that the water table – A.

By the – Q. – is tidally influenced? A. Yes. Q. And it’ll rise and – the water table will rise and lower with the tide? A. (no audible response). [Yes] Q. Okay. And you’ll agree that the freshet level of the Fraser River and its tributaries such as the Pitt River has risen over time; will you agree with that? A. Yes. Q. And you’ll agree that the level of the Pitt River will influence the level of the water table in the claimant’s property at any given time, correct? A. Yes.

So, as my understanding, the City is dealing with the whole picture of that area so they are solving the problem for the bigger scale but again for having some changes and improving the dyke for the bigger area they have to consider the solution to keep runoff – to keep the – the water outside of the property, the – smaller issue should be done by them as well. Q. Okay. THE COURT: Let me just – I want to understand your answer to the question that counsel just put to you. Ms.

Chorlton asked you whether changes in the level of the water in the Pitt River that result from tide flows or from freshets would produce changes in the water table in the claimant’s property, in Mr. Norton’s property, and I think you answer to that was yes? A. Yes. THE COURT: Are you saying that that would happen whether the dyke was constructed properly or not, anybody who is living in property that is adjacent to a dyke, whether constructed perfectly or not, the water table is going to go up and down somewhat with the fluctuations in the river. A. Yes .” (emphasis added) Transcript , May 19, 2011, pp. 101-102.

See also, to the same effect, Transcript , May 20, 2011 at p. 13 (Mr. Baheri) and at pp. 47-49 (Mr. Mitchell) [ 34 ] But dikes generally, the Subject Dike included, are constructed to be as impervious as possible to the seepage of water through them. In the words of City witness Kevin Terness (“Mr. Terness”), an engineer who was involved in the carrying out of the 2007 Subject Dike Improvements, “when you build a dyke you build a core which is usually an impervious material such as clay or silt”: Transcript , September 2, 2011, p. 59. I accept that evidence.

If it were otherwise dikes would not be able to function as barriers protecting the lands they separate from watercourses. [ 35 ] Dikes are however not absolutely impervious to water seepage and no expert or witness knowledgeable about them who came before me did, or would, say that no water can ever seep through a dike. However, as Mr. Terness testified and as I find, that seepage is minimal in both quantity and effect. In his words, “[s]eepage is a very slowly occurring phenomena and it's not a long-term failure

phenomena”: Transcript , September 2, 2011, p. 62. The evidence of City expert, Alan Clyde Mitchell (“Mr. Mitchell”)—a water resources engineer and hydrologist who was qualified to give opinion evidence regarding water resource engineering and the movement of water and the effects of water on the earth's surface, including water drainage and drainage patterns—confirmed this. “THE COURT: … You were also asked questions, Mr. Mitchell, about seepage, water passing through the – the dyke itself.

You – are you able to say whether or not -- are you able to say, firstly, what the quantity of water is that seeps through that, if any, and secondly, whether or not you’re able to opine as to whether or not the ditch network is sufficient to deal with the volume of water passing through as well as running off? A. Well, first of all, Your Honour, I’ve not attempted to make any design calculations necessarily would be appropriate for me to make the calculations on how much seepage would typically go through a dyke in – in the worst case situation, which is shown here on the aide-memoire.

However , for this dyke to remain stable, in – in my experience, that amount of water would have to be relatively minimal and that it would be a very small portion of the overall runoff that you would expect to come from rain on the ground within the Polder .” Transcript , May 20, 2011, p. 75 (Mr. Mitchell). See also pp. 67-68 [ 36 ] I find that testimony to be persuasive.

Beyond that, no evidence has been placed before me—expert or otherwise—that suggests that the 2007 Subject Dike Improvements caused any increase in seepage through the Subject Dike. [ 37 ] Based upon all of the foregoing, I find as a fact that the amount of water seepage through the Subject Dike was minimal at all material times. Moreover, I find that—as Mr. Mitchell opined in the foregoing quotation—seepage accounts for only a small fraction of the volume of water that would be shed by the Subject Dike as runoff.

Lastly, I find that to the extent there is seepage through the Subject Dike at all, its volume was not increased by the 2007 Subject Dike Improvements. The Vintage of the Subject Septic System [ 38 ] Mr. Norton testified, somewhat speculatively, that the Subject Septic System was only six years old at the time of its failure. The City maintains records going back to 1985 and there is no record of any new septic system installation or system upgrade having been performed at the McQuarrie Road Property since that date.

