IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The claimant High Country Outfitters Inc. (“HCO”) brings action in these proceedings against the City of Pitt Meadows (the “City”), principally in negligence.  HCO claims it has suffered losses resulting from the flow and seepage of water onto developed rural property it owns at 18681 McQuarrie Road, Pitt Meadows, B.C. (the “McQuarrie Road Property”). 

[2]           The McQuarrie Road Property is situated on flatlands within the part of Pitt Meadows known as the Pitt Polder.  Those flatlands constitute a flood plain.  As to elevation, they sit very near to sea level.  Because watercourses such as the Pitt River and the Alouette River run through the Pitt Polder—both of which are tributaries of the Fraser River and, thus, manifest daily, tidally induced inflows and outflows—the flatlands are highly vulnerable to flooding.  Seasonal factors—the most important of which is the “freshet” or increased water volume in the Fraser River and its tributaries resulting from the spring runoff each year—also expose the Pitt Polder flatlands periodically to rising water levels and concomitant flood risk.  Indeed, as HCO’s witnesses themselves acknowledged, the Pitt Polder (and the McQuarrie Road Property that lies within it) would not be habitable or workable as farmland without a network of dikes maintained by the City (the “Dike System”) that protects them against the flooding that would otherwise result from the periodic rising and falling of the water levels in the Pitt and Alouette Rivers.

[3]           A section of one of the dikes in the Dike System that runs roughly north/south along the western boundary of the McQuarrie Road Property separates it from the Pitt River.  It is surmounted at the southwest corner of the property by a ramp leading up to its crown from McQuarrie Road.  I shall refer collectively in these reasons to that dike section with its incorporated road ramp as the “Subject Dike”. 

[4]           It bears repeating that but for the presence of the Subject Dike, the McQuarrie Road Property would flood repeatedly, sometimes twice per day given tidal fluctuations in the water level of the Pitt River.  It is runoff from, and seepage through, the Subject Dike—coupled with allegedly inadequate provision made for drainage—that are cited by HCO as the bases for its claims against the City.

[5]            Both HCO and the City accept that, since 2002 (when HCO acquired the McQuarrie Road Property) and in all likelihood for a long time before then, there has been a chronic pattern of water accumulation in a low area at the southwest corner of that property that is bounded by the Subject Dike proper on the west and the aforementioned ramp leading west from McQuarrie Road up onto the Subject Dike on the south (the “Triangular Area”).   However, HCO acknowledges that, until 2008, no structures located in the Triangular Area suffered any water-related damage.

[6]           In 2007, an unusually high spring freshet was projected by the provincial Ministry of the Environment and, accordingly, provincial government monies were made available to municipalities, including the City, to improve their defences against the increased risk of freshet-related flooding.  (In the words of the project documentation, the funds were intended to “reduce the threat to people and property” from flooding.  They were targeted mainly at increasing the height of dikes and they expressly excluded work to improve drainage on adjacent properties: Exhibit 1, tab 6.) 

[7]           Taking advantage of that extraordinary but circumscribed funding, the City engaged contractors, supervised by engineers, to perform improvements to the Dike System.  Insofar as the monies to fund them were limited, the improvements were carried out in the spring of 2007 to address the elements of the Dike System that were judged to be in greatest need of enhancement.  The improvements included a modification to the Subject Dike proper, raising its height by approximately 18 inches, together with a corresponding increase in the height of the ramp leading from McQuarrie Road to the dike to permit the road to reach its newly elevated upper surface.  I shall refer to these specific improvements, collectively, as the “2007 Subject Dike Improvements”.

[8]           As I have noted, HCO alleges that acts and omissions associated with the performance of the 2007 Subject Dike Improvements—which improvements were carried out by City contractors under the supervision of the City and its agents—in fact caused or enabled the flow and seepage of water onto the McQuarrie Road Property to increase to the point where accumulations caused damage to the septic system located in the Triangular Area of the property (the “Subject Septic System”).

[9]             In particular, HCO contends that added runoff from the Subject Dike, as raised, and increased seepage through it, caused excessive saturation of the soil in the Triangular Area, destabilising the Subject Septic System.   That runoff and seepage, HCO says, called for the provision of a drainage infrastructure that the City never supplied as part of the 2007 Subject Dike Improvements project.  HCO argues that when the soil surrounding the Subject Septic System became more saturated with water resulting from increased runoff and seepage, the components of the Subject Septic System began to float.  It contends that the concrete septic tank proper sank down several inches relative to the position of the pipe that fed into it.  Thus, HCO’s argument goes, the rigid connection between the septic tank proper and the pipe came under stress and ultimately fractured, allowing the pipe to separate entirely from the tank, thereby permitting effluent to escape and rendering the entire Subject Septic System inoperable.

[10]        A further aspect of HCO’s claim is based on its contention that, to some degree, the absence of an adequate drainage system for the Subject Dike resulted in the oversaturation of the soil in the Triangular Area of the McQuarrie Road Property for a period of years prior to the performance of the 2007 Subject Dike Improvements.  It argues that when undertaking the 2007 Subject Dike Improvements the City was bound by law to take all necessary steps to deal with any Subject Dike-related drainage needs that were already in existence as a result of past defaults, as well as those that were occasioned by the 2007 Subject Dike Improvements themselves.  HCO alleges that the City made no drainage improvements to address those needs, to HCO’s ultimate detriment.

[11]        For these reasons, HCO seeks to recover as against the City $24,000—the cost of having a replacement system for the Subject Septic System supplied and installed—plus court ordered interest (to be calculated) and filing and service fees of $156 and $60, respectively.

[12]        HCO was represented at trial, and over the course of all pre-trial appearances in this matter, by its principal, William Norton (“Mr. Norton”).  Mr. Norton is a layman, not trained in the law.  By acknowledging that simple fact I mean him no disrespect.  Mr. Norton is a man of many abilities and accomplishments and to recognise that he is not a lawyer does not carry, and ought not to be taken to carry, any critical implication.  It is merely an incontestable fact.

