CAROL METANCZUK PLAINTIFF - v. –, 2023 SKKB 208

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 208 Date: 2023 09 29 Docket: QBG-SA-00481-2013 Judicial Centre: Saskatoon BETWEEN: CAROL METANCZUK PLAINTIFF - and – JAY WATSON, CUELENAERE KENDALL KATZMAN & WATSON and the RURAL MUNICIPALITY OF CORMAN PARK NO. 344 DEFENDANTS Counsel: Grant J. Scharfstein, K.C. for the plaintiff E. Scott D. Hopley and Haley B.P. Stearns for the defendants, Jay Watson and Cuelenaere Kendall Katzman &Watson Michael P. Morris, K.C. and Adryan J.W.

Toth for the defendant, Rural Municipality of Corman Park No. 344 ___________________________________________________________________________ JUDGMENT MORRALL J. September 29, 2023 ___________________________________________________________________________ Introduction [ 1 ] Some have described the surface moisture situation during the spring of 2011 in certain parts of Saskatchewan as a flood of “biblical” proportions. Many people suffered losses as a result of the damage created by this excess water. Carol Metanczuk [Ms.

Metanczuk] was one of those unfortunate people. [ 2 ] On April 9, 2011, she owned a house on a parcel of land located in the R.M. of Corman Park [R.M.]. According to her evidence, at around 2:00 p.m. she noticed some water in her yard where it had been dry the previous day and contacted a contractor to attend and fix the berm he had previously erected on her property. She then enlisted John Zabos [Mr. Zabos] and Gary Zabos to determine where this water was coming from.

They tracked the flow upstream to a place where a gravel road in the R.M. had been excavated and water was flowing from one side to the other of this cut in the road and towards Ms. Metanczuk’s property. Ms. Metanczuk, with the assistance of a number of neighbours, friends and family, valiantly attempted to reinforce the berm to stop a torrent of water entering her residence. Unfortunately, by April 10, 2011, the berm had failed and the water breached her home. [ 3 ] As a result of the damage occasioned by this breach, Ms. Metanczuk engaged the services of Jay Watson [Mr.

Watson], a partner with the law firm of Cuelenaere Kendall Katzman and Watson [Firm] to commence a claim. A claim on Ms. Metanczuk’s behalf was issued by Mr. Watson on April 9, 2012 against the R.M but not served until April 23, 2012. A component of the R.M.’s subsequent statement of defence included an allegation that the claim was not served within the one-year time limit prescribed by s. 344 of The Municipalities Act, SS 2005, c M-36.1 . This specific defence led Ms. Metanczuk to engage different counsel and sue Mr. Watson and the Firm as well. [ 4 ] It has now taken over 12 years for these claims to be heard.

This delay has been far too long for all involved and undoubtably compounded the tragic circumstances of the initial flood. [ 5 ] I will outline the chronology of the various court proceedings, along with the evidence filed, to put the matter in context given the request by all parties to use the

summary judgment procedure to resolve all issues between them. [ 6 ] I will indicate at the outset that I am thankful for the briefs of law filed by all parties as I found them of great assistance in helping me navigate through the numerous factual and legal issues in this matter. [ 7 ] To better organize this judgment, I have divided it into the following sections: ITEM PARAGRAPH Introduction....................................................................................................................... 1 The Proceedings ............................................................................................................... 8 The Evidence ................................................................................................................ 31 Witnesses of Ms.

Metanczuk .................................................................................. 33 Carol Metanczuk............................................................................................. 34 John Zabos...................................................................................................... 35 Kristin Zabos................................................................................................... 36 Hannah Povey................................................................................................. 37 Kirk Styles....................................................................................................... 38 Ron Crush....................................................................................................... 39 Mike Clancy.................................................................................................... 40 Witnesses of Mr.

Watson and the Firm .................................................................. 41 Jay Watson...................................................................................................... 42

Witnesses of the R.M............................................................................................... 43 Adam Tittemore.............................................................................................. 44 Blake Peters..................................................................................................... 45 Daryl Altman................................................................................................... 46 John Germs...................................................................................................... 47 Expert Witnesses ..................................................................................................... 48 Robert Halliday............................................................................................... 49 Eric Broberg ................................................................................................... 55 Wayne Dybvig................................................................................................ 71 Position of the Parties...................................................................................................... 78 Ms.

Metanczuk.................................................................................................... 78 The R.M............................................................................................................... 85 Mr. Watson and the Firm..................................................................................... 90 Issues............................................................................................................................... 97 Analysis........................................................................................................................... 98

Summary Judgment............................................................................................. 98 Proposed Experts............................................................................................... 114 The Constituent Elements of Nuisance and Negligence....................................................................................................... 120 Nature and Scope of the R.M.’s Duty of Care Owed to Ms.

Metanczuk........................................................................................... 124 Reasonable Foreseeability.................................................................................. 137 Proximity............................................................................................................ 142 Second Stage...................................................................................................... 149 Breach of Duty of Care...................................................................................... 155 Findings of Fact and Opinion............................................................................. 158 Breach by Cutting the Road............................................................................... 185 Breach by Failing to Warn................................................................................. 211 Causation............................................................................................................ 221 Service of the Statement of Claim..................................................................... 261 Mr.

Watson and the Firm’s Duty of Care Towards Ms.

Metanczuk................................................................................. 292 Quantum of Damages......................................................................................... 298 Costs .............................................................................................................................. 299 The Proceedings [ 8 ] The litigation began on April 9, 2012 with the statement of claim issued on behalf of Carol and Robert Metanczuk, collectively [Plaintiffs], alleging actions grounded in negligence and nuisance against the R.M. as a result of the R.M.’s decision to breach the road which caused the flooding of the Metanczuk household, which led to general and specific damages [QBG-SA-00572-2012]. [ 9 ] The affidavit of service to this claim noted service on the R.M. at 9:53 a.m. on April 23, 2012. [ 10 ] The statement of defence for the R.M. was filed June 25, 2012 and denied any negligence, put the Plaintiffs to the strict proof thereof and alleged that the claim was statute-barred as a result of the missed one year limitation period set out in s. 344(1) of The Municipalities Act . [ 11 ] A subsequent separate statement of claim was issued by the Plaintiffs on April 5, 2013 against Mr.

Watson and the Firm alleging negligence in missing the limitation period [QBG-SA-00481- 2013]. [ 12 ] A notice of change of legal representation from Mr. Watson to Mr. Grant Scharfstein with respect to QBG-SA-00572-2012 was filed on May 12, 2014. [ 13 ] A statement of defence was filed on June 4, 2014 with respect to QBG-SA-00481-2013 by Mr. Watson and the Firm denying that they missed a limitation period and alleging other defences to Ms.

Metanczuk’s claim against them. [ 14 ] Certificates of compliance with the mandatory mediation provisions in QBG-SA-00572-2012 and QBG-SA-00481-2013 were filed on October 6, 2014. [ 15 ] An amended statement of defence by Mr. Watson and the Firm was filed on February 17, 2015.

The amendments were consented to by the plaintiffs and added defences related to The Emergency Planning Act , SS 1989-90, c E-8.1 [ EPA ], and the Provincial Disaster Assistance Program [PDAP]. [ 16 ] Questionings of the parties by counsel opposite took place and transcripts of the oral questionings were prepared and filed with the Court with respect to the following individuals: 1) Jay Watson by Mr. G. Scharfstein on August 8, 2016; 2) Jay Watson by Mr. Stanley (counsel for Wawanesa Mutual Insurance Company [Wawanesa] in a separate but related claim) on August 8, 2016; 3) Carol Metanczuk by Mr.

Hopley on August 9, 2016; 4) Adam Tittemore by Mr. G. Scharfstein on August 10, 2016; and 5) Carol Metanczuk by Mr. Morris on August 10 and 11, 2016. [ 17 ] A notice of application for

summary judgment related to QBG-SA-00572-2012, QBG-SA-00481-2013 and an additional claim involving Wawanesa, being QBG-SA-00480-2013, was filed on March 10, 2017. The application was supported by the affidavit of Ms. Metanczuk, sworn March 7, 2017, and pertained solely to determining the issue regarding whether Mr. Watson and the Firm were liable in negligence as a result of missing the limitation period. [ 18 ] A notice of expert witness pertaining to the qualifications of Wayne Dybvig [Mr.

