Deren v SaskPower, 2017 SKCA 104

Court of Appeal for Saskatchewan Docket: CACV2825 Citation: Deren v SaskPower , 2017 SKCA 104 Date: 2017-12-06 Between: Douglas M. Deren, Penny L. Deren and Gary Lee LaCasse Appellants (Plaintiffs/Respondents) And SaskPower and Saskatchewan Watershed Authority Respondents (Defendants/Applicants) Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: 2015 SKQB 366 , Estevan Appeal Heard: April 5, 2017 Counsel: Reginald A.

Watson, Q.C. and Kevin T. Miller for the Appellants Jason W. Mohrbutter for SaskPower Robert G. Kennedy, Q.C. for Saskatchewan Watershed Authority Caldwell J.A. I. Introduction [ 1 ] In this appeal, Douglas M. Deren, Penny L. Deren and Gary Lee LaCasse seek to set aside the decision of a Court of Queen’s Bench chambers judge summarily dismissing their claims against Saskatchewan Power Corporation [SaskPower] and Saskatchewan Watershed Authority [SWA]. [ 2 ] The appellants are owners of lands in the Souris River basin. Their lands were damaged in 2011 following a 1-in-500-year flood event.

Rafferty dam and Boundary dam span the Souris River. Among other things, these dams and their reservoirs store water for the Boundary Dam power station [BoundaryPS] and Shand thermal generating station [ShandTGS], which are owned by SaskPower. The operation of the two dams and their reservoirs is subject to an operating plan adopted pursuant to an international treaty and an agreement between Canada and the United States of America.

In his decision [ Deren v SaskPower and Saskatchewan Watershed Authority , 2015 SKQB 366 ], the Chambers judge found, on the basis of the evidence and the immunity in s. 95 of The Saskatchewan Watershed Authority Act, 2005 , SS 2005, c S-35.03 [ Watershed Authority Act ], that there was no genuine issue requiring a trial on the appellants’ claims that SWA and SaskPower were, by reason of their operation of the dams and reservoirs, liable for damages caused by the 2011 flooding. He dismissed the action in its entirety. [ 3 ] The appellants say the Chambers judge erred in fact or in law in a number of ways.

However, having reviewed the appeal book and facta and having heard counsel for the parties, I find there is no tenable basis upon which to interfere with the findings of fact made by the Chambers judge; moreover, I am not persuaded the Chambers judge erred in law in any manner that affected the result. For the reasons that follow, I conclude the appeal must be dismissed on all grounds, with one set of costs to each of the respondents. II. Background A.

Facts [ 4 ] In his reasons (at para 4), the Chambers judge noted the legal issues in this case are “not particularly complex”, but “the facts relating to those issues are many.” Indeed, the parties had adduced into evidence 13 affidavits, one of which had 21 documents exhibited to it. The documentary evidence detailed technical information about the operation of the Souris River Basin dams and reservoirs as well as relevant geographical, topographical and hydrological information, an international treaty, an international agreement and the operating plan adopted under that agreement.

All of this led the Chambers judge to opine (at para 5) that “it may not seem particularly ‘summary’ for a court to apply Rule 7-5 to a case with as much evidence as was presented here.” The Chambers judge then recounted the evidence and his findings over 101 paragraphs of his reasons. However, for the purposes of this appeal, the relevant facts found by the Chambers judge are summarised in the following paragraphs. [ 5 ] The appellants own land south of Estevan, Saskatchewan, along the banks of the Souris River, downstream from Rafferty and Boundary dams.

None of the appellants are hydrologists or trained in the operation of a dam and reservoir. [ 6 ] SaskPower owns power stations near Estevan, including BoundaryPS and ShandTGS. Under licenses from SWA and the federal government, SaskPower obtains water from Boundary reservoir for use as a coolant within BoundaryPS. That reservoir also provides water to the City of Estevan and for recreational uses. There are three coal mines near Estevan from which coal is transported to BoundaryPS and ShandTGS by truck along Coal Haul Road. Coal Haul Road crosses the Souris River and can be affected by rising

water levels. [ 7 ] SWA and SaskPower own, maintain or operate Boundary dam and its reservoir and Rafferty dam and its reservoir as well as the Rafferty-Boundary diversion channel [Channel], which allows water to be diverted from one reservoir to the other. Boundary dam is not designed for flood control. [ 8 ] The Souris River basin is drained by the Souris River, which flows through south-eastern Saskatchewan into North Dakota and then into south-western Manitoba. Long Creek and Moose Mountain Creek are tributaries of the Souris.

The river is subject to international oversight under the Treaty Between the United States and Great Britain Relating to Boundary Waters, and Questions Arising Between the United States and Canada , 11 January 1909 (entered into force 5 May 1910) [1909 Treaty], and to an international water supply and flood control agreement ( Agreement Between the Government of Canada and the Government of the United States of America for Water Supply and Flood Control in the Souris River Basin , 26 October 1989, Can TS 1989 No 36 [1989 Agreement]). [ 9 ] The parties to the 1989 Agreement adopted a plan [Operating Plan] that establishes guidelines for the operation on the Souris River and its tributaries of four dams and reservoirs, namely, Boundary, Rafferty, Alameda and Lake Darling.

The Lake Darling dam is in North Dakota. Each dam impounds water in a reservoir and can release that water as circumstances require. These dams protect against floods by storing water flowing into the reservoirs during a flood event and then gradually releasing the water over time. A flood takes place anytime the water flows at such a rate that it cannot be contained within the banks of the Souris River or a tributary. The Operating Plan (at A388) provides “rules for flood and non-flood operation” of the dams and reservoirs, but does “not cover all possible flood circumstances”.

The Operating Plan has three objectives: (

a) to provide 1% (1-in-100-year) flood protection at Minot, North Dakota; (

b) to provide flood protection to urban and rural areas downstream of Rafferty, Alameda and Lake Darling dams; and (

c) to ensure, to the extent possible, existing benefits from the supply of water in the Souris River basin and the supply of water to the dams are not compromised. [ 10 ] To meet these objectives, the Operating Plan establishes a minimum supply level, a full supply level [FSL] and a maximum allowable flood level [MAFL] for the reservoirs. When a reservoir reaches its MAFL, any water that flows into it will be released.

The dam operators continually balance the objectives of the Operating Plan because flood protection capacity requires lower reservoir levels but maintaining water supply for irrigation, industrial and municipal uses requires higher reservoir levels. To address this, the Operating Plan establishes two operating modes, namely, flood operation mode and non-flood operation mode.

The modes are engaged on the basis of estimates of spring runoff made on or after February 1st each year—estimated rainfall does not factor in this assessment. [ 11 ] If the spring runoff estimate shows a 50% or greater chance of a 1-in-10-year flood event at the point the Souris River crosses from Canada into the United States [Sherwood Crossing], flood operation mode is engaged and remains in effect until flood volumes have been discharged and the stream flow rates are at or below 500 ft³/s at Minot.

If the spring runoff estimate shows a 50% or greater chance of less than a 1-in-10-year flood event at Sherwood Crossing, non-flood operation mode is engaged. [ 12 ] In 2011, flood operation mode was engaged on February 23rd because normal to high spring runoff had been expected. In fact, flows at Sherwood Crossing were estimated to have reached a 1-in-16-year event in April and, by May, a 1-in-50-year event and, in each of June and July, over a 1-in-500 year event.

Ultimately, spring runoff in 2011 alone reached a 1-in-100-year event at Sherwood Crossing, but this was determined after it had occurred. [ 13 ] Regardless, flood operation mode had been engaged in February 2011 and its operational emphasis was on protection against a 1-in-100-year flood event at Minot by requiring SWA to operate Rafferty and Alameda dams and the Channel so as to maintain a targeted flow rate at Sherwood Crossing.

But, the Operating Plan also works to minimise the risk that reservoirs will not be refilled; to do this, drawdowns are made such that the dam operators will have a 90% confidence the reservoirs will refill to FSL over 90 days. After spring runoff, if any of the reservoirs are above FSL, they are brought down to that level, but only in such a way that the flows at Sherwood Crossing do not exceed 90 m 3 /s or 3,200 ft³/s in up to a 1-in-50-year event and 113 m 3 /s or 4,000 ft³/s in any event over a 1-in- 50-year event.

