[2001] 1 F.C. 345
T-2346-87
Valerie Joan Markesteyn (Respondent) (Plaintiff)
v.
Her Majesty the Queen (Applicant) (Defendant)
and
Dr. Peter Hermanus Markesteyn, Executor of the said Valerie Joan Markesteyn, deceased, on behalf of the Estate of Valerie Joan Markesteyn (Respondents) (Plaintiffs)
v.
Her Majesty the Queen (Applicant) (Defendant)
Indexed as: Markesteyn v. Canada (T.D.)
Trial Division, Hargrave P.—Winnipeg, April 14, 1999; Vancouver, August 11, 2000.
Crown — Torts — Action for damages and declarations as result of bank erosion behind dam due to Crown-controlled fluctuation in water level — Allegations of nuisance, negligence and interference with riparian rights of land owner — Damages not recoverable for prospective loss — Negligence plea not struck as defendant had sufficient information to plead to statement of claim — Case in nuisance not futile — Pleading of infringement of riparian right of enjoyment of river in natural state appears proper — Declaratory relief not excluded though other relief available.
Damages — Limiting Principles — Certainty — Prospective injury — Action for damages and declarations as result of bank erosion behind dam due to Crown-controlled fluctuation in water level — Allegations of nuisance, negligence and interference with riparian rights of land owner — Continuing wrong — Damages not recoverable for prospective loss as many factors could cause destruction of plaintiff’s foreshore to cease at some future time.
The plaintiff owned and occupied land in Winnipeg on the Red River. The operation of the St. Andrews dam, constructed downstream by the federal government between 1903 and 1910 resulted in the gradual erosion of the river bank and forced the plaintiff, in 1986, to abandon her home and to construct a new one farther away from the river. The plaintiff in this action, initially representative in nature, claimed damages for past injury. She also claimed in nuisance, seeking declarations that there was a continuing nuisance, as to breach of duty and as to interference with riparian rights, and prospective damages.
The defendant brought the present motions to strike, raising the issues of whether the plaintiff could claim either in nuisance or negligence without identifying the servants of the Crown who were said to be responsible. The defendant argued that there was, at law, no interference with riparian rights, and that there can be no cause of action founded on events that may happen in the future.
At the commencement of the Crown’s two-day motion, the date for which had been fixed 5 months previously, plaintiffs sought an adjournment to review the case law and to take instructions from a new group of potential plaintiffs. Considering the cost of an adjournment to taxpayers and the fact that the addition of further plaintiffs must at some point come to an end, this application was denied.
Damages for prospective injury. On this issue, reference was made to a statement in McGregor on Damages, to the effect that where a single act constitutes a continuing wrong, damages at common law can be awarded only in respect of loss accruing before the commencement of the action: Battishill v. Reed (1856), 18 C.B. 696; 139 E.R. 1544. Here, the allegation is of a continuing wrong — ongoing erosion of the plaintiff’s land — and further causes of action lie in the future. This was not a case where the damage has been done for all time and compensation can be awarded for all time: various factors could cause a stoppage of the destruction of plaintiff’s foreshore. On the basis of old English and more recent Canadian case law, future damages cannot be awarded in anticipation of what may happen due to negligent operation of the dam and this aspect of plaintiff’s action was futile.
Cause of action in negligence. In Just v. British Columbia, [1989] 2 S.C.R. 1228, the Supreme Court held that government policy decisions were exempt from tort claims but their negligent implementation could give rise to actions in tort. Defendant’s submission was that the statement of claim failed to make it clear whether the alleged breach of duty was in respect of a policy decision or policy implementation. That argument was rejected: while the Court might be called upon to differentiate between policy and operation, this was not a ground for striking out under Rule 221. Defendant had sufficient information to plead to the statement of claim. If, after discovery, defendant can still show a lack of factual knowledge, there might be a case for particulars for trial.
Cause of action in nuisance. On this point, the Crown argued that it was not liable when, as here, no particular Crown servant is identified as having caused the nuisance. While at one time good law, that concept was done away with by the Supreme Court of Canada in The Queen v. Levy Brothers Company, Limited and the Western Assurance Company, [1961] S.C.R. 189. The Crown also argued that it could not be held liable for nuisance. The case of Schenck et al. v. The Queen in right of Ontario (1982), 40 O.R. (2d) 410 (H.C.), which had to do with interference with orchard land by salting the adjoining highway, was considered. In Mart Steel Corporation v. The Queen, [1974] 1 F.C. 45 (T.D.), it was held that the Crown could be held liable for nuisance arising from the operation of a grain elevator. Therefore, plaintiff’s case in nuisance might be difficult but it was not futile.
Riparian rights as a cause of action. In this respect, reference was made to the work Water Law in Canada: The Atlantic Provinces. Plaintiff’s pleading of infringement of the riparian right of enjoyment of the river in its natural state appeared proper.
Declaratory relief. Crown counsel cited the case of Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 as authority for the proposition that declaratory relief ought not to be granted if other relief, here damages, is available. That case stands for a more limited proposition: alternative (statutory) remedies must be exhausted before coming to court. It was held in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, that a court has a discretion to deny declaratory relief where other remedies are available, not that a plea for declaratory relief, coupled with a claim for other relief, is bound to fail.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Crown Liability Act, R.S.C. 1970, c. C-38, ss. 3(1)(b), 24.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 3, 12 (as am. idem, s. 23).
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a), (d),(f).
Federal Court Rules, 1998, SOR/98-106, r. 221.
