2018 MBCA 80, 2018 MBCA 80

Citation: Joyce et al v Government of Manitoba , Date: 20180827 2018 MBCA 80 Docket: AI17-30-08736 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : GRAND BEACH MANAGEMENT ) SERVICES INC. ) ) (Plaintiff) ) ) G. G. Zazelenchuk - and - ) for the Appellants ) THE GOVERNMENT OF MANITOBA ) ) J. R. Koch and (Defendant) Respondent ) C. G.

Nazar ) for the Respondent (by original action) ) ) RONALD EDWARD JOYCE, WILLIAM ) Appeal heard: BLAINE NIEMEZ and JONATHON ) January 22, 2018 SAUNDERS ) ) (Plaintiffs) Appellants ) Judgment delivered: ) August 27 , 2018 - and - ) ) THE GOVERNMENT OF MANITOBA ) ) (Defendant) Respondent ) beard JA I. THE ISSUES [ 1 ] This appeal raises three issues: (

i) whether the motion judge erred in granting the motion of the defendant/respondent (Manitoba) for

summary judgment under then r 20.01(3) of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 and dismissing the appellants’ claim; (ii) whether the statement of claim was filed after the expiration of the limitation period and is, therefore, statute-barred from proceeding; and (iii) whether this Court should dismiss the claim for delay. II.

THE FACTS [ 2 ] The underlying claim relates to the operation of certain concession services and facilities within the boundaries of Grand Beach Provincial Park (the park) and, in particular, Manitoba’s decision to reduce the hours during which alcohol could be sold at a restaurant, lounge and attached patio located within the park and, ultimately, the hours of operation. [ 3 ] Manitoba owns the land within the park and, during the times relevant to this proceeding, it managed the park pursuant to The Provincial Parks Act , CCSM c P20 and the former The Provincial Park Lands Act , RSM 1987, c P20, which were then administered by the Parks Branch of the Manitoba Department of Natural Resources.

[ 4 ] In 1990, Manitoba issued a call for proposals for the provision of certain services and the operation of related facilities, which included a restaurant, lounge and patio known as the Surf Club, that were licensed to serve alcohol. Manitoba accepted a proposal submitted by Grand Beach Ski Corp., and it and Manitoba entered into Lease 183 dated May 18, 1990. Grand Beach Management Services Inc. (the plaintiff) purchased the business and took an assignment of the lease on October 25, 1993. The plaintiff was sold to the appellants in 1997, including the rights under Lease 183.

This action was commenced by the plaintiff in August 2006. In May 2007, the appellants sold the plaintiff to a third party but retained the rights to this action. [ 5 ] Lease 183 provided that Manitoba had the discretion to set the days and hours of operation of all business activities under the lease, provided that it acted reasonably in so doing.

The lease stated (at para 4(7)): 4(7) The Lessee shall operate the business activities on the premises on days and hours as may be approved by the Crown, provided the Crown acts reasonably in approving those days and hours, and the Lessee shall post upon the premises those days and hours of operation. As at the date hereof, the Crown hereby approves the days and hours attached as

Schedule “F”. [ 6 ] According to

Schedule F, Manitoba agreed that the Surf Club could be open “during normal business hours for an operation of this nature.” With Manitoba’s approval, the owner got a liquor licence that allowed it to be open until 1 a.m., which was later extended to 2 a.m. [ 7 ] There were complaints from near-by cottage owners about late-night noise, traffic and dispersal issues at and after closing, including rowdyism, vandalism and violence.

Manitoba, acting through the Director of Parks and Natural Areas (the director), undertook various measures over the years to address the problems, including holding several meetings with the cottage owners and lessees, mandating several adjustments to the hours of operation and the provision of additional policing and security services at closing time. [ 8 ] The steps that Manitoba initiated included reducing the hours during which alcohol could be served and the outside facilities could be used.

In 1991, the closing time for the outdoor patio was changed to 12 a.m. and, in 1992, the lessee was required to cease playing outdoor music by 10 p.m. In 2001, the director advised the lessee that alcohol service on the patio would have to cease at 10:30 p.m. and that the patio would have to be vacated by 11 p.m., but alcohol could still be served inside the premises until 2 a.m. Finally, in 2003, the director advised the lessee that its hours of operation would have to cease at 11 p.m.

This, he said, was consistent with the policy within all provincial parks of having quiet time between 11 p.m. and 9 a.m. [ 9 ] The appellants argued, as part of their claim, that a competing bar located just outside of the park was able to remain open until 2 a.m. and was not required to match the early closing hours of the Surf Club.

They also pointed out that occasional permits were still being approved for a local social club, which permitted events serving alcohol to remain open until 2 a.m. [ 10 ] While the appellants do not dispute the substance of some of the complaints by the cottage owners, they do dispute the alleged causal link between the operation of the Surf Club and those problems. For example, they point out that the Surf Club did not sell any alcohol in bottles or for off-premises consumption, so it was not responsible for the drinking and accompanying noise and broken beer bottes that occurred on the beach.

Further, it had no control over the operation of the campground, so it was not responsible for the problems at that location. [ 11 ] The litigation has proceeded over the years, albeit slowly. Examinations for discovery took place and undertakings were completed in 2011. Finally, in 2016, Manitoba filed a motion for

summary judgment to dismiss the claim on the basis that there was no genuine issue for trial. The motion judge granted that motion and dismissed the entire claim in an endorsement dated September 29, 2016. This is an appeal from that endorsement. III. NUISANCE [ 12 ] The claim, as originally filed, was framed as an action in contract and tort. The appellants advised the motion judge that they were pursuing their claim only on the basis of the tort of nuisance.