[13]        That said, the Notice of Claim that Mr. Norton has drawn on behalf of HCO is conspicuously a layman’s pleading.  Mostly, it alleges facts.  It does not make specific reference to any cause of action, not even negligence.  However, I think it fair to say that apart from obliquely raising a claim in negligence, HCO’s Notice of Claim implicitly invokes a cause of action in trespass.  Also implicit in that pleading are claims based upon the doctrine in Rylands v. Fletcher (1868), L.R. 3 H.L. 330 and a further cause of action in nuisance. 

[14]        To its credit the City, in final submissions filed by its counsel, acknowledges that notwithstanding the somewhat inchoate nature of HCO’s Notice of Claim and written argument, all four of the above-noted causes of action are there to be defended.

[15]        The City defends the action brought against it by HCO on a number of grounds.  I summarise the main ones below. 

[16]        First, the City challenges some of the factual premises that lie behind HCO’s submissions.  It challenges the cogency and reliability of some of HCO’s evidence, particularly that of its experts.  A central feature of a number of its arguments is the City’s contention that HCO has failed to discharge its burden of proving, to the civil standard, that the 2007 Subject Dike Improvements carried out for the purpose of reducing flood risk in fact produced legally significant increases in water accumulations in the Triangular Area of the McQuarrie Property.  The City also submits that, even if increased accumulations can be proven, HCO has failed to adduce credible evidence to show that those accumulations were the cause in fact of any damage to the Subject Septic System.

[17]        In defending HCO’s claim in trespass, the City adverts inter alia to authorities that stand for the proposition that control by a municipal defendant over water that ultimately enters onto a claimant’s lands is a prerequisite to a finding of liability.  The City argues that here the City had and has insufficient control over the water level in the Pitt River,  the rainwater that falls onto and runs down the eastern flank of the Subject Dike, and any water that seeps through it, to enable a cause of action against the City in trespass to be made out.

[18]        In answer to HCO’s claim predicated on the doctrine in Rylands v. Fletcher, the City first observes that the requirement of that cause of action that there be proof of a “single disastrous escape” as distinct from a “continuing or continuous escape or interference” is not established on the facts of the case at bar.  The City also cites the public benefits that accrue to the use of drainage and floodwater management systems, noting that such systems amount to an “ordinary use of land”.  In doing so it invokes authorities that exclude such systems, for those reasons, from Rylands v. Fletcher liability.

[19]        With respect to HCO’s claim in nuisance, the City first says that its authority to construct and maintain the Subject Dike, and to carry out projects such as the 2007 Subject Dike Improvements—and any other improvements it has made to the Subject Dike—is sourced in legislation (the first element of any municipal defendant’s defence of such a claim).  Secondly, the City argues that if the court finds that the 2007 Subject Dike Improvements did cause harmful accumulations of water in the Triangular Area of the McQuarrie Property, contrary to its assertions on the facts, then, as the inevitable consequence of dike works conferring a benefit upon HCO and the wider community (given the anticipated higher freshets in that and future years), the accumulations and their consequences are excusable.

[20]        Lastly, with respect to negligence, while the City does not dispute that when it carried out the 2007 Subject Dike Improvements it stood in a position of legal proximity to HCO and thus owed it a duty of care, the City denies that either by act or omission it breached its duty of care not to cause HCO to suffer foreseeable and avoidable harm.  The City challenges HCO’s contention that the damage to the Subject Septic System can be linked causally to any tortious acts or omissions on the part of the City.  It further argues that HCO has failed to lead evidence of the value of the Subject Septic System.  As well the City says that HCO’s claim for the alleged cost of replacing that system fails to take account of the notion of betterment and, if awarded, a judgment in HCO’s favour in the claimed amount would for that reason overcompensate HCO.

[21]        The trial of HCO’s claims against the City in this action took six days to be heard.  A number of witnesses on both sides gave testimony, and some of them testified for lengthy periods.  Many, many documents were introduced as exhibits.

[22]        In managing the trial of HCO’s claims I took a somewhat (though not entirely) relaxed approach to the rules of evidence and the question of relevance, befitting the fact that HCO’s claims were being pursued in Provincial Court without the benefit of counsel.  One consequence of that somewhat relaxed approach, however, is that the court is left with a sprawling record that contains a great deal of evidence, not all of which bears upon the matters that the court must decide at the end of the day.

[23]        I acknowledge candidly therefore that I have not made reference to every item of evidence that came before me.  I have, rather, referred to evidence that I consider it necessary to mention in connection with my factual findings and the legal conclusions that flow from them.  In places I have made mention of evidence that I have been unable to accept, and of the reasons why I have been unable to accept it.  If evidence is not mentioned in these reasons, the parties can both take comfort that the omission is not the result of my not having taken note of it.  I have read all of the transcripts from end to end.  I have done the same with all of the documentary exhibits.  If witness testimony or documentary evidence do not come up for specific mention in these reasons, that is because:

[24]        That it is an acceptable practice for a trial judge to confine him or herself, in reasons for judgment, to a compressed and somewhat selective canvassing of the evidence heard at trial is well established on the authorities.  The law is clear that where there is substantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error by failing to refer to every item of evidence that was adduced: see, for example, Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 1986 CanLII 114 (ON CA), 54 O.R. (2d) 92 at 99 (C.A.) and Delgamuukw v. R. (1993), 1993 CanLII 4516 (BC CA), 104 D.L.R. (4th) 470 at 563-564 (B.C.C.A.).

[25]        The background facts which I have found and enumerate below are, to my understanding, not in controversy between the parties.

[26]        While the issue of increased rainwater runoff from the Subject Dike following completion of the Subject Dike Improvements has been a live one from the outset of these proceedings, the issue of seepage through that dike truly only surfaced at trial.

[27]        It is noteworthy in this regard that while HCO’s Notice of Claim attributes causal significance regarding its water accumulation-related losses to runoff, it makes no mention of seepage whatsoever.