Dybvig], along with a statement of his expertise in hydrology, overland and below grade water movement, spring melt and flood and cause of water infiltration into basements was filed by Mr. Watson and the Firm on May 10, 2018. [ 19 ] A notice of expert witness pertaining to the qualifications of Robert Halliday [Mr. Halliday], along with a statement of his expertise in civil engineering and hydrology, was filed by the R.M. on December 6, 2018. [ 20 ] A notice of expert witness pertaining to the qualifications of Eric Broberg [Mr.

Broberg], along with a statement of his expertise in the areas of flood prevention, remediation and road and culvert construction, was filed by Ms. Metanczuk on December 7, 2018. [ 21 ] A notice of objection to the expertise of Mr. Broberg was filed by Mr. Watson and the Firm on December 11, 2018. [ 22 ] On December 18, 2018, a pre-trial conference was held pertaining to QBG-SA-00572-2012, QBG-SA-00481-2013 and QBG-SA-00480-2013. [ 23 ] Robert Metanczuk [Mr. Metanczuk] filed a notice of discontinuance in relation to all three actions on March 26, 2019.

[ 24 ] An order for consolidation of actions for QBG-SA-00572-2012 and QBG-SA-00481-2013 was issued January 2, 2020. The new style of cause would now be Carol Metanczuk versus Jay Watson, Cuelenaere Katzman and Watson and The Rural Municipality of Corman Park No. 344, with the file number being QBG-SA-00481-2013. [ 25 ] An amended notice of application for

summary judgment with respect to all issues in the case at bar was filed on behalf of Ms. Metanczuk on December 4, 2020. This judgment pertains to the amended application for

summary judgment. Her application was supported by the following eight affidavits: 1) Affidavit of Mike Clancy, sworn June 3, 2020; 2) Affidavit of Hannah Povey, sworn July 20, 2020; 3) Affidavit of Kirk Styles, sworn August 24, 2020; 4) Affidavit of John Zabos, sworn September 9, 2020; 5) Affidavit of Kristin Zabos, sworn October 26, 2020; 6) Affidavit of Ron Crush, sworn November 10, 2020; 7) Affidavit of Carol Metanczuk, sworn December 1, 2020; and the 8) Affidavit of Eric Broberg, sworn December 2, 2020. [ 26 ] In response to the

summary judgment application, the following affidavits were filed by the R.M.: 1) Affidavit of Robert Halliday, sworn January 26, 2021; 2) Affidavit of Blake Peters, sworn January 27, 2021; 3) Affidavit of Daryl Altman, sworn January 27, 2021; and the 4) Affidavit of John Germs, sworn January 29, 2021. [ 27 ] In response to the

summary judgment application, the affidavit of Mr. Watson, sworn January 29, 2021, and the affidavit of Mr. Dybvig, sworn February 1, 2021, were filed on behalf of Mr. Watson and the Firm. [ 28 ] As a result of the various affidavits filed by the parties, the following individuals were cross-examined on their affidavits by counsel opposite and a written transcript was produced for the Court: 1) Blake Peters by Mr. G. Scharfstein on June 21, 2021; 2) Blake Peters by Mr. Hopley on June 21, 2021; 3) Robert Halliday by Mr. Hopley on June 21, 2021; 4) Robert Halliday by Mr. M.

Scharfstein on June 21, 2021; 5) Jay Watson by Mr. G. Scharfstein on June 21, 2021; 6) Daryl Altman by Mr. G. Scharfstein on June 22, 2021; 7) Daryl Altman by Mr. Hopley on June 22, 2021; 8) John Germs by Mr. G. Scharfstein on June 22, 2021; 9) John Germs by Mr. Hopley on June 22, 2021; 10) Wayne Dybvig by Mr. M. Scharfstein on June 22, 2021; 11) Carol Metanczuk by Mr. Morris on June 23, 2021; 12) Carol Metanczuk by Mr. Hopley on June 23, 2021; 13) Ronald Crush by Mr. Hopley on June 23, 2021; 14) Ronald Crush by Mr. Morris on June 23, 2021; 15) Eric Broberg by Mr.

Morris on June 24, 2021; and 16) Eric Broberg by Mr. Hopley on June 24, 2021. [ 29 ] All parties filed an agreed statement as to facts on April 3, 2023 pertaining to their concurrence with respect to a substantial portion of the loss amounts suffered by Ms. Metanczuk. [ 30 ] I am informed that QBG-SA-00480-2013 is being held in abeyance until the result of this matter is determined and I need not comment on it further.

The Evidence [ 31 ] It is perhaps fortunate that there is a large number of recorded and written material documenting the recollection of the individuals involved in various aspects of this litigation given that their memories would have likely faded to an even greater extent had they been required to testify at a trial that would occur some time in the future.

Still, the fact that the questionings took place about five years after the incident, the majority of the affidavits were written more than nine years post-flood and the cross- examinations on the affidavits took place more than 10 years post-flood is not ideal. I will discuss this delay again when I review the applicability of the

summary judgment process to this claim. [ 32 ] There are a number of disparate factual events that all relate to the potential liability for the damage to Ms. Metanczuk’s home. Given the parties’ request to use the

summary judgment process, which will require some determinations of credibility and reliability, I will initially review the evidence proffered by each party by witnesses tendered on their behalf. I will then review the totality of the evidence of the three expert witnesses. In all matters, I will not relate verbatim accounts of the factual renditions of the witnesses but will only refer to the general salient points. Of course, all evidence tendered throughout the lifespan of this claim will be considered. Witnesses of Ms. Metanczuk [ 33 ] For this

summary judgment application, Ms. Metanczuk proffered the lay evidence of herself, Mike Clancy [Mr. Clancy], Hannah Povey [Ms. Povey], Kirk Styles [Mr. Styles], Mr. Zabos, Kristin Zabos [Ms. Zabos] and Ron Crush [Mr. Crush]. [ 34 ] Ms. Metanczuk’s evidence included her questioning of August 9, 10 and 11, 2016, affidavits sworn March 7, 2017 and December 1, 2020, along with her cross-examination of June 23, 2021. The salient portions are as follows: 1) In 2005 she moved her existing farmhouse that she shared with her then husband, Mr. Metanczuk, to a property in the R.M. of Corman Park.

The area was dry when they moved. 2) Over the winter of 2007/2008, there were high water table issues at her property which, when the water froze, pushed the piles up underneath the walkout portion of the house and caused damage which resulted in her filing a PDAP application. With the money from the PDAP claim, the problem was rectified. 3) In 2010, she brought pumps onto her land to move water so as to grade the land. According to an engineering report commissioned on June 25, 2010, groundwater was 10 centimetres below the surface near the front of her walkout basement.

Despite this, there was never any water in their basement prior to 2011. 4) In the summer and fall portion of 2010, she had someone construct a makeshift berm near her residence to protect her improvements on the property from the rising water from the west. 5) She and Mr. Metanczuk separated and divorced during this time, and she continued to thereafter reside in her home on that property with her children until April 2011. 6) On April 9, 2011, she noticed water running into her yard at about 2:00 p.m., into an area that was dry the day before. She then contacted a contractor, Wayne Harvey [Mr.

Harvey], to come and fix the berm they had previously created on the land as water was starting to flow through the berm. Mr. Harvey attended with his backhoe. 7) She immediately phoned her daughter, Kristin Metanczuk (now Zabos), and her daughter’s then boyfriend, Mr. Zabos, to come help. They both arrived and immediately started working to try and divert the water on the land. 8) Within a few hours of noticing the water rising on the land, she asked Mr. Zabos and his father, Gary Zabos, to try and figure out where the water was coming from.