Thus, it will be useful to begin with a look at that tort. [ 13 ] The leading Canadian decision on the tort of private nuisance is that of Antrim Truck Centre Ltd v Ontario (Transportation) , 2013 SCC 13 . Cromwell J, for the Court, states that “a nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable” (at para 18). That is a very broad statement, and every academic text on the subject of private nuisance makes essentially the same point, that the category of interests covered by the tort of nuisance is not closed.

A typical statement is that found in Lewis N Klar & Cameron SG Jefferies, Tort Law , 6th ed (Toronto: Thomson Reuters, 2017) (at p 868): In its most general formulation, nuisance can be defined as an activity which results in an unreasonable and substantial interference with the use and enjoyment of land. Which interferences, however, qualify in this respect cannot be restricted within fixed boundaries.

As stated by Lord Evershed M.R., “the forms which activities constituting actionable nuisance may take are exceedingly varied, and there is the highest authority for saying that they are not capable of precise or close definition.” [ Thompson-Schwab v. Costaki , [1956] 1 All E.R. 652 at 653-54 (C.A.) ]. Or, as put by Lord Wright, “the forms which nuisance may take are protean.” [ Sedleigh-Denfield v. O’Callaghan , [1940] 3 All E.R. 349 ]. [ 14 ] While the exact parameters of private nuisance are not fixed, not every interference with the use and enjoyment of land

will constitute a nuisance. This point was made by Philip H Osborne, The Law of Torts, 5th ed (Toronto: Irwin Law, 2015) (at p 397): Not every interference with the comfort and enjoyment of property is a nuisance. In both urban and rural areas there must be a gooddeal of give and take between neighbours and a degree of tolerance of the reasonable and beneficial activities of others. . . .

Thismodification [of the test from Antrim] will not, however, diminish the ability of the courts to tailor sensitively their decisions to theparticular circumstances of the case, and it will not diminish a related degree of uncertainty and unpredictability of decision making thathave led some commentators to despair of finding a reliable and workable guide to decision making. [15] See also the following comments from Klar (at p 876-77): It must be underscored, however, that not all interferences with a person’s “use and enjoyment” of land constitute nuisances, even ifthese interferences are substantial and unreasonable.

The interest interfered with must be a property interest which the law deems worthyof protection. [emphasis added] [16] The interests that the law has deemed worthy of protection have changed over the years, affected by changes intechnology and the manner in which land is used. An example of this is found in Nor-Video Services Ltd v Ontario Hydro (1978), (ON SC), 84 DLR (3d) 221 (Ont HC), leave to appeal dismissed, [1979] OJ No 1792 (CA), wherein the trial judge foundthat television reception is an interest worthy of protection.

As Cromwell J stated in Antrim, “I do not mean to suggest that there are firmcategories of types of interference which determine whether an interference is or is not actionable” and, further, there is no “typology ofactionable interference” (at para 23). [17] Antrim dealt with an interference that affected the plaintiff’s economic interests, being that the defendant’s actionsaffected access to the plaintiff’s land and its business.

It is fair to say that, upon a review of the reasons in Antrim and the manyimpairment to access decisions discussed therein, courts appear to take the existing or actual use of commercial property very seriouslywhen determining whether the interference with rights resulted in an actionable nuisance. [18] Nuisance can also arise where a landlord acts to interfere with the tenant’s leasehold or contractual rights, even whenthe landlord is acting lawfully.

Christopher AW Bentley, John H McNair & Mavis J Butkus, eds, Williams & Rhodes, Canadian Law ofLandlord and Tenant, 6th ed (Toronto: Carswell, 2013) )(loose-leaf updated 2014, release 1) vol 1 at 9:1:3 write that a tenant “mayrecover damages for a nuisance which affects his use and enjoyment of the demised premises”. [19] Gregory S Pun & Margaret I Hall, The Law of Nuisance in Canada (Markham: LexisNexis, 2010) state (at p 92): “Certainly any tenant may recover damage for a nuisance which affects its use and enjoyment of the demised premises”, as lessees(tenants) have the right to possession and quiet enjoyment of the property and as such have the requisite proprietary interest to sue forprivate nuisance.” [20] Finally, Beth Bilson, The Canadian Law of Nuisance (Markham: Butterworths, 1991) states: [I]t follows that tenants in occupation of the property are eligible for protection.

This may be true even when the source of thealleged nuisance is the landlord (at p 7). [21] Nuisance claims by tenants are often articulated as arising from a breach of the implied covenant not to create anuisance and/or a breach of the covenant of quiet enjoyment of the premises. In this case, Lease 183 contained a provision speaking tothe right of the lessee to quiet enjoyment. [22] I offer this

summary review of the tort of nuisance to indicate that there is a potential path to liability. Whether the tortcan be made out on this or any other basis, on the pleadings and the facts of this case, involves findings of fact that are within thepurview of a trial judge and are best determined, in the first instance, at trial. For the purpose of this appeal, I make no finding as towhether there was a nuisance in this case, given the wording of the lease that the parties entered into. IV. THE FIRST ISSUE: THE GRANTING OF