[28]        While HCO’s experts did not speak with one voice on the point, Sarafraz Baheri (“Mr. Baheri”)—an architect who was qualified to give opinion evidence regarding the making of provision for drainage in the course of construction design—was clear that in his opinion HCO’s losses could be traced mainly to seepage of water through the Subject Dike coupled with the City’s failure to include drainage infrastructure to deal with that seepage.  See, for example, the following exchange taken from his direct examination, in which he downplays the importance of runoff relative to that of seepage:

[29]        This perspective is apparently one that Mr. Norton of HCO shares. 

[30]        As the trial progressed, the seepage phenomenon attained greater and greater prominence in HCO’s case against the City.  Indeed, at p. 2 of its written Reply submission it is referred to as “extreme seepage”.  As can be seen from the extracts above, HCO now contends that most of the water accumulations that it says destabilised the Subject Septic System have resulted from water that passed through the Subject Dike via the mechanism of seepage (as distinct from rainwater that ran off the dike’s eastern flank).  Because this factual contention became, unexpectedly, such a central pillar of HCO’s case against the City, I shall spend some time with it in these reasons.

[31]        Do substantial quantities of water—that is, quantities sufficient to damage property in the way HCO alleges—in fact seep through dikes whose entire purpose is to keep water at bay?  The proposition is startling and manifestly counterintuitive.  However, this is not an area of knowledge where a trial judge is permitted to forge ahead simply on the basis of intuition or commonsense alone.  It is a domain of knowledge that lies outside ordinary experience.  Thus, when considering evidence in such a domain, a trial judge must take such guidance as is available from the expert opinion that has been made available to the court.

[32]        The first point to bear in mind is that a dike is essentially a surface feature.  As such it does not directly control the movement of water beneath it.  Some water is present in the earth that lies beneath a dike, and in the earth on either side of its base, whose movement is not controlled, and perforce not prevented, by the presence of the dike.  Accordingly, the level of the water table on one side of a dike will covary to some degree with the water conditions on the other side of the dike.  That was the burden of one aspect of the evidence given by Mr. Behmanesh, the structural engineer called as a witness by HCO who was qualified as an expert in dike and road design and construction practices having regard to drainage and runoff issues. The City’s expert did not question or contradict that opinion evidence.

[33]        What follows is an extract from Mr. Behmanesh’s testimony, given on behalf of HCO, dealing with relative changes in water table levels on either side of the Subject Dike:

[34]        But dikes generally, the Subject Dike included, are constructed to be as impervious as possible to the seepage of water through them.  In the words of City witness Kevin Terness (“Mr. Terness”), an engineer who was involved in the carrying out of the 2007 Subject Dike Improvements, “when you build a dyke you build a core which is usually an impervious material such as clay or silt”: Transcript, September 2, 2011, p. 59.  I accept that evidence. If it were otherwise dikes would not be able to function as barriers protecting the lands they separate from watercourses.

[35]        Dikes are however not absolutely impervious to water seepage and no expert or witness knowledgeable about them who came before me did, or would, say that no water can ever seep through a dike.  However, as Mr. Terness testified and as I find, that seepage is minimal in both quantity and effect.  In his words, “[s]eepage is a very slowly occurring phenomena and it's not a long-term failure phenomena”: Transcript, September 2, 2011, p. 62.  The evidence of City expert, Alan Clyde Mitchell (“Mr. Mitchell”)—a water resources engineer and hydrologist who was qualified to give opinion evidence regarding water resource engineering and the movement of water and the effects of water on the earth's surface, including water drainage and drainage patterns—confirmed this.

[36]        I find that testimony to be persuasive.  Beyond that, no evidence has been placed before me—expert or otherwise—that suggests that the 2007 Subject Dike Improvements caused any increase in seepage through the Subject Dike.

[37]        Based upon all of the foregoing, I find as a fact that the amount of water seepage through the Subject Dike was minimal at all material times.   Moreover, I find that—as Mr. Mitchell opined in the foregoing quotation—seepage accounts for only a small fraction of the volume of water that would be shed by the Subject Dike as runoff.  Lastly, I find that to the extent there is seepage through the Subject Dike at all, its volume was not increased by the 2007 Subject Dike Improvements.

[38]        Mr. Norton testified, somewhat speculatively, that the Subject Septic System was only six years old at the time of its failure.  The City maintains records going back to 1985 and there is no record of any new septic system installation or system upgrade having been performed at the McQuarrie Road Property since that date.  That fact, coupled with the fact that HCO led no evidence to call into question the City’s record-keeping practices or prove that the Subject Septic System was installed or upgraded more recently than 1985 without City permitting and approvals, establishes that at the time of its failure, the Subject Septic System on the McQuarrie Road Property was at least 23 years old.  I so find.

[39]        As I have noted earlier, HCO contends that excessive accumulations of water on the McQuarrie Road Property, particularly in the Triangular Area, caused the failure of the Subject Septic System.  Those excessive accumulations are alleged to have resulted from substantial seepage through the Subject Dike, coupled with added runoff, attributable to the 2007 Subject Dike Improvements.  I have already found that the 2007 Subject Dike Improvements did nothing to increase the minimal seepage through the Subject Dike.  Thus, if HCO is to prove that improvement-related water accumulations caused the failure of the Subject Septic System, it will need to identify increased runoff as their source.

[40]        I leave to one side (for now) HCO’s argument that it was incumbent upon the City, when carrying out the 2007 Subject Dike Improvements, to create drainage infrastructure sufficient to accommodate increases in seepage and runoff resulting from those improvements plus seepage and runoff patterns resulting from improvements that predated them. 