That is, under the 1989 Agreement and the Operating Plan, the maximum flow rate at the Sherwood Crossing is restricted and SWA must operate its dams and reservoirs to achieve the target rate. [ 14 ] During flood operation mode, SWA directs the operations of Boundary and Rafferty dams and reservoirs and the Channel. SWA makes all decisions concerning the targeted elevations and the discharges and also makes decisions as to whether waters should flow back and forth between the two reservoirs through the Channel.

In this case, in flood operation mode, SWA released water from Boundary, Rafferty and Alameda reservoirs in February, March and April to target the pre-runoff levels in accordance with the Operating Plan. The Chambers judge found that SaskPower has no decision-making authority in this regard during flood operation mode. [ 15 ] In 2011, the Souris River basin experienced several flood events. The first occurred in April, when the river spilled over its banks and onto the Derens’ land. This water flooded their lagoon and caused a two to three inch sewer backup in their basement.

Then, in mid-May, the Souris River again flooded the Derens’ land and filled their lagoon. The third flood occurred at the end of May, but did not cause any new damage to the Derens’ property. However, in mid-June, the river spilled over its banks a fourth time and flooded onto the Derens’ property and into their home, causing significant damage. Similar damage was done to Mr.

LaCasse’s property. [ 16 ] The United States Army Corps of Engineers [USACE], which operates the Darling Lake dam and reservoir during flood operation mode, assessed the 2011 flooding in Canada and the United States in its 2011 Post-Flood Report for the Souris River Basin , February 22, 2012, (revised March 2012) [2011 Report], and concluded that, once flood operation mode had been engaged, reservoir operations had been conducted in accordance with the Operating Plan and had successfully prevented a flood from spring runoff.

The 2011 Report did note SWA had experienced difficulty attaining Sherwood Crossing target flow rates, but this did not prevent USACE from concluding (at 33):

... Spring runoff for the Souris River basin began on or about April 6 th with snowmelt peaking in mid April. Flooding was widespread across the Province. The reservoir system worked exactly as planned and was completely successful for the spring snowmelt event. Some flooding occurred through Estevan, but less than the previous historical high. [ 17 ] The 2011 spring runoff in the Souris River basin began in early April and peaked around the middle of April. As noted, the snowmelt runoff created a 1-in-100-year event, measured at Sherwood Crossing.

Hypothetically, without the dams and reservoirs, SWA calculated the spring runoff peak through Estevan would have exceeded 400 m³/s, causing a flood of “historic proportions”. But, in fact, the flow rate through Estevan had been attenuated to 100 m³/s through implementation of the Operating Plan. However, this meant the Boundary, Rafferty and Alameda reservoirs were close to full around the beginning of May—they had no flood storage capacity left. [ 18 ] After spring runoff, SWA increased the outflow rate but this did not reduce reservoir elevations due to rainfall in early May.

Rainfall events continued to occur thereafter, which kept reservoirs at or near capacity. Then, in mid-June, an extraordinary rainfall event occurred that elevated reservoir levels beyond the designed capacity of the dams. SWA had to release water from its reservoirs. In this regard, the 2011 Report noted (at 31 and 67): Reservoir operations were in compliance with the 1989 International Agreement until inflows became too high and the reservoirs were essentially full due to a series of precipitation events, culminating with the very heavy rainfall of June 17 th to 21 st .

Once the events overwhelmed the flood control system, the reservoirs were releasing flows in excess of the 1989 International Agreement to avoid dam safety concerns. The last event was much larger than the one percent project design. … In 2011, high soil moisture content, above average snow pack, and persistent spring and summer rainfall combined to produce multiple flood peaks and record flooding throughout the Souris River Basin. At the Sherwood Crossing in North Dakota, a peak flow of 29,700 cfs (841 cms) was observed on June 23 rd .

This corresponds to an approximate annual exceedance frequency of 0.2 percent (Return Interval – 500 year) [i.e., a 1-in-500-year event]. … The 2011 volume is more than 2.5 times larger than the previous record event in 1976 and far exceeded the 100-year design capacity of the Souris Basin Flood Control Project. [ 19 ] The Chambers judge relied heavily on the 2011 Report, summarising the flow rates and volumes it set out in his reasons.

In particular, at paragraph 98 of his reasons, the Chambers judge quoted the following passage from the 2011 Report (at 40–41): All or some portions of the Souris basin received moderate rainfall events (about 2-3 in (50-75 mm)) every 1-1.5 weeks in May and June. The USACE was able to maintain the target flow of 5,000 cfs (140 cms) at Minot 4NW through mid-May. At this point, the Canadian reservoirs were full from snow melt and the repeated rainfall events and the 5,000 cfs (140 cms) target could no longer be held.

By the fourth week of May the goal was to keep Minot 4NW below 7,000 cfs (200 cms) while using the maximum available storage in Lake Darling. USACE received permission from USFWS to take the pool half a foot above MAFL if needed. Outflow was cut when possible to reduce flow through Minot 4NW when local runoff from rain occurred. At the beginning of June the maximum allowable Lake Darling elevation was reached and Minot 4NW peaked above 8,200 cfs (230 cms). The pool was at or above 1,601.0 ft (488.0

m) for three days. As Minot 4NW flows receded, outflow was increased by 6,000 cfs (170 cms) in order to try to gain storage before the next wave of inflows hit. By June 8 th more flow than expected was on its way from Canada and the minimum outflow was now targeted for 6,600 cfs (185 cms). The USGS measured Sherwood on June 8 th and found that the actual flow at the Sherwood gauge was higher than the current rating curve was indicating. Minimum outflow from Lake Darling Dam was now 8,000 cfs (225 cms).

Discussions with the Canadians occurred and they were able to make cuts in order to help Lake Darling keep Minot 4NW below 9-10,000 cfs (255-280 cms). As the Chambers judge observed, the reference to Minot 4NW describes a target flow rate at Minot of 5,000 ft³/s or 140 m³/s. This rate is higher than the target at Sherwood Crossing because the Souris River picks up additional runoff after it crosses the border and before it reaches Minot. The target flow rate at Sherwood Crossing was 4,000 ft³/s or approximately 113 m³/s.

This led the Chambers judge to remark: [99] Two paragraphs later, the 2011 Post-Flood Report observed that, during the rain events from May to mid-June, if Lake Darling Reservoir had been completely dry, and released no outflow, it would have filled to the maximum allowable flood level four times.

Applying that same scenario to the large rain event in June, the same report observes, at p. 44, that the reservoir would have filled to maximum allowable flood level four times during the event. [ 20 ] In late June 2011, the flow rates at Minot had exceeded 800 m³/s; whereas, historically, they had never exceeded 100 m³/s in late June. Excluding 2011, the highest flow rates typically occurred in April and early May, but even then they had never exceeded 400 m³/s.

The Chambers judge noted that, during April 2011, the flow rate had not exceeded 100 m³/s. [ 21 ] Once the rains had ended, during June and July of 2011, SWA discharged water from its reservoirs at a high rate in an attempt to lower their levels. B. Appellants’ Claims [ 22 ] In their claims, the appellants assert that from April 2011 to July 2011 they experienced flooding caused by the actions of SWA and SaskPower, either individually, jointly or in concert with others. The particular claims against the respondents were these: (

a) as against SWA, negligence in the operation of Rafferty dam and reservoir, negligence in the oversight and regulation of Boundary dam and reservoir, commission of a private nuisance, breach of a duty to warn, liability based on the rule in Rylands v Fletcher (1866), [1861-73] All ER Rep 1 (HL), trespass, and violation of ss. 7–15 of The Environmental Management and Protection Act, 2010 , SS 2010, c E-10.22; the appellants also assert SWA acted in bad faith by: (

i) maintaining water levels in Rafferty reservoir “at dangerously or seriously carelessly high levels”;