They advised that they walked upstream and found that water was flowing through a trench that was cut in the road. 9) Throughout the next several days, many friends and family came to the land to help build berms, walls and move property at the residence, without much success. It was difficult to rebuild the berm as water was already coming in while they were trying to reinforce it in the mud and water. 10) She then spoke to John Germs [Mr.

Germs], a councillor for the R.M., at 5:00 p.m. on April 9, 2011, who advised her that the R.M. had cut the road at about 1:00 p.m. that day. 11) On April 9, 2011, at around 5:00 p.m., she noticed a strong smell of sewage and realized the septic field adjacent to her home had flooded and the fumes became so bad that, at around 2:00 a.m. on April 10, 2011, everyone was forced to abandon the residence.

12) She agrees that even if she had later built a berm that would have successfully kept the water out of the inside of her house, that would not have prevented the septic field, at least partially, from being flooded out. 13) They returned to the residence early in the morning on April 10, 2011 and called Perry Ulrich, her R.M. councillor, who came to her property at 9:00 a.m. and helped her build up barriers for about half an hour.

When he arrived, the water was within 20 feet of her home and, by the time he left, the water was within about five feet. 14) On April 10, 2011, at 11:00 a.m., the Reeve of the R.M., Mel Henry, came to the land and she had a brief conversation with him. He then noticed that the berm had been breached and a new flood of water was rushing towards her land. He then said to her, “you might want to fix that”, walked to his car and left. 15) She tried to get sandbags from the R.M. on April 10, 2011, but Mel Henry had told her that the R.M. yard was closed on Sunday and she would have to wait until Monday.

However, they were able to obtain sandbags from the R.M. after someone else made calls to open the R.M.’s yard. 16) Mr. Crush and Al Keller [Mr. Keller] from the Watershed Authority [WA], the organization now known as the Water Security Agency [WSA], came to the land in the afternoon of April 10, 2011.

They indicated to her that the R.M. did not seek approval from their agency to cut the trench in the road. 17) On April 10, 2011, she and the others in attendance at her residence attempted to build a sandbag berm around her walkout basement and brought pumps to try and transfer the water away to no avail. 18) By late in the day on April 10, 2011, the water flowed into her residence through the doors and windows.

As well, the road onto her property became impassable. 19) After the R.M. cut the road, the water at her property continued to rise for a lengthy period of time. 20) As a result of the devasting flood, her home became completely uninhabitable, and she sustained significant damage to her personal property and chattels located in the home that she was not able to move out. 21) On April 11, 2011, the council for the R.M. passed a resolution to have the area declared as an eligible assistance area under the PDAP and she was eventually able to obtain some financial assistance as a result. 22) When she had learned that the road was cut, she felt there may be some liability on the part of the R.M. since they had cut the road without providing her notice.

Gary Zabos drafted a letter outlining these concerns for her on April 13, 2011 and she delivered it to the R.M. on April 15, 2011. While the letter states the road was cut on April 10, 2011, this is an error on her part.

The letter reads as follows: Dear Sirs: RE: Water Damage – Carol Metanczuk Property NE ¼ - 14-36-4-W3rd Date of loss: April 10 and 11, 2011 This letter is to provide the Rural Municipality of Corman Park with formal notice pursuant to s. 343 of the Municipalities Act of a potential claim from the Rural Municipality for compensation for losses arising from damage to our home and property which occurred starting April 10, 2011.

From information I have available, some of which was provided by the representatives of the Rural Municipality and on which I am relying, on or about April 10, 2011 the Rural Municipality or persons acting on its behalf caused an uncontrolled release of a body of water on or near the extension of 8 th Street, east of Saskatoon. This action, of which no warning or notice was provided to me, caused a large quantity of water and sewage to enter our yard and house, resulting in extensive damage to our house and buildings, yard and belongings.

In addition to the physical damage, the house has been rendered uninhabitable, and I and my family have had to try to find alternative accommodations. I have advised my counselor and the reeve of the matter, both of whom attended at my property to view the situation. Yours truly, Carol Metanczuk 23) In late July and August 2011, she had a berm constructed with the financial assistance of the Emergency Flood Damage Reduction Program, in the total amount of $103,799.17, with 85 percent of that amount being covered by the program. It was built by Kobylak Construction between July 26 to August 9, 2011.

She agreed that it was not until several months after the April 9, 2011 flood before she could get anyone to her property to build a berm. She also agreed that she did not have $100,000 “sitting around” to pay for the berm in April 2011. 24) Between August 12, 2011 and September 2, 2011 she pumped water out of her basement.

However, the water remained out of the basement only for a short period of time as, given the high water table, the water seeped back in the basement as the water on the exterior part of the newly constructed berm was higher than the residence. 25) Since the flood that occurred on April 9, 2011, the 2020 year was the first year there had not been standing water in the basement of that residence due to the now low water tables as a result of limited snowfall and rainfall.

However, every year before, there had been fluctuating levels of water of between one and four feet in the basement of her residence due to groundwater issues. She noted that the berm built in July and August 2011 had not failed to her knowledge. 26) She and her children have suffered greatly as a result of this catastrophic flood, including many financial and personal struggles. 27) In July 2011, she consulted Mr. Watson at the Firm who told her that there may be a compensable claim against the R.M. because of the flood and damages that resulted from the cut in the road. 28) Subsequently, she and Mr.

Metanczuk instructed Mr. Watson to commence an action against the R.M. and they provided him with all the necessary information to issue and serve the claim and they relied on his knowledge and expertise to do so. 29) That claim was issued on April 9, 2012 and served on the R.M. on April 23, 2012. 30) On June 29, 2012, Mr. Watson advised her that he missed the limitation period as he had not served the R.M. within the required time period and she would have to issue a claim against him to recover damages.

His email response to her is as follows: Carol, On the first question – you always fire all bullets – even though you know damn well the first one is going to do the trick. If you can get the plan more power to you – it actually may raise fewer flags for them if you get it as opposed to me – so by all means – but if you can’t we will get it.

As for suing me – if we do the amendment – my insurer would likely say – go ahead and try and get all you can from the RM – whatever that amount is 0-$x – you – with the help of independent counsel at that point would say to my insurer – ok – we got this much from the RM – but we should have been able to get $y if it weren’t for the fact that my knuckleheaded lawyer missed the damn limitation period – so you have to make up the difference.

To which the insurer will say – no you wouldn’t have – you would have lost against the RM for this reason and that reason – so you didn’t lose a thing – but just to make it go away we will give you $z. Isn’t this wonderful! Jay 31) After buying sandbags from the R.M. at a cost of approximately $2,500 in 2011, she had difficulty paying for them. On September 23, 2013, Mr. Tittemore, then the administrator of the R.M., indicated that the R.M. was willing to waive the interest charges that had accumulated on her purchase of sandbags if she paid by the end of October 2013.

If not, he indicated that the R.M. would reinstate the interest charges and resume tax enforcement proceedings. She paid the full amount on October 18, 2013. 32) In her affidavit of December 1, 2020, she then details the expert report of Mr. Broberg, the special damages she suffered and the reasons why she is seeking punitive/aggravated damages against Mr. Watson. [ 35 ] Mr. Zabos’s evidence only includes the material in his affidavit sworn September 9, 2020. The salient portions are as follows: 1) He is Ms. Metanczuk’s son-in-law and married to her daughter, Ms. Zabos. 2) On April 9, 2011, he and Ms.

Zabos were contacted by Ms. Metanczuk to come to her residence as water was rushing into Ms. Metanczuk’s yard. They arrived 30 minutes later and assisted in moving things out of the basement, locating sandbags and trying to procure water pumps. 3) He was asked by Ms. Zabos to follow the water “upstream” to determine its origin. He and his father, Gary Zabos, followed the water to the 8th Street grid road extension in the R.M. and found a large pool of water on the opposite side of the road but that the road had been sliced through as it appeared to be excavated out.