[41]        On the facts as I have found them, the additional runoff attributable to the 2007 Subject Dike Improvements is minimal—an increase in the range of 3½ to 4% of the runoff that occurred before the improvements were made: Transcript, May 20, 2012, p. 51.  There is no evidence before me to suggest that minimal, unaltered, baseline seepage together with the noted fractional increase in runoff are capable of having added meaningfully to the chronic saturation of the McQuarrie Road Property in the Triangular Area.  To the contrary, the testimony of Mr. Mitchell—a City expert whose evidence I found persuasive—establishes that baseline seepage and increased runoff attributable to the 2007 Subject Dike Improvements produced minimal increases in water accumulations in the Triangular Area and the existing drainage infrastructure on the McQuarrie Road Property was and is sufficient to deal with them: Transcript, May 20, 2011, p. 75.

[42]        HCO’s experts—Mr. Baheri and Mr. Behmanesh—approached the question regarding water accumulations and the damage to property allegedly resulting from them from a somewhat different perspective than did the City’s expert Mr. Mitchell.  Both dwelt in their reports and in their testimony upon what, with respect, appeared to me to be a simplistic analysis that merely compared elevations at different locations around the Triangular Area.  They both concluded that, given the relative elevations and, in particular, the low elevation of the Triangular Area, better and more effective drainage ditch work was called for and has not been provided by the City.  Both also offered conclusory statements in their reports about the situation leading to foundation damage to the House (but, oddly, not to the Subject Septic System).  No true analysis of the quantities of water passing through or over the Subject Dike formed part of their reasoning.  Indeed, no logical pathway linking their topographical assessment to their conclusions about structural damage was spelled out at all.

[43]        I confess to having found the expert reports and testimony of Mr. Baheri and Mr. Behmanesh difficult to follow.  Remarkably, despite the fact that both made site visits, their topographical analyses were not based upon any measurements taken by either on site.  Rather, those analyses were based on distances and elevations marked on Exhibit 2—a survey plan of the McQuarrie Road Property, prepared in 2004—which have not been independently linked to actual elevation measures for the McQuarrie Road Property (and the Triangular Area particularly) as of the present day.  Just as remarkably, even though their opinions are based on topographical analyses that chiefly rely on an outdated survey plan, neither Mr. Baheri nor Mr. Behmanesh examined the past and recent aerial photos that were available to get a sense of the topographical changes that have been wrought by HCO upon the McQuarrie Road Property since it was purchased and since the 2004 survey plan was prepared.

[44]        Of course, as the recital of uncontroversial facts above in these reasons shows, much has happened on the McQuarrie Road Property since 2004.   Some of the significant changes that have been made by HCO to the McQuarrie Road Property—some of which have directly affected the drainage patterns on those lands—were carried out after the time when the survey plan that Mr. Baheri and Mr. Behmanesh relied upon was drawn up.  I find it peculiar that, in formulating their opinions about how the condition of the Triangular Area could be accounted for and remedied, both of HCO’s experts declined to carry out a full-fledged, hands-on, observational evaluation and preferred, instead, to work with elevation notations taken from an outdated survey plan.  When confronted with this issue during cross-examination, no satisfactory explanation was forthcoming.

[45]        Extraordinarily, the outdated survey plan with which Mr. Baheri and Mr. Behmanesh worked does not even display a recorded elevation in the Triangular Area.  When this fact was drawn to his attention, Mr. Baheri became flustered and, frankly, incoherent, inviting his questioner to accept that a person with his skills and expertise did not need an elevation measurement in order to perform his analysis and opine on the elevation of the Triangular Area in relation to the elevation of other locations on the McQuarrie Road Property for the purposes of assessing the adequacy of the property’s drainage infrastructure:

[46]        Other factors that have been raised that could account for the water accumulations in the Triangular Area that will be discussed in greater detail below—such as, for example, the damming effect of horse manure dumped by HCO onto the City Swale—seem to have escaped the notice of both Mr. Baheri and Mr. Behmanesh, even though both attended at the site and would be expected in the normal course to be vigilant for such things.  Mr. Baheri apparently did not turn his mind to the possibility that the addition of fill on parts of the McQuarrie Road Property may have distorted or altered the drainage patterns there.  Neither did he give consideration to the possible blockage, by vegetation, of water flows through the riprap which fills part of the McQuarrie Road Ditch on either side of the culvert that passes under the property’s driveway.  These are all factors that, at the very least, call for some analysis when experts like Mr. Baheri and Mr. Behmanesh attempt to diagnose a water accumulation problem on a property that could be the result of multiple, intersecting causes.

[47]         While the expert reports tendered by Mr. Baheri (Exhibit 18) and Mr. Behmanesh (Exhibit 19) are, to look at them, separate documents authored by those two experts individually (with no co-authors acknowledged), even a cursory examination reveals that, in substance, they are essentially the same.  This is so despite the fact that one of the experts is an architect and the other is an engineer.  While there is overlap in what Mr. Baheri and Mr. Behmanesh were qualified to address in their expert opinions, they were not qualified to cover identical territory.  When cross-examined about the process whereby he came up with a report that was essentially the same as that of Mr. Baheri, Mr. Behmanesh admitted that he and Mr. Baheri prepared their “report” (singular) together and then each of them separately finalised their versions.  HCO’s experts, therefore, were revealed to be both literally and conceptually “on the same page”.

[48]        I hasten to add that there is nothing before me to suggest that Mr. Norton or HCO had any idea at all that HCO’s two experts had conducted themselves in this questionable manner.

[49]        The fact that the opinions tendered separately, in report form, by Mr. Baheri and Mr. Behmanesh, are simply two iterations with stylistic differences of a joint work product is problematical.  A cross-examiner does not know which portions of the report originated with which co-author.  The court does not know which parts of a de facto single report can be attributed to which of the differently qualified experts.

