ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICHARD CRAIG HENDERSON
Plaintiff
(Respondent; Appellant in Cross Appeal)
- and -
HER MAJESTY THE QUEEN
Defendant
(Appellant; Respondent in Cross-Appeal)
Richard Craig Henderson, in person
Roy Lee, for Her Majesty the Queen
HEARD: April 1, 2008
MOLLOY J.
REASONS FOR JUDGMENT
Introduction
1Richard Henderson owns a cottage with water frontage on the Gull River in Ontario. The Gull River is a reservoir to the Trent-Severn Waterway, which is managed by the defendant through Parks Canada. Since 1991, Mr. Henderson has had a dock extending from his property into the river and has moored watercraft there. In June 2005 a very heavy rainstorm over the course of three days dumped 124.4 mm of rain into the lake and water system, which was more than the usual rainfall for the entire month of June. Because of the enormous accumulation of water in the lakes at the upper part of the system, Parks Canada released water from the lakes and allowed it to run downstream through the waterway, including the Gull River. This increased the water levels in the Gull River and many properties, including Mr. Henderson’s property, were flooded. There was also an increased velocity of the water flowing past Mr. Henderson’s cottage and Mr. Henderson’s dock and two Sea-Doos moored there were washed downstream. Mr. Henderson sued Her Majesty the Queen in Small Claims Court claiming that it was the actions of the defendant that resulted in the loss of his property. The Crown conceded the quantum of the damage claim at $9,293.78, but denied any liability for that damage.
2The trial proceeded before His Honour Justice M.D. Godfrey on January 10, 2007. At trial, Mr. Henderson argued his case based on four causes of action: (i) negligence; (ii) interference with riparian rights; (iii) the principle in Rylands v. Fletcher; and (iv) nuisance. Justice Godfrey released his written Reasons for Judgment on January 31, 2007. The trial judge found in favour of Mr. Henderson on the nuisance cause of action and awarded him damages of $9,293.78 plus costs of $175.00. The trial judge dismissed the other causes of action.
3The Crown appeals the decision of Godfrey J. and argues that the claim in nuisance cannot succeed because causation was not proven and because, in any event, there was no nuisance to the land owned by Mr. Henderson.
4Mr. Henderson cross-appeals and argues that the trial judge erred in dismissing the claims based on negligence, Rylands v. Fletcher and riparian rights. Mr. Henderson also seeks leave to appeal the trial judge’s award of costs, and if leave be given, seeks costs of the trial at a higher amount than was fixed by the trial judge.
Standard of Review
5On an appeal from the final order of a trial judge, the standard of review on a pure question of law is that of correctness. With respect to findings of fact, the appellate court must not interfere unless it can be shown that the trial judge made a palpable and overriding error: Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577, [2002] 2 S.C.R. 235.
6The negligence claim was based on the allegation that Parks Canada had failed to properly heed weather forecasts predicting rain and therefore did not start releasing water gradually from the reservoir lakes to the north of the plaintiff so as to avoid a more sudden and more dangerous release of water later. Further, the defendant was alleged to have been negligent in the manner in which it released water from those lakes and through the Norland Dam upstream of the plaintiff’s property.
Negligence
7The trial judge dismissed the claim in negligence because he found no breach of care by Parks Canada. The trial judge relied on the evidence of David Ness, a water control engineer employed by Parks Canada, with a degree in civil engineering and expertise in structural design and hydrology. The trial judge accepted Mr. Ness’s evidence that weather forecasts are not sufficiently accurate as to location and amount of rainfall to make decisions ahead of time in relation to management of the waterway system. The trial judge noted, at p. 3, “Relying prematurely on forecasts can result in problems of navigability, hydro-electric power, spawning levels and the availability of potable water.” He therefore found that the Crown was not negligent in making decisions based on the actual water level of individual lakes rather than on weather forecasts.