The cut was allowing a huge rush of water to flow from one side of the road to the other in the direction of Ms. Metanczuk’s residence. He provides multiple pictures of the cut in the road. 4) For the next several days, he spent countless hours trying to fight the onslaught of the flood waters at Ms. Metanczuk’s residence. Eventually, they reverted to damage control to attempt to salvage things from the house. He spent in excess of $10,000 on purchasing and renting equipment to combat the flood. 5) He then outlines in detail the tremendous personal and financial hardships caused by the flooding. [ 36 ] Ms.

Zabos’s evidence only includes the material in her affidavit sworn October 26, 2020. The salient portions are as follows: 1) She is Ms. Metanczuk’s oldest daughter. 2) On April 9, 2011, Ms. Metanczuk called her to tell her that her yard was filling with water and that the “substantial berm” that had been erected around their house was breached. She attended the residence with Mr.

Zabos and Gary Zabos and saw the water going quickly through the berm. 3) She noted the contractor on the property trying to fix and reinforce the berm but to no avail. 4) She spent the next 10 days trying to save the home and attempting to have the R.M. provide some assistance and answers as to why the road was cut. 5) She remembers the Reeve of the R.M., Mel Henry, calmly saying, “You might want to fix that”, after water burst through a part of the berm, before leaving without offering any assistance.

6) She outlines the personal toll on her family members as a result of the flooding of her mother’s home. [ 37 ] The salient portions of Ms. Povey’s evidence only include the material from her affidavit sworn July 20, 2020, where she outlines the assistance that she provided Ms. Metanczuk in sandbagging and asking for volunteers during the first few days of the flood in April 2011. [ 38 ] Mr. Styles’ evidence only includes the material from his affidavit sworn August 24, 2020. The salient portions are as follows: 1) He is a friend and tenant of Ms.

Metanczuk. 2) He and his wife came back from a training session early on April 9, 2011 to assist with attempting to contain the flooding. He attempted to erect a berm of dirt using her small John Deere tractor. 3) By April 10, 2011, many people had arrived to assist with sandbagging and berm creation. 4) On that day, he witnessed someone who was described as the reeve of the R.M. by Ms. Metanczuk immediately leave during a conversation with Ms.

Metanczuk when the berm that had been erected was suddenly breached. 5) At some point, either on April 10 or 11, 2011, water started flooding the basement and the work shifted to damage control to save as many possessions as possible from the basement. [ 39 ] Mr. Crush’s evidence includes the material in his affidavit sworn November 10, 2020, along with the cross-examination on that affidavit that took place on June 23, 2021. The salient portions are as follows: 1) He was employed in a supervisory role by the WA in managing the provincial water resource within the northwest region in April 2011.

His field of competence is as a professional civil engineering technologist. 2) On April 10, 2011, he, along with Mr. Keller, were working in the R.M. attempting to help homeowners prevent flood damage or mitigate damage that had already occurred and were dispatched to Ms.

Metanczuk’s home as it was experiencing significant flooding. 3) The water runoff in the spring of 2011 was an unprecedented extreme event that he, in his 35 years of service, had not previously experienced. 4) When they arrived, they noticed significant flooding in and around the home and observed many people sandbagging. 5) On April 10 or 11, 2011, he and Mr. Keller followed the flood waters and came upon a spot where the road was breached, and water was flowing freely through where it was dug out.

On days prior, they had been to the same spot and noticed water flowing through the culvert before the road had been cut. 6) On either of the prior dates they were there, he noted no surface flooding impacting the homes in the area on the north side of the road. Further, on those same dates, they received no complaints about flooding from individuals upstream on the cut road. 7) After the road was cut, he noted the flows downstream to Ms.

Metanczuk’s property had greatly increased. 8) The WA conducted an investigation of the waterflow in the entire area and it was determined that the natural flow of water ran through the place where the R.M. cut the road, south through Ms. Metanczuk’s property, and then turned west towards the City of Saskatoon. 9) Based on his review of the drainage area, due to the high water table on the other side of the road and the natural flow of water, eventually the water would have reached and flooded the Metanczuk home even if the road had not been cut.

However, with the amount of water that he observed in the area, this would have taken some time, probably several days at the earliest, to reach her residence.

Therefore, the cutting of the road affected the timing of the flow but not where the water would naturally go. 10) To his understanding, rural municipalities did not need approval from the WA for works that maintain the natural flow of water. 11) He has seen a situation where a road washed out without water first overtopping the road similar to this matter although in his experience a washout occurs with a poorly constructed culvert. 12) In his experience, he would agree that if a road was soft, it is a concern that there could be a risk of that road washing out.

If an individual walks on a road and their foot goes through the crust of the road up to the knee and there is just water underneath, that is a sign that the road is washing out. 13) To access funding from the Emergency Flood Damage Reduction Program to build a berm, an individual would need to have a consultant look at the proposal, provide a report that the berm is the most economic and feasible means to protect and reduce flooding, provide a cost estimate and then the WA would have to approve it. 14) The above process would, in a perfect world, take a few weeks but realistically would not happen that quickly. [ 40 ] The salient portion of Mr.

Clancy’s affidavit includes only the material in his affidavit affirmed June 3, 2020, where he confirms that he assisted in the attempt to stop the flooding of Ms. Metanczuk’s residence that eventually occurred on April 10, 2011. He took a number of pictures of the relief effort as well as noting that, on April 10 or April 11, 2011, the road running into her property was cut in an attempt to drain the flooding water to the north side of the property, but that this particular cut did not accomplish much. Witness of Mr. Watson and the Firm [ 41 ] The only lay witness proffered by Mr. Watson and the Firm was Mr.

Watson. [ 42 ] Mr. Watson’s evidence included the material in his affidavit sworn January 29, 2021, his questioning of August 8, 2016, and the cross-examination of his affidavit by counsel on June 21, 2021. The salient portions are as follows: 1) He is a partner in the Firm and had represented Ms. Metanczuk in relation to the flood claim and was the lawyer responsible for the steps taken by Ms. Metanczuk in pursuit of that claim. 2) He opened the file for the flood claim on June 13, 2011, having previously spoken to Gary Zabos who had been assisting Ms. Metanczuk previously.

He received instructions to represent Ms. Metanczuk on July 6, 2011 and continued to represent her until August 15, 2012. 3) The information he had received in relation to this claim was that the R.M. had cut a trench on a grid road, which allowed a large amount of water to flow in a southerly direction into Ms. Metanczuk’s yard and flooded her house. He understood that the overland water began to enter the house later in the morning of April 10, 2011. 4) When speaking to Ms.

Metanczuk, she did not raise the issue of whether the R.M. had obtained authorization from the WA in relation to the cut in the road, whether the R.M. had declared a local emergency or any indication that she was aware of the significance of either events.

However, he had no reason to believe she would be aware of these issues, and he did not raise them with her either. 5) The memo regarding this file that he had an associate prepare in August 2011 stated that a claim under The Saskatchewan Watershed Authority Act , SS 2002, c S-35.02 (since rep) was “very questionable”, did not mention the requirement to issue and serve a claim within one year and did not relate any information about the discoverability issue. 6) They had not been successful in obtaining an expert opinion, which was a topic of conversation with Ms.

Metanczuk, up until the issuing of the original claim. 7) The claim was issued on April 9, 2012 and served on the R.M. on April 23, 2012 and he received the statement of defence from the R.M. on June 18, 2012. 8) As of April 9, 2012, when the claim was issued, his advice to Ms. Metanczuk was that they had an arguable claim against the R.M. in the form presented. 9) The claim did not include an allegation under The Saskatchewan Watershed Authority Act as he had concluded that one should not be brought. 10) After receipt of the statement of defence, he had an exchange of emails with Ms.

Metanczuk which reflected his immediate conclusion that he had made a mistake because of missing service of the claim within the one-year requirement. At that time, he states that he had not contemplated the impact of the discoverability principle on the commencement of the limitation period. 11) However, aside from the limitation period issue, he continued to think that Ms.