[50]        I would not go so far as to declare the Baheri and Behmanesh expert evidence to be inadmissible based on the undisclosed authorship problems with the reports that I have just described.  However, those problems—coupled with the other weaknesses I have canvassed above (which are serious)—lead me to ascribe little weight to the authors’ opinions.  Rather, I prefer to accept the better-reasoned and more coherent expert evidence given by Mr. Mitchell for the City.  It will be recalled that he opined, as an engineer, that the 2007 Subject Dike Improvements produced minimal additional runoff and did not increase seepage at all (which seepage is minimal in any event).  He further opined, and I have found, that the existing drainage infrastructure was sufficient to take care of all of the runoff resulting from the Subject Dike.

[51]        In 2002 HCO purchased the McQuarrie Road Property.  Previous owners, in their wisdom, had seen fit to build the House and install the Subject Septic System in a part of that flood plain property which sits at a particularly low elevation and which has displayed chronic accumulations of water.  The Subject Septic System at the time of purchase by HCO was at least 17 years old.  It continued to perform satisfactorily for another six years until February, 2008, when it finally failed.  By then it was at least 23 years old.

[52]        On the facts as I have found them, the McQuarrie Road Property—like all of the effectively reclaimed lands on the Pitt Polder flood plain—has a high water table.  While it rises and falls in concert with the quantity of rainfall in any given season and while it covaries to some degree with the fluctuations, both tidal and seasonal, in the water levels in the Pitt River for reasons having nothing to do with the Subject Dike, the water table on the McQuarrie Road Property is perpetually high relative to the water tables on lands that are not at such low elevations and in such close proximity to watercourses.

[53]        Septic systems can and do function in high water table environments.  The Subject Septic System on the McQuarrie Road Property did so for at least 23 years without incident.  But it is generally recognised that they are prone to earlier failure in high water table environments than they are in low water table environments.   Mr. Norton of HCO admitted this himself: Transcript, May 19, 2011, p. 5.  Seen in this light, one might perhaps be forgiven for expressing the view that HCO did well to get six additional years of service out of a system for dealing with domestic sewage on its property that had already rendered 17 years of service to previous owners under challenging conditions.

[54]        The reliable expert evidence that speaks to the amounts of additional water running off the Subject Dike onto the McQuarrie Road Property that can be attributed to the 2007 Subject Dike Improvements shows that those amounts are insignificant and within the capacity of the drainage infrastructure that is there now.  A causal connection between the failure of the Subject Septic System and those improvements cannot, in the face of such evidence, be proven by HCO.

[55]        Similarly, HCO tendered no credible expert or other evidence to support its theory that accumulations of water in the Triangular Area resulted in the “floating” of the septic tank and its ultimate separation from the pipe that feeds into it by reason of water added to the accumulations by runoff from the Subject Dike since it was raised.  Mr. Norton, for HCO, has worked backward from something he saw concerning the relative positions of system components when he stared down into a hole at the time the septic tank and pipe were exposed following the failure of the Subject Septic System.  (The evidence in this regard that he sought to lead by reference to a note made by an insurance adjuster was inadmissible both as hearsay and, arguably, as the expert opinion of a “witness” who was not qualified as an expert.) 

[56]        The speculative evidence Mr. Norton gave himself regarding the mechanics of the failure of the Subject Septic System falls far short of proving that the components were affected by changes in the soil around them resulting from recently changed conditions attributable to raising of the Subject Dike.  HCO has simply not marshalled and adduced the expert evidence that would be necessary to support that theory of causation.  The McQuarrie Road Property, I say again, perpetually experiences a high water table.  The 2007 Subject Dike Improvements did not, on the evidence before me, materially change that water table.  Neither, accordingly, has HCO been able to prove that those improvements materially affected the saturation of the soil in the Triangular Area or the buoyancy of Subject Septic System sitting within that area.

[57]        While I have made the point repeatedly that water accumulations in the Triangular Area have not been shown to be causally related to the Subject Septic System failure, I do wish to add that, even if it had been, HCO has not ruled out factors, other than the morphology of the Subject Dike, that may have influenced the amount of the water that accumulated there.  For example:

[58]        I venture to make a further point.  It is clear on the evidence that land burdened with a high water table will reveal, in areas that are sufficiently low, pooling of ground water.  Where a landowner wishes to gain access to ground water for the purpose of watering cattle for example, the landowner will dig down below the water table, thereby exposing water in the excavation that the cattle can drink.  This practice came up for discussion in the evidence at trial. 

[59]        Correspondingly, if water pooling on the surface of land with a high water table causes difficulties, fill can be added so that the surface of the land is raised up above the level of the water table, removing the problem of pooling.  This, too, came up for discussion in the evidence at trial.

[60]        The evidence in this case has left me in no doubt that the McQuarrie Road Property overall has water table which fluctuates to be sure but which generally sits quite near to its surface.  As a flood plain property—reclaimed land in effect—that property has had a high water table for many years.  This incontestable feature of the land is most obvious in the Triangular Area where the elevation of the McQuarrie Road Property land is comparatively low and where visible pooling has, for that reason, been chronic.  The Subject Septic System was, for whatever reason, installed by HCO’s predecessor owners below ground in that very area at least 23 years before that system failed.  Most of the Subject Septic System has sat beneath the water table across the entire span of its service lifetime. 

[61]        It would take very compelling evidence of substantial quantities of new water being added to such lands by improvements like the 2007 Subject Dike Improvements to even open the door to consideration that the stability of a Subject Septic System—which has spent its entire service lifetime in saturated soil, partially if not wholly below the average level of the water table—has been meaningfully affected by the raising of the dike that protects that property and all the other properties that lie adjacent to it. 

[62]        Here, the evidence is that there is minimal seepage of water through the Subject Dike, none of which is attributable to the 2007 Subject Dike Improvements.  Moreover, such increase in runoff as the 2007 Subject Dike Improvements have brought about is for present purposes insignificant.  On the expert evidence that I have accepted, the added 3½ to 4% rise in runoff attributable to the height added to the Subject Dike does not materially increase the amount of water that accumulates in the Triangular Area.  Moreover, and importantly, Mr. Mitchell’s expert evidence established that the drainage infrastructure that is present there is sufficient to handle all runoff and seepage: Transcript, May 20, 2011, p. 75.