That fact, coupled with the fact that HCO led no evidence to call into question the City’s record-keeping practices or prove that the Subject Septic System was installed or upgraded more recently than 1985 without City permitting and approvals, establishes that at the time of its failure, the Subject Septic System on the McQuarrie Road Property was at least 23 years old. I so find. The Cause of the Failure of the Subject Septic System (

a) Runoff minimal and adequately managed by existing drainage infrastructure [ 39 ] As I have noted earlier, HCO contends that excessive accumulations of water on the McQuarrie Road Property, particularly in the Triangular Area, caused the failure of the Subject Septic System. Those excessive accumulations are alleged to have resulted from substantial seepage through the Subject Dike, coupled with added runoff, attributable to the 2007 Subject Dike Improvements. I have already found that the 2007 Subject Dike Improvements did nothing to increase the minimal seepage through the Subject Dike.

Thus, if HCO is to prove that improvement-related water accumulations caused the failure of the Subject Septic System, it will need to identify increased runoff as their source. [ 40 ] I leave to one side (for now) HCO’s argument that it was incumbent upon the City, when carrying out the 2007 Subject Dike Improvements, to create drainage infrastructure sufficient to accommodate increases in seepage and runoff resulting from those improvements plus seepage and runoff patterns resulting from improvements that predated them. [ 41 ] On the facts as I have found them, the additional runoff attributable to the 2007 Subject Dike Improvements is minimal—an increase in the range of 3½ to 4% of the runoff that occurred before the improvements were made: Transcript , May 20, 2012, p. 51.

There is no evidence before me to suggest that minimal, unaltered, baseline seepage together with the noted fractional increase in runoff are capable of having added meaningfully to the chronic saturation of the McQuarrie Road Property in the Triangular Area. To the contrary, the testimony of Mr.

Mitchell—a City expert whose evidence I found persuasive—establishes that baseline seepage and increased runoff attributable to the 2007 Subject Dike Improvements produced minimal increases in water accumulations in the Triangular Area and the existing drainage infrastructure on the McQuarrie Road Property was and is sufficient to deal with them: Transcript , May 20, 2011, p. 75. (

b) HCO’s architectural and engineering expert evidence regarding causation entitled to little weight [ 42 ] HCO’s experts—Mr. Baheri and Mr. Behmanesh—approached the question regarding water accumulations and the damage to property allegedly resulting from them from a somewhat different perspective than did the City’s expert Mr. Mitchell. Both dwelt in their reports and in their testimony upon what, with respect, appeared to me to be a simplistic analysis that merely compared elevations at different locations around the Triangular Area.

They both concluded that, given the relative elevations and, in particular, the low elevation of the Triangular Area, better and more effective drainage ditch work was called for and has not been provided by the City. Both also offered conclusory statements in their reports about the situation leading to foundation damage to the House (but, oddly, not to the Subject Septic System). No true analysis of the quantities of water passing through or over the Subject Dike formed part of their reasoning.

Indeed, no logical pathway linking their topographical assessment to their conclusions about structural damage was spelled out at all.

[ 43 ] I confess to having found the expert reports and testimony of Mr. Baheri and Mr. Behmanesh difficult to follow. Remarkably, despite the fact that both made site visits, their topographical analyses were not based upon any measurements taken by either on site. Rather, those analyses were based on distances and elevations marked on Exhibit 2—a survey plan of the McQuarrie Road Property, prepared in 2004—which have not been independently linked to actual elevation measures for the McQuarrie Road Property (and the Triangular Area particularly) as of the present day.

Just as remarkably, even though their opinions are based on topographical analyses that chiefly rely on an outdated survey plan, neither Mr. Baheri nor Mr. Behmanesh examined the past and recent aerial photos that were available to get a sense of the topographical changes that have been wrought by HCO upon the McQuarrie Road Property since it was purchased and since the 2004 survey plan was prepared. [ 44 ] Of course, as the recital of uncontroversial facts above in these reasons shows, much has happened on the McQuarrie Road Property since 2004.

Some of the significant changes that have been made by HCO to the McQuarrie Road Property—some of which have directly affected the drainage patterns on those lands—were carried out after the time when the survey plan that Mr. Baheri and Mr. Behmanesh relied upon was drawn up. I find it peculiar that, in formulating their opinions about how the condition of the Triangular Area could be accounted for and remedied, both of HCO’s experts declined to carry out a full-fledged, hands-on, observational evaluation and preferred, instead, to work with elevation notations taken from an outdated survey plan.

When confronted with this issue during cross-examination, no satisfactory explanation was forthcoming. [ 45 ] Extraordinarily, the outdated survey plan with which Mr. Baheri and Mr. Behmanesh worked does not even display a recorded elevation in the Triangular Area . When this fact was drawn to his attention, Mr.

Baheri became flustered and, frankly, incoherent, inviting his questioner to accept that a person with his skills and expertise did not need an elevation measurement in order to perform his analysis and opine on the elevation of the Triangular Area in relation to the elevation of other locations on the McQuarrie Road Property for the purposes of assessing the adequacy of the property’s drainage infrastructure: “MS. CHORLTON: Q Okay. If you look just to the left of that 2.31, do you -- A Uh-huh. Q -- see the 6.79? Do you see that number? A Yes, I -- Q And then you see the 7.24?