Metanczuk had a good and viable claim. 12) He had not contemplated the discoverability issue as it was their intention to serve and file the claim within the appropriate time period so that the limitation period would not be an issue. 13) He states that all matters raised in his statement of defence filed for himself and the Firm were initiated as bona fide defences and not in bad faith. 14) He states that he was not aware of the significance of whether any authorized agency had made a declaration of local emergency at the time he issued the claim. 15) He agrees that when he discussed the claim with Ms.

Metanczuk, his opinion was that the claim had value based on the facts as he understood them at the time. 16) During his engagement as Ms. Metanczuk’s lawyer he was not aware of the factual circumstances which prompted the R.M. to decide to cut the road. 17) During his time as counsel of record, he had concerns about whether the breach of the road could be shown to have caused damage to Ms. Metanczuk’s property. Witnesses of the R.M. [ 43 ] The R.M. proffered the lay evidence of Adam Tittemore [Mr. Tittemore], Mr. Germs, Daryl Altman [Mr. Altman] and Blake Peters [Mr.

Peters]. [ 44 ] The salient portions of the evidence of Mr.

Tittemore arise solely from the following material in his questioning on August 10, 2016 (as proper officer on behalf on the R.M.): 1) While not employed by the R.M. in any capacity in the spring of 2011, he is presently (August 10, 2016) the administrator of the R.M. and appointed by the R.M. council by resolution to represent the R.M. in this matter. 2) The R.M. acknowledges that it cut a trench on Township Road 364 and that before and during the period of time when the trench was being cut in the road the R.M. did not advise anyone in the area of the cut nor did they advise anyone after. 3) The decision to cut the trench was made jointly by Mr.

Altman and Mr. Peters.

4) The R.M. acknowledges that it approved the relocation of the Metanczuk residence to the property in the R.M. as well as the development permit for the foundation in 2005. There were no known flooding issues on the property at that time. 5) There was discussion at the Public Works Committee for the R.M. on December 7, 2010 that the spring melt could be worse than normal and there was talk of purchasing additional sandbags and getting manpower to help with the sandbags.

There were also further discussions about the spring thaw in a meeting on February 7, 2011. 6) Prior to April 7, 2011, the R.M. did not have a concern with the buildup of water on the north side of Township Road 364. 7) There were phone calls from Kathryn Doell [Ms. Doell], either April 7 or April 8, 2011, that water was backing up on the north side of the road towards her yard site, which is located on the north side of Township Road 364. He denies that the road was cut due to pressure by Ms. Doell as far as he is aware. To his knowledge, she does not have a relationship to anyone on the R.M. council, Mr.

Altman or Mr. Peters. 8) The decision to cut the trench in the road was made to protect the infrastructure as the road was going to wash out.

Cutting the road would not alter the natural flow of the water as it would flow as if it were going through the culvert. 9) The road was filled two weeks later and the major flow of water stopped two or three days after the road was cut. 10) Prior to the trench being cut, the R.M. did not seek or obtain approval from the WA to cut the trench. 11) During a council meeting of April 11, 2011, council agreed to apply for the R.M. to be designated as an area eligible for assistance regarding private property under the PDAP.

On June 13, 2011, eligibility for the PDAP was approved by the provincial government. 12) Other than the provision of sandbags, the R.M. did not provide Ms. Metanczuk with any assistance to contain the flood of her home. 13) It is the position of the R.M. that Ms. Metanczuk’s damages were sustained no later than April 13, 2011, which was the day she advised of her potential claim against the R.M. for the purposes of the limitation period. 14) The R.M. did not give any thought to declaring an emergency under the EPA . [ 45 ] The evidence of Mr.

Peters includes the material from his affidavit sworn January 27, 2021 and the cross-examination that took place on June 21, 2021. The salient portions are as follows: 1) He has been employed by the R.M. since June 2000 and, in the spring of 2011, was their Assistant Director of Public Works. 2) During the spring of 2011, the R.M. anticipated serious flooding and he and the other Public Works’ employees had been busy for weeks trying to do what they could to minimize the damage, including clearing ditches and steaming culverts, including those along Township Road 364. 3) Ms.

Doell was identified as being at risk of flooding as a result of the R.M.’s information from the 2007 PDAP applications, but Ms. Metanczuk was not. 4) On April 7, 2011, the R.M. had received a call from Ms. Doell who advised that water was building up on the north side of the road near her residence and she was concerned that water would back up to her yard site. This is the first the R.M. had heard of these concerns. 5) He indicated that Ms. Doell called the R.M. often and was not hard to deal with.

However, she would not have been able to get through to the R.M. on April 9, 2011, as the R.M. office was closed on Saturday. 6) He and Mr. Altman attended the site of the eventual cut on April 7, 2011 and April 8, 2011 to monitor the conditions and noted that water had built up on the north side of road, but they did not believe the yard site was in danger of flooding as both culverts were handling the waterflow. He noted the water was six inches below the edge of the road both times they were there. 7) On April 9, 2011, they were rechecking sites they had previously visited and the site close to Ms.

Doell’s land was the last one they checked that day at around 5:00 p.m. 8) He parked his vehicle at the site and when he stepped out of his truck, his foot sunk into the road above the culvert to about his knee. It was not like stepping into soft dirt, but he broke through the crust of the road into water. While the road surface was fine, the fact that the road was getting soft indicated to him that the road was going to wash out.

His truck did not sink or have an issue with the soft road as the vehicle was more in the middle of the road, but the location of his foot sinking in the road was within a step of where he parked his truck. 9) He noted that the water was still about six inches below the edge of the road and the inlet end of the culvert was submerged and a whirlpool had formed at the culvert entrance. While the water was flowing through the culvert, which was able to handle the capacity, it appeared that the granular material around the culvert was being washed away. 10) Based on their experience, both he and Mr.

Altman believed that a washout was imminent, and he was of the belief that there was a significant risk the road would wash out overnight so they made the decision to cut a trench through the road and close it to traffic with signs and barriers. Only he and Mr. Altman were involved in this decision. 11) A R.M. backhoe operator was called into service and this individual completed the work in about 30 minutes. However, it was 30 minutes to 45 minutes between the time they made their decision and when the work commenced with the arrival of the backhoe operator.

He noted that a portion of the road was soft and easily removed, while the rest was hard and needed to be excavated. 12) The decision to cut the road was not made due to pressure by Ms. Doell, but to protect infrastructure and for public safety. They protected infrastructure by minimizing the extent of damage to the road and considered public safety as they believed simply closing the road was not an option.

In their experience, motorists would remove barricades and drive through if the condition which warranted the road closure was not obvious. 13) They did not notify anyone downstream of their intention to cut the road as they needed to act immediately, there were no visible structures immediately downstream, and they were not altering the natural direction of the waterflow.

The risk to the Metanczuk property was never part of the equation as their focus was prioritizing the safety of the motoring public on the road. 14) They did not contact the WA prior to cutting the road as they needed to act immediately and were not diverting the water from its natural course. 15) It was not feasible to install another culvert due to the amount of water already at the location. 16) He noted there were other roads in the R.M. in the spring of 2011 where water either came over the road or they breached the road to avoid water coming over them. 17) In the spring 2011, he stated it was almost impossible for the R.M. to arrange for a contractor to get something as simple as a backhoe. [ 46 ] The evidence of Mr.

Altman includes the material in his affidavit sworn January 27, 2021, as well as his cross-examination of June 22, 2021. The salient portions are as follows: 1) He was employed by the R.M. from 2008 to 2012 and was the Director of Public Works during the spring of 2011. 2) The weather conditions leading up to the spring of 2011 were such that serious flooding was anticipated, and the Public Works’ employees were working to minimize the damage by clearing ditches and steaming culverts. 3) He understands that on April 7, 2011, the R.M. received a call from Ms.

Doell that water was building up on the north side of Township Road 364 and she was concerned that water would back up to her yard site. He agreed that she had made a number of calls to the R.M. over a period of time. 4) He was working seven days a week attending to issues all over the R.M. given the widespread flooding. 5) He and Mr. Peters attended the site some time prior to April 9, 2011 to monitor conditions and, while he recalls that water was building up on the north side of the road, he did not believe Ms. Doell’s yard site was in danger of flooding. 6) They attended to Ms.