(ii) allowing water levels in Boundary reservoir “to be maintained at a dangerous or seriously carelessly high [level]”; (iii) failing to complete channel improvements for flood control from Rafferty dam to ShandTGS; (iv) failing to contact the appellants and others about to be flooded on or before June 18, 2011; (

v) failing to implement “the Recommendations of the 2001 Souris River Flood Report particularly Recommendations 2-4”; (vi) giving the Upper Souris River Watershed Association “flood planning responsibility, flood plan execution responsibility”; (vii) allowing other interests to “govern some conduct which led to a dangerous situation such as the interests of SaskPower, the United States of America, the State of North Dakota, Environment Canada, and others”; (viii) being “unduly influenced by the United States of America, the State of North Dakota, and others’ interests”; (ix) being “influenced by SaskPower not to open dams and release water in a purposeful and controlled manner, as it would flood and close the Coal Haul Road and interrupt the SaskPower fuel supply to [BoundaryPS and ShandTGS] and to keep reservoir levels dangerously high to maximize cooling potential and to maintain and increase SaskPower profits”; (

x) knowingly using computer systems and operational systems and data management systems that were outdated, inefficient and potentially unreliable, and failing to take any reasonable steps to remedy the situation; and (xi) being wilfully blind in using an outdated data management and operational systems, including the fact that SWA has no hydrological modeling capabilities; and (

b) as against SaskPower, identical allegations as were made against the SWA but pertaining to Boundary dam and its reservoir, and also that SaskPower had: (

i) improperly influenced SWA to control releases from the reservoirs to preserve SaskPower’s ability to use Coal Haul Road; and (ii) failed to prevent flooding of the Estevan sewage treatment system. [ 23 ] In support of their allegations, the appellants themselves prepared tables containing hypothetical data about outflows or releases they contend should have occurred prior to the fourth flood. On this basis, the Chambers judge encapsulated the essence of the appellants’ claims by reference to these passages from Mr. Deren’s affidavit: 73.

The SWA and SaskPower should have known that agricultural interests along the Souris River were willing to deal with higher spring water flow releases. SWA and SaskPower should have learned this lesson from speaking with occupants such as me, Mr. LaCasse, and others from the area referenced above. 74. Also they should have learned this lesson from the 2001 Post-Flood Report for the Souris River Basin , USACE (2007) (part 9.2, p 35). This report is Exhibit 9 to the Affidavit of John Fahlman, SWA. 75.

An operator of the Rafferty and Boundary Dams and Reservoirs could have accepted the inflows of water that Nature provided in 2011 and controlled and released that water in a manner that would not have caused damage to my Property. A printout of excel spreadsheets contains a model that was developed under my supervision and with my input.

I attach as Exhibit “K(2)”, a document titled “Doug Deren – Total Hypothetical Outflow at Confluence of Souris River and Long Creek” and two supporting spreadsheets, titled “Doug Deren – Operation of Rafferty Dam – Hypothetical Spillway Outflow” and “Doug Deren – Operation of Boundary Dam – Hypothetical Spillway Outflow” and two graphs. 76. It was possible to keep the total outflows at the confluence of the Souris River and Long Creek under 200 cms from May 19, 2011 onward through June 2011.

It would have required the Rafferty and Boundary Dams and Reservoirs to have been drawn down much lower that [ sic ] was done at that time. and by reference to this paragraph from Mr. LaCasse’s affidavit: 73. Based on the information that I have been given by the Defendants, SaskPower and SWA went into the spring with the dams full. They continued to keep the dams full. They could have been releasing water at a steady flow of 40-100 CMS per day. Had they started on February 23, 2011 with a constant release, we would not have had the June 18-21 flooding.

Even if they had started as late as May 19, 2011 with steady releases, they could have prevented the severity of flood which destroyed my property. They went into June with everything filled to the brim, and they had no room for a natural rain event. They were then forced to open the Dams wide open, and they endangered me and the Derens due to their gross negligence and bad faith and dangerous decision making. C. Respondents’ Defences [ 24 ] In its defence, SWA asserted the rainfall events during May and June 2011 had been extraordinary and unpredictable and had exceeded all known historical rainfall.

SWA contended the flooding resulting from these events had been unpredictable, inevitable and

an Act of God. More importantly, SWA pled s. 95 of the Watershed Authority Act as a complete defence to the allegations, asserting its actions had been carried out in good faith, in the exercise of its statutory powers, prerogatives and responsibilities, and in the exercise and the performance of statutory and treaty obligations assumed by Canada. That is, it pled that any damages sustained as a result of the operation of the dams, reservoirs and the Channel had been caused by actions SWA had been required to perform under the 1909 Treaty and the 1989 Agreement, thereby affording it statutory immunity.

[ 25 ] In its defence, SaskPower pled it had been authorised by SWA to execute SWA’s decisions and instructions pertaining to Boundary dam and reservoir and that SaskPower is thereby entitled to the protection afforded by s. 95 of the Watershed Authority Act . SaskPower denied any obligation or duty to prevent or reduce the consequences of any flooding of Estevan’s sewage treatment system. SaskPower also pled that, under a long-standing agreement, it had agreed to accept effluent from Estevan at a wetlands it owns.

SaskPower admitted Estevan had delivered treated effluent to the wetlands between April and September 2011, but denied it was a contaminant or harmful to the appellants’ land. SaskPower further said the effluent had been completely dispersed and overwhelmingly diluted within the outflows from Rafferty dam before reaching the appellants’ property. SaskPower denied it had exercised any improper influence in order to protect Coal Haul Road. D.

Disclosure [ 26 ] Procedurally, it is also relevant that an issue had arisen between the parties with respect to the disclosure of documents prior to the respondents’ application for

summary judgment. The appellants had applied for an order compelling SWA to provide an affidavit of documents, which application was heard before a different chambers judge. While that judge had been satisfied SWA ought to provide an affidavit of documents, she was also alive to the fact the relevant documents included about 40,000 emails. Accordingly, she ruled that Court of Queen’s Bench Civil Practice Directive No. 1 and its e-discovery guidelines applied and she gave SWA 30 days to address the mechanics of disclosure with the appellants’ then counsel.

When the matter of disclosure came back before that same judge, the parties advised her they had been unable to agree on the scope of disclosure or on search and retrieval protocols. In a second fiat, the judge declined to create a search and retrieval protocol for the parties; rather, she simply directed them to comply with the e-discovery guidelines before bringing any further applications, saying: I am not satisfied by the material filed by the parties that either side has made much of an effort to confer on e-discovery issues. This is the court’s expectation, not just some lofty aspiration.

SWA cannot ignore this obligation by tracking a preference for the

summary judgment process to the exclusion of its disclosure obligations, and by deferring to SWA’s unresponsive technology. The plaintiffs are equally at fault. They must meaningfully engage on the issue and actively work on principle 4, i.e. exploring data sampling and appropriate search criteria designed to elicit a return of documents that are likely to contain relevant information. The plaintiffs must recognize the magnitude of the documents and the principle of proportionate direct relevance in relation to electronic documents. ... [Emphasis in original] [ 27 ] SWA had served its affidavit of documents before the Chambers judge heard the

summary judgment application. In that hearing, counsel for SWA advised the Chambers judge that the appellants’ counsel had not participated in decisions about what would be disclosed. The Chambers judge noted the appellants’ counsel did not contradict this assertion. SWA took the position that anything relevant to the action had been disclosed. The appellants’ counsel took the position that further disclosure was required. [ 28 ] In particular, the appellants identified these evidentiary issues as outstanding before the Chambers judge: (

a) certain documents had described Boundary dam and reservoir as being owned and operated by SaskPower, thereby contradicting the suggestion that SWA was engaged in their operation; (

b) SWA had granted itself an approval to operate Rafferty dam and reservoir that included a “Special Condition” under which the holder of the approval “accepts full responsibility for liability in relation to this approval”; (

c) the documents disclosed by SWA had not included a regulation manual for Rafferty and Boundary dams and reservoirs, as contemplated in the Operating Plan; and (d) “channelization” of the Souris River, i.e., the process of deepening or widening a channel to permit more water to pass within its banks, had been proposed in a 1988 SWA document and the appellants thought the proposal should have been completed. E.