Proceedings Against the Crown Act (The), R.S.O. 1970, c. 365, s. 5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Battishill v. Reed (1856), 18 C.B. 696; 139 E.R. 1544 (C.A.); Montreal Street Ry. Co. v. Boudreau (1905), 36 S.C.R. 329; 4 C.R.C. 373; Darley Main Colliery Company v. Mitchell (1886), 11 A.C. 127 (H.L.); West Leigh Colliery Company v. Tunnicliffe & Hampson, Ld., [1908] A.C. 27 (H.L.); Bjarnarson (H.R.) v. Manitoba (1990), 68 Man. R. (2d) 161 (Q.B.); Just v. British Columbia, [1989] 2 S.C.R. 1228; (1989), 64 D.L.R. (4th) 689; [1990] 1 W.W.R. 385; 41 B.C.L.R. (2d) 350; 41 Admin. L.R. 161; 1 C.C.L.T. (2d) 1; 18 M.V.R. (2d) 1; 103 N.R. 1; Queen, The v. Levy Brothers Company Limited and the Western Assurance Company, [1961] S.C.R. 189; (1961), 26 D.L.R. (2d) 760; Duncan, Alastair R.C. et al. v. The Queen, [1966] Ex. C.R. 1080; Connery et ux. v. Government of Manitoba, [1971] 4 W.W.R. 156 (Man. C.A.); Mart Steel Corporation v. The Queen, [1974] 1 F.C. 45(T.D.); Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364.
DISTINGUISHED:
Holmes v. Wilson (1839), 10 Ad. & E. 503; 113 E.R. 190; Clegg v. Dearden (1848), 12 Q.B. 576; Toronto General Trusts Corp. v. Roman, [1963] 1 O.R. 312; (1962), 37 D.L.R. (2d) 16 (C.A.); Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; (1989), 61 D.L.R. (4th) 604; 97 N.R. 241; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; (1993), 102 D.L.R. (4th) 456; [1993] 4 W.W.R. 225; 78 B.C.L.R. (2d) 257; 81 C.C.C. (3d) 286; 20 C.R. (4th) 104; 14 C.R.R. (2d) 193; [1993] 1 C.T.C. 301; 93 DTC 5137; 153 N.R. 1; 45 W.A.C. 81.
CONSIDERED:
Schenck et al. v. The Queen in right of Ontario (1982), 40 O.R. (2d) 410; 142 D.L.R. (3d) 261; 23 C.C.L.T. 147; 12 C.E.L.R. 43; 31 C.P.C. 89 (H.C.); Schenck et al. v. The Queen in right of Ontario (1981), 34 O.R. (2d) 595; 131 D.L.R. (3d) 310; 20 C.C.L.T. 128; 11 C.E.L.R. 1 (H.C.).
REFERRED TO:
Lamb v. Walker (1878), 3 Q.B.D. 389 (C.A.); Brand v. Hammersmith and City Railway Company (1867) L.R. 2 Q.B. 223; Schenck v. Ontario (Minister of Transportation and Communications); Rokeby v. Ontario, [1987] 2 S.C.R. 289; (1987), 50 D.L.R. (4th) 384; 79 N.R. 317; 23 O.A.C. 82; Case of the Thorns (1466), Y.B. 6 Ed IV, 7a. pl. 18; Montreal Light, Heat & Power Co. v. Attorney-General of Quebec (1909), 41 S.C.R. 116; Stollmeyer v. Trinidad Lake Petroleum Company, [1918] A.C. 485.
AUTHORS CITED
Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswell, 1989.
La Forest, Gerard. Water Law in Canada: The Atlantic Provinces. Ottawa: Information Canada, 1973.
Linden, Allen M. Canadian Tort Law, 6th ed. Toronto: Butterworths, 1997.
Linden, Allen M. La responsabilité civile délictuelle. Montréal: Éditions Yvon Blais, 1988.
McGregor, Harvey. McGregor on Damages, 16th ed. London: Sweet & Maxwell, 1997.
MOTIONS to strike out the statement of claim in an action against the Crown for damages and declarations for alleged nuisance, negligence and interference with the riparian rights of the plaintiff with respect to the erosion of its waterfront land behind a dam due to Crown-controlled fluctuation in the water level. Motions allowed in part.
APPEARANCES:
Kenneth S. Maclean for respondent (plaintiff).
Colin S. Morrison and Marley S. Dash for applicant (defendant).
SOLICITORS OF RECORD:
Thompson Dorfman Sweatman, Winnipeg, for respondent (plaintiff).
Deputy Attorney General of Canada for applicant (defendant).
The following are the reasons for order rendered in English by
[1] Hargrave P: The defendant’s [applicant’s] motions, argued during the course of a day in December 1998 and completed in April 1999, initially arose out of a representative action by which riparian land owners and occupiers, on the Red and Assiniboine Rivers, between about Winnipeg and the St. Andrews dam on the Red River near the south end of Lake Winnipeg, say their riparian rights have been interfered with. The plaintiffs [respondents] in the intitial class action claimed damages. They also claimed in nuisance, seeking declarations that there is a continuing nuisance, as to breach of duty and as to interference with riparian rights.
[2] The representative of the present plaintiff, during the interval of December 1998 to April 1999, correctly concluded first, that the action ought not to proceed as a representative action, and second, that the Crown Liability and Proceedings Act [R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21)] was a bar to portions of the action based on the construction of the St. Andrews dam early this century. The Estate of Valerie Joan Markesteyn, represented by the executor, as sole plaintiff, therefore prepared and I gave leave to file an amended statement of claim. I look upon this exercise not as the abandonment of a portion of the claim, but rather as success on the part of the defendant on a portion of its motion, a point to touch on later.