SUMMARY JUDGMENT (

i) The Standard of Review

[23] The standards of review of a decision on a motion for

summary judgment are well known. Questions of law (includingthe

interpretation and application of the law) are reviewed on the standard of correctness, while questions of fact or mixed fact and laware reviewed on the standard of palpable and overriding error. If, from a question of mixed fact and law, there is an extricable questionof law, that question of law is reviewed on the standard of correctness. The granting or denying of a motion for

summary judgment is anexercise in discretion, and that discretion should not be overturned unless the judge has misdirected himself or his decision is so clearlywrong as to amount to an injustice. (See Homestead Properties (Canada) Ltd v Sekhri et al, 2007 MBCA 61 at para 13; Perth ServicesLtd v Quinton et al, 2009 MBCA 81 at paras 22-23; Hryniak v Mauldin, 2014 SCC 7 at para 83; and Lenko v The Government ofManitoba et al, 2016 MBCA 52 at para 71.) (ii) The Motion Judge’s Endorsement [24] The motion judge applied the correct test for determining whether to grant

summary judgment in Manitoba, being thatset out in Homestead Properties (at para 14): The test for

summary judgment is well established, and no further detailed explanation is needed. The test is to the same effectregardless of whether the moving party is the plaintiff or the defendant. When the defendant moves, as here, he must prove on a primafacie basis, that the plaintiff’s action must fail. If he meets that burden, then the plaintiff has the burden to establish that there is agenuine issue for determination. He must show that his claim is “one with a real chance of success” (see Hercules Managements Ltd. v.Ernst & Young, (SCC), [1997] 2 S.C.R. 165 at para. 15; see also Manitoba Hydro Electric v. Inglis (John) Co. et al.(1999), (MB CA), 142 Man.R. (2d) 1 (C.A.)). If he fails to do so,

summary judgment dismissing the claim willfollow. (See also Lenko at para 71.) [25] In addressing the question of whether Manitoba had established on a prima facie basis that the appellants’ case mustfail, the motion judge relied on the reasons in Chingee v British Columbia, 2016 BCSC 760. The claim alleged several wrongs includingnuisance, wherein a licence holder was suing the province and others for interfering with his registered guide, outfitter and traplinelicences by subsequently issuing timber harvesting rights to a third party.

The motion judge applied what he found to be the reasoning inChingee, stating that “the principle of the government actor taking action which arbitrates competing interests is applicable. I find that inapplying Chingee, [Manitoba] has on a prima facie basis established that the [appellants]’ claim in private nuisance will fail” (at para30). [26] The motion judge then went on to address the question of whether the appellants had established that there was agenuine issue for trial that had a reasonable likelihood of success.

In doing so, he stated (at paras 36-38, 41-42): The [appellants] had offered alternative suggestions as to how the perceived difficulties with the park might be managed, includingincreased peace officer presence in the park and/or peace officer assistance to control activities near the Surf Club. However, another route was chosen being enforcing the provisions of Lease No. 183 which also permitted [Manitoba] to controlhours of the Surf Club.

In balancing the economic interest of the [appellants], and the purpose of quiet hours as established for allprovincial parks, all the actions undertaken by [Manitoba] were reasonable. The [appellants] were consulted throughout this process,notice was provided to them of the concerns about rowdyism associated with the Surf Club. As Lease No. 183 granted [Manitoba] thepower to reduce the hours, I find that the actions taken by [Manitoba] were reasonable.

The argument that a licensed establishment outside the park boundary, one as close as one-quarter of a mile from the Surf Club,continued to operate beyond 11 p.m., has no bearing. The fact is that establishment is outside the park and not within the control of[Manitoba]. It is the lack of authority to regulate the hours of operation by [Manitoba] which distinguishes that establishment. Theregulation of that establishment would be governed by its liquor permit and if there were problems, could be controlled under theappropriate statute.

The question is not what was occurring elsewhere which may need to be addressed, but rather it is whether or not the actions taken by[Manitoba] were reasonable under the circumstances and in keeping with the authority granted to it under the lease. I find that the concerns about public safety, noise levels and vandalism, which caused [Manitoba] to reduce the hours of operation ofthe Surf Club, were reasonable considering the circumstances in this case.

The reasonableness of the actions of [Manitoba] must beconsidered in conjunction with the reduced hours chosen by [Manitoba] that coincides with the quiet hours policy in provincial parkswhich begin at 11:00 p.m. I find that the actions of [Manitoba] were reasonable.

[ 27 ] He then stated that the appellants had not demonstrated that there was a genuine issue for trial and granted the motion for

summary judgment. (iii) The Parties’ Positions [ 28 ] The appellants take the position that the motion judge erred in his application of the test in Antrim by focussing on the reasonableness of Manitoba’s actions and not considering whether the interference with the plaintiff’s use and enjoyment of the property was unreasonable. [ 29 ] They argue that it was unfair to be subject to different hours than other bars in the province, such as the bar located just outside of the park, and they take issue with some of the conclusions and inferences that Manitoba is arguing should be drawn from the evidence in the affidavits.

They also argue that, while Manitoba had the right to change its hours of operation, the plaintiff suffered damages as a result and was entitled to compensation where the reduced hours interfered unreasonably with its use of the land – being the operation of the restaurant and lounge between 11 p.m. and 2 a.m. [ 30 ] Manitoba’s position is that there can be no nuisance because it was acting pursuant to its contract with the plaintiff, pursuant to which it had a contractual right to set the hours of operation as long as it acted reasonably in so doing.