Summary Proceedings [ 29 ] It is important to recall that the matter before the Chambers judge was an application by the respondents for

summary judgment to dismiss the appellants’ claims. The Chambers judge found the application turned on the good faith immunity set forth in s. 95 of the Watershed Authority Act . He found that that immunity, if applicable, would afford SWA and SaskPower a full and complete answer to all of the allegations against them. No appeal was taken from this finding. [ 30 ] The respondents had framed their application on the basis that the question of good faith, or its absence, was a question of fact in respect of which the appellants bore the burden of proof.

The respondents argued the appellants had not presented any meaningful or significant evidence to indicate the issue of good faith was a genuine one requiring a trial. The respondents posited the evidence suggested there could be no dispute about the respondents’ actions or the intentions behind them, all of which indicated good faith. In particular, SWA pointed out there was no dispute as to: (

a) the decisions SWA had made with respect to reservoir elevation levels and the discharge rates from Rafferty, Boundary and Alameda dams; (

b) the institutional context and background that had led to SWA’s decisions; and (

c) the historical context behind SWA’s decisions, such as hydrology, historic snowmelt runoff patterns and historic rainfall event patterns. [ 31 ] In response, the appellants submitted

summary judgment was not appropriate in the circumstances of this action, contending the evidentiary issues were complex as they involved hydrology and statistics. The appellants submitted it would be difficult to

“understand and appreciate the data without oral testimony and opinion evidence”, but they had proffered none. [ 32 ] Importantly, the Chambers judge remarked (at para 111) the appellants’ counsel had “quite candidly acknowledged” any evidence of bad faith was by inference only but had contended more persuasive evidence would arise in due course once the record was complete. This, the appellants argued, required questioning of the respondents’ proper officers because the scope of questioning is broader than that of cross-examination on affidavit evidence. More specifically, the appellants argued: (

a) summary judgment at this stage would deprive them of their statutory right to a civil jury trial; and (

b) the statutory immunity provision did not apply due to breaches of license arrangements, breaches of the 1989 Agreement, conflicting roles of SWA, failure to follow federal law, and failure to maintain reservoir regulation manuals. III. Chambers Decision [ 33 ] While the Chambers judge found the factual issues were complex, he found the legal issues were straightforward. The central issue was simply whether there was “a genuine issue requiring a trial for the purpose of determining the application of s. 95 of the Watershed Authority Act ?” The Chambers judge addressed this issue in four parts in his reasons: (

a) by analysing the

summary judgment rules and their application; (

b) by considering whether the application of the

summary judgment rules would improperly deprive the appellants of a statutory right to a civil jury trial; (

c) by considering the meaning of “good faith” in s. 95 of the Watershed Authority Act ; and (

d) by examining whether s. 95 of the Watershed Authority Act applied to the actions of SWA and SaskPower or either of them. [ 34 ] In reaching his conclusions in this regard, the Chambers judge observed that, if the action were to proceed to trial, the appellants would be obliged to prove three things: (

i) one or more of the tortious acts or omissions alleged against SWA and SaskPower had actually occurred; (ii) SWA’s and SaskPower’s tortious conduct had caused flooding that had resulted in damage; and (iii) the tortious conduct had occurred in circumstances amounting to an absence of good faith or the presence of bad faith. He then remarked that third requirement was overarching without which the entire action must fail “irrespective of how persuasive the evidence may be on the first two requirements” (at para 156). [ 35 ] Given this, the Chambers judge observed Court of Queen’s Bench Rule 7-5(1)(

a) called for him to decide, based solely on the record of evidence presented, whether the question of proof of an absence of good faith appeared to be a genuine issue requiring a trial. Speaking to the evidence, the Chambers judge observed (at para 157) the “best foot forward” principle applied in

summary proceedings and, therefore, the evidence must be taken to include “the essence of the evidence all parties would present at trial.” In terms of what the evidence had to establish, the Chambers judge said: [157] … Speaking more directly to the absence of good faith, the court must decide whether the record of evidence presented makes it appear that nothing short of a trial is required for a fair and just adjudication as to whether the plaintiffs have met, or can meet, the burden of proving the defendants’ tortious conduct arose from one or more of the following circumstances: (

a) an intention to do harm; (

b) a lack of a bona fide belief in facts that, if true, would stand as justification for the defendants’ behaviour; (

c) dishonesty of intention; (

d) knowledge of circumstances which ought to put the defendant with that knowledge on inquiry; [and] (

e) behaviour that is so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that it was demonstrated in good faith. Examining the evidence through this lens, the Chambers judge found there was no genuine issue for trial with regard to either SWA or SaskPower.

He made this finding (at para 158) “without using any powers set out in Rule 7-5(2)(b)” because, in his assessment, SWA’s and SaskPower’s evidence of good faith had not been contradicted by the appellants’ evidence. [ 36 ] In the Chambers judge’s assessment (at para 159), SWA’s evidence presented “a clear picture of the reasons and the purpose behind the actions they took” in 2011.

He found SWA had taken full charge of its dams and reservoirs and there was “no evidence to suggest that water elevations in any of the reservoirs were mismanaged or poorly handled, much less carried out in bad faith” from February to the end of April 2011.

Rather, the Chambers judge said the evidence demonstrated “the reservoirs and dams were operated and managed exactly as was intended under the terms of the Operating Plan” and he gave reasons for his conclusions in this regard. [ 37 ] The Chambers judge found (at para 160) that, beginning in early May, the evidence “strongly suggests that SWA’s options were very limited”, that it had “not [been] immediately possible to increase the discharges, or the diversion outflow from the Boundary Reservoir, to the point that it would prevent the water levels from rising in each reservoir”, and that this state of circumstances had existed “right up until the catastrophic and near-biblical rainfalls of mid-June.” [ 38 ] Against these findings, the Chambers judge remarked that the crux of the appellants’ claims was that SWA should have discharged water from the dams and reservoirs at a greater rate—one that exceeded the inflow rate—thereby causing water levels to decrease and, in turn, increasing local flood protection.

The Chambers judge put this contention to rest, and thereby disposed of the

application before him, in this way: [161] … The central problem with this argument is that it completely ignores the 1989 Agreement, the Operating Plan and the post- runoff target flows at Sherwood Crossing. For example, if one were to take Mr. Deren’s sheet of hypothetical outflows from the Rafferty and Boundary Reservoirs, the total outflows at the Souris River/Long Creek confluence would be as much as 100 m³/s by mid-May and as much as 180 m³/s during the second week in June. The latter rate of flow is already greater than the 113 m³/s target flow at Sherwood Crossing.

Considering that additional rainfall runoff would likely increase the speed of flow further downstream from the confluence, one would reasonably expect that the 100 m³/s outflow increase to a level equal to or greater than the Sherwood Crossing target flow. [162] To compound the problem, the above speculation about the target flows, from Mr. Deren’s hypothetical, ignores the fact that, aside from additional rainfall runoff, releases were made from the Alameda Reservoir, as well.

Taking into account the data in Figure 6- 3, and if one were to assume releases at a rate greater than the rate of inflow (thereby providing downstream Saskatchewan property owners the same protection to which the plaintiffs claim to deserve), the rate of flow downstream from the Souris River/Moose Mountain Creek confluence would be as much as 220 m³/s on June 9, 2011, well above the target rates. [163] Under such circumstances, I cannot see how it could be said that any part of the defendants’ actions, in the management of the Rafferty and Boundary Dams and Reservoirs, could have been done with intent to harm, or with knowledge of any fact that might have put them on inquiry or cause them to act differently.

Moreover, there is no evidence to suggest that the defendants’ acts or omissions between February 23 and mid-June 2011 were so markedly inconsistent with the legislative context of s. 95, that it would be reasonably open for a court to conclude that there was an absence of good faith. [164] In their affidavit material, the plaintiffs complained about the fact that there were no Reservoir Regulation Manuals, as required by the Operating Plan, a fact that was candidly admitted by SWA.

While the absence of such manuals may well have been a shortcoming, it is impossible for a court to find that the shortcoming amounted to an absence of good faith, without some evidence that the presence of such manuals would have resulted in a different approach to the operation and management of the relevant dams and reservoirs. Such manuals could not stipulate anything that would be inconsistent with the terms of either the 1989 Agreement or the Operating Plan.