[63]        It is trite to say that “correlation does not imply causation”.  Similarly, it is generally recognised that the dictum “correlation proves causation” is a logical fallacy.  HCO’s experience of Subject Septic System failure in the early winter of 2008 was very roughly correlated, as to time, with the 2007 Subject Dike Improvements that were completed by about June of 2007.  HCO discerns something sinister in this rough correlation but, for the reasons I have outlined above, the evidence does not furnish HCO with proof of the facts it requires in order to persuade me, on a balance of probabilities, that increased water accumulations attributable to the 2007 Subject Dike Improvements caused the failure of its Subject Septic System.

[64]        I have made periodic reference, above, to HCO’s alternative argument—not raised even implicitly in its Notice of Claim—that runoff or seepage that might be attributed to improvements made to the Subject Dike before 2007 ought to be considered for the purposes of adjudicating its claim in the present case.

[65]        While, as can be seen, I have taken a liberal approach to HCO’s Notice of Claim and am willing to consider causes of action that have not  been expressly pleaded, HCO goes too far when it asks the court to consider, in this case, alleged acts or omissions of the City dating back decades and to a time when HCO was not even an owner of the McQuarrie Road Property. 

[66]        The City was not and could not have been put on notice by HCO’s pleadings that it would be advancing such pre-2007 arguments.  An enlarged time frame brings with it a much different scope of document production, for both parties, and the potential need for the calling of other defence witnesses—witnesses who could not have been in the City’s reasonable contemplation when preparing to defend an action based upon a Notice of Claim which refers, inter alia, to work on the Subject Dike and the associated raising of the McQuarrie Road ramp (that is, work that can only be the 2007 Subject Dike Improvements).  Neither the documents introduced by the parties into evidence nor the cast of characters who they brought and who testified at trial reflect any appreciation on either party’s part, most importantly the City’s, that the time-frame germane to HCO’s claim might reach back decades before the carrying out of the 2007 Subject Dike Improvements. 

[67]        The invoking of alleged deficiencies in City conduct that allegedly occurred many years before those improvements also triggers limitations issues that the City could not reasonably have had in its contemplation or been able to address in its trial preparation. 

[68]        For these reasons, fairness requires that I decline to consider arguments advanced by HCO to the effect that, for the purposes of evaluating the effects of runoff, I must take into account the “104%”—that is, the runoff occasioned by the 2007 Subject Improvements plus that occasioned by earlier work done by or on behalf of the City in the course of improvements made to the Subject Dike from time to time over the course of its lifetime.

[69]        Before leaving this topic I do note, however, that even if I had been willing to open the door to HCO to advance arguments based on pre-2007 improvements to the Subject Dike, the expert evidence of Mr. Mitchell that I have accepted and found most persuasive appears to provide a complete answer to those arguments.  During his re-examination by City’s counsel, this important exchange took place regarding all of the runoff:

[70]        The case of Plaunt v. Renfrew Power Generation Inc., [2011] O.J. No. 2005 (S.C.J.), citing Grace v. Fort Erie (Town), 2003 CanLII 3874 (ON CA), [2003] O.J. No. 4375 (S.C.J.), provides a helpful summary of what constitutes a cause of action in trespass.  I paraphrase it as follows:

[71]        The type of trespass alleged here by HCO against the City is of the “discharging some substance onto the claimant’s land” variety—a form of trespass well known to the law in British Columbia: see, for example, Engemoen Holdings Ltd. v. 100 Mile House (Village), 1985 CanLII 709 (BC SC), [1985] 3 W.W.R. 47 (B.C.S.C.).  The water that I have found has run off and seeped through the Subject Dike onto the McQuarrie Road Property in insignificant quantities is the “substance discharged” for the purposes of the analysis.

[72]        The runoff water at issue is simply that added 3½ to 4% additional rainwater that is shed by the Subject Dike’s eastern flank onto the adjacent McQuarrie Road Property following the making of improvements that raised it.  The seepage water at issue is that near to negligible amount that I have found will seep through the Subject Dike and reach the McQuarrie Road Property on the other side, unaffected by the 2007 Subject Dike Improvements.

[73]        It is obvious that the City does not control the insignificant amount of water that falls on or seeps through the Subject Dike at first instance.  This is not a case where the City has created an elaborate system of water storage and distribution in which the control necessary to ground liability for trespass might be found.  This, rather, is a case where the alleged trespass is incidental to the mere presence of a structure.  The scenario is not one of no control whatsoever but, rather, one of insufficient control to ground liability.  Where such control is absent, actions in trespass generally fail: Stachniak v. Thorhild No. 7 (County), [2001] A.J. No. 423 (Prov. Ct.):

[74]        On that basis, HCO’s action in trespass against the City must and does fail. 

[75]        The doctrine in Rylands v. Fletcher, provides that a defendant will be found strictly liable if the claimant can prove that:

[76]        I make the preliminary observation that it cannot be said that the City “brought onto its land” the seepage and runoff water of which HCO now complains.  The rainwater that falls on the Subject Dike and then runs down its eastern flank onto the McQuarrie Road Property descends from the heavens above it—not at the bidding or through any instrumentality of the City but through the mainly ungovernable processes of nature.  Similarly, the minimal amounts of water that seep from the Pitt River through the Subject Dike to the McQuarrie Road Property (which property would be flooded with torrents of Pitt River water were the dike not there) originate in the Pitt River.  I have heard no evidence to suggest that the City redirected the flow of the Pitt River or took any other steps so as to “bring it” from elsewhere “onto” the municipal land that sits alongside the McQuarrie Road Property, separated from it by the Subject Dike. 

[77]        This case is thus in no way comparable to Rylands v. Fletcher itself where the defendants Messrs. Rylands and Horrocks actually brought water onto their lands from elsewhere and stored it in underground mine shafts.  The walls of some of the underground shafts on the defendants’ gave way, permitting water to flood mine shafts belonging to the adjacent property owner, Mr. Fletcher.   It can be seen that the facts of the case at bar do not in this basic way conform to the contours of the cause of action raised up by the old case of Rylands v. Fletcher. 