[3] The negligence, interference with riparian rights and nuisance is said to be the artificial raising and lowering of water levels, behind the St. Andrews dam. This fluctuation in water level is said to have resulted in both bank erosion and undercutting by wave action at high water levels. Sustained high water levels are also said to saturate the banks. The result is the collapse of banks by reason of lack of support to saturated and undercut banks at low water levels in the winter when the St. Andrews dam and lock system is drained to prevent ice damage. This negligence, nuisance and interference is said to be ongoing thus the plaintiff seeks not only damages for past injury, but also forward looking relief in the form of declarations and continuing or prospective damages.
[4] The basis of the motions to strike out initially covered a broad spectrum. At this point I summarize the most important aspects that remain. No longer is there an issue as to the propriety of a class action in nuisance. There is a question of whether the plaintiff can claim in either nuisance or negligence without identifying the servants of the Crown who were or are said to be responsible. The defendant also says there is, at law, no interference with riparian rights. The defendant submits there can be no cause of action founded on events that may happen in the future. I now turn to a more detailed background for all of this, which begins in 1899.
BACKGROUND
[5] Between 1899 and 1909 the federal government passed various appropriation acts for a public work at the St. Andrews rapids in the Red River. Between 1903 and 1910 the federal government constructed a dam at St. Andrews in order to make the St. Andrews rapids navigable by seasonally raising the water level and providing a system of locks.
[6] The result of the operation of the dam, which the plaintiff says has been improperly carried out, is the maintenance of an artificially high water level behind the dam during July through October and then a release of water during the first part of November in order to lower the water to a more natural level in order to protect the dam and lock system from winter ice damage.
[7] The plaintiff, now represented by the executor of her estate, at material times owned and occupied land in Winnipeg on the Red River. By reason of alleged abnormal erosion of her river bank the plaintiff was forced, in about 1986, to abandon her home and to construct a new home farther away from the river. The plaintiff blames the erosion on the artificial raising of water levels during the summer and fall months, allowing the bank to be eroded and undercut and the accelerated collapse of undercut and saturated river bank when the water is drained to a natural level before the formation of ice on the river.
[8] The plaintiff’s action was initially styled as representative, with the plaintiff acting for herself and “on behalf of all other owners and occupiers of land on the banks of the Red and Assiniboine Rivers … affected by the construction and operation of the St. Andrews Dam”. As I have already indicated the 1999 amended statement of claim eliminates the representative aspect.
[9] The defendant has obtained some particulars and taken de bene esse evidence on video tape. The defendant, in January 1995, set down two motions. The first was to strike out the statement of claim under what was then paragraph 419(1)(a) [of the Federal Court Rules, C.R.C., c. 663] on the grounds that the represented plaintiffs had no reasonable cause of action in nuisance, or for prospective damages, or indeed any cause of action of a representative nature. Paragraph 419(1)(a) is now paragraph 221(1)(a) [of the Federal Court Rules, 1998, SOR/98-106], the wording being identical. The second motion again sought an order that the plaintiff cease representing the other persons described in the statement of claim; that the action be struck out under paragraph 419(1)(d) or (f) as prejudicial, embarrassing or such as to delay a fair trial of the action, or as an abuse of the process of the Court; that the plaintiff provide further or better particulars if the action is not struck out; and for an extension of time within which to file a defence. Those two motions were adjourned sine die, but were put into the current form of a motions record and refiled 2 December 1998.
CONSIDERATION
Application by the plaintiffs for Adjournment
[10] At the commencement of this two-day motion, a date set five months earlier by direction of the Associate Chief Justice, the plaintiffs sought an adjournment, either sine die or for 90 days. The then plaintiffs wished the adjournment to consider the defendant’s motions, in order to look at the volume of case law and to allow time to notify and take instructions from a new group of potential plaintiffs, the owners of plots in the Elmwood Cemetery, a margin of which is being eroded by the Red River. I allowed the plaintiffs to file an affidavit in support of the request for adjournment: the affidavit is only for that purpose. To some of the affidavit material I gave little weight. The motion for an adjournment was not opposed by counsel for the defendant, however I denied the motion.
[11] The defendant’s motions, some four years old and with five months lead time on the hearing date, came as no surprise. The motions are supported by much case material, but the case material and the written argument are, largely, what one would expect. The few unfamiliar cases do not raise any novel points.
[12] An adjournment which prejudices neither party may often be appropriate. Certainly the courts are established to serve litigants. However, there is also the cost of an adjournment to taxpayers which must be considered. Moreover, the adding of further plaintiffs must, at some point in the decade-long existence of this action, come to an end. These are among the factors which I considered in denying the adjournment. However, in recognition of the serious nature of an application to strike out, which may deprive litigants of their day in court, I allowed counsel for the plaintiffs the opportunity to file a written argument following the hearing and opportunity for defence counsel to file a written reply. As it turned out, counsel for the defendant finished their submissions and counsel for the plaintiffs began theirs, but were unable to complete them at that time, thus an adjournment before the balance of the motion could be heard.
[13] In the interim, before the resumption of the hearing, the plaintiffs decided that the Markesteyn Estate would carry on as the sole plaintiff. Thus the defendant’s arguments, based on the representative aspect of the action, do not have to be dealt with. I now turn to the issue of damages for prospective injury.