A That is the -- oh, okay, okay, I -- I'm sorry. Q Perhaps I could ask my question first? You see those. And then what do those -- are those elevations? A No. Q Those are not? A They're distances. Q Oh, I see. A They're distances. Q Okay. Thank you. That answers my question. THE COURT: And there is no measured elevation in the southwest corner [The Triangular Area], Mr. Baheri? A No . The -- they -- they don't indicate that, but if being, you know, an architect, right, and junior, you know, it's very obvious this is like something that we don't need to have.

For example, you see another -- another measure here, 2.48. The -- and there is some dotted lines from the dyke -- from the -- that is actually the -- the dyke, to -- to his corner, northwest corner of the house, it said 2.48. MS. CHORLTON: Q And that's a distance, not an elevation? A That's a distance. It's not an elevation, you know. I mean -- Q And -- A -- if -- if a plan wants to go minute by minute and explain everything, you know, it's got to be so much information there that you get confused, you know what I mean?

This is enough information for someone who is in this field to understand the -- the situation on the -- Q Okay. A -- on the property, you know. I might not even have gone to that property, which I did, you know, on the -- on the first report I haven't even seen the -- the property, you know.

I've done my site visit after the -- the first thing because this thing here is -- is like a, excuse my explanation, we call it this is for like a Bible for me to see, like piece of -- and this is what tells me what is going on because it has the -- the (indiscernible) which is a land surveyor which if you -- if you believe in the institutions of this state, you know, of this

province, we -- Q Okay. A -- should believe that this, whoever has given him the authority to -- to call himself a land surveyor is giving an information that -- on that -- that is true to his best of his knowledge. MS. CHORLTON: Your Honour, I'd ask if the court could direct the witness to answer the questions. I -- this is a considerable amount of information. I mean -- THE COURT: All right. Well, it's almost the end of the day, but would you just pose the question again? MS. CHORLTON: I think he's answered the question that he -- that he doesn't know the elevation of that corner of the property.

THE COURT: Right. MS. CHORLTON: And I'll just end with this one. Q I believe I asked you this question before, but I think the answer's gotten a bit lost. So you did not measure the elevation in the southwest corner of the property, correct? A There is no need for me to measure it .” (emphasis added) Transcript , May 19, 2011, pp. 128-129.

See, to a similar effect, pp. 125-126. [ 46 ] Other factors that have been raised that could account for the water accumulations in the Triangular Area that will be discussed in greater detail below—such as, for example, the damming effect of horse manure dumped by HCO onto the City Swale—seem to have escaped the notice of both Mr. Baheri and Mr. Behmanesh, even though both attended at the site and would be expected in the normal course to be vigilant for such things. Mr.

Baheri apparently did not turn his mind to the possibility that the addition of fill on parts of the McQuarrie Road Property may have distorted or altered the drainage patterns there. Neither did he give consideration to the possible blockage, by vegetation, of water flows through the riprap which fills part of the McQuarrie Road Ditch on either side of the culvert that passes under the property’s driveway. These are all factors that, at the very least, call for some analysis when experts like Mr. Baheri and Mr.

Behmanesh attempt to diagnose a water accumulation problem on a property that could be the result of multiple, intersecting causes. [ 47 ] While the expert reports tendered by Mr. Baheri (Exhibit 18) and Mr. Behmanesh (Exhibit 19) are, to look at them, separate documents authored by those two experts individually (with no co-authors acknowledged), even a cursory examination reveals that, in substance, they are essentially the same. This is so despite the fact that one of the experts is an architect and the other is an engineer. While there is overlap in what Mr. Baheri and Mr.

Behmanesh were qualified to address in their expert opinions, they were not qualified to cover identical territory. When cross-examined about the process whereby he came up with a report that was essentially the same as that of Mr. Baheri, Mr. Behmanesh admitted that he and Mr. Baheri prepared their “report” (singular) together and then each of them separately finalised their versions. HCO’s experts, therefore, were revealed to be both literally and conceptually “on the same page”. “MS. CHORLTON: Q Did you review Mr. Baheri's report prior to -- A Yes, I did. Q -- preparing your own? You did. Did you copy Mr.

Baheri's report in writing this own report? A I cannot remember if I did. Q You can't recall if you copied his report or not? I mean, did you use the content in Mr. Baheri's report to prepare your own report? A Oh, I -- Q Not did you physically photocopy it, but did you use the content in his report to prepare your report? A Before -- before writing the report , we discuss about this issue, and we were in the same page. Q Okay. Did you, yourself, write every sentence in this report? A That's right. Q Did you share a copy of your report with Mr. Baheri? A Yes. Q Do you know if Mr.

Baheri copied the sentences in your report into his report?