Its position is that, as was found by the motion judge, it acted reasonably when it reduced the hours of operation in response to the complaints of the near-by cottage owners and that, in the facts of this case, the interference was not unreasonable. (iv) Analysis [ 31 ] The motion judge relied on the reasoning of the trial judge in Chingee to find that Manitoba had established on a prima facie basis that the appellants’ claim in private nuisance would fail.

In particular, he noted the following statement (at para 29, from Chingee at para 66): Under the scheme, it is ultimately the Province as owner of the lands and as government that is the arbiter of competing interests in its lands. In effect, the plaintiff would be seeking to have the court review and reconsider after the fact the decisions made by various statutory decision makers within a highly policy driven context, in order to seek to establish that the end result of the decisions is an unreasonable interference with his own licensed interests, when he made no timely objection to the activities.

In my view, the plaintiff is bound to fail in establishing this element of the claim in nuisance on the facts as pleaded. [ 32 ] He explained the issue as follows (at para 28): The interest in land in this case is a leasehold interest.

The [appellants] submit that the reduction of hours is interfering with the use of their land. [Manitoba] submits that this is far from interfering with the use of land, but a balancing of interests between the Surf Club and the other users of the [park]. [ 33 ] After quoting from Chingee , he concluded (at para 30): Although the facts of Chingee are different from the case at bar, the principle of the government actor taking action which arbitrates competing interests is applicable.

I find that in applying Chingee , [Manitoba] has on a prima facie basis established that the [appellants’] claim in private nuisance will fail. [ 34 ] The problem with the motion judge’s finding is that the Chingee decision was appealed to the British Columbia Court of Appeal (see 2017 BCCA 250 ). While the decision was upheld, it was on the basis that the plaintiff had not plead the necessary material facts, “in concrete and specific terms”, that would support a claim of nuisance.

Crucially, however, Harris JA went on to state, “ I have no doubt that such a claim in nuisance capable of surviving a motion to strike could be pleaded” (at para 53). [ 35 ] In my view, the decision in Chingee does not support Manitoba’s assertion, and the motion judge’s finding, that the appellants’ claim in nuisance must fail. There was a pleadings problem in Chingee , and we must not conflate such a deficiency in pleadings with principle.

In my view, the motion judge erred in principle when he found, based on Chingee , that the appellants’ claim in nuisance must fail. [ 36 ] The motion judge went on, in his endorsement, to consider whether the appellants had established that there was a genuine issue for trial that had a reasonable likelihood of success. In doing so, he was required to apply the test for private nuisance set out by the Supreme Court of Canada in Antrim.

As alluded to earlier, the facts in Antrim were that the Ontario government had relocated a highway to reduce accidents, but, in so doing, it redirected traffic away from the plaintiff’s truck stop complex. This greatly reduced the motorists’ ability to access the location and seriously damaged Antrim’s profitability. [ 37 ] Cromwell J, in Antrim , set out the following two-part test to establish a claim of private nuisance (at para 19):

The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable . A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances. [ 38 ] The first part of the test requires that the harm that is alleged must be substantial.

Cromwell J stated that “a substantial injury to the complainant’s property interest is one that amounts to more than a slight annoyance or trifling interference” (at para 22). This does not appear to have been an issue in this case; rather, the matter was argued on the second part of the test. [ 39 ] Cromwell J then examined the second part of the test, being the requirement that the interference be unreasonable in all of the circumstances, in the context of interference caused by projects that further the public good.

He stated the issue as follows (at para 25): The main question here is how reasonableness should be assessed when the activity causing the interference is carried out by a public authority for the greater public good. As in other private nuisance cases, the reasonableness of the interference must be assessed in light of all of the relevant circumstances.

The focus of that balancing exercise, however, is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. [ 40 ] He explained the application of the reasonableness test to acts of a public authority (at para 38): Generally speaking, the acts of a public authority will be of significant utility. If simply put in the balance with the private interest, public utility will generally outweigh even very significant interferences with the claimant’s land.

That sort of simple balancing of public utility against private harm undercuts the purpose of providing compensation for injurious affection. That purpose is to ensure that individual members of the public do not have to bear a disproportionate share of the cost of procuring the public benefit. This purpose is fulfilled, however, if the focus of the reasonableness analysis is kept on whether it is reasonable for the individual to bear the interference without compensation, not on whether it was reasonable for the statutory authority to undertake the work.

In short, the question is whether the damage flowing from the interference should be properly viewed as a cost of “running the system” and therefore borne by the public generally, or as the type of interference that should properly be accepted by an individual as part of the cost of living in an organized society. [ 41 ] Cromwell J then explained that the determination of whether the interference was unreasonable is a contextual one (at para 40): Of course, not every substantial interference arising from a public work will be unreasonable.

The reasonableness analysis should favour the public authority where the harm to property interests, considered in light of its severity, the nature of the neighbourhood, its duration, the sensitivity of the plaintiff and other relevant factors, is such that the harm cannot reasonably be viewed as more than the claimant’s fair share of the costs associated with providing a public benefit.