Damages for Prospective Injury
[14] The 1999 amended statement of claim sets out, in paragraph 15(f), a plea for relief in the form of damages for prospective injury:
Damages for prospective injury to the land of the Estate of Valerie Joan Markesteyn;
The defendant submits that damages are not recoverable as pleaded, or at all, first because they constitute a continuing cause of action and second, because the plaintiff does not allege that the tortious conduct is permanent and cannot be discontinued. The approach of the defendant is by way of analogy, comparing what happened here to cases involving subsidence to land caused by excavation on adjoining land.
[15] Looking at this in a little more detail, the plaintiff alleges, in paragraph 12, that the dam has been a nuisance in the past and continues to cause unreasonable interference with the use and enjoyment of the plaintiff’s land. This is also reflected in paragraph 13 in which the plaintiff set outs that the dam has been negligently operated in the past and continues to be operated in that negligent manner. Here I would note that paragraph 15(a) seeks declaratory relief to the effect that the defendant has created a continuing nuisance and paragraph 15(c), a declaration that the defendant has not only interfered, but also continues to interfere with the plaintiff’s riparian rights.
[16] Counsel for the defendant also refers to paragraphs 5 and 8 of the statement of claim as having a future or continuing aspect, however I do not read them as allegations of a continuing wrong, but rather that they stand as explaining the mechanism and effects of the past negligence and nuisance.
[17] The conventional approach to damages is that when damages are awarded as a result of a single cause of action, the measure of damages includes not only a reimbursement for what has happened from when the cause of action arose and up until the action was begun, but it will also include a measure of damages for future or perspective damage. McGregor on Damages, 16th ed., 1997, Sweet & Maxwell, London, at page 272, gives an illustration of this principle:
Perhaps the commonest illustration of the rule is an action for personal injuries where every day damages are awarded which take into account prospective pain and suffering, prospective loss of amenities of life, prospective medical expenses and prospective loss of earnings.
Putting this concept into the present context and assuming that the Markesteyn Estate were successful, a trial judge might well award damages taking into account prospective loss of earnings on the property caused by the present loss of land through erosion.
[18] McGregor then considers the situation in which there is a continuing wrong lying in the future, at page 273:
But where there is a continuing wrong, and to a lessor extent where there is a single act causing separate damage on two separate occasions, the further causes of action lie still in the future and, therefore, it is impossible to bring an action to recover for prospective loss even if it is foreseeable. The rule here is that where a single act constitutes a continuing wrong, damages at common law can only be awarded in respect of loss accruing before the commencement of the action by issue of the writ.
McGregor founds this proposition on Battishill v. Reed (1856), 18 C.B. 696; 139 E.R. 1544, an instance in which eaves and gutter of the defendant’s building overhung into the plaintiff’s property. In effect the Court of Appeal held that only loss up to the commencement of the action, not future loss if the defendant continued to pour water on to the plaintiffs property, might be awarded.
[19] In the present instance we do not have one incident giving rise to the present and future damages, as in the above personal injury example from McGregor, but rather a situation of a continuing wrong, that of possible successive year to year ongoing erosion of the plaintiff’s property where it abuts the river. It is a situation in which the further causes of action for erosion damage lie in the future. The rationale for the rule, that where there is a continuing wrong damages may only be awarded to the date of commencement of the action, is not so much whether the plaintiff might sue now for prospective damage, but whether the plaintiff could bring a second action for loss arising after the first action:
Thus, first, in the case of a continuing wrong the corollary of the proposition that damages for prospective loss cannot be awarded is the proposition that a fresh cause of action arises with every minute and that future damage can be sued for as often as it accrues. Indeed practically all the cases dealing with whether there is a continuing wrong or not are concerned with the latter proposition; in order words, the question was not whether or not the plaintiff could sue now for prospective damage but whether he could bring a second action for loss arising after his first action. [McGregor on Damages, supra, at page 277.]
By way of example, McGregor refers to Holmes v. Wilson (1839), 10 Ad.& E. 503; 113 E.R. 190 (on appeal from Q.B.) in which there was a continuing wrong, that of a continuing placement of portions of a building over a property line. McGregor contrasts this with a situation in Clegg v. Dearden (1848), 12 Q.B. 576, where the trespass was by way of making a breach into a mine through which water flowed and continued to flow. However, in that case, it was held that since the breach opening itself did not amount to a continuing trespass, a recovery, in an initial action for making the breach, barred recovery of a claim for subsequent damage by reason of the breach remaining open and the water continuing to flow. Here the distinction is that in Holmes the building might have been torn down or modified in the future and the trespass thus brought to an end, whereas in the second instance, the damage was done for all time and the compensation was for all time. In the present instance there are any number of factors which might cause the destruction of the plaintiff’s foreshore to stop at some time in the future, thus it is a continuing cause of action, from year to year.
[20] This sort of a distinction was made and indeed many earlier cases applied, including Holmes v. Wilson, in Toronto General Trusts Corp. v. Roman, [1963] 1 O.R. 312, a decision of the Ontario Court of Appeal, involving wrongful detention of securities. There the Court, in essence, refused to award damages in anticipation of what a certain share value might become, but rather looked at the highest share value down to the time of the action.
[21] Also pertinent is Montreal Street Ry. Co. v. Boudreau (1905), 36 S.C.R. 329, in which the majority of the Court, citing the standard English 19th century cases, makes the point that future damages cannot be assumed from the manner in which heavy machinery in a power-house, for the operation of an electric tramway, had been installed, for the nuisance might, at any time, be abated by improvements in the system, or indeed, by the discontinuance of negligent acts of which the plaintiff had complained. In the result damages could not be awarded in a lump sum for the past, present and future, even if that might be sensible in order to avoid successive litigation, for the action, one in tort and negligence, gave rise to a series of torts which might be brought to an end by the defendant discontinuing or modifying its operation (see pages 342 and 345).