A You mean the same sentence, the same word? Q Yes, I mean the same sentence. A As I said, we discuss this issue, and we agree for preparing this report. Probably some of the sentence are the same, not to copy -- Q So -- A -- but the same result that we mentioned. Q So did you write the report together? A We prepared the report together as just pre-writing, and then we final it (indiscernible). Q I see. Okay. So you both -- you drafted a report together; is that correct? A That's correct. Q And then you each took your own copy -- A That's correct. Q -- of that report?

And then you made a few changes, and then finalized the report? A I am not -- I don't remember if did some changes on my draft but we prepared the draft together. Q So essentially your report is exactly the same as Mr. Baheri's report, correct? A Not exactly, but we discussed that what is the point of the view that I have to emphasize in my report, and what he has to provide itin his report as well -- Q Did you have any -- A -- to cover everything in both reports. Q Okay.” (emphasis added) Transcript, May 19, 2011, pp. 91-92. For Mr.

Baheri’s admission to a similareffect—namely that “[his] friend, Hamid Behmanesh” co-authored his report—see p. 119 [48] I hasten to add that there is nothing before me to suggest that Mr. Norton or HCO had any idea at all that HCO’s two expertshad conducted themselves in this questionable manner. [49] The fact that the opinions tendered separately, in report form, by Mr. Baheri and Mr. Behmanesh, are simply two iterations withstylistic differences of a joint work product is problematical. A cross-examiner does not know which portions of the report originatedwith which co-author.

The court does not know which parts of a de facto single report can be attributed to which of the differentlyqualified experts. “… It is not unheard of for [an] author to fail to disclose … the true authors of parts of the report. If counsel suspects more than oneauthor, this should be the subject of cross-examination, which may result in the report being found inadmissible (Jones v. Ma [2010BCSC 867]). Where a report is prepared by more than one author, if the facts are within the personal knowledge of one of the authors, it must be clearwho had the knowledge.

Also, if it is unclear which author is responsible for which opinion, the experts’ report may be inadmissible,since cross-examination of the authors on the report will be hampered …” G.S. McAllister, B.M. Samuels andT.S. Woods, eds., Expert Evidence in British Columbia Civil Proceedings, 3rd ed.,(Vancouver: CLEBC, 2011) at p. 221.See also, Emil Anderson ConstructionCo. v.

British Columbia Railway Co., (BC SC), [1987] 5 W.W.R. 523 (B.C.S.C.) [50] I would not go so far as to declare the Baheri and Behmanesh expert evidence to be inadmissible based on the undisclosedauthorship problems with the reports that I have just described. However, those problems—coupled with the other weaknesses I havecanvassed above (which are serious)—lead me to ascribe little weight to the authors’ opinions. Rather, I prefer to accept the better-reasoned and more coherent expert evidence given by Mr. Mitchell for the City.

It will be recalled that he opined, as an engineer, thatthe 2007 Subject Dike Improvements produced minimal additional runoff and did not increase seepage at all (which seepage is minimalin any event). He further opined, and I have found, that the existing drainage infrastructure was sufficient to take care of all of the runoffresulting from the Subject Dike.

(

c) Runoff and seepage not causally linked to Subject Septic System damage [ 51 ] In 2002 HCO purchased the McQuarrie Road Property. Previous owners, in their wisdom, had seen fit to build the House and install the Subject Septic System in a part of that flood plain property which sits at a particularly low elevation and which has displayed chronic accumulations of water. The Subject Septic System at the time of purchase by HCO was at least 17 years old. It continued to perform satisfactorily for another six years until February, 2008, when it finally failed.

By then it was at least 23 years old. [ 52 ] On the facts as I have found them, the McQuarrie Road Property—like all of the effectively reclaimed lands on the Pitt Polder flood plain—has a high water table.

While it rises and falls in concert with the quantity of rainfall in any given season and while it covaries to some degree with the fluctuations, both tidal and seasonal, in the water levels in the Pitt River for reasons having nothing to do with the Subject Dike, the water table on the McQuarrie Road Property is perpetually high relative to the water tables on lands that are not at such low elevations and in such close proximity to watercourses. [ 53 ] Septic systems can and do function in high water table environments.

The Subject Septic System on the McQuarrie Road Property did so for at least 23 years without incident. But it is generally recognised that they are prone to earlier failure in high water table environments than they are in low water table environments. Mr. Norton of HCO admitted this himself: Transcript , May 19, 2011, p. 5.

Seen in this light, one might perhaps be forgiven for expressing the view that HCO did well to get six additional years of service out of a system for dealing with domestic sewage on its property that had already rendered 17 years of service to previous owners under challenging conditions. [ 54 ] The reliable expert evidence that speaks to the amounts of additional water running off the Subject Dike onto the McQuarrie Road Property that can be attributed to the 2007 Subject Dike Improvements shows that those amounts are insignificant and within the capacity of the drainage infrastructure that is there now.