This outcome is particularly appropriate where the public authority has made all reasonable efforts to reduce the impact of its works on neighbouring properties. [ 42 ] Finally, Cromwell J concluded as follows (at para 45): To sum up on this point, my view is that in considering the reasonableness of an interference that arises from an activity that furthers the public good, the question is whether, in light of all of the circumstances, it is unreasonable to expect the claimant to bear the interference without compensation. [ 43 ] A review of the motion judge’s endorsement shows several errors in his analysis. [ 44 ] First, he stated as follows (at para 23): I find the purpose of

summary judgment is not to determine if a single element of an action has been established or not, but is rather whether the entire action on a prima facie basis demonstrates that a party’s claim or defence must fail. [ 45 ] This statement is problematic and misleading. If the wrong in an action is composed of several elements, then a

plaintiff must prove every element in order to be successful on the claim, while a defendant need only demonstrate that one element cannot be proved in order to defeat a claim. What must be proven in any particular case, however, will depend on the matters at issue as defined by the parties. If only one element is at issue, then the purpose of the

summary judgment may, in that case, be to determine whether that single element of the action has or has not been established. [ 46 ] Further, a review of the motion judge’s endorsement leads to the conclusion that he misdirected himself on the principles underlying the two-part test for private nuisance in Antrim , given his following statements (at paras 25, 41-42): In Antrim , Justice Cromwell found that in order to establish a claim in nuisance, the complained about acti vity must be substantial, and if so, an order of compensation will only be justified if the actions complained about were taken unreasonably.

The question is not what was occurring elsewhere which may need to be addressed, but rather it is whether or not the actions taken by the defendant were reasonable under the circumstances and in keeping with the authority granted to it under the lease. I find that the concerns about public safety, noise levels and vandalism, which caused [Manitoba] to reduce the hours of operation of the Surf Club, were reasonable considering the circumstances in this case.

The reasonableness of the actions of [Manitoba] must be considered in conjunction with the reduced hours chosen by [Manitoba] that coincides with the quiet hours policy in provincial parks which begin at 11:00 p.m. I find that the actions of [Manitoba] were reasonable. [ 47 ] Having found that Manitoba acted reasonably in reducing the plaintiff’s hours of operation, the motion judge ended his analysis and found that the appellants had not demonstrated that there was a genuine issue for trial.

He failed to go on to consider whether, in all of the circumstances of the case, it was unreasonable for the appellants to bear the cost of the interference with their business without compensation. As was stated in Antrim , “[a] finding of reasonable conduct will not, however, necessarily preclude a finding of liability” (at para 29).

In my view, this was an error in principle and in the application of the law. [ 48 ] This error in principle led the motion judge to make further errors when he rejected the appellants’ submissions regarding the availability of alternative solutions to address the complaints, as well as their arguments regarding a competing licenced establishment operating just outside the park and the continued use of occasional permits to allow for the sale of alcohol within the park until 2 a.m. These issues all related to the circumstances to be considered in determining whether the interference was unreasonable.

In my view, the motion judge erred in the application of the law when he rejected this evidence and these arguments without considering them in the context of whether it was unreasonable for the appellants to bear the entire cost of the interference with their business. [ 49 ] Manitoba argues that, based on the evidence, the terms of the lease and Manitoba’s role as a regulator within the park, it can be inferred that the interference with the plaintiff’s use and enjoyment of the land was not unreasonable.

This argument cannot be accepted for two reasons. [ 50 ] First, that issue was not addressed by the motion judge, and that finding cannot be inferred from his endorsement. [ 51 ] Second, the question of whether the interference was unreasonable involves making findings of fact from the evidence; however, the weight to be given to pieces of evidence and the conclusions and inferences that Manitoba proposes should be drawn are contested by the appellants. These are matters that are best determined, at first instance, by a trial judge.

Given the evidence that may come out at a trial, it is possible that Manitoba may be able to convince a trial judge that the nuisance claim must fail, after taking into account the reasonableness of its actions and the wording of the lease, in the context of all of the evidence. I am not, however, convinced that it would be appropriate for this Court to effectively step into the shoes of a trial judge and make these factual findings in the first instance in this case, and I would decline to do so. (

v) Conclusion [ 52 ] As stated earlier, in my view, the motion judge erred in law in his reliance on Chingee to find that Manitoba had established on a prima facie basis that the appellants’ claim in private nuisance would fail and, also, in both his statement of the test for private nuisance as set out in Antrim and in his application of that test. For these reasons, I would allow the appeal and set aside the order granting

summary judgment to Manitoba. V. THE SECOND ISSUE: THE LIMITATION DEFENCE [ 53 ] The appellants’ underlying claim is that, even if Manitoba acted reasonably in reducing the hours of operation of the Surf Club, that reduction caused a substantial injury to its use and enjoyment of the leased property.

Its position is that, in the circumstances of this case, Manitoba’s action constituted an unreasonable interference with its use and enjoyment of the property and was, therefore, a private nuisance for which it is entitled to compensation. [ 54 ] The issue of whether the reduction in operating hours constituted a private nuisance is one for determination after trial. For the limited purpose of the

interpretation of the limitation legislation, however, this is the tort on which the discussion will be based.

(

i) Standard of Review [55] While Manitoba raised a limitation defence in its statement of defence and in the motion for

summary judgment, thatissue was not argued before the motion judge and, as a result, he made no decision on that issue. The matter was argued for the firsttime in this Court at the direction of the panel.

As there is no lower court decision being reviewed, there is no standard of review to beapplied. (ii) The Parties’ Positions [56] Manitoba argues that the claim relates to actions taken by the director in the execution or performance of his publicduties or authority and that, as a result, the applicable limitation period was two years from the time of the alleged act, neglect or defaultthat forms the basis of the claim.