[22] Counsel for the defendant, in pursuing this same argument, refers to various early cases which lead up to a fairly recent Manitoba Court of Queen’s Bench decision: this analysis is worth setting out.
[23] Counsel points to one of the earliest cases involving land subsidence, Lamb v. Walker (1878), 3 Q.B.D. 389 (C.A.), in which the defendant’s coal mine and an excavation removed the lateral support to the plaintiff’s land, causing subsidence. The trial Judge ordered a reference as to damages, including future damages. The Court of Appeal upheld that decision, Chief Justice Cockburn dissenting, pointing out at pages 399-400, that he was unable to agree that anticipated damages were proper, for they might never arise. In Darley Main Colliery Company v. Mitchell (1886), 11 A.C. 127, the majority of the House of Lords overturned the decision in Lamb, explicitly preferring the dissenting view of Chief Justice Cockburn. At issue in Darley Main Colliery was whether an action against the lessees of an unused colliery could hide behind a six-year limitation: the majority of the House of Lords held that the cause of action for the subsidence did not arise until the subsidence actually occurred and thus the plaintiff could maintain his action, notwithstanding that six years had elapsed since the defendant’s colliery had last been worked.
[24] The next case in this line is West Leigh Colliery Company v. Tunnicliffe & Hampson, Ld., [1908] A.C. 27, again a decision of the House of Lords, in which Lord Ashbourne, at page 32, denied prospective damage, pointing out that an owner might bring a fresh action for damage caused by each fresh land subsidence. Lord Atkinson, concurring, pointed out that there might not be damages for depreciation, based on future subsidence, for it was the subsidence, not the removal of the underpinnings, which gave rise to the right of action (at page 33):
In my view, to give damages for depreciation in the market value due to the apprehension of future injury by subsidence is to give damages for a wrong which has never been committed, since it is the damage caused by subsidence, and not the removal of minerals, which gives the right of action.
This is a hard line indeed, for Lord Atkinson’s analysis would not give damages for an actual drop in market value resulting from an apprehension of future injury. However the law is also established that a future holder of land, subject to subsidence through removal of support by someone else at an earlier time, can sue on each subsidence.
[25] To bring this line of cases up to date is the useful decision in Bjarnarson (H.R.) v. Manitoba (1990), 68 Man. R. (2d) 161, a decision of the Manitoba Court of Queen’s Bench, involving flooding and a reduction in value of the land in apprehension of future flooding. There the Court referred to virtually all of the standard English cases on prospective damages, including Lamb v. Walker, Darley Main Colliery and West Leigh Colliery and to more recent Canadian authorities as decisions reflecting the present law in Canada, that no claim might be made for a reduction in the value of land as a result of an apprehension of future flooding: see page 166.
[26] In the present instance, future damages cannot be awarded in anticipation of what might or might not happen through some negligent operation of the dam in controlling the water level, in front of the plaintiff’s property, from year to year. The law is so well settled on this point that the plaintiff’s action, in this respect, is futile: it is an aspect on which, plainly and obviously, the plaintiff cannot succeed.
Cause of Action in Negligence
[27] The defendant next submits that, to the extent the plaintiff’s claim is in negligence, the pleading is faulty and ought to be struck out. The amended statement of claim sets out a detailed background and then pleads negligence and nuisance on the part of the defendant, followed by a plea of violation of the riparian right to enjoy the Red River in a natural state, free from property injury by reason of interference with the natural flow of the river.
[28] Paragraph 13 contains the plea of negligence:
The defendant is under a duty to the plaintiff to exercise care or cause care to be exercised in the operation of the Dam but in fact the Dam has been operated and continues to be operated in a negligent manner as herein before described, with resulting injury to the plaintiff’s lands.
When this motion was argued an initial reference to the construction of the dam in paragraph 13, became contentious. The plaintiff’s intent was to remove that concept from the amended statement of claim. I therefore ordered the words “constructed and” struck out.
[29] The pertinent point, as to negligence, is the makeup or the nature of the breach of duty, for it is the defendant’s view that it is unable to determine from the statement of claim whether the conduct complained of arises from a policy decision or from the operational implementation of that policy. The basic principle for this distinction is set out in Just v. British Columbia, [1989] 2 S.C.R. 1228, at pages 1239-1241, being that government policy decisions are exempt from tortious claims, but the implementation of those decisions, if negligent, may well be subject to proper claims against the government in tort:
Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of the “policy”. Thus the dilemma giving rise to the continuing judicial struggle to differentiate between “policy” and “operation” ….
The dividing line between “policy” and “operation” is difficult to fix, yet it is essential that it be done ….
…
The need for distinguishing between governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort.
The defendant’s point here is that the amended statement of claim does not specify exactly what action or lack of action constitutes the breach of duty which the plaintiff says is owed. That being the case, the defendant says she is unable to determine whether the impugned conduct arises from a pure policy decision, for which the Crown cannot be liable, or from an operational problem in the implementation of the policy, which may give rise to liability. If one reads paragraph 13 in isolation, this may be an arguable point. However one must read the pleading as a whole, including the background as to the undermining of the bank and then the draining of water from behind the dam in preparation for winter, causing a loss of support and thus a falling in of and an enhanced erosion of the riverbank. Whether this is the result of policy on the part of the Crown in the way in which the water level is managed, or an operational neglect which may be rectified, is a dilemma. While it also may well be a question for the Court to differentiate between policy and operation, it is not grounds on which to strike out this provision from the statement of claim under any of the rule 221 standards. On balance the defendant has enough information in order to plead to the statement of claim. If, following close of pleadings and any discovery, the defendant can still point to a lack of factual knowledge there then might be a case for particulars for trial. However, at this point, the defendant has enough information to allow the drafting of a defence and indeed the defendant may well have more information, as to the policy of water management and the operation of the dam than does the plaintiff. I now turn to the difficulty which the defendant professes to have in responding to the plea of nuisance.