A causal connection between the failure of the Subject Septic System and those improvements cannot, in the face of such evidence, be proven by HCO. [ 55 ] Similarly, HCO tendered no credible expert or other evidence to support its theory that accumulations of water in the Triangular Area resulted in the “floating” of the septic tank and its ultimate separation from the pipe that feeds into it by reason of water added to the accumulations by runoff from the Subject Dike since it was raised. Mr.

Norton, for HCO, has worked backward from something he saw concerning the relative positions of system components when he stared down into a hole at the time the septic tank and pipe were exposed following the failure of the Subject Septic System. (The evidence in this regard that he sought to lead by reference to a note made by an insurance adjuster was inadmissible both as hearsay and, arguably, as the expert opinion of a “witness” who was not qualified as an expert.) [ 56 ] The speculative evidence Mr.

Norton gave himself regarding the mechanics of the failure of the Subject Septic System falls far short of proving that the components were affected by changes in the soil around them resulting from recently changed conditions attributable to raising of the Subject Dike. HCO has simply not marshalled and adduced the expert evidence that would be necessary to support that theory of causation. The McQuarrie Road Property, I say again, perpetually experiences a high water table. The 2007 Subject Dike Improvements did not, on the evidence before me, materially change that water table.

Neither, accordingly, has HCO been able to prove that those improvements materially affected the saturation of the soil in the Triangular Area or the buoyancy of Subject Septic System sitting within that area. [ 57 ] While I have made the point repeatedly that water accumulations in the Triangular Area have not been shown to be causally related to the Subject Septic System failure, I do wish to add that, even if it had been, HCO has not ruled out factors, other than the morphology of the Subject Dike, that may have influenced the amount of the water that accumulated there. For example: (

a) HCO itself admits that the introduction of perforated pipe and gravel in the Triangular Area brought about some improvement in the accumulations, resulting in less pooling of water there: Transcript , November 26, 2010, p. 13. It is not obvious to the court why further steps of that kind were not taken; (

b) In January of 2008, not long before the Subject Septic System failure, HCO dumped horse manure onto City property and on top of the City Swale—a drainage feature that directed some runoff from the Subject Dike into the McQuarrie Road Ditch. It would be a mistake, in my view, to attribute too much significance to this action. Horse manure is, after all, a relatively porous organic substance.

However, the City’s expert and other witnesses did persuade me that the City Swale was part of the overall drainage infrastructure for the Subject Dike and that the placement of horse manure on top of it would have had a damming effect of some kind, preventing some amount of unwanted water from reaching the McQuarrie Road Ditch and being carried away. To that extent, then, some part of the accumulations can be traced to actions taken by HCO against its own interests; (

c) HCO has performed numerous operations on the McQuarrie Road Property that have altered the drainage patterns there. Undoubtedly, many of them had beneficial effects. But some of them—like the paving of large driveway surfaces that were previously absorptive—may have had unintended, undesirable effects. Mr. Mitchell’s evidence was that fill added between the north side of the House and a drainage ditch north of there would have adversely affected drainage flows and, if not removed, would have contributed to accumulations of water around the House: Transcript , May 20, 2011, pp. 51-52.

There is no evidence that that fill was removed. Such factors get in the way of HCO’s efforts to lay the troublesome water accumulations in the Triangular Area exclusively at the feet of the City; (

d) City witnesses, including its expert Mr. Mitchell, noted the presence of vegetation in the riprap that fills the McQuarrie Road Ditch on either side of the driveway culvert. The riprap constitutes a “non-standard detail” in ditch construction and City witnesses adverted, in their evidence, to the potential for plant debris to accumulate in the interstitial spaces between and among the rocks comprising the two riprap installations, providing (once decomposed) a growth medium for still more vegetation.

Vegetation growing out of the riprap and covering it to some degree was, indeed, noted and documented by City witnesses. They referred to the potential that that vegetation has for blocking flows through the McQuarrie Ditch. Mr. Baheri (HCO’s architectural expert) and Mr. Behmanesh (HCO’s engineering expert) both also acknowledged during cross-examination that such blocking potential does exist (although neither actually checked the riprap/culvert assembly themselves during their site visits): see Transcript , May 20, 2011, p. 8 and May 19, 2011, p.

100 respectively. Here again, it would be a mistake, in my view, to attribute too much significance to this phenomenon. Partly due to the fact that it was difficult to make proper observations during their site visits, no witnesses could give reliable evidence to suggest either the presence, or the absence, of a differential in the height of the ditch water on either side of the riprap/culvert assembly.

However, it would be equally unjustified for the court to rule out the possibility that, at times, accumulations in the Triangular Area may have been caused or contributed to by backups in the McQuarrie Road Ditch resulting from the impedance of water flow eastward through the riprap/culvert assembly. [ 58 ] I venture to make a further point. It is clear on the evidence that land burdened with a high water table will reveal, in areas that are sufficiently low, pooling of ground water.