8With respect to the release of water from the lakes and through the dam, the trial judge held that Parks Canada acted appropriately in light of the various responsibilities it was required to manage. He held, at p. 3:
I am also satisfied on the evidence of Mr. Ness that the proper criteria was used in deciding when and to what degree dams ought to have been opened north of the plaintiff’s property. Mr. Ness satisfied me that in an “overfill” situation all lakes are treated equally so that everyone in the watershed shares the distress equally. As stated by Mr. Ness, an overfill situation is remedied by reducing depth in each lake equally, and is not remedied by the reduction of the percentage increase in water in every individual lake. He also satisfied me that pulling all the logs at the Norland Pool Dam did not significantly affect the flow of water for the plaintiff and that any change in the flow for the plaintiff was the result of the additional rainwater in the large reservoir north of the plaintiff being released. The additional flow of water to the plaintiff was not the result of allowing too much water out by the defendant but was the consequence of the defendant needing to discharge the rainwater that fell in order to prevent damage to the residents further north. Mr. Ness described the plaintiff’s loss as being due to an increase in the velocity of the water as it approached a narrowing in the river near the plaintiff’s property. I accept that the unusual terrain of the riverbed as it approached the plaintiff’s property was the cause of the increased water velocity invoking the plaintiff’s loss. I also accept Mr. Ness’ evidence that the strategies used by the defendant in managing the system cannot reasonably satisfy all the particular geometries within the large watershed area. As such I am satisfied on the evidence that the defendant was not negligent in managing the waterway.
9These conclusions by the trial judge with respect to whether Parks Canada acted properly and without any negligence are findings of fact based on the evidence before him and are entitled to deference. I see no reviewable error in the trial judge’s reasoning on this point. This amounts to a finding that there was no breach of a standard of care, an essential element of the tort of negligence. Therefore, the claim in negligence must fail. Since there was no breach of the standard of care, it is not necessary to determine whether the other elements of negligence (such as the existence of a duty of care in these circumstances) have been established.
The Rule in Rylands v. Fletcher
10The trial judge held that the rule in Rylands v. Fletcher did not apply because “the management of the Trent-Severn Waterway is a general benefit for the community within the boundaries of the watershed” and as such did not constitute a non-natural use of the land, which is a requisite element for the operation of the rule. That is a correct statement of and application of the law: Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181 at 1189; Allen M. Linden, Canadian Tort Law, 5th ed. (Toronto: Butterworths, 1997) at 482. Mr. Henderson argues that this exception does not apply because the management of the Trent-Severn Waterway did not provide a benefit to him or to others in his community along the Gull River. Even if this could be said to be true, which is debatable, it is not necessary that the benefit be to a specific landowner. It is indisputable that the management of the waterway is a benefit to the greater community with respect to protecting habitats of fish and waterfowl, maintaining a potable water supply for nearby communities, allowing for the production of hydro-electric power and providing a navigable waterway. Whether or not Mr. Henderson received a direct benefit is irrelevant.
11Accordingly, there is no basis to interfere with the trial judge’s conclusion that there is no cause of action based on the rule in Rylands v. Fletcher.
Interference with Riparian Rights
12The trial judge dismissed the claim based on interference with riparian rights based on his finding, at p. 4, that “the plaintiff’s right to the natural flow of water is subject to the defendant’s right to maintain and divert water granted to it by the Province by Order-in-Council in the early 1900’s.” He then went on to state, “This is not a case of one riparian owner’s rights being adversely affected by another riparian owner. The defendant in this case is not a riparian owner; it merely manages the waterway.”
13The Crown concedes that the trial judge’s latter point (i.e. that the defendant could not be liable under this cause of action because it was not itself a riparian owner), is an error of law. I agree that this is not a correct statement of the law. Although it is often other riparian owners upstream who are the culprits when flooding occurs downsteram, any person can be liable for interference with riparian rights, not only other riparian owners. However, this determination was not essential to the trial judge’s determination with respect to riparian rights, which was based on the Crown’s duty to manage the waterway under the 1906 Order-in-Council.
14The trial judge’s conclusion that the plaintiff’s rights to the natural flow of water past his property is subject to the Crown’s duty to manage the Trent-Severn Waterway is correct in law. The Crown has been managing that waterway and controlling the water flow in the Gull River for nearly a century, long before the plaintiff even acquired his cottage property. The trial judge concluded on the facts that Parks Canada took all reasonable steps in the circumstances to manage the release of water after the extraordinary accumulation of water from the recent rainstorms. Where the defendant acted reasonably and properly in its use of the water, the plaintiff’s claim for interference with his riparian rights cannot succeed: Bathurst Lumber Co. v. Harris (1916), 46 N.B.R. 411 (C.A.).