Cause of Action in Nuisance
[30] Nuisance is perhaps an ambiguous concept, in the past sometimes referring to the conduct of a party, or to the results of the conduct, or to the results of conduct such as are actionable: see for example the judgment of Chief Justice Erle, appended to Brand v. Hammersmith and City Railway Company (1867) L.R. 2 Q.B. 223, at page 247. Linden on Canadian Tort Law, 6th ed., 1997, Butterworths, introduces a modern clarification to the effect that it is a description of the harm suffered, not of conduct that is forbidden (at page 523):
Nuisance is a field of liability. It describes a type of harm that is suffered, rather than a kind of conduct that is forbidden. In general, a nuisance is an unreasonable interference with the use and enjoyment of land by its occupier or with the use and enjoyment of a public right to use and enjoy public rights of way. For the most part, whether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence, as long as the harm can be categorized as a nuisance.
Linden points out that the underlying concept is that you ought to use your own property in a way which will not injure your neighbour. The plaintiff’s amended pleading of nuisance in the statement of claim reflects this concept:
12. The Dam is a nuisance which has caused and continues to cause unreasonable interference with the use and enjoyment of the plaintiff’s lands.
…
15. The plaintiff therefore claims:
(a) A declaration that the defendant, in operating the Dam, has created a continuing nuisance with consequent damage to the plaintiff;
The defendant has two difficulties with nuisance as pleaded. First the defendant says that there is liability for nuisance only when it can be shown that an identified Crown servant was the agent of the nuisance; and second, that the Crown is not liable for nuisance under section 3 of the Crown Liability and Proceedings Act, in any event. For the purpose of striking out the provision I put no weight on the argument that absent notice within seven days after the claim arose the plaintiff failed to give notice pursuant to section 12 [as am. by S.C. 1990, c. 8, s. 23] of the Crown Liability and Proceedings Act, a point to which I will briefly return in due course.
[31] The concept that a specific servant of the Crown must be identified in order that the Crown be liable was, at one time, valid. However, in Queen, The v. Levy Brothers Company Limited and the Western Assurance Company, [1961] S.C.R. 189, the Supreme Court of Canada laid this concept to rest. Mr. Justice Ritchie, writing for the Court, agreed that one or more Crown employees had stolen a piece of mail, a parcel of diamonds and converted them. In the result the Crown was held vicariously liable for the tort of an unknown Crown servant. Thus, although it may make such an action more difficult to prove, the identification of the actual tortfeasor is no longer essential: see Hogg on Liability of the Crown, 2nd ed., 1989, Carswell, at page 88. Also on point, that a specific negligent officer or servant of the Crown need not be identified in order to succeed in an action against the Crown is Duncan, Alastair R.C. et al. v. The Queen, [1966] Ex. C.R. 1080, at page 1107, a decision of President Jackett, followed in Connery et ux. v. Government of Manitoba, [1971] 4 W.W.R. 156 (Man. C.A.).
[32] The second objection, that of whether the Crown may be liable for nuisance at all, is a little more involved, but has a very definite answer. Section 3 of the Crown Liability and Proceedings Act, supra, provides that:
3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable;
(a) in respect of a tort committed by a servant of the Crown; or
(b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.
The defendant’s point here is that the duty set out in paragraph 3(b) does not refer to any duty owed by the Crown to a neighbouring occupier of land pursuant to the law of nuisance, but rather it refers to a duty owed by those who control land, in an occupier’s liability situation, to those who enter upon the land. Here counsel refers to Schenck et al. v. The Queen in right of Ontario (1982), 40 O.R. (2d) 410 (H.C.) [hereinafter Schenck (No. 2)], contending that the Judge in that case was called upon to decide whether liability for nuisance might fall under a provision of The Proceedings Against the Crown Act, R.S.O. 1970, c. 365, a provision similar to section 3 of the federal Crown Liability and Proceedings Act. Now what Mr. Justice Robins was required to decide in Schenck (No. 2) was whether the Crown was entitled to a six-month limitation period or a six-year limitation period. However, in the present instance, the Crown picks up a passage from Schenck (No. 2), in which the Judge doubts that the claim for nuisance is one under paragraph 5(1)(c) of The Proceedings Against the Crown Act of Ontario, which referred to a breach of duty attaching to the ownership, occupation, possession or control of property and went on to point out that a breach of duty is not essential to the cause of action asserted in that case. The passage, at page 414, is as follows:
I should perhaps add that I do not agree with counsel for the Crown that the plaintiffs’ claim in nuisance can be considered one arising under s. 5(1)(c) in respect of a breach of duty attaching to the ownership or occupation of property. A breach of duty is not essential to the cause of action asserted in this case, the nature of which I have sought to outline in my reasons. It would appear that s. 5(1)(c) was intended, like the similar provision in the Crown Proceedings Act, 1947 (U.K.), c. 44, in England, to apply to cases that might generally be described as occupier’s liability cases and not to cases such as this where an activity carried on by an owner or occupier of lands causes injury to the neighbouring property.