More specifically, I cannot conceive of a circumstance in which Reservoir Regulation Manuals would have permitted releases of water that would have significantly exceeded the Sherwood Crossing target flows in the same way as the plaintiffs’ proposed hypotheticals would have done. [165] As I read, and re-read, the plaintiffs’ affidavits and their cross examinations, it is reasonably clear that their biggest complaint about what happened in the late spring of 2011 is that the defendants, in particular the SWA, gave greater regard to the terms of the 1989 Agreement and the Operating Plan than should have been given.

In fact, one can only read their evidence as suggesting that the 1989 Agreement and the Operating Plan should simply have been ignored. What the plaintiffs miss in their complaint is that the 1989 Agreement was one of the factors that made the Rafferty Dam possible. Without the Rafferty Dam, the flow within the Souris River would have been completely unregulated, with no flood protection, at all. CONCLUSION [166] In the result, the application for

summary judgment is allowed. The defendants shall have leave to enter judgment dismissing the action with costs to be taxed. The defendants shall also have their taxable costs in respect of this application. [ 39 ] The appellants now appeal from the

summary dismissal of their claims against SWA and SaskPower. IV. issues [ 40 ] The appellants say the Chambers judge erred in fact or in law by: (

a) misinterpreting SWA’s obligations under the Operating Plan; (

b) finding there was no evidence of mismanagement or poor handling of water elevations; (

c) finding the dams and reservoirs had been operated and managed in accordance with the Operating Plan; (

d) relying on oral submissions of SWA’s counsel as fact; (

e) finding the Watershed Authority Act granted immunity to SaskPower; (

f) finding SaskPower had been operating Boundary dam as authorised by SWA; (

g) determining the respondents’ evidence had not been contradicted by the appellants’ evidence; (

h) reversing the burden of proof in a

summary judgment application; and (

i) holding the appellants to an incorrect burden of proof. In an additional but overarching ground of appeal, the appellants allege the Chambers judge erred at the outset by proceeding with the respondents’

summary judgment application in the circumstances of this case. V. analysis

[41] To frame the analysis of this appeal, this Court has the jurisdiction to hear this matter under s. 7(2)(

a) of The Court of AppealAct, 2000, SS 2000, c C-42.1, as an appeal from a final decision of the Court of Queen’s Bench. In an appeal of this nature, questions oflaw are assessed on the basis of the standard of correctness: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; H.L. v Canada(Attorney General), 2005 SCC 25, [2005] 1 SCR 401. Questions of fact are assessed on the palpable and overriding error standard ofreview: Housen v Nikolaisen; Nelson (City) v Mowatt, 2017 SCC 8, 406 DLR (4th) 1.

Absent an extricable question of law, questions ofmixed fact and law are also assessed on the palpable and overriding error standard: Housen v Nikolaisen; Hryniak v Mauldin, 2014 SCC7, [2014] 1 SCR 87 [Hryniak]; Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 [Sattva]; Scott v Vanston,2016 SKCA 75, [2016] 9 WWR 256. The question of whether there exists a genuine issue for trial in a

summary judgment application isone of mixed fact and law, reviewable on appeal on the palpable and overriding error standard: Hryniak. [42] Given its overarching nature, I will start with the last issue raised, namely, whether the Chambers judge erred by proceedingwith a

summary judgment application in the circumstances. Because certain of the other issues raised are similar to each other in nature, Ihave grouped them accordingly in the analysis that follows. A. Was this an appropriate case for

summary judgment? [43] In some measure, several of the appellants’ submissions relating to evidentiary matters may be dealt with under thisoverarching ground of appeal. This is because the appellants allege they have been “denied access to the benefit of a fully-informed trier-of-fact only attainable through the trial process.” They say they want their claim “adjudicated with full evidence before a finder of fact.”Although

summary proceedings are designed to promote access to justice, the appellants suggest in this case the process did not achieveits goal. That is, they say this was not an appropriate case for

summary proceedings. [44] The appellants point out that the respondents’ application for

summary judgment was conducted without the benefit of havinghad the respondents’ proper officers questioned under oath. The appellants submit the limited scope of a cross-examination on affidavitevidence—as may occur in

summary proceedings—prevented them from investigating matters beyond those averred to in therespondents’ affidavits. They say this limited their ability to proffer evidence in support of their claims because the appellants’ expertswere consequently not in a position to provide an opinion on the quality of the decisions SWA had made during the 2011 flooding. [45] The appellants note the decision in Tchozewski v Lamontagne, 2014 SKQB 71, 440 Sask R 34, stands for the proposition thatthe issue in

summary proceedings is not whether the process will be as thorough as a trial, but whether the judge is confident he or shecan find the necessary facts and apply the relevant law to fairly resolve the dispute (see also: Viczko v Choquette, 2016 SKCA 52, 476Sask R 273). Here, the appellants’ submit the Chambers judge was too confident with his fact finding given the complexity of the caseand the state of the evidence.

As a consequence, they urge this Court to “independently assess the scope, complexity, and erroneousfindings of fact made by the Learned Chambers Judge to determine that regardless of confidence this was not a proper matter to go to asummary judgment application.” [46] To some degree, the appellants’ submissions reframe the question before this Court and thereby side-step the standard ofappellate review applicable to the proper question. In an application for

summary judgment, the principal question before the Court ofQueen’s Bench is whether there exists a genuine issue for trial: Hryniak. Regardless of how that question is answered, the Court ofQueen’s Bench’s answer is itself reviewable on appeal to this Court on the standard of palpable and overriding error: Hryniak. Thatstandard does not allow this Court to independently assess the evidence as a whole; rather, it requires that we first find an error in thefact-finding at the Court of Queen’s Bench that is both palpable and overriding.

While the Supreme Court of Canada has said muchabout this standard of review, it has lately, in Benhaim v St-Germain, 2016 SCC 48, [2016] 2 SCR 352, said this: [37] It may be useful to recall the many reasons why appellate courts defer to trial courts’ findings of fact, which were described atlength in Housen, at paras. 15-18. Deference to factual findings limits the number, length and cost of appeals, which in turn promotes theautonomy and integrity of trial proceedings. Moreover, the law presumes that trial judges and appellate judges are equally capable ofjustly resolving disputes.

Allowing appellate courts free rein to overturn trial courts’ factual findings would duplicate judicialproceedings at great expense, without any concomitant guarantee of more just results. Finally, according deference to a trial judge’sfindings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence,they hear viva voce testimony, and they are familiar with the case as a whole. Their expertise in weighing large quantities of evidenceand making factual findings ought to be respected.

These considerations are particularly important in the present case because it involvesa large quantity of complex evidence. [38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard asfollows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: Palpable and overriding error is a highly deferential standard of review ....“Palpable” means an error that is obvious. “Overriding” meansan error that goes to the very core of the outcome of the case.

When arguing palpable and overriding error, it is not enough to pull atleaves and branches and leave the tree standing. The entire tree must fall. [39] Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 , [translation] “a palpable and overridingerror is in the nature not of a needle in a haystack, but of a beam in the eye.

And it is impossible to confuse these last two notions.” [47] In my assessment, none of the allegations of error alleged by the appellants in support of their submissions under thisoverarching ground of appeal amount to an extricable question of law, which would have attracted a correctness standard; moreover,none of the alleged errors meet the palpable and overriding error in the manner described in Benhaim v St-Germain. [48] For example, contrary to the Chambers judge’s finding, the appellants say they adduced evidence of the respondents’ badfaith.

They assert it related to the pressure SaskPower had exerted on SWA to reduce flow rates to ensure the Coal Haul Road wouldremain open. They argue the scope and appropriateness of this pressure is a matter to be determined by a finder of fact but, they submit,the Chambers judge did not turn his mind to this evidence because he stated he had not used his powers under Rule 7(2)(

b) to weighcompeting evidence. The appellants acknowledge the Chambers judge found there was no evidence of bad faith—he found there was no

competing evidence on that issue. In this respect, the appellants’ allegation of error must be taken as a challenge to the Chambers judge’s assessment of the evidence as not giving rise to bad faith or an absence of good faith.