15Accordingly, to the extent the trial judge’s dismissal of this claim was based on his findings of fact with respect to the use of the waterway, those findings are supported by the evidence and this court will not interfere. Further, his principal finding of law with respect to the effect of the Order-in-Council is correct. Therefore, his decision with respect to riparian rights stands.
Nuisance
16The trial judge noted that the claim in nuisance is the most difficult one, an observation with which I am in full agreement. Ultimately, the trial judge found in the plaintiff’s favour on this issue, and it is on this cause of action that the plaintiff’s damage award is predicated. A substantial portion of the trial judge’s reasons on this issue deal with whether the defence of statutory authority applies in this case. He concluded that it did not. The Crown does not take issue with that finding, and, as I understand it, did not assert it as a defence at trial, although case law dealing with the point had been filed.
17On the main issue of nuisance, the trial judge held, at p. 5:
A nuisance is caused by an act or omission whereby a person is unlawfully annoyed or disturbed in the enjoyment of land. The nuisance may take a variety of forms including actual physical damage and interference with the owner’s comfort or convenience. The defendant in final argument took the position that no nuisance occurred because the interference in question took place in the riverbed and not on the plaintiff’s land. I see no merit in this attempted distinction. There was physical damage to the plaintiff’s personal property. Whether that property was sitting directly on the plaintiff’s land or in the riverbed (where it was lawfully entitled to be) is immaterial. The flood also interfered with the plaintiff’s comfort and convenience of his property.
18The Crown submits that the trial judge erred in two respects: (1) he should have dismissed the claim because causation had not been proven, in accordance with his factual findings on the negligence claim; and (2) he erred in finding nuisance in a situation in which the nuisance occurred only over the riverbed, which was owned by the Crown rather than the plaintiff. The other elements of nuisance were conceded.
19On the issue of causation, counsel for the Crown submits that the trial judge failed to refer to causation when dealing with the tort of nuisance. However, the Crown argues that the trial judge’s findings on this issue when dealing with the negligence claim are determinative. The Crown further argues that the trial judge found that the cause of the damage to Mr. Henderson’s dock was the velocity of the water, which in turn was caused by the unusual terrain of the riverbed and a narrowing of the river as it neared the plaintiff’s property. Therefore, the Crown submits that the acts of the defendant did not cause the damage to the plaintiff’s property and the cause of action in nuisance must fail.
20In my view, that is an unfairly narrow interpretation of the trial judge’s reasons. Causation is a common issue in every cause of action raised by the plaintiff. Once the trial judge made a finding of causation in dealing with the negligence cause of action, it was not necessary to repeat that for each of the other causes of action. I recognize that the trial judge’s findings on causation are somewhat confusing as they are jumbled up with his findings on whether the defendant’s actions were negligent. Nevertheless, in my view, it is apparent from the trial judge’s factual findings that he accepted that the release of water from the upper lakes by Parks Canada caused the increase in water flow and increase in velocity of the water in the Gull River and therefore caused the damage to the plaintiff’s property. For example, the trial judge held that “any change in the flow for the plaintiff was the result of the additional rainwater in the larger reservoir lakes north of the plaintiff being released” and that “the additional flow of water to the plaintiff . . . was the consequence of the defendant needing to discharge the rainwater that fell in order to prevent damage to the residents further north”. The application of common sense leads to the inevitable conclusion that the release of a large volume of water into the river will not only increase the volume of water in the river, but also the velocity at which that water moves. Further, there was specific evidence on this point from Mr. Ness who stated that, although it was the velocity that caused the damage to Mr. Henderson’s dock, that is “linked to the flow”: Transcript at p. 128. He also said (at p. 112 of the Transcript) in answer to a question about the relationship between water flow and water velocity, “They’re essentially basically as. . . as you get higher flow, your velocities will typically increase because you’re. . . you’re trying to force a larger volume of water per unit through a river channel.” He said the velocity will increase relatively proportionate to the increase in the water flow.
21The Crown also argued that causation was not proven because Parks Canada only released the amount of rainwater than had actually fallen. Therefore, he suggested, the increased volume of water in the river was solely attributable to rainfall, and not the acts of the defendant. However, Mr. Ness also testified (at p. 128 of the Transcript) that as a result of the release of water from the lakes, the water level flowing past Mr. Henderson’s property was higher than it would have been as a result of the rainfall alone. Therefore, the Crown’s position on this point is not consistent with the evidence.