While one might object to this as an authority for the proposition that there can be no liability in nuisance on the basis that it is gratuitous, or dicta, the real objection that I have to it is that in Schenck et al. v. The Queen in right of Ontario (1981), 34 O.R. (2d) 595 (H.C.) [hereinafter Schenck (No. 1)], Mr. Justice Robins of the Ontario High Court had indeed found the Crown liable in nuisance, referring, to among other provisions, section 5 of Proceedings Against the Crown Act of Ontario, although I think, apparently, under the tort aspect of section 5 of The Proceedings Against the Crown Act of Ontario.
[33] Now counsel for the Crown goes on to note that Schenck (No. 2) was upheld on appeal and that a further appeal to the Supreme Court of Canada was denied, referring me to Schenck v. Ontario (Minister of Transportation and Communications); Rokeby v. Ontario, [1987] 2 S.C.R. 289. This line of argument overlooks the fact that the appeal to the Supreme Court of Canada was with regard both to Schenck (No. 1) and Schenck (No. 2) and resulted in the upholding of both the finding of nuisance and the finding of an absence of a favourable limitation as against the Crown. In effect, the Supreme Court of Canada agreed that the Ontario Crown might be liable in nuisance under The Proceedings Against the Crown Act of Ontario. I would add an observation: Mr. Justice Robins makes the point, in Schenck (No. 2), that a breach of duty is not essential to a cause of action such as that successfully enforced by Mr. Schenck, at issue there being interference with the use and enjoyment of orchard land, interfered with by the Crown’s use of salt on an adjoining highway.
[34] Mr. Justice Walsh, in Mart Steel Corporation v. The Queen, [1974] 1 F.C. 45 (T.D.), dealt with the concept of nuisance as a form of Crown liability at length, taking a scholarly and thorough approach beginning with the law of nuisance as set out in the Case of the Thorns (1466), Y.B. 6 Ed. IV, 7a. pl. 18. He concludes by dealing with the defendant’s argument that there can be no liability on the part of the Crown under paragraph 3(1)(b) of the Crown Liability Act [R.S.C. 1970, c. C-38] because there was no duty owed to third persons arising out of the ownership, occupation, possession or control of a grain elevator in Montréal, the dust from which caused damage to steel stored nearby. In answer to this argument Mr. Justice Walsh said (at page 68):
I do not think that the jurisprudence on nuisance sustains this defence. If a person builds a building, in this case a grain elevator and galleries, on his property and operates a lawful business therein, he owes a duty to the occupants of neighbouring property not to cause any damage to them as a result of the use which he is making of his property.
Mr. Justice Walsh then went on to give short shrift to the same sort of notice argument which the Crown raises in the present instance and which as I have said, I disregarded.
[35] In summary, the argument upon which the defendant seeks to have the nuisance plea struck out, as a futile plea, is perhaps an argument that counsel for the defendant, on reflection, might abandon as embarrassing.
[36] From the plaintiff’s point of view the nuisance argument may be difficult to establish, for there is always some give and take in any nuisance situation for any human activity interferes, to some extent, with other people. Thus, the fact that someone has been inconvenienced, or annoyed, or even to some degree harmed, does not automatically result in a successful cause of action. Rather, liability in nuisance is generally imposed only in those situations in which the harm is greater than ought to be borne in the circumstances, keeping in mind that everyone must put up with a certain degree of annoyance and interference so that communities may live together. Having said this the plaintiff’s case, in nuisance, while perhaps difficult, is not futile.
Riparian Rights as a Cause of Action
[37] The plaintiff pleads riparian rights as follows:
14. The plaintiff has the riparian right to enjoy the Red River in a state of nature, and defendant has violated that right by interfering with the flow of the River with resultant injury to the plaintiff’s lands.
15. The plaintiff therefore claims:
…
(c) A declaration that the defendant has interfered and continues to interfere with the plaintiff’s riparian rights;
[38] The defendant refers to Water Law in Canada: The Atlantic Provinces, published by Information Canada in 1973, the work of Gerard La Forest, (subsequently of the Supreme Court of Canada) and various associates. Mr. Justice La Forest deals with riparian rights in Chapter 9, page 200 and following. A riparian right includes rights relating to the flow of water, subject, and this is a point emphasized by the defendant, to the rights of other riparian owners to use the water and to the public rights of navigation [at page 206]:
A riparian owner is entitled to certain rights respecting the manner in which water reaches and leaves his land. He is, first of all, entitled to have the water flow down to his land as it has been accustomed to flow, substantially undiminished in quantity and quality, subject to the rights of other riparian owners to use the water, and to the public rights of navigation and floating. This is a natural right inseparably annexed to the land; it is not an easement and cannot be permanently separated from the inheritance. Once of the best statements of the law respecting a riparian owner’s rights to the way in which water must reach his land is that of Lord MacNaghten in John Young & Co. v. Bankier Distillery Co., [1983] A.C. 691, at p. 698, which reads as follows:
A riparian owner is entitled to have the water of a stream on which his property lies flow down as it has been accustomed to flow down to his property subject to the ordinary use of the flowing water by upper proprietors, and to such further use as may be reasonable under the circumstances. Every riparian owner is thus entitled to the flow of his stream in its natural flow, and without any substantial alteration in its character or quality.
A riparian owner is also entitled to have the water leave his land without obstruction. Moreover, non-riparian owners are also protected from the use of water that may damage their lives or property from flooding or otherwise.