Doell’s yard site again on April 9, 2011, but he does not recall what time of day it was. 7) During their attendance, he noted that water continued to build up on the north side, but he did not believe Ms. Doell’s yard site was in danger of flooding. However, he did observe that the road was starting to wash out at the location of one of the culverts as Mr. Peters stepped out of his truck and his foot sunk into the road above the culvert. While water was flowing through the culvert, it appeared that the granular material around the culvert was being washed away. 8) He recalls Mr.

Peters stepping out to the edge of the road and the truck they were driving not having any issues with sinking in the road. 9) Along with Mr. Peters, he concluded that a washout of the road was imminent as there was a significant risk the road would wash out overnight, so they made the decision to collapse the road grade above the culvert and brought in an R.M. employee with a backhoe to cut the road. Only he and Mr. Peters were involved in this decision. 10) They were able to minimize the damage to the road by cutting it as they did, given a much wider

section of the road would have been damaged had the road washed out. This decision was not made as a result of pressure by Ms. Doell. 11) It was not feasible to install another culvert to prevent the washout due to the conditions at the time and the resources available. 12) They did not attempt to contact anyone downstream of the location of the cut as they needed to act immediately, there were no structures immediately downstream, and they were not altering the direction of the waterflow. 13) They did not contact the WA as they needed to act immediately and were not diverting the water from its natural course.

He had been in contact with personnel from the WA numerous times in the spring and if he had felt the need to contact them, he would not have hesitated to do so. 14) He agrees that erecting a berm around a property is more effective than sandbagging, but that any berm constructed by a homeowner in the R.M. would not be the R.M.’s responsibility. [ 47 ] The evidence of Mr. Germs includes the material in his affidavit sworn January 29, 2021, and his cross-examination that took place on June 22, 2021.

The salient portions are as follows: 1) He is and has been a member of council for the R.M. since the year 2000. 2) On April 9, 2011, he received a phone call from Ms. Metanczuk indicating she was concerned about water coming into her yard and agreed to attend her property. 3) He arrived at her property at 5:00 p.m. On his way there, he travelled down Township Road 364 and saw some Public Works’ employees there, along with a backhoe, close to the yard of Ms. Doell. He stopped

and he remembers Mr. Peters being there. He went down that particular road as Ms. Doell had called him that day with concerns regarding potential flooding at her property. 4) He noted a large amount of water that had accumulated on the north side of the road, and it appeared that a

section of the road was at risk of washing out, so a decision was made to construct a trench through the road to limit the damage. 5) He indicated that he was part of the discussion with the backhoe operator and Mr. Peters as to the plan going forward with respect to cutting the road. 6) He stated that the water was flowing through the culverts at full steam and that nothing was plugging the culverts. He also said that the water was just about going to overtop the road, within half an inch, but had not overtopped. 7) He also remembers the decision regarding cutting the road being made by Mr. Peters or Mr.

Altman, who he does not recall seeing there but recalls talking to. 8) He did not proceed through the road as he said it was impassable, although the trench had not yet been cut. 9) He said he considered letting the people downstream from the cut know what was happening and, in fact, informed the other individuals at the road that he was going to Ms. Metanczuk’s property to let her know what her options were. 10) Upon arriving to Ms. Metanczuk’s property, he observed water coming in fast through a makeshift berm. He offered to help but she declined. 11) He denies telling Ms.

Metanczuk that the road had been cut at 1:00 p.m. that day as the road had not yet been cut just before he attended Ms. Metanczuk’s residence at around 5:00 p.m. 12) He told her that “the boys” are going to breach the road to assist waterflow and the water is coming so you should prepare yourself for another flood here. 13) He was aware that when they cut the road that the water was going to flow into her property as that is the natural flow of the water.

He also advised her to move property out of the basement to the top floor. 14) Council for the R.M. applied for assistance from the government as noted in the minutes of both the April 11, 2011 and April 26, 2011 meetings. Expert Witnesses [ 48 ] Each party has tendered one expert with respect to this application. I will review the evidence of each expert in turn. Robert Halliday [ 49 ] Mr. Halliday was tendered by the R.M. as an expert in the field of civil engineering and, in particular, hydrology.

His resume indicates that he is a professional engineer and engineering hydrologist by training with over 30 years experience, largely in the Canadian prairie provinces. His field of practice relates primarily to interjurisdictional water management, floodplain management and hydrometry, which is the science of measuring water quantity.

Prior to being a full-time consultant, he was the manager of flood damage reduction programs on behalf of Environment Canada. [ 50 ] In his report dated November 1, 2017, he notes he was asked to provide his professional opinion regarding the flooding incident at the Metanczuk property in April 2011, with a focus on the role the road cut played in the incident.

This involved assembling existing data and information, analyzing the contents of that data and information, and site visits on December 12, 2014 and March 29, 2016. [ 51 ] His report began with an extensive review of the physical geographical setting of Ms. Metanczuk’s property and refers to the property lying in the “prairie pothole” landscape where surface drainage tends to be relatively poor with evident permanent wetlands on many properties, including that of Ms. Metanczuk.

He then reviews the climate and weather at her property and notes that 2010 was an extraordinarily wet year, with close to double the normal precipitation, ensuring that much of the depressional storage in the area would have been filled.

He then reviews the runoff patterns in this landscape and the role culverts play in restoring the natural movement of water through the landscape despite the presence of roads and railways. [ 52 ] In applying his expertise to the physical location and the knowledge that the R.M. workers collapsed the road grade and removed the culvert, he came to the following conclusions: 1) The setting of the Metanczuk property is in the prairie pothole region of the interior plains and natural wetlands; both perennial and temporary wetlands are a characteristic of this region. 2) Precipitation and runoff during 2010 were much higher than normal, which led to the replenishment of natural wetlands as well as to increased surface water ponding. 3) Antecedent conditions in 2010 led to a very significant spring snowmelt event. 4) The culvert installation through Township Road 364 was undersized for the conditions experienced in 2011. 5) The likelihood of significant flooding in the spring of 2011 was well understood.

The provincial and R.M. governments made a reasonable effort to inform landowners of the situation. 6) The efforts made by the R.M. personnel to deal with the culvert failure at Township Road 364 were appropriate to the situation.

The road breach would have had little or no effect on the quantity of water at the Metanczuk property, although it may have affected the timing of the increase in water level. 7) Similarly, had the culvert in Township Road 364 been allowed to fail, this failure would have had no bearing on the quantity of water arriving at the Metanczuk property, but may have led to an even more rapid increase in water levels. [ 53 ] In Mr. Halliday’s affidavit sworn January 26, 2021, he reiterates much of what is stated in his report of November 1, 2017.

However, he made the following additional comments: 1) He was advised of various circumstances by Mr.

Peters in relation to the culvert size and conditions before and including April 9, 2011, and believed that given that the water level at the upstream end of the culvert had held steady for three days, he could conclude that the culvert system was performing at or near its design capacity and that a large volume of water was being delivered downstream. 2) Given the fill around the culvert was starting to become liquified, a road failure was highly probable, and, in his professional opinion, the actions taken by the R.M. were appropriate. 3) The breaching of the road would have no bearing on the quantity of runoff entering the Metanczuk property, although it may have influenced the timing of the peak water level.

If the R.M. had not breached the road, and it had not washed out, he believes that the peak water level would have occurred on the property within 24 to 48 hours.

Had the culvert blew out on its own, the situation may have been much worse as it may have led to an even more rapid increase in water levels. 4) The Metanczuk residence is set in a flood prone location and the flooding in April 2011 was the direct result of the extreme runoff conditions at the time. 5) If water levels started to increase in the early afternoon of April 9, 2011, several hours before the culvert crossing was breached, this would indicate that the upstream potholes were very nearly full as a result of three days of high flows before the breach took place. [ 54 ] During Mr.