22In my view, it is clear from the evidence that the release of water by Parks Canada increased the water flow in the Gull River (which is a measure of volume), increased the water level in the Gull River (which is a measure of height) and increased the water velocity in the Gull River (which is a measure of speed). It is also obvious that these three factors are interconnected. While the dock might not have been swept away if the velocity had been less, and while the natural feature of the narrowing of the river near Mr. Henderson’s cottage contributed to the velocity, it is equally clear that the increased volume of water also directly contributed to that velocity. The point is that all of these factors were connected to the release of the water by Parks Canada. It is splitting hairs to say that the damage was caused by the velocity and that the velocity was caused by the narrowing of the river and to pretend that this had nothing to do with the release of water by Parks Canada. Mr. Ness was candid in his evidence about this in examination in chief. He acknowledged that the release of water from the lakes to the north increased the water flow at Mr. Henderson’s cottage beyond what would have been caused by the rainfall stating, “It would have likely have been lower but we would have probably have been in here for many more lawsuits from the lake owners. The lake owners would have . . . would have flooded out horribly.”: Transcript at p. 128. In other words, Parks Canada recognized that the water flow would be increased downstream and that properties might be flooded. However, they had an even bigger problem upstream in the lakes and they chose the lesser of the two evils, in balancing their responsibilities to everyone. That may not make them negligent, as was determined by the trial judge, but it does not change causation. There is a direct causal relationship between Parks Canada releasing water from the upper lakes and the damage to Mr. Henderson’s property downstream.
23The reasons of the trial judge must be looked at as a whole and considered in context. In my view, on a fair reading of the reasons in this case, it is clear that the trial judge was of the view that the actions of Parks Canada in releasing water from the upper lakes caused the flooding problem in the lower rivers, and caused the damage to Mr. Henderson’s property. He also concluded that notwithstanding that Parks Canada caused this problem, it had acted properly and without negligence. However, there can be no doubt that he recognized causation was a necessary element of all of the torts and that he was satisfied that the defendant’s actions caused the damage. Although an express ruling to that effect would have been helpful, the failure to say this explicitly when it is obvious from the rest of the reasons, is not an error of law. Accordingly, I am of the view that the element of causation was met.
24Finally, the Crown argues that only a landowner or occupier of affected land may sue in nuisance and that Mr. Henderson therefore has no status to sue for damage to his dock which was resting on the riverbed owned by the Crown. It is well-established in the case law and academic writing that the tort of nuisance is rooted in an interest in land, either actual ownership or an exclusive right to occupy, and further that a mere licensee does not have a sufficient interest to sue in nuisance: Hunter v. Canary Wharf, [1997] A.C. 655 (H.L); Vaughn v. Halifax-Dartmouth Bridge Commission (1961), 29 D.L.R. (2d) 523 (N.S.S.C.); Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; Fleming, John G., The Law of Torts, 8th ed. (Sydney: The Law Book Company, 1992) at 416; Fridman, Gerald, The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002).
25There was considerable argument on the appeal before me as to the nature of Mr. Henderson’s right to use the riverbed abutting his property and how that use is properly characterized as a question of law. For purposes of this appeal, I accept that Mr. Henderson had no ownership interest in the riverbed and that whatever the arrangement there was with the Crown, it was not in the nature of an exclusive possession of the riverbed such as to ground a claim in nuisance. I also agree with the Crown’s position that regardless of whether Mr. Henderson is deemed to be a “tenant” of the riverbed over which his dock extends for the purposes of assessment and property taxes, he is not an owner or occupier for purposes of the tort of nuisance. However, I do not agree with the Crown’s position that such a conclusion is determinative of Mr. Henderson’s status to sue in nuisance.