[39] Mr. Justice La Forest goes on to refer to the rights of a riparian owner as to the manner in which water leaves that person’s land. Here Mr. Justice La Forest refers to, among other cases, Montreal Light, Heat & Power Co. v. Attorney-General of Quebec (1909), 41 S.C.R. 116, a classic instance in which the manipulation of the water level, by the opening of an overflow at a dam downstream, resulted in actionable damage to an upstream bridge. In this instance, so far, the pleading of infringement of the riparian right of the enjoyment of the river in its natural state appears proper. However, the defendant then goes on to submit that the plaintiff has not shown which Crown servant interfered with the flow of the Red River so as to breach a riparian right. While Levy Brothers (supra) dealt with the loss of mail and conversion, I do not see that the principle, that a Crown servant need not be identified in order for the Crown to be liable vicariously, ought not to apply in the present instance. The defendant’s argument, in this instance, is not one which shows that the riparian rights cause of action is in any way one which clearly will not succeed.
Declaratory Relief
[40] The plaintiff seeks, among other things, declaratory relief as set out in paragraph 15 of the amended statement of claim:
(a) A declaration that the defendant, in operating the Dam, has created a continuing nuissance with consequent damage to the plaintiff
(b) A declaration that the defendant has been and is breaching its duty to the plaintiff as alleged;
(c) A declaration that the defendant has interferred and continues to interfere with the plaintiff’s riparian rights;
[41] Counsel for the defendant submits that declaratory relief ought not to be granted if other relief, here damages, is available and thus the plea for declaratory relief ought to be struck out, relying upon Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 (hereinafter the Petro Canada case) and upon Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.
[42] I take both of these cases to teach something more limited, in the nature of the proposition that one must exhaust adequate alternative remedies, or adequate statutory remedies, before coming to the courts. This is the proposition set out in Harelkin v. University of Regina, [1979] 2 S.C.R. 561. Indeed, Chief Justice Dickson, in the Petro Canada case, refers to Harelkin, at page 92 and following.
[43] The Kourtessis case is more interesting, but still does not assist the defendant in striking out a plea for relief on the grounds that it is a fruitless plea. Kourtessis stands for, among other things, the proposition that there is a discretion to refuse declaratory relief where other remedies, which are reasonable and effective, are available: see Mr. Justice La Forest’s reasons at page 85 and following. Now Mr. Justice La Forest does go on to note, in Kourtessis, that certiorari might be an alternative remedy and that if such were the case “that would leave little room for the exercise of discretion to permit a declaratory action” (page 90). This is not the same thing as saying that a plea for declaratory relief, coupled with some other relief, is bound to fail. Mr. Justice Sopinka, who wrote a concurring decision in Kourtessis, notes that a court is justified in refusing to grant a declaration “if there is another procedure available in which more effective relief can be obtained” (page 115), but stops short of saying it can never be done. I believe that Dr. Markesteyn, as executor in this action, looks for declaratory relief, by reason of a concern that he not have to return to court, every now and then when a bit more of his foreshore is washed away.
[44] In the present instance, it may not be easy for the plaintiff to obtain both damages for past infringement and losses and foreward looking relief in the form of a declaration to prevent the washing away of water front either by forcing more judicious water level control or the provision of relatively inexpensive foreshore protection in vulnerable areas. However, the remedies are not absolutely mutually exclusive for they serve different functions. It is not plain, obvious and beyond doubt that declaratory relief is a lost cause. Traditional remedies for loss of riparian rights include damages and injunctive relief for infringement, with the proviso that if an injunction is not granted, declaratory relief may be granted: see Stollmeyer v. Trinidad Lake Petroleum Company, [1918] A.C. 485, at pages 495 and 497, and the note at page 498 and following, a decision of the Privy Council.
Objections to Miscellaneous Pleas
[45] The defendant objects to various other aspects of the amended statement of claim. Only one needs to be noted and in this instance, merely needs to be touched upon.
[46] The defendant refers to section 24 of the Crown Liability Act, R.S.C. 1970, c. C-38, and submits that this is the provision which applies, for the R.S.C., 1985 Crown Liability and Proceedings Act did not come into being until 1987, at a date after the commencement of this action. Section 24 provided that the Crown could not be liable for any act or omission which occurred or existed before 14 May 1953. In the present instance the amended statement of claim does not now stretch back to the construction of the dam at the turn of the century. The events complained of are more recent. Certainly there might be some argument involving a prescriptive right to raise and lower the river, free from objection by an upstream riparian owner, but that is not a ground upon which to strike out the statement of claim as plainly and obviously futile.
Particulars
[47] The Defendant submitted that it ought to have particulars of some aspects of the claim. Yet this request for particulars comes a dozen years after the action was commenced. Given the material set out in the amended statement of claim and all of the other circumstances, including that many of the particulars may be known to the defendant but not to the plaintiff, I see no need to require particulars for pleading. It may be, following completion of pleadings and discovery, that the defendant might need more complete particulars for trial, but such are premature at this point.
CONCLUSION
[48] Success in this matter, at least to the extent of these reasons and the resulting order, while mixed, has been decidedly in favour of the plaintiff. However, one result of this motion was to cause the plaintiffs, and here I refer to the original representative aspect of the action, to rethink their position and to amend, not only to drop the class action aspect, but also to take note of an argument involving the R.S.C. 1970 Crown Liability Act, which was in force when this matter was commenced, and thus leave out any claim for relief going back to the construction of the dam at the turn of the century. With this result of the motion in mind it is appropriate that success overall be regarded as mixed. Both sides shall bear their own costs.
[49] The defendant may have 30 days within which to file a defence.