It relies on the application of the following legislation: sections 1, 4(2), 4(3) and 4(4) of TheProceedings Against the Crown Act, CCSM c P140; sections 1 and 21(1) of The Public Officers Act, CCSM c P230; The ProvincialParks Act; and the former The Provincial Park Lands Act. [57] The limitation provision at issue is found in section 21(1) of The Public Officers Act (the Act), which states as follows: Limitation of actions against public officials 21(1) No action, prosecution, or other proceedings lies or shall be instituted against a person for

an act done in pursuance or execution orintended execution of a statute or of a rule or regulation made thereunder, or of a public duty or authority, or in respect of an allegedneglect or default in the execution of the statute, rule, regulation, duty, or authority, unless it is commenced within two years next afterthe act, neglect, or default complained of, or in case of continuance of injury or damage, within two years next after the ceasing thereof. [58] The appellants have challenged the application of that provision on several bases, which raise issues related to whetherManitoba, not itself being a public officer, is covered by section 21(1) of the Act and the

interpretation of several aspects of the wordingof that provision. In my view, the issue can be resolved on the basis of the

interpretation of the words “in case of continuance of injuryor damage, within two years next after the ceasing thereof” as they are used in section 21(1), so it is not necessary to address the otherissues that are raised. [59] The appellants argue that their claim is in private nuisance, which is a continuing tort, and, as such, a new limitationperiod arises each day that the tort continues. [60] Manitoba’s position is that the appellants’ position fails to acknowledge the distinction drawn by the courts betweencontinuous/repetitive acts and continuous effects.

It argues that this Court recognized, in Corbett v Ainley et al, 2007 MBCA 140, thatthe former can renew the running of a limitation period, while the latter does not. It states that, in this case, the cause of action arisesfrom a single act with continuous effects, and, as a result, it does not come within the exemption for continuous injury or damage insection 21(1). (iii) Analysis [61] It is important to begin this analysis by repeating the direction of the Supreme Court of Canada in Des Champs vConseil des écoles séparées catholiques de langue française de Prescott-Russell, (SCC), [1999] 3 SCR 281.

In thatcase, the Court was interpreting a similar limitation provision as it related to a claim by a school administrator against a school board. Ininterpreting the wording of the limitation provision, Binnie J, for the majority, stated that “the wording of s. 7 is to be read narrowly andagainst the party seeking its special protection” (at para 12). See also Berardinelli v Ontario Housing Corp, (SCC),[1979] 1 SCR 275, wherein Estey J, for the majority, stated as follows (at p 280):

Section 11, being a restrictive provision wherein the rights of action of the citizen are necessarily circumscribed by its terms, attractsa strict

interpretation and any ambiguity found upon the application of the proper principles of statutory

interpretation should be resolvedin favour of the person whose right of action is being truncated. [62] That principle applies to the

interpretation of section 21(1) in this case. [63] The issue is whether the appellants’ claim constitutes a continuing injury or damage within section 21(1). Theappellants are pursuing their claim against Manitoba as a claim in private nuisance and they are alleging that the wrong in this case was acontinuing nuisance, so it will be helpful to begin by looking at the academic analysis of the tort of nuisance as a continuing act. Pun &Hall state (at p 203): [U]nlike many other torts, public nuisance and private nuisance can persist day after day, producing ongoing damage or disturbance.

This is the basis of the idea of the “continuing cause of action”. Trespass is similar in this regard. . . . So, it is generally understood thatthe cause of action in nuisance (private or public) is a continuing cause of action that is, each time the nuisance is repeated, there is a newcause of action:

. . . in the case of nuisances, each time the nuisance is repeated there is a new cause of action, a new injuria or infringement of a legalright and a new damnum flowing therefrom, and so, where the nuisance continues, the plaintiff may, theoretically, issue a writ every dayfor the new damage [McIntosh v Parent, (ON CA), [1924] 4 DLR 420 at 423 (CA)]. [64] The Honourable Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 9th ed (Markham: LexisNexis, 2011) state(at p 579): Responsibility for private nuisance is not restricted to the occupiers of adjoining lands.

Anyone who actively creates a nuisance,whether or not in occupation of the land from which it emanates, can be liable and this “liability continues so long as the offensivecondition remains regardless of his ability to abate it and stop the harm”. [65] Graeme Mew, The Law of Limitations, 3rd ed, (Toronto: LexisNexis, 2016) states (at pp 277, 279): Special limitation periods, often in statutes other than the Limitation Acts, may also apply depending on the character or status of theparties or on the means by which damage is caused. . . .

(2) Continuing torts, such as false imprisonment or continuing nuisance, in which a fresh cause of action accrues every day; . . . Nuisance and false imprisonment have already been identified as continuing torts for limitation purposes. [66] In Harvey McGregor, ed, McGregor on Damages, 18th ed (London, UK: Sweet & Maxwell, 2009), the author states(at para 9-012): [The] home ground for continuing torts is trespass and nuisance. In National Coal Board v.

Galley [[1959] Sydney L Rev 21] it wasaccepted that “the general proposition that persistence in tortious conduct of particular kinds such as trespass or nuisance constitutes acontinuing cause of action must be regarded as established.” . . . A person who commits a nuisance is under a constant legal obligationto abate it, and for so long as he fails to do so he is every moment committing a fresh nuisance. This is well illustrated by Shadwell v.Hutchinson [(1831), 4 C & P 333]. . . .