Halliday’s cross-examination on June 21, 2021, he stated as follows: 1) While he indicates that the risk of significant flooding in the spring of 2011 was well known and communicated to the public, he is not aware whether Ms. Metanczuk received any of this information. 2) The Metanczuk property was at the immediate low point of a prairie pothole. In other words, adjacent to a slough. 3) He states that he personally spoke to Mr.

Peters and visited the cut site, which is where he received his information that the culvert had been holding steady for three days, but that information was not based on any personal observations from 2011 as he was not there. 4) If the road was starting to liquify, he feels that letting the road fail would be the method of last resort. 5) The fact that the flow had held steady for three days with the culvert working properly would indicate that there was likely very little risk that the water would overtop the road. 6) In coming to his conclusion that the water would have peaked within 24 to 48 hours around Ms.

Metanczuk’s home had the R.M. not breached the road, he indicates that while the size of the culvert that was breached may affect the water flowing downstream to some extent, there were two other adjacent culverts on the same road that did not get breached and were also flowing full. Therefore, these factors would affect the overall picture of the water flowing towards the Metanczuk property, as well as given that there were multiple places where the water flowed into the property. Eric Broberg [ 55 ] Ms. Metanczuk tendered Mr.

Broberg as an expert in flood prevention/remediation and road and culvert construction. His resume indicates that he is a registered professional engineer and the principal of Saskcon Repair Services Ltd., a privately owned civil general contractor with 40 years experience in industrial and heavy construction. This company has undertaken flood prevention and remediation work for the Ministry of Highways, Prairie Farm Rehabilitation Administration, Agriculture Canada and other Crown corporations and federal agencies. [ 56 ] Mr. Watson and the Firm provided a notice of objection to Mr.

Broberg’s testimony on the basis he is not qualified to provide opinion evidence on the matters set forth in his report and/or he has expressed opinions beyond the scope of his expertise. However, during the

summary judgment application, this objection was not argued. As with all expert opinion, I will review the entirety of his evidence and will assign it the weight I feel is appropriate having regard to all the circumstances. [ 57 ] Mr. Broberg provided a report dated November 21, 2018 in which he provided an opinion on a number of subject areas. [ 58 ] He opined that, if Ms.

Metanczuk had 48 to 75 hours advance warning of the R.M.’s decision to breach the road, she could have taken steps to eliminate the flooding that occurred or minimized the flooding to a manageable level as she could have built a four-to-six foot high berm around the home “easily” within that time frame. While they would require a source of borrow dirt, this could have come from Ms. Metanczuk’s property.

This would be combined with one or two sump pits to lower the water table and/or seepage through the dyke. [ 59 ] He felt the cost of building this berm would be approximately $50,000 plus taxes and require a total of 21 working hours to complete over the course of two days. The equipment required would include a track hoe, six tandem trucks or three 30-tonne rock trucks, a D6 dozer and a Padfoot compactor. [ 60 ] He also states that Ms.

Metanczuk could have hired a contractor to bulldoze a functional but unaesthetically pleasing berm around the house in 12 hours. [ 61 ] In terms of the sewer backup, he feels that the high water table was not of “much consequence” in regards to the flood damage in the basement.

[ 62 ] With respect to his opinion relating to Mr. Dybvig’s opinion that the flooding would have occurred anyway regardless of whether the road had been cut, he opined that the water could have been managed better by installing an additional culvert through the road so that the outflow would be more manageable as the water outflow would have occurred over several weeks rather than a few hours. Had the release been slower, little or no berming may have been required.

He then said that the higher water table could have been managed by one or two sump pumps installed in the home to lower the water table. [ 63 ] In his 40 years of construction experience, he has not seen a municipality cut a road to release water in a manner similar to what occurred to Ms. Metanczuk as the municipalities always consider the consequences to the downstream recipients of the water. Further, contrary to the opinion of Mr. Dybvig, if the water was released in a “controlled” manner as he suggested, most of the water would have remained in the holding slough rather than the slough near the residence.

He also noted that the water could have been stopped from running through the two existing culverts with a plug or piece of plywood which would reduce the total volume and rate of water release. [ 64 ] A slightly amended opinion report dated November 6, 2020 was filed by Mr.

Broberg as part of his affidavit sworn December 2, 2020, which also included his source material. [ 65 ] In this second report, he additionally notes that a borrow source of dirt for the berm could be trucked in from another source but is usually taken close to the worksite so as to keep costs down. [ 66 ] He also now states that the functional but unaesthetically pleasing berm would be a temporary berm that would require additional work to upgrade it to a permanent dyke hence the reduced initial cost. [ 67 ] He provided further clarification with respect to the benefit of installing a high culvert stating that only 10 to 20 percent of the water in the holding slough would have then flowed downstream, reducing the flooding. [ 68 ] He was asked an additional question by Ms.

Metanczuk’s counsel and opined that if he was asked by the R.M. for his opinion about whether to cut the road in the situation presenting itself on April 9, 2011, he would not have advised cutting the road for fear of endangering lives and property. He would have advised the R.M. to install a high extra culvert which would have taken about two hours. [ 69 ] Mr. Broberg also filed a reply affidavit sworn February 16, 2021, in response to the other affidavits filed in this proceeding, in which he stated as follows: 1) With respect to the affidavit of Mr.

Peters, he says it “seems unlikely” that Township Road 364 would have been soft or in danger of collapse because generally a road will not wash out unless the water is overtopping the road or unless the road was quite new. The road in question was not new. 2) A cofferdam is not always required to install a culvert and he gives an example of a 2010 project where he did not need to create a cofferdam where there was high water on one side of the road. He further states that a temporary culvert installation would take a maximum of three hours to complete. 3) With respect to the affidavit of Mr.

Dybvig, he states that cutting the road should be a method of last resort. 4) He opines that a berm could have been completed in wet conditions and it is rare that contractors are at full capacity. 5) He denies that his suggestion previously stated was to install a second culvert at a higher elevation and then close the lower culvert creating a dam. He states that both culverts acting together would release water in a slower, controlled manner and while a berm would likely still be required, there would have been much more time to construct this berm.

He estimates 10 to 20 percent of the water may flow through the upper culvert before it stops flowing. 6) He agrees that most of the water through the road goes eventually to the slough, but that occurs over a longer period of time, being “several days instead of several hours”. [ 70 ] During Mr.

Broberg’s cross-examination by counsel on June 24, 2021, the following statements were made: 1) In terms of his expertise, he agrees that he has no experience in hydrological or watershed analysis, determining peak flow estimates, and analyzing runoff in a watershed. 2) He did not know the size of the watershed that drained into the Metanczuk slough and has no idea whether the peak flow had occurred by April 9, 2011. 3) While it would not be unusual for the shoulder of a road to be soft, he agrees that if the road is soft towards the center of the road, then the road would be in imminent danger of washing out. 4) With respect to his plan to install the high culvert, he agrees that he does not know the road grade at the location, the elevation of the existing culvert, when the existing culvert was installed, and the resources the R.M. had available to it on April 9, 2011, in terms of personnel and equipment. 5) He gives a large range of between several days to several weeks for all the water to reach the Metanczuk residence if his plan to install the high culvert was executed because “a bunch of studies” would have been necessary to properly calculate the rate of the waterflow through the culvert. 6) With respect to his proposal to build a berm, he agrees that he has never been to the Metanczuk yard site or the site where the road was cut. 7) He agrees that before excavation to build a berm could occur, it would be necessary for the contractor to locate gas and power lines, determine the design of the berm, locate a source of 5,000 cubic metres of fill, and mobilize the construction equipment and personnel. 8) He also agrees that before a contractor mobilizes his equipment, the contractor will need to know how he is getting paid. 9) In 2011 he had more than enough fill at their company site that was 15 to 20 kilometres away from the Metanczuk property and if they could not use the fill in the Metanczuk yard and had to haul from his property, it would have cost $22,000 to $24,000 to haul the fill.

It would have been 333 truckloads of fill. 10) He also noted that if the road directly to the Metanczuk property from the grid road was as soft “as the boys were saying”, then trucks would not be able to get onto the Metanczuk property. 11) With respect to the comments from Mr.