[78]        There are other more pertinent bases upon which Rylands v. Fletcher liability in the case at bar is called into question, however. 

[79]        First, as the Supreme Court of  British Columbia has held in Chu v. North Vancouver (District), [1982] B.C.J. No. 72 at 6 (S.C.), var’d on other grounds [1984] B.C.J. No. 1571 (C.A.), citing the 16^th edition of Salmond on Torts, “the essence of the Rylands v. Fletcher principle is that compensation is given for a single disastrous escape”.  The doctrine is not engaged in fact situations that involve continuing or continuous escapes or interferences: see also in this regard, Burnaby (City) v. Thandi, [2005] B.C.J. No. 2284 (S.C.).

[80]        Plainly, the case at bar involved no “single disastrous escape” but, rather, an insignificant (that is, non-disastrous) continuing escape which, by definition, lies outside the ambit of the Rylands v. Fletcher doctrine.

[81]        Second, on the facts as found (and, indeed, by HCO’s own admission), the Dike System of which the Subject Dike is a part protects the lands in the Pitt Polder against flooding.  Without it those reclaimed lands would flood repeatedly as a result of tidal fluctuations in watercourses like the Pitt and Alouette Rivers and as a result of rising levels resulting from the annual spring freshet.  The Subject Dike represents, therefore, an essential feature of municipal life in the uniquely water-challenged City of Pit Meadows.  It represents, in that setting, an ordinary use of land that benefits the citizens of the City generally and HCO particularly.  When HCO acquired the McQuarrie Road Property with knowledge that that property was protected from the ravages of flooding by the Dike System, it must be taken to have consented to the presence and existence of the Subject Dike and the considerable benefit that it confers.

[82]        These circumstances remove the case at bar from the reach of the doctrine in Rylands v. Fletcher because the Dike System generally and the Subject Dike in particular constitute “indispensable part[s] of the infrastructures necessary to support urban life” in the City that are maintained pursuant to statutory municipal authority: Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181 at para. 12.

[83]        Third, I return again to a recurring theme in the City’s defence that has come up in connection with all but one of the causes of action that are implicitly raised by HCO’s Notice of Claim.  It is the issue of causation of damage.  On the facts as found HCO has failed to prove that accumulations in the Triangular Area of water attributable to runoff from or seepage through the Subject Dike originating with the 2007 Subject Dike Improvements (or otherwise) were the cause in fact of any damage to the Subject Septic System.  Proof of causation of such damage is an essential element of any claim based on the doctrine in Rylands v. Fletcher.

[84]        For the foregoing reasons, HCO’s action against the City based upon the authority of Rylands v. Fletcher must and does fail.

[85]        An actionable nuisance is caused when a defendant’s act or omission unlawfully annoys, prejudices or disturbs the claimant’s enjoyment of the use of land: see Tock at para. 15. 

[86]        In Tock, LaForest and Dickson, JJ. offered this helpful description of the careful and restrained approach that the courts have typically taken to adjudicating claims of nuisance, having regard to the adverse effects that beneficial activities of some occupiers will inevitably have on adjacent occupiers of land in modern societies where close physical proximity is increasingly unavoidable:

[87]        Drawing upon the criteria mentioned in the latter part of that quotation, I would first observe that it is difficult to characterise the parties, on the facts here, as having “conflicting uses” of their respective lands.  The City has, on its lands, watercourses, including the Pitt River, that it seeks to control so as to prevent HCO and other landowners in the Pitt Polder region of the City from having their properties rendered uninhabitable or unusable due to the flooding that would otherwise inevitably result from tidal and seasonal fluctuations in the water levels within those watercourses.  The infrastructure by which the City controls those watercourses includes the Dike System.  The interests of both the City and HCO in keeping HCO’s land free of unwanted water are thus not conflicting.  They are wholly aligned.

[88]        I note as well that the utility of the City’s conduct in maintaining the Dike System generally, and the Subject Dike particularly, is both incontestable and admitted.  HCO could make no use at all of the McQuarrie Road Property without that infrastructure to protect it from the waters of the Pitt River.

[89]        But, to pick up on a recurring theme yet again, to the extent that the analysis concerning the tort of nuisance entails consideration of the “harm” caused by the defendant to the claimant, on the facts as found here HCO has not suffered harm attributable to runoff from, or seepage through, the Subject Dike.  Its enjoyment of the use of the McQuarrie Road Property has not been compromised in the way identified in its Notice of Claim by runoff or seepage.  HCO has failed to prove any causal connection between those phenomena attributable to the 2007 Subject Dike Improvements and the failure of the Subject Septic System.  That by itself forecloses recovery by HCO against the City for nuisance on the facts of this case.

[90]        Cases of nuisance involving municipal defendants like the City are subject to separate and unique considerations given that, potentially, such defendants have at their disposal the defence of statutory authority.  The British Columbia Court of Appeal has recently surveyed the complex law in this area very comprehensively in Susan Heyes Inc. v. Vancouver (City), 2011 BCCA 77 (CanLII), [2011] B.C.J. No. 250 (C.A.).  However, because HCO has failed to prove that its enjoyment of the use of the McQuarrie Road Property has been compromised, as it alleges, by the acts or omissions of the City in the case at bar, I need not proceed to consider the City’s alternative arguments regarding the defence of statutory authority because there is no proven nuisance for the City to defend.

[91]        For the reasons I have noted, HCO’s claim in nuisance against the City must and does fail.