While an error of this nature might be overriding, the appellants’ submissions fail to articulate the alleged errors in palpable terms—i.e., how the evidence itself so plainly demonstrates a possibility of bad faith that the Chambers judge’s contrary finding strikes as a “beam in the eye”. [ 49 ] More palpably, the appellants say the Chambers judge erred by simply accepting the representation of counsel for SWA to the effect that Saskatchewan had agreed to indemnify Canada for any liability of Canada to the United States arising under the 1989 Agreement.

The judge could not find evidence of that agreement in the materials before him, but said he may have overlooked it; nevertheless, he seems to have relied on its existence in some measure. This suggests a factual error amounting to an error of law, in that the Chambers judge may have drawn a factual conclusion based on no evidence, because counsel representations are not evidence. However, the single-page indemnity agreement in question exists. It may be found in the appeal book at A374. It says what counsel for SWA said it says.

Thus, regardless of the Chambers judge’s questionable reliance on the bare representations of counsel, counsel had correctly represented what was actually in evidence. In this way, even though an error may be made out on the face of things, nothing turns on it—it is not an overriding error. [ 50 ] In another allegation, the appellants point to Nelson v Saskatchewan , 2003 SKQB 265 , 235 Sask R 250, for the principle that statutory immunity provisions do not protect defendants from negligence that occurs after an awareness of a danger.

On this basis, they assert, with reference to specific evidence, SWA was aware it needed more reservoir storage capacity but it still acted negligently in the face of that knowledge. The appellants say this awareness on SWA’s part necessarily means SWA cannot avoid liability by resort to s. 95 of the Watershed Authority Act . They note, however, the Chambers judge made no reference to this awareness as a fact. The appellants tie this back to the inappropriateness of

summary proceedings in this case by saying that, not having had the benefit of questioning, a traditional trial, a contextual understanding of the technical evidence and expert opinion, they were “at risk to fail” with their claims. In blunt terms, the appellants describe the

summary proceeding as the respondents saying “trust us, it was good faith”, and the Chambers judge doing just that. The appellants seek a traditional trial so they can show otherwise. [ 51 ] This is not so much an allegation of error as it is a complaint about

summary proceedings in general. As an allegation of error, it is not persuasive. The Chambers judge was alive to the principle identified by the appellants, he reviewed the case law related to it and identified the principle as being relevant to his inquiry.

Then, with the principle and others in mind, the Chambers judge reviewed the evidence and drew these conclusions: [163] Under such circumstances, I cannot see how it could be said that any part of the defendants’ actions, in the management of the Rafferty and Boundary Dams and Reservoirs, could have been done with intent to harm, or with knowledge of any fact that might have put them on inquiry or cause them to act differently .

Moreover, there is no evidence to suggest that the defendants’ acts or omissions between February 23 and mid-June 2011 were so markedly inconsistent with the legislative context of s. 95, that it would be reasonably open for a court to conclude that there was an absence of good faith. [Emphasis added] While the appellants may disagree with the Chambers judge’s overall conclusions in this regard, they have not appealed against his analysis of the law or its application to the facts as he found them and, more importantly, the Chambers judge’s assessment of the evidence discloses no palpable and overriding error. [ 52 ] As a complaint, the allegation is understandable but has equally little traction.

In Hryniak , the Supreme Court of Canada observed the need for a “cultural shift” away from traditional civil trial and pretrial procedures. Because the conventional mindset about civil litigation no longer reflects modern reality, the Supreme Court directed trial courts to employ, whenever it would be fair and just to do so, “new models of adjudication”, which includes

summary judgment proceedings.

The Supreme Court warned that, if this cultural shift did not occur, the rule of law would be threatened. [ 53 ] The Supreme Court’s warning followed on its earlier decision in Canada (Attorney General) v Lameman , 2008 SCC 14 at para 10 , [2008] 1 SCR 372 [ Lameman ], where it had stressed that “[t]rying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system.” Put in proactive terms, the Supreme Court said in Lameman it was “essential to the proper operation of the justice system and beneficial to the parties” for trial courts to weed out—at an early stage— claims having no chance of success. [ 54 ] In Hryniak , the Supreme Court set out (at paras 47 and 66) the test for determining whether a claim ought to proceed summarily, namely, whether a genuine issue exists and, if one does, whether its resolution requires a trial.

The Supreme Court also offered guidance to trial courts by observing (at para 49) that no genuine issue requiring a trial will exist where “the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment.” It then noted this occurs whenever the

summary judgment process (at paras 49 and 66): (

a) allows the judge to make the necessary findings of fact; (

b) allows the judge to apply the law to the facts; and (

c) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 55 ] In Saskatchewan, the Court of Queen’s Bench moved with prescience and then with alacrity in response to this call for a cultural shift in civil proceedings. In Tchozewski v Lamontagne , the court observed (at para 30) that the Supreme Court’s focus in Hryniak on a just but proportionate process “is both explicitly and implicitly reflected in the new Saskatchewan Queen’s Bench Rules ”, which were adopted by that court on July 1, 2013, and include the new

summary proceeding rules engaged in this case (see also Pervez v Caskey , 2013 SKQB 377 at paras 25–26 , [2013] 12 WWR 794). [ 56 ] Turning to the particulars of the matter at hand, in the course of the oral argument before us it became clear that the crux of the appellants’ dissatisfaction with this matter proceeding summarily—other than with the result—is with the complexity of the case.

That is, they argue the case is ill-suited to

summary proceedings given the volume of evidence and the inability to explore the matter in a more investigative way—as would have been available to the appellants under the conventional trial process. This is understandable. In a case of this nature, which deals with claims of intentional torts and bad faith on the part of Crown corporations, the appellants were put to the task of proving, at least in some measure, the mindset of alleged corporate tortfeasors and that is a difficult thing to do without questioning the tortfeasor’s proper officers. [ 57 ] However, case complexity is not itself a standalone reason for a trial court to reject

summary judgment proceedings. In fact, Hryniak had involved an intentional tort of some complexity and had proceeded summarily to judgment. As the appellants themselves note, the Court of Queen’s Bench explained in Tchozewski v Lamontagne at para 31 : ... 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective.

A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras. 50 and 57 ) ... [ 58 ] In this case, the Chambers judge was confident he could make the necessary findings of fact and apply the law to those facts and that proceeding summarily was a proportionate, more expeditious and less expensive means to achieve a just result. His overall assessment in that regard is both an exercise of judicial discretion and of fact-finding powers.

As such, this Court must afford deference to his decision. [ 59 ] Relatedly, the appellants say the Chambers judge acted on a “demonstrably incorrect” assertion by counsel for SWA to the effect that the appellants’ counsel had not participated in the decision-making around what should be disclosed in the e-discovery process. They say this led the Chambers judge to improperly conclude (at para 126) that it was “difficult to give much credit to the argument that further discovery for this application is truly needed.” SWA vigorously disputes the allegation of error.

However, even if this circumstance constituted a palpable error, I am not persuaded it was an overriding error in the sense that it affected the outcome of this matter. I say that because, regardless of whether the appellants’ then counsel [1] had participated in the e-discovery process, the

summary procedure rules required the Chambers judge to assess his own confidence as to whether he could find the facts on the evidence that was before him and whether he could apply the relevant legal principles to those facts so as to fairly resolve the dispute. That is, even if made out, I am not persuaded the error could have had any effect on the outcome of this matter. [ 60 ] This is because, in this case, it is clear from his reasons that the Chambers judge followed the guidance of the Supreme Court and the case law applicable to a Rule 7-2 application.

He correctly identified the question before him as whether there appeared to be a genuine issue for trial. To answer this question, he reviewed the evidence adduced, without using the powers afforded to him under Rule 7-5(2)(b), and concluded he could fairly and justly determine the question in issue based on the affidavits and other evidence. The appellants say the Chambers judge was too confident in his conclusions in this regard. However, this side-steps the fact that his conclusions are subject to appellate deference under the applicable standard of review.

