Baird v. Manitoba, 2010 MBCA 46

Citation: Baird v. Manitoba, 2010 MBCA 46 Date: 20100429 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Martin H Freedman Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Docket: AI09-30-07271 ) B E T W E E N : ) ) VAUGHAN LAWSON BAIRD ) ) G. M. Sarcida (Plaintiff) Appellant ) for the Appellants - and - ) ) THE GOVERNMENT OF MANITOBA ) ) (Defendant) Respondent ) ) C. C.

Wullum ) for the Respondent Docket: AI09-30-07272 ) A N D B E T W E E N : ) ) LISGAR DEVELOPMENTS LTD. ) ) Appeal heard and (Plaintiff) Appellant ) Decision pronounced: ) April 29, 2010 - and - ) ) THE GOVERNMENT OF MANITOBA ) ) (Defendant) Respondent ) CHARTIER J.A. (for the Court): 1 The plaintiffs appeal the decision of the motions judge dismissing, by way of

summary judgment, each of their claims for damages allegedly sustained when their properties were inundated with flood waters . 2 The issue before the motions judge was whether the Red River Floodway and its components constitute “drainage works” as provided for under s. 2(4) of The Proceedings Against the Crown Act , C.C.S.M., c. P140 (the Act ). If it did, the plaintiffs would be statute barred from proceeding with their respective claims, brought almost six years after the damage, because of the two-year limitation period provided therein. That

section reads as follows : Limitation as to actions in respect of drainage works 2(4) No action shall be brought against the Crown to enforce a claim for damages alleged to have been sustained in respect of drainage works unless it is brought within two years after the date on which the damages were, or are claimed to have been, sustained. [emphasis added] 3 In his reasons, the motions judge correctly stated the governing principle of statutory

interpretation commonly referred to as Driedger’s modern principle in Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Toronto: LexisNexis Canada Inc., 2008) at 1: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament.

4 The motions judge rejected the plaintiffs’ position that the purpose of the floodway was merely to “divert” rather than to “drain” waters. After reviewing at some length

definitions of the term “drain” and “drainage works” found in other legislation in Manitoba and elsewhere in Canada, he concluded that the Red River Floodway and its dykes were in fact “drainage works” (at para. 28). The motions judge specifically referred to The Municipal Act , C.C.S.M., c. M225 , which includes a floodway and dyke in its definition of a “drain.” 5 Although the motions judge did not refer in his reasons to dictionary

definitions of “drainage” or “works,” the plaintiffs were unable to demonstrate that his conclusion in any way deviated from the ordinary meaning of the words or term “drainage works.” In fact, his finding is consistent with the dictionary

definitions which were provided to us by the defendant. 6 The motions judge also addressed the decision of Connery et al. v. Government of Manitoba (1970), 1970 CanLII 921 (MB KB) , 15 D.L.R. (3d) 303 (Q.B.) , where Matas J. stated, “.... It is my opinion it would be extending the meaning of the term ‘drainage work’ beyond that intended by the Legislature to apply it to the floodway ...” (at pp. 312-13). The motions judge found this brief comment to be obiter dictum because it did not have any bearing on the decision. We agree.

The incidental nature of the remarks of Matas J. was confirmed when this court, on appeal ( 1971 CanLII 1061 (MB CA) , 21 D.L.R. (3d) 234), reviewed his decision without even referencing the comment. 7 In

summary, although the term “drainage works” is not defined in the Act , we adopt both the analysis and the conclusion of the motions judge that the phrase includes the Red River Floodway and its dykes. In the end, we are all of the view that the decision of the motions judge was correct and therefore there is no basis for appellate intervention. 8 Both appeals are dismissed with costs. __________________________ J.A. __________________________ J.A. __________________________ J.A.