[92]        Stachniak is a case as close on its facts to the case at bar as any that have been cited to me.  In that case, Skitsko, P.C.J. considered multiple causes of action, just as I am required to do here, all invoked in circumstances where the claimant alleged that flood damage to his rural property was caused by the defaults of a local government authority.  When addressing the claimant’s claim in negligence, Judge Skitsko introduced his discussion of the case before him by, in my respectful view, rightly summarising the legal framework as follows:

[93]        Here again, to invoke the recurring theme one last time, I draw attention to the fact that proof of causation of damage is an essential element of HCO’s claim, this time in negligence.  Here again, HCO’s ability to make out its claim is unseated by its failure to prove that seepage and runoff attributable to the 2007 Subject Dike Improvements were the cause in fact and law of damage to the Subject Septic System.  I repeat that, on the facts as I have found them, the minimal seepage through the Subject Dike was not increased by the improvements at all and the 3½ to 4% increase in runoff attributable to them did not materially affect water accumulations in the Triangular Area of the McQuarrie Road Property or the aging Subject Septic System that had been installed there by previous owners in a chronically high water table environment at least 23 years prior to the system’s failure.

[94]        HCO having failed to prove that its losses were caused by any act or omission of the City, it would profit no one for me to descend into the factual and legal minutiae concerning the other elements of the cause of action in negligence.  Similarly, it would profit no one for me to descend into the factual and legal minutiae that surround the defences—both those which are generally available and those which are uniquely available to municipal defendants—that can be raised by the City against HCO’s allegations of negligence.

[95]        For the reasons outlined above, HCO’s claims against the City in trespass, under the doctrine in Rylands v. Fletcher, in nuisance and in negligence are all dismissed. 

[96]        As I have emphasised, HCO’s claims foundered mainly due to its failure to establish adequate proof of a causal link between the performance by the City of the 2007 Subject Dike Improvements (and in particular the increases in seepage and runoff that allegedly resulted from them) on the one hand and the failure of the Subject Septic System on the other hand.  The evidence that I have accepted has persuaded me that, as to seepage, the raising of the Subject Dike was a non-event.  Seepage is minimal to begin with and the improvements did not affect it in any way.  The evidence that I have accepted has also persuaded me that the inconsequential increase in runoff from the eastern flank of the Subject Dike resulting from the raising of its height did not materially change the chronic pattern of water accumulation in the Triangular Area of the McQuarrie Road Property and, perforce, did not cause the failure of the Subject Septic System that HCO’s predecessor owners, in their wisdom, chose to install there decades ago.  Moreover, on the expert evidence that I have accepted, the drainage infrastructure that is already in place at the McQuarrie Road Property is sufficient to handle all seepage and runoff from the Subject Dike, and not just the fractional increase in runoff that can be traced to the 2007 Subject Dike Improvements: Transcript, May 20, 2011, p. 75 (evidence of Mr. Mitchell).  As should be clear, while this case has had to be examined through the lenses of several separate causes of action, its ultimate disposition has been dictated largely by its facts.

[97]        HCO’s case did not fail for want of a valiant effort on HCO’s part.  While untrained in the ways of the law, Mr. Norton devoted much energy and industry to advancing his company’s claims against the City.  He had his struggles with the intricacies of trial procedure and the substantive law, to be sure, but often he showed skill in advocacy that goes beyond what one ordinarily expects to see in a layman.  I feel I would be remiss if I did not acknowledge that effort and skill.   I also give recognition to Ms. Chorlton and Mr. Bruce for the thoughtful and well-organised approach they have taken to defending this case.  Their performance was commensurate with what one would expect of them, given their training and experience as counsel; however, their handling of the matter was distinguished by the patient and respectful way they dealt with Mr. Norton as a lay litigant.  That, too, is deserving of acknowledgement.

[98]        In its written submissions the City seeks an order under Rule 20(5) of the Small Claims Rules requiring that HCO pay an amount up to 10% of the value of its claim to the City as a penalty (that is, an amount up to $2,422).

[99]        The jurisdiction to order such penalties is exercised sparingly.  As the Rule itself states, it is reserved for those cases where a losing party has proceeded to trial with “no reasonable basis for success”. 

[100]     As to policy, Rule 20(5) is intended to discourage unreasonable litigants from putting other litigants to the expense and inconvenience of going to trial where the dictates of reason urge the abandonment of claims or defences that are manifestly non-maintainable.  An ancillary purpose for the Rule is that of preserving court resources for the adjudication of those disputes in which the positions taken by both parties have some apparent merit and which justify the invocation of the costly and time-consuming trial process. 

[101]     In those cases where penalties have been awarded, reference is often made to shocking or reprehensible conduct on the part of the losing party, or to oblique and improper motives having been a factor in the losing party’s persistence in prosecuting a manifestly non-maintainable claim or asserting a plainly non-meritorious defence: see, for example, Lindner v. Billick, [2007] B.C.J. No. 1000 (Prov. Ct.), Braithwaite v. Duncan Swim Club, 2008 BCPC 68 and Teal-Jones Group v. Tyner, [2011] B.C.J. No. 2303 (Prov. Ct.).  None of those factors have been at play here.

[102]     While HCO’s claims against the City had apparent frailties, I would not say that its prospects for success in this case were so plainly beyond the pale as to render its pursuit of those claims abjectly unreasonable.  Accordingly, I decline the City’s application to impose a penalty upon HCO, under Rule 20(5), in any amount.

[103]     The City also seeks, pursuant to Rule 20(2), an order requiring that HCO pay its reasonable expenses relating to the conduct of this proceeding.  Those include, but are not limited to, the expenses incurred by the City in connection with:

[104]     In this regard I would invite the parties to confer with one another in the hope, if not the expectation, that they will reach a compromise agreement regarding what constitute the City’s reasonable expenses and by whom and in what proportions they should be borne.  If the parties are unable, despite their best efforts, to reach such an agreement, then through the office of the judicial case manager they may schedule a one-hour appearance before me at which I will hear their submissions.  Any evidence upon which the parties intend to rely in asserting or resisting the City’s efforts to establish an entitlement to recover reasonable expenses from HCO must be in affidavit form and exchanged between the parties not fewer than seven days prior to the one-hour hearing.