On the other hand, there is not the same scope for non-continuing nuisances which give only onecause of action: it would require that the very fact of causing the damage brought the nuisance to an end. [67] How does this relate to the application of section 21(1)? Provisions limiting the liability of the Crown have a long legalhistory, dating back to the time of Queen Elizabeth I, while limitation legislation with the same or very similar wording to that in section21(1) came into effect in Britain as early as 1893.

It was held in Carey v Metropolitan Borough of Bermondsey (1903), 20 Times LReports 2 (UK CA), that the language of the provision refers to a “continuance of the act” that caused the damage. In that case, theplaintiff sustained personal injuries in an accident owing to the negligence of the local authority in repairing a road, and she sued innegligence, claiming that she continued to suffer from the effects of the accident after the expiration of the six-month limitation period. The Court confirmed that there was no continuance of the act complained of, so the limitation applied.

In that case, there was only oneinjury that occurred on one occasion, at the time of one accident. [68] There was a similar result in Freeborn v Leeming, [1926] 1 KB 160 (UK CA). This, again, was a claim of negligence,in this case against a medical officer. The defendant negligently failed to diagnose the nature of the plaintiff’s injury or to provide therequired treatment. The plaintiff left the defendant’s care and eventually consulted another doctor. He sued the defendant in negligencebut commenced the proceedings after the expiration of the limitation period.

Again, the conclusion of the Court, relying on the decisionin Carey, was that the words “continuance of [the] injury or damage” meant “the continuance of the act which caused the damage” (at p162) and the negligent treatment ended when the plaintiff left the defendant’s care, which was outside of the limitation period. [69] An example of a continuing act is found in Roberts v Portage La Prairie, (SCC), [1971] SCR 481. Inthat case, the plaintiff sued the municipality in nuisance, alleging damage arising from the escape of polluted water from a sewagelagoon.

The municipality argued that the claim was statute-barred because the suit was not commenced within one year from theconstruction of the lagoon or the first damage to the plaintiff’s land. Martland J, for the Court, stated (at p 491-92):

The present action is one for nuisance. The construction of the lagoon, in itself, was lawful, being within the respondent’s statutorypowers. A cause of action did not arise until damage occurred. Furthermore, the nuisance continued. The respondent operated andmaintained the lagoon over a period of time, causing continuing damage. The wrong complained of was not one which was complete,once and for all, once the lagoon was constructed.

I adopt the proposition of law stated in Salmond on Torts, 15th ed., at p. 791, as follows: When the act of the defendant is a continuing injury, its continuance after the date of the first action is a new cause of action forwhich a second action can be brought, and so from time to time until the injury is discontinued. An injury is said to be a continuing oneso long as it is still in the course of being committed and is not wholly past.

Thus the wrong of false imprisonment continues so long asthe plaintiff is kept in confinement; a nuisance continues so long as the state of things causing the nuisance is suffered by the defendantto remain upon his land; and a trespass continues so long as the defendant remains present upon the plaintiff’s land. In the case of suchcontinuing injury an action may be brought during its continuance, but damages are recoverable only down to the time of theirassessment in the action.

This is in accord with the decision of the House of Lords, in the Darley [(1886), 11 App Cas 127] case, and with what was said byDavis J., in this Court, in Dufferin Paving and Crushed Stone Ltd. v. Anger [ (SCC), [1940] SCR 174], at page 181: Where damage is the cause of action or part of the cause of action, a statute of limitation runs from the date of the damage andnot of the act which caused the damage. If there be fresh damage within the statutory period, an action in respect of those damages willnot be barred (Crumbie v.

Wallsend Local Board, [1891] 1 Q.B. 503, following the decision in the House of Lords in Darley MainColliery Co. v. Mitchell, (1886) 11 App. Cas. 127). For these reasons, I am of the opinion that the learned trial judge was correct in concluding: In the instant case an original cause of action arose each day the nuisance remained unabated. The plaintiff is entitled to recoverdamages for the one-year period immediately prior to the issuance of the statement of claim, i.e., from September 20, 1964. [70] Many trial and appellate decisions have subsequently cited Roberts with approval.

Typically, these decisions do notarticulate the issue in terms of the “continuance of injury or damage”, but merely observe that nuisance is a continuing tort with a newcause of action each day.

See, for example, Halifax (Regional Municipality) v Willis, 2010 NSCA 76 at para 72; Kerlenmar HoldingsLtd v Matsqui (District) (1991), (BC CA), 81 DLR (4th) 334 at 339 (BC CA) at para 17; ML Plaza Holdings Ltd vImperial Oil Limited, 2006 BCCA 564 at para 12; and Eureka Oils Ltd v Colli, 1983 CarswellMan 250 at para 32 (QB). (See, also, City Sand and Gravel Limited v Newfoundland (Municipal and Provincial Affairs), 2007 NLCA 51 at para 59, leave to appealto SCC refused, 2008 CarswellNfld 12; and Smart v South Saskatchewan Hospital Centre (1989), (SK CA), 60 DLR(4th) 8 at 28 (SK CA).) [71] It must be acknowledged that there are many decisions that have applied this or similar limitation provisions withconflicting results.

The provision is complex and the variations in the wording of the provisions, the nature of the wrongful actionsbeing examined and the underlying factual situations are almost limitless, such that a complete reconciliation of the individual decisionsis not possible. [72] Manitoba is relying primarily on this Court’s decision in Corbett in support of its position that this case is one of asingle act with a continuous effect, rather than a continuous tort. In Corbett, the plaintiff and the defendants were members of theManitoba Chiropractor’s Association (the Association).