That is, this Court is not entitled to interfere with the Chambers judge’s conclusions in this regard in the absence of a palpable and overriding error ( Hryniak ) and the appellants have not demonstrated that such an error occurred in this case. [ 61 ] Regardless, having reviewed the evidence and the relevant law, even when the question is approached afresh—as the appellants have urged—I am not persuaded the

summary judgment process precluded the Chambers judge from making the necessary findings of fact or from applying the law to the facts as found. Further, like the Chambers judge did, I would have found a

summary proceeding was a proportionate, more expeditious and less expensive means to achieve a just result than going to trial in this case. [ 62 ] For these reasons, I conclude the Chambers judge properly addressed the question before him and did not err by deciding to proceed summarily to judgment in this matter. Given the standard of review, there is insufficient merit to interfere with the decision under this ground of appeal. B.

Did the Chambers judge misapprehend the evidence? [ 63 ] Under this heading, I have grouped together other of the appellants’ specific allegations of error of fact or of mixed fact and law. 1. Operating Plan [ 64 ] This is the first ground of appeal in the appellants’ factum. In it, the appellants allege the Chambers judge “misunderstood the entire stated purpose” of the Operating Plan, which they say is to provide Minot with 1-in-100-year flood protection. The Operating Plan has the nature of a contract. As such, the Chambers judge’s

interpretation of it is a question of mixed fact and law that is subject to the palpable and overriding error standard of review, unless his alleged misinterpretation of it gives rise to an extricable question of law: Sattva. [ 65 ] In their factum, the appellants assert the Chambers judge misconstrued what is meant by 1-in-100-year flood protection. The appellants describe 1-in-100-year flood protection as meaning Minot will only flood once every 100 years if normal flood operations are followed. This is patently incorrect.

That level of flood protection means the Souris River Basin dams and reservoirs have the capacity to protect Minot against a 1-in-100-year flood, as the Chambers judge understood. [ 66 ] In operational terms, a 1-in-100 year flood at Minot means unregulated runoff of 721,000 cubic decametres of water over 30 days. To protect against that level of flood water, the Operating Plan calls for a decrease in the drawdown elevation of the Souris River basin reservoirs to allow for greater storage capacity. The flood risk assessment is done well in advance (in this case, in February 2011)

based on estimated spring runoff and is updated regularly as the actual level of spring runoff and rainfall becomes clearer. To accommodate a necessary drawdown, in flood control mode the maximum flow rate at Sherwood Crossing is increased under the Operating Plan from 3,200 ft 3 /s to 4,000 ft 3 /s for anything estimated to be over a 1-in-50-year flood event. [ 67 ] However, the Souris River system of dams and reservoirs is not designed to accommodate an event that exceeds a 1-in-100- year flood, which the Chambers judge also understood.

Where, like in 2011, that occurs, the integrity of the dams becomes the priority under the Operating Plan and the maximum flow rate at Sherwood Crossing may be exceeded so as to protect the dams. This is set out in the Operating Plan (Annex A,

Section 4.3): In those cases where the flood event is greater than a 1-percent (100-year) event, the Project will be operated as set forth in the Reservoir Regulation Manuals to attempt to reduce downstream damages without endangering the structures themselves.

This may require flows greater than 5,000 cfs at Minot for the period before June 1, and may also require flows greater than 500 cfs (which could also exceed 5,000 cfs) after June 1. [ 68 ] As this suggests, the Operating Plan simply provides an operational strategy for achieving 1-in-100-year flood protection at Minot but the implementation of that strategy is very fluid, in all senses. In practical terms, the Operating Plan provides flood protection at Minot for up to and including a 1-in-100-year event but only flood attenuation for any greater level of flood event.

That is, for anything exceeding a 1-in-100-year flood, Minot will be flooded—it is just a matter of how badly. [ 69 ] The Chambers judge understood all of this and how it related to the flow rate limits established under the Operating Plan. He did not err in this regard. Put bluntly, it is the appellants who have misconstrued the Operating Plan and its purposes. This ground of appeal is devoid of merit. 2.

Management and handling of water elevations and operation of the dams and reservoirs [ 70 ] At paragraph 159 of his reasons, the Chambers judge found that “[d]uring the specific period of spring runoff, until roughly the end of April, there is no evidence to suggest that water elevations in any of the reservoirs were mismanaged or poorly handled, much less carried out in bad faith.” [ 71 ] The appellants assert the evidence shows SWA and SaskPower had actually “missed” the reservoir drawdown targets under the Operating Plan.

They note, during the time referred to by the Chambers judge, Rafferty reservoir had been drawn down to 548 metres and Boundary reservoir to 559 metres, but the Operating Plan provided as follows for a 1-in-100-year flood event: ... After the spring estimate of streamflow is received, if a 1-percent or greater flood volume is anticipated, it will be necessary to draw Lake Darling Reservoir down to an elevation of 1591.0 feet, to draw Rafferty down to an elevation of 547.5 metres, to draw Alameda Reservoir down to an elevation of 555.85 metres, and to draw Boundary Reservoir down to an elevation of 557.8 metres...

The appellants suggest SWA could have drawn the reservoir levels down even further than they had, but acknowledge it would have had to have been done with the target flow rate at Sherwood Crossing in mind. [ 72 ] However, in the circumstances, the mere observation that SWA appeared to have missed targeted drawdown levels and speculation it could have exceeded them is hardly convincing as evidence of mismanagement or poor handling of the situation.

This is so because the allegation overlooks the fact that, at the time in question, the estimated spring runoff level was expected to be a 1-in-25-year event, not a 1-in-100-year event. The estimate did not hit the 1-in-100-year event level until after the snows and rains of April 2011. That is, the drawdown targets were not “missed” because the estimated spring runoff had not been expected to produce a 1-in-100-year flood event, which triggers those targets.

This is confirmed in general terms in the 2011 Report, which concludes that (at 33): Spring runoff for the Souris River basin began on or about April 6 th with snowmelt peaking in mid April. Flooding was widespread across the Province. The reservoir system worked exactly as planned and was completely successful for the spring snowmelt event. Some flooding occurred through Estevan, but less than the previous historical high. [Emphasis added] [ 73 ] The appellants also suggest the Operating Plan requires SWA to discharge water from a reservoir once the reservoir reaches its FSL.

However, the Operating Plan actually has this to say about that (Section 4.3.2): “Once a reservoir has reached its full supply level, excess water will be released at a controlled rate in accordance with the terms of the Operating Plan.” This excerpt barely supports the possibility of factual error on the part of the Chambers judge and certainly does not meet the standard for interference with his findings.

In any event, while the appellants note it took SWA seven days to begin to spill water out of Boundary reservoir after it had reached its FSL, they do not say how this is evidence of mismanagement or poor handling of the water levels in the reservoirs, which is fundamental to a finding of palpable and overriding error. [ 74 ] I find no merit to the allegations of error under this ground of appeal. 3.

SaskPower and the operation of Boundary dam [ 75 ] In his reasons for judgment, the Chambers judge wrote: [ 76 ] During flood operation, the SWA directs the operations of the Boundary Reservoir, in addition to the Rafferty Reservoir and the Channel. During flood operations, the SWA makes all decisions concerning the targeted elevations and the discharges and also makes decisions as to whether waters should flow back and forth between the two reservoirs, through the Channel. SaskPower has no decision- making authority in this regard during flood operation. …

[152] As for the question whether the protection afforded by s. 95 of the Watershed Authority Act extends to SaskPower, it is clear to me that it does so extend. The wording of s. 95 makes it clear that its protection extends not only to the SWA, but also to “any person authorized” by the SWA. From the presented evidence there is little doubt that SaskPower’s discretion to operate and manage the Boundary Dam and Reservoir ranged between limited to none, at all. Both its federal and provincial licenses effectively obliged SaskPower to observe the Treaty commitments.

In turn, this implicitly required it to observe the terms of both the 1989 Agreement and the associated Operating Plan. [153] This left SaskPower with limited discretion, during non-flood operation, to control reservoir water levels within specified parameters. Conversely, during flood operation, there was no discretion. SaskPower was obliged to follow SWA’s instructions, completely, including instructions relating to the release of water from the spillway as well as diverting water to Rafferty through the Channel.