Dybvig regarding the illegality of damming the culvert, he agrees that it would be contrary to The Water Security Agency Act , SS 2005, c W-8.1 , unless they gave the approval for the R.M. to dam the culvert. 12) He reiterated that his sworn and written statements regarding managing the outflow with the high and low culverts never intended to imply that the lowest culvert would be blocked, although admits that when he spoke about using a clay plug or piece of plywood, he was recommending that the lower culvert be closed. He acknowledges that this would have required the permission of the WA to do so.

Wayne Dybvig [ 71 ] Mr. Dybvig was tendered by counsel for Mr. Watson and the Firm as an expert in hydrology, overland and below grade water movement, spring melting and flooding, and the cause of water infiltration into the Metanczuk basement. His resume indicates he is a registered professional engineer with a bachelor’s degree in geological engineering and a master’s degree in hydrology. He has been employed in water-related work since 1974. He became the vice-president of SaskWater in 1992 and remained so until March 2010 when he was appointed to be the president of the WA.

In 2012 he was named president of the newly established WSA and continued in that capacity until his retirement in 2016. His work history relates to dealing with water issues in the prairie environment, including flood plain planning and assessment, dam and reservoir management and planning, large scale watershed water balance model analyses and First Nations’ water issues related to rights, source water protection and flooding. [ 72 ] Mr. Dybvig prepared a report dated July 25, 2017 at the request of counsel for Mr.

Watson and the Firm to provide an opinion on the circumstances, characteristics and underlying causes of the hydrologic conditions that caused flood damage to Ms. Metanczuk’s home in April 2011. [ 73 ] In this report, he begins by noting the physiography and hydrologic setting on the Metanczuk residence. He notes it is situated on a slight rise of land between two sloughs that from time to time have joined in a semicircle to the south of the home.

Further, it is situated in a watershed that rises to the north, and approximately 80 percent of the watershed draining to the home is situated above the 8th Street extension road (being the grid road that was cut).

The slough at the foot of the house is the dead-end receptor of all upstream runoff and there appears to be no natural outlet for runoff into this slough, although a field investigation would be required to identify any natural outflow drain. [ 74 ] He then examines the April 2011 runoff and noted that 2010 was one of the wettest years on record and that, by late winter 2011, the snowfall was reported as one of the highest ever recorded in many locations. He also noted that groundwater levels can be a key contributing factor to flood damage, both as seepage and as runoff.

The groundwater station near the Metanczuk property noted increasing groundwater levels in the area from 2004 onwards with 2011 being the highest level since records started in 1975. [ 75 ] Thereafter, Mr. Dybvig made the following observations and opinions, of which I will only detail a select few: 1) The flood damage to the basement would have occurred even if overland flow through the basement windows had been prevented in April.

It was “highly likely” due to seepage as a result of the raised water table. 2) Given the closest hydrometric stations showed peak flows by April 4, 2011 and April 12, 2011, it is reasonable to assume that local peak flow in the Metanczuk watershed could be occurring by April 9, 2011, so flow would be expected to occur for several days after April 9, 2011. 3) Twenty percent of the runoff would be coming from the portion of the watershed below Township Road 364. 4) Based on any possible hypothetical, whether the R.M. cut the road or not, essentially the same amount of water is conveyed downstream and goes into storage in the slough by the Metanczuk residence.

The slough would rise to the same level whether the road was cut or not. 5) The fact that, even with a proper berm in place by August 2011, water levels in the basement persisted to about a three-foot depth is consistent with water seeping into the basement due to a higher water table.

Therefore, flood damage to the basement would have likely occurred even if the road had not been breached. 6) Given the water runoff in the southern part of the province in 2011 was one of the most extreme runoff events in the last 100 years and culvert capacities in municipal roads cannot handle floods of that frequency, many roads in 2011 were cut by municipalities. [ 76 ] Mr. Dybvig, in his affidavit sworn February 1, 2021, states as follows: 1) In this affidavit he examined the affidavit of Mr. Broberg, the expert report of Mr. Halliday and the transcripts of oral questioning of Mr. Tittemore by Mr. G.

Scharfstein and Ms. Metanczuk by Mr. Morris, in addition to some other source documentation which he did not do in his initial report. 2) After examining the concepts of basic hydrology, flooding, groundwater, water management, cross drainage works, he reviewed the recent historical hydrology related to the unprecedented nature of the 2011 flooding in Saskatchewan. 3) He reiterates the opinions from his report. 4) One possible way that water was getting into the Metanczuk house would be groundwater entering the basement through cracks or at the wall joint with the floor.

5) Based partly on answers given by Mr. Tittemore, by the time the culvert was reinstalled by the R.M. at the site of the road cut, the flow through the culvert would have flowed in the same manner it would have whether the road had been cut or not. 6) Based on the answers given by Ms.

Metanczuk with respect to water coming into the basement even after the construction of the berm, it is his opinion that there was continuous seepage into the basement as a result of the water level in the slough behind the berm being higher than the basement floor. 7) As a result of Township Road 364 being cut, the sloughs below Township Road 364 would rise more quickly due to the road cut than without it.

However, the peak elevation of the slough near the Metanczak residence would be essentially the same whether the road was cut or not because the water would collect at the downstream slough and reach the same ultimate peak regardless of the timing of the inflow. 8) In response to Mr. Broberg suggesting Ms. Metanczuk could have built a berm around her property had she noticed, it is his opinion that the 48-hour period of time when the road was cut would be the time of greatest risk of overtopping the road given peak flows. Further, in his opinion, if the R.M. had given notice, the first thing Ms.

Metanczuk should have done would be to get some technical advice to determine how high the berm should be built. 9) In responding to a question regarding what steps Ms. Metanczuk could have taken to eliminate or reduce flooding to a manageable level, he notes it would have been a challenge to secure a contractor on short notice and that building a berm in a short period time increases the risk of berm failure over time. Further, working in wet conditions, such as those that existed at Ms. Metanczuk’s residence during the time in question, could result in delays. 10) With respect to Mr.

Broberg’s opinion that the high-water level could be lowered quickly with a sump pump so as to ensure a working septic system, his opinion is that the water table control could not be easily handled by pumping mechanisms given Ms. Metanczuk’s inability to do so a year after the initial flood. 11) He indicates that if Mr.

Broberg is suggesting that installing a higher culvert also requires the plugging of the lower culvert, this would be contrary to law and would increase the chances of the road overtopping with water by essentially creating a dam and storage to resolve a flood problem. 12) Contrary to the opinion of Mr. Broberg, delaying the timing of the inflow would not have prevented the need for a berm. [ 77 ] During the cross-examination of Mr.

Dybvig on June 22, 2021, he states as follows: 1) The greatest threat to road overtopping would be at time of peak flow so that if peak flow had already occurred the risk of the road overtopping with water would diminish after April 10, 2011. 2) However, he did not see any information that would suggest the road would or would not overtop. 3) As a hypothetical, he agreed that if an R.M. had him look at a road where there is ponding on one side of the road but it is not increasing and the culvert appears to be open and handling the flow, he would not recommend an immediate cut of that road. 4) He was not personally at the Metanczuk property in 2011. 5) He has no knowledge of Ms.

Metanczuk’s ability to hire a contractor in 2011 nor how wet her property was at the time. 6) He agrees that it is possible that the water level in Ms. Metanczuk’s basement could have been controlled with a large enough pump. 7) He agrees that generally there would be an attempt to advise homeowners downstream of a potential flood if, as a result of certain actions undertaken by the R.M., they thought the homeowner would be impacted. Position of the Parties Ms. Metanczuk [ 78 ] Based on the evidence tendered by the parties, Ms. Metanczuk argues that the R.M., along with Mr.

Watson and the Firm, are both liable in negligence for the damages that resulted to her property from the flood. [ 79 ] With respect to the R.M., Ms. Metanczuk submits that the R.M. owed her a duty of care as a resident of the R.M. and breached that duty of care by negligently and without warning cutting the road and r

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