The defendants made a complaint to the Association that resulted in theAssociation passing a motion that negatively affected the plaintiff’s practice. The plaintiff sued on various grounds, includingconspiracy to injure. [73] Scott CJM summarized the plaintiff’s position as being whether “the tort of conspiracy is a tort of a continuing nature,so that a cause of action accrues each day that the stigma of the disciplinary proceedings persists” (at para 17).

This was in the context ofthe application of a limitation provision that related to an action being commenced within six years “after the cause of action arose” (atpara 1). [74] In its argument, Manitoba refers, as did Scott CJM, to several non-nuisance cases, and then it seizes upon the followingcomment from Corbett (at para 38):

In my opinion, the court’s observation that a single act with continuing effects is not a continuing contravention is particularly apt to the circumstances before us. Here, there is only one allegedly wrongful act by the defendants, that being the letter to the association of November 20, 1997. Damage was then suffered and the cause of action arose, in my opinion, no later than July 1998 when the plaintiff’s association with MPIC came to an end. This line of reasoning is entirely consistent with the well-known distinction between a “continuing action” and “continuing damages,” between damage and quantum.

See Burke [2003 MBCA 104] at para. 24 and Wright v. Bell Canada , [1988] O.J. No. 1485 (S.C.) (QL) . [ 75 ] While the above is all well and good, Corbett was not a nuisance case and did not involve wording like section 21(1). Similar comments can be made on the other authorities cited by Manitoba and which also examined, in a non-nuisance context, the subject of a “repetitive act” and/or a single act with continuous effects. In my view, as regards the

interpretation and application of the words “continuance of injury or damage”, nuisance is different than most other torts and must be analysed in that context. [ 76 ] The difference between the acts in Corbett and in this case is clear.

In Corbett , the defendants sent one letter to the Association that led the Association to take certain action, and the conspiracy consisted of only one act that, once taken, was complete from the perspective of the defendants. [ 77 ] In the present case, the alleged nuisance consists of the injury to the plaintiff’s use and enjoyment of the property caused by the reduction in the hours of operation of the business. This is separate from the loss of income that constituted the “continuing damages” arising from the injury.

The injury in this case continued every day that the reduced hours remained in effect, until the appellants sold the business. Manitoba remained in a position to control the hours of operation and could have, at any time, reversed that reduction and reinstated the longer hours of operation, thereby ending the injury. Thus, if the reduction in the hours of operation constituted a nuisance, then that nuisance continued and was repeated, each day that the reduced hours remained in effect, until the business was sold.

Each day the business suffered new damages in the form of new losses and not just a continuation of the original damage from the original action. [ 78 ] This is similar to the situation in Pickering Square Inc v Trillium College Inc , 2016 ONCA 179 . Trillium and Pickering were parties to a lease, one of the terms of which was that Trillium, the lessee, would occupy the premises and operate its business continuously for the term of the lease. Trillium paid the rent but did not operate the business continuously.

Pickering brought a claim for damages and Trillium argued that the breach occurred when it ceased operation and that the limitation period ran from that date and had expired.

The Court of Appeal upheld the motion judge’s finding that this was a case of a breach of a continuing obligation under a contract, such that a fresh cause of action accrued every day that the breach continued—every day that Trillium failed to carry on its business in accordance with the covenant (see para 34). [ 79 ] In this case, if the reduction in the hours of operation constituted a nuisance, then, in my view, that nuisance was repeated every day and continued afresh on each day that Manitoba maintained those reduced hours.

Thus, in my view, the tort that is alleged, if proved, is one of a “continuing injury or damage” within section 21(1). As a result, the two-year limitation period did not start to run until May 2007, when the appellants sold the plaintiff. [ 80 ] As noted earlier, the appellants raised a number of issues challenging the application of section 21(1) of the Act , which applies to public officers, to a proceeding against Manitoba, and also the

interpretation of other aspects of section 21(1) (see para 58 herein). Given my finding that the two-year limitation period did not start to run until after the claim was filed, the claim would not be statute-barred even if the provision otherwise applies, so it is not necessary to determine those other issues. Thus, this decision is not to be read as endorsing the position of either party on those other issues. VI. THE THIRD ISSUE: DISMISSAL FOR DELAY [ 81 ] In its motion for

summary judgment, Manitoba included a request that the appellants’ claim be dismissed for delay pursuant to r 24.01 of the Court of Queen’s Bench Rules . The motion judge did not deal with this aspect of the motion, so there are no reasons to be reviewed, and the motion judge’s failure to address this issue has not been appealed.

Thus, in my view, the matter is not properly before this Court. [ 82 ] With Manitoba’s consent, the appellants were permitted to file new evidence, which attaches two reports setting out the quantification of their loss, the last report being dated March 27, 2015. [ 83 ] While this claim has taken a significant amount of time to get before the court, I am not convinced that it is a case that should be dismissed for delay, particularly by this Court as a matter of first instance. For this reason as well, I would not be prepared to grant this order. VII.

DECISION [ 84 ] For the reasons set out above, I would grant the appeal and dismiss Manitoba’s motion for

summary judgment. I would also find that the appellants’ cause of action in private nuisance was not commenced outside of the limitation period in section 21(1) of the Act and, therefore, it is not statute-barred. [ 85 ] I would grant the appellants their costs on the appeal and on the motion in the Court of Queen’s Bench. JA I agree: JA

I agree: JA