Where a landowner wishes to gain access to ground water for the purpose of watering cattle for example, the landowner will dig down below the water table, thereby exposing water in the excavation that the cattle can drink. This practice came up for discussion in the evidence at trial. [ 59 ] Correspondingly, if water pooling on the surface of land with a high water table causes difficulties, fill can be added so that the surface of the land is raised up above the level of the water table, removing the problem of pooling.

This, too, came up for discussion in the evidence at trial. [ 60 ] The evidence in this case has left me in no doubt that the McQuarrie Road Property overall has water table which fluctuates to be sure but which generally sits quite near to its surface. As a flood plain property—reclaimed land in effect—that property has had a high water table for many years. This incontestable feature of the land is most obvious in the Triangular Area where the elevation of the McQuarrie Road Property land is comparatively low and where visible pooling has, for that reason, been chronic.

The Subject Septic System was, for whatever reason, installed by HCO’s predecessor owners below ground in that very area at least 23 years before that system failed.

Most of the Subject Septic System has sat beneath the water table across the entire span of its service lifetime. [ 61 ] It would take very compelling evidence of substantial quantities of new water being added to such lands by improvements like the 2007 Subject Dike Improvements to even open the door to consideration that the stability of a Subject Septic System—which has spent its entire service lifetime in saturated soil, partially if not wholly below the average level of the water table—has been meaningfully affected by the raising of the dike that protects that property and all the other properties that lie adjacent to it. [ 62 ] Here, the evidence is that there is minimal seepage of water through the Subject Dike, none of which is attributable to the 2007 Subject Dike Improvements.

Moreover, such increase in runoff as the 2007 Subject Dike Improvements have brought about is for present purposes insignificant. On the expert evidence that I have accepted, the added 3½ to 4% rise in runoff attributable to the height added to the Subject Dike does not materially increase the amount of water that accumulates in the Triangular Area. Moreover, and importantly, Mr.

Mitchell’s expert evidence established that the drainage infrastructure that is present there is sufficient to handle all runoff and seepage: Transcript , May 20, 2011, p. 75. [ 63 ] It is trite to say that “correlation does not imply causation”. Similarly, it is generally recognised that the dictum “correlation proves causation” is a logical fallacy. HCO’s experience of Subject Septic System failure in the early winter of 2008 was very roughly correlated, as to time, with the 2007 Subject Dike Improvements that were completed by about June of 2007.

HCO discerns something sinister in this rough correlation but, for the reasons I have outlined above, the evidence does not furnish HCO with proof of the facts it requires in order to persuade me, on a balance of probabilities, that increased water accumulations attributable to the 2007 Subject Dike Improvements caused the failure of its Subject Septic System.

RUNOFF ATTRIBUTABLE TO PRE-2007 IMPROVEMENTS [ 64 ] I have made periodic reference, above, to HCO’s alternative argument—not raised even implicitly in its Notice of Claim—that runoff or seepage that might be attributed to improvements made to the Subject Dike before 2007 ought to be considered for the purposes of adjudicating its claim in the present case. [ 65 ] While, as can be seen, I have taken a liberal approach to HCO’s Notice of Claim and am willing to consider causes of action that have not been expressly pleaded, HCO goes too far when it asks the court to consider, in this case, alleged acts or omissions of the City dating back decades and to a time when HCO was not even an owner of the McQuarrie Road Property. [ 66 ] The City was not and could not have been put on notice by HCO’s pleadings that it would be advancing such pre-2007 arguments.

An enlarged time frame brings with it a much different scope of document production, for both parties, and the potential need for the calling of other defence witnesses—witnesses who could not have been in the City’s reasonable contemplation when preparing to defend an action based upon a Notice of Claim which refers, inter alia , to work on the Subject Dike and the associated raising of the McQuarrie Road ramp (that is, work that can only be the 2007 Subject Dike Improvements).

Neither the documents introduced by the parties into evidence nor the cast of characters who they brought and who testified at trial reflect any appreciation on either party’s part, most importantly the City’s, that the time-frame germane to HCO’s claim might reach back decades before the carrying out of the 2007 Subject Dike Improvements. [ 67 ] The invoking of alleged deficiencies in City conduct that allegedly occurred many years before those improvements also triggers limitations issues that the City could not reasonably have had in its contemplation or been able to address in its trial preparation. [ 68 ] For these reasons, fairness requires that I decline to consider arguments advanced by HCO to the effect that, for the purposes of evaluating the effects of runoff, I must take into account the “104%”—that is, the runoff occasioned by the 2007 Subject Improvements plus that occasioned by earlier work done by or on behalf of the City in the course of improvements made to the Subject Dike from time to time over the course of its lifetime. [ 69 ] Before leaving this topic I do note, however, that even if I had been willing to open the door to HCO to advance arguments

based on pre-2007 improvements to the Subject Dike, the expert evidence of Mr. Mitchell that I have accepted and found mostpersuasive appears to provide a complete answer to those arguments. During his re-examination by City’s counsel, this importantexchange took place regarding all of the runoff: “Q Now you were asked a number of questions in reference to this aide-memoire about runoff and my question is, in your opinion, isthe – the existing network of ditching sufficient to deal with the runoff from the dyke?