Considering that the Operating Plan includes all three of the Saskatchewan dams and reservoirs within its scope of operations and under SWA control, I am satisfied that no greater discretion could be contemplated. [Emphasis added] [76] In this appeal, the appellants assert that SaskPower did not have a valid approval to operate Boundary dam at the time of the 2011 flooding. The appellants note SaskPower was granted approval in 2012 and may have previously been granted approval sometime between 2008 and 2011, but the earlier-in-time approval had not been adduced into evidence.

The appellants surmise any approval would have been similar to SaskPower’s approval to operate Rafferty dam and reservoir, which contains a condition of operation providing that the approval-holder “accepts full responsibility for liability in relation to this approval.” The appellants observe a similar condition is contained in the 2012 approval for Boundary dam, namely, “[t]he Operator of these works accepts full responsibility for the operation and maintenance of the works.” [ 77 ] The appellants further say the Chambers judge ought to have drawn a distinction between SWA qua regulator with statutory immunity and SWA and its agents qua dam operators.

Relying on that distinction, the appellants address the liability of SaskPower arguing only core government policy decisions are protected from legal action, not operational decisions. Here, they assert there is no evidence to suggest SaskPower’s independent decision-making, failure to meet target levels of flow during flood operations as directed by SWA, or the pressure it applied to SWA for its own financial benefit, were related to core policy decisions of government.

Of course, the Chambers judge found either that these circumstances had not existed or, if they had, they did not indicate a lack of good faith. [ 78 ] In addition, although acknowledging SWA has the power to regulate and control the flow of water in the reservoirs, the appellants say SWA has no express authority under the Watershed Authority Act to delegate its powers to SaskPower and, therefore, SaskPower cannot rely on the immunity provided by the Watershed Authority Act . Moreover, the appellants assert there is no documentary evidence establishing that SaskPower was acting as an agent of SWA.

Lastly, the appellants observe agents of SWA are only entitled to immunity “if that person is acting pursuant to the authority of [the Watershed Authority Act ] or the regulations.” In this respect, the appellants say SaskPower exercised independent decision-making and carried out actions “separate and apart from the instructions of the SWA”, which necessarily means the immunity is not available to it.

That is, even assuming SaskPower was an agent of SWA, by exceeding the authority granted to it, the appellant say SaskPower lost any protection afforded by s. 95 of the Watershed Authority Act . [ 79 ] Each of these arguments is predicated on the presumption the Chambers judge erred: (

i) when he concluded SaskPower had no decision-making role during flood operation mode with respect to target reservoir elevations, discharges from the reservoirs and the diversion of water through the Channel, or (ii) in his assessment of the evidence to which the appellants point as suggesting SaskPower had exercised “independent decision-making”, had failed to meet SWA-imposed reservoir flow rates, and had applied pressure to SWA for SaskPower’s own financial benefit.

But, I am not persuaded the Chambers judge erred in a palpable and overriding way in reaching these factual conclusions. [ 80 ] The appellants have pointed to a few documents or extracts from documents that could be interpreted as suggesting SaskPower had some measure of control or decision-making that is inconsistent with the Chambers judge’s finding.

They have also pointed to general statements in the evidence to the effect that one of the dams is “owned and operated” by SaskPower and to some excerpts from email discussions between or among employees of SWA and SaskPower as to the implementation and reporting on operational decisions made during 2011. However, this evidence does not shake the validity of the Chambers judge’s finding to the effect that SWA had made the decisions with respect to dam operation, as it was required to do. In my assessment, the vast bulk of the evidence amply supports the Chambers judge’s conclusions.

In general terms, as the Chambers judge observed, federal and provincial licensing obliged SaskPower to observe Canada’s international commitments to the United States under the 1909 Treaty, which then required SaskPower to adhere to the 1989 Agreement and the Operating Plan. While SaskPower may have had input, as the Chambers judge found, there is no question on the evidence it was SWA who had called the shots. [ 81 ] Lastly, I find the Chambers judge correctly interpreted s. 95 of the Watershed Authority Act as affording statutory immunity to SaskPower in the circumstances.

Section 95 of the Watershed Authority Act states: 95 No action or proceeding lies or shall be commenced against the Crown, the minister, the corporation, any member of the corporation, any officer or employee of the corporation or any person authorized by the corporation, if that person is acting pursuant to the authority of this Act or the regulations , for anything in good faith done, attempted to be done or omitted to be done by that person or by any of those persons pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [Emphasis added] [ 82 ] As to the facts relevant to this provision, the Chambers judge found that Canada had committed to operating the Canadian- side Souris River Basin dams and reservoirs in accordance with the 1989 Agreement, that Canada’s obligations in this respect had been assumed by Saskatchewan, that Saskatchewan had delegated its obligations to SWA, that Boundary dam fell within SWA’s obligations during a declared flood event, and, importantly, that the 1989 Agreement required SWA to direct SaskPower with respect to the

operations of Boundary dam and reservoir. Given these findings, I have no hesitation concluding SaskPower was a person “authorised” by SWA and that SaskPower had acted pursuant to the authority of the Watershed Authority Act . That is, the Chambers judge did not misinterpret or misapply s. 95 of the Watershed Authority Act . [ 83 ] I find the appellants’ arguments in this respect are insufficient to ground appellate interference with the Chambers judge’s decision. 4.

Evidence of the appellants [ 84 ] The appellants allege the Chambers judge erred when he concluded (at para 158) that “the defendants’ evidence is not contradicted by the evidence presented by the plaintiffs.” [ 85 ] It is important to recall that the Chambers judge correctly observed that the appellants were required to prove that tortious conduct had occurred in circumstances amounting to an absence of good faith or the presence of bad faith. He drew this conclusion in the context of an analysis where he had presumed , without any need for proof whatsoever, that both SWA and SaskPower had been negligent.

That is, the Chambers judge looked to the evidence to see whether the respondents’ presumptively-tortious conduct had arisen from one or more of the following circumstances: (

a) an intention to do harm; (

b) a lack of a bona fide belief in facts that, if true, would stand as justification for the respondents’ behaviour; (

c) dishonesty of intention; (

d) knowledge of circumstances that ought to have put the respondent with that knowledge on inquiry; and (

e) behaviour that was so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that it was demonstrated in good faith. And, he concluded the respondents’ evidence in this regard had not been contradicted by the appellants’ evidence—i.e., none of these circumstances could possibly be made out on the evidence. [ 86 ] In their factum, the appellants make a number of statements to support their proposition that the respondents had plainly acted in bad faith and are not, therefore, protected by s. 95 of the Watershed Authority Act .

Among them, the appellants say “SaskPower independently made decisions respecting dam operations, and failed to carry out spill instructions as assigned by SWA.” However, as noted earlier, the Chambers judge found otherwise and he did not err in doing so. [ 87 ] In other respects, four of the appellants’ statements relate to the fact that neither SWA nor SaskPower had reservoir regulation manuals—even though they were supposed to under the Operating Plan—or emergency preparedness plans—which, in hindsight, would seem to have been prudent.

In a related way, the appellants take issue with the fact a high-level SWA employee had initially lacked understanding as to whether reservoir MAFL could be exceeded. The appellants also point to pre-construction (1986) estimates of daily spring runoff levels at Rafferty dam, observing the daily totals in 2011 were less than the 1986 estimates. On this basis, they state the respondents’ contention the 2011 flooding had been unforeseeable is false and SWA and SaskPower ought to have been prepared for it.

They next point to evidence the local rural municipality had had plans to dig out Coal Haul Road in 2011 to prevent “the backup of water upstream”, but that SaskPower had been motivated to ensure the continued transport of coal along that road and had resisted this plan. The appellants also point to evidence suggesting SaskPower was supposed to have channelized the Souris River downstream from Rafferty dam, which they say “would have protected the Plaintiffs’ property and ensured compliance with the mandatory federal requirements”.

Lastly, the appellants refer to excerpts from communications among SaskPower and SWA officers and employees, which indicate certain individuals had at times held differing views and had expressed divergent opinions on what or whether anything should be done about rising reservoir levels.

Through these excerpts the appellants seem to suggest SaskPower had ignored SWA instructions or improperly prioritised its business interests ahead of flood control, even though SaskPower’s use of retained waters is a consideration identified under the 1989 Agreement and the Operating Plan. [ 88 ] For the most part, the appellants’ statements, while footno

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