A I believe it is, yes.” Transcript, May 20, 2011, p. 75 HCO’S CAUSE OF ACTION IN TRESPASS [70] The case of Plaunt v. Renfrew Power Generation Inc., [2011] O.J. No. 2005 (S.C.J.), citing Grace v. Fort Erie (Town), (ON CA), [2003] O.J. No. 4375 (S.C.J.), provides a helpful

summary of what constitutes a cause of action in trespass. Iparaphrase it as follows: (

a) Trespass involves any direct and physical intrusion onto land that is in the possession of the claimant; (

b) Indirect or consequential interference does not constitute trespass; (

c) The defendant's act need not be intentional, but it must be voluntary; (

d) Trespass is actionable without proof of damage; and (

e) While some form of physical entry onto or contact with the plaintiff's land is essential to constitute a trespass, the act mayinvolve placing or propelling an object, or discharging some substance onto the claimant's land can constitute trespass. [71] The type of trespass alleged here by HCO against the City is of the “discharging some substance onto the claimant’s land”variety—a form of trespass well known to the law in British Columbia: see, for example, Engemoen Holdings Ltd. v. 100 Mile House(Village), (BC SC), [1985] 3 W.W.R. 47 (B.C.S.C.).

The water that I have found has run off and seeped through theSubject Dike onto the McQuarrie Road Property in insignificant quantities is the “substance discharged” for the purposes of the analysis. [72] The runoff water at issue is simply that added 3½ to 4% additional rainwater that is shed by the Subject Dike’s eastern flankonto the adjacent McQuarrie Road Property following the making of improvements that raised it.

The seepage water at issue is that nearto negligible amount that I have found will seep through the Subject Dike and reach the McQuarrie Road Property on the other side,unaffected by the 2007 Subject Dike Improvements. [73] It is obvious that the City does not control the insignificant amount of water that falls on or seeps through the Subject Dike atfirst instance. This is not a case where the City has created an elaborate system of water storage and distribution in which the controlnecessary to ground liability for trespass might be found.

This, rather, is a case where the alleged trespass is incidental to the merepresence of a structure. The scenario is not one of no control whatsoever but, rather, one of insufficient control to ground liability. Where such control is absent, actions in trespass generally fail: Stachniak v. Thorhild No. 7 (County), [2001] A.J. No. 423 (Prov. Ct.): “... since the defendant does not ‘control’ the waters in the first instance, this cause of action usually fails.” (at para. 25) [74] On that basis, HCO’s action in trespass against the City must and does fail. HCO’S CAUSE OF ACTION BASED ON THE DOCTRINE IN RYLANDS v.

FLETCHER [75] The doctrine in Rylands v. Fletcher, provides that a defendant will be found strictly liable if the claimant can prove that: (

a) the defendant made a non-natural use of its land; (

b) the defendant brought onto its land something that was likely to do mischief if it escaped; (

c) the substance in question escaped; and (

d) damage was caused to the claimant as a result of the escape. [76] I make the preliminary observation that it cannot be said that the City “brought onto its land” the seepage and runoff water ofwhich HCO now complains. The rainwater that falls on the Subject Dike and then runs down its eastern flank onto the McQuarrie RoadProperty descends from the heavens above it—not at the bidding or through any instrumentality of the City but through the mainlyungovernable processes of nature.

Similarly, the minimal amounts of water that seep from the Pitt River through the Subject Dike to theMcQuarrie Road Property (which property would be flooded with torrents of Pitt River water were the dike not there) originate in the PittRiver. I have heard no evidence to suggest that the City redirected the flow of the Pitt River or took any other steps so as to “bring it”from elsewhere “onto” the municipal land that sits alongside the McQuarrie Road Property, separated from it by the Subject Dike. [77] This case is thus in no way comparable to Rylands v. Fletcher itself where the defendants Messrs.

Rylands and Horrocksactually brought water onto their lands from elsewhere and stored it in underground mine shafts. The walls of some of the undergroundshafts on the defendants’ gave way, permitting water to flood mine shafts belonging to the adjacent property owner, Mr. Fletcher. It canbe seen that the facts of the case at bar do not in this basic way conform to the contours of the cause of action raised up by the old case ofRylands v. Fletcher.

[78] There are other more pertinent bases upon which Rylands v. Fletcher liability in the case at bar is called into question,however. [79] First, as the Supreme Court of British Columbia has held in Chu v. North Vancouver (District), [1982] B.C.J. No. 72 at 6 (S.C.), var’d on other grounds [1984] B.C.J. No. 1571 (C.A.), citing the 16th edition of Salmond on Torts, “the essence of the Rylands v.Fletcher principle is that compensation is given for a single disastrous escape”.

The doctrine is not engaged in fact situations thatinvolve continuing or continuous escapes or interferences: see also in this regard, Burnaby (City) v. Thandi, [2005] B.C.J. No. 2284(S.C.). [80] Plainly, the case at bar involved no “single disastrous escape” but, rather, an insignificant (that is, non-disastrous) continuingescape which, by definition, lies outside the ambit of the Rylands v. Fletcher doctrine. [81] Second, on the facts as found (and, indeed, by HCO’s own admission), the Dike System of which the Subject Dike is a partprotects the lands in the Pitt Polder against flooding.

Without it those reclaimed lands would flood repeatedly as a result of tidalfluctuations in watercourses like the Pitt and Alouette Rivers and as a result of rising levels resulting from the annual spring freshet. TheSubject Dike represents, therefore, an essential feature of municipal life in the uniquely water-challenged City of Pit Meadows. Itrepresents, in that setting, an ordinary use of land that benefits the citizens of the City generally and HCO particularly.

When HCOacquired the McQuarrie Road Property with knowledge that that property was protected from the ravages of flooding by the DikeSystem, it must be taken to have consented to the presence and existence of the Subject Dike and the considerable benefit that it confers. [82] These circumstances remove the case at bar from the reach of the doctrine in Rylands v. Fletcher because the Dike Systemgenerally and the Subject Dike in particular constitute “indispensable part[s] of the infrastructures necessary to support urban life” in theCity that are maintained pursuant to statutory municipal authority: Tock v. St.

John’s Metropolitan Area Board, (SCC),[1989] 2 S.C.R. 1181 at para. 12. [83] Third, I return again to a recurring theme in the City’s defence that has come up in connection with all but one of the causes ofaction that are implicitly raised by HCO’s Notice of Claim. It is the issue of causation of damage. On the facts as found HCO has failedto prove that accumulations in the Triangular Area of water attributable to runoff from or seepage through the Subject Dike originatingwith the 2007 Subject Dike Improvements (or otherwise) were the cause in fact of any damage to the Subject Septic System.

Proof ofcausation of such damage is an essential element of any claim based on the doctrine in Rylands v. Fletcher. [84] For the foregoing reasons, HCO’s action against the City based upon the authority of Rylands v. Fletcher must and does fail.

HCO’S CAUSE OF ACTION IN NUISANCE [85] An actionable nuisance is caused when a defendant’s act or omission unlawfully annoys, prejudices or disturbs the claimant’senjoyment of the use of land: see Tock at para. 15. [86] In Tock, LaForest and Dickson, JJ. offered this helpful description of the careful and restrained approach that the courts havetypically taken to adjudicating claims of nuisance, having regard to the adverse effects that beneficial activities of some occupiers willinevitably have on adjacent occupiers of land in modern societies where close physical proximity is increasingly unavoidable: “The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state but difficult toresolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party.

The courts have traditionallyapproached this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on the formulations ofKnight Bruce V.-C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849, and Bramwell B. in Bamford v. Turnley (1862), 3 B. &S. 66, 122 E.R. 27, at pp. 83-84 and at pp. 32-33 respectively. There it was observed that the very existence of organised societydepended on a generous application of the principle of ‘give and take, live and let live’.

It was therefore appropriate to interpret asactionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards heldby those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment ofproperty that were unreasonable in the light of all the circumstances. The courts are thus called upon to select among the claims for interference with property and exclude those based on the prompting ofexcessive ‘delicacy and fastidiousness’, to employ the terms of Knight Bruce V.-C.

The courts attempt to circumscribe the ambit ofnuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of that localitywould view the disturbance as a substantial interference with the enjoyment of land.

Among the criteria employed by the courts indelimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood, theutility of the defendant's conduct, and the question whether the plaintiff displayed abnormal sensitivity.” (at paras. 16-17) [87] Drawing upon the criteria mentioned in the latter part of that quotation, I would first observe that it is difficult to characterisethe parties, on the facts here, as having “conflicting uses” of their respective lands.

The City has, on its lands, watercourses, includingthe Pitt River, that it seeks to control so as to prevent HCO and other landowners in the Pitt Polder region of the City from having theirproperties rendered uninhabitable or unusable due to the flooding that would otherwise inevitably result from tidal and seasonalfluctuations in the water levels within those watercourses. The infrastructure by which the City controls those watercourses includes theDike System. The interests of both the City and HCO in keeping HCO’s land free of unwant

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