26Like the trial judge, I “see no merit in this attempted distinction” between a nuisance that occurred in the riverbed as opposed to on the plaintiff’s land: Reasons for Judgment at p. 5. There was uncontradicted evidence at trial that the floodwaters extended beyond the banks of the Gull River and rose up to 20 meters across the land of adjacent property owners, including the plaintiff. Mr. Henderson’s dock did not rest only on the riverbed. It was also attached to his land. If the floodwaters had interfered only with the portion of the dock resting on the riverbed and left the part attached to the land undisturbed, the dock would still be attached to the land. However, that is not what happened. The water flow ripped the dock from its mooring on Mr. Henderson’s property and carried the whole thing downstream some considerable distance, causing considerable damage. For many Canadian cottagers, including Mr. Henderson, a dock is a key component for the enjoyment of a waterfront vacation property. The floodwaters encroached on Mr. Henderson’s property, removed his dock from the land and thereby interfered with his enjoyment of his land. That is sufficient to give him standing to sue for nuisance. Accordingly, there was no error of law in the trial judge’s conclusion that Mr. Henderson had met the requirements for a cause of action in nuisance.
The Costs Award at Trial
27The trial judge awarded costs to Mr. Henderson in the amount of $175.00. Before doing so, he did not ask for submissions from the parties. Mr. Henderson was entitled to be heard on this issue. Failing to give him that opportunity is a breach of natural justice and fairness and warrants granting leave to appeal on the issue of costs.
28The trial judge awarded $175 in costs to Mr. Henderson, which essentially is merely disbursements for court filing fees. Mr. Henderson’s actual recoverable disbursements were $195.50. The trial judge had a further discretion under the Rules of the Small Claims Court to award Mr. Henderson up to $500.00 as compensation for inconvenience and expense and a further $50.00 as a fee for preparation of the pleadings. Mr. Henderson also submits that he made a settlement offer which meets the requirements of s. 14.07 of the Rules of Small Claims Court and that he should therefore have been awarded twice the usual costs of the action. The total amount recoverable for costs, however, is capped at 15% of the judgment recovered. In all the circumstances, Mr. Henderson submits that he should be awarded costs of $550.00- $750.00.
29Given the complete absence of any submissions on the issue of costs before the trial judge, it is not appropriate to defer to the trial judge’s cost award. Rather, I will consider the issue of costs de novo.
30Mr. Henderson is entitled to recover the full amount of his disbursements ($195.50). I would also allow the $50.00 fee for drafting the pleading. There is a discretion under Rule 19.05 to allow an unrepresented party up to $500.00 as compensation for inconvenience and expense. This is not a situation in which the proceeding was unduly prolonged or complicated by the defendant. On the contrary, the defendant conceded many points in order to simplify the proceeding, including accepting the quantum of damages at $9,293.78. However, Mr. Henderson did an extraordinary amount of work to prepare his case, including extensive research on various torts that are far from simple to comprehend. Such exemplary dedication to putting forward a case that is well-founded on legal principles is deserving of recognition. I would therefore grant Mr. Henderson a further $400.00 under this heading.
31Mr. Henderson offered to settle for damages of $8400.00 plus $225.00 for costs. Obviously, he was successful in receiving a judgment greater than that amount and his offer otherwise meets the requirements of Rule 14.07, such that it is appropriate to consider whether his costs award should be increased by up to twice as much because of the offer. I agree with the submissions of the Crown that it is inappropriate to double the amount awarded for disbursements under this heading.
32I have a discretion as to whether to increase the damages award as a result of the settlement offer. In my view, it is not appropriate to do so. The Crown was more than reasonable in its approach to this matter and did try to keep costs down by conceding a number of points. The settlement offer made was not a substantial compromise of the plaintiff’s claim. The issues dividing the parties were liability issues and there were important points of principle involved. Quantum of damages was not a significant issue and the failure to accept the settlement offer should not be the subject of any penalty in costs. However, neither would I reduce the plaintiff’s damage award, as suggested by the Crown, based on divided success. It is true that the trial judge did not find for Mr. Henderson on every cause of action. However, the point remains that Mr. Henderson sued for damages to his dock and he was fully successful in the result.
33Accordingly, I would fix the costs of trial at $645.50, payable to the plaintiff.
Conclusion and Costs of the Appeal
34In the result, the appeal by Her Majesty the Queen is dismissed. Leave is granted to Mr. Henderson to appeal the costs award and the judgment of the trial judge is varied to increase the costs award to $645.50. Otherwise, the cross-appeal is dismissed.
35If the parties are unable to agree upon the costs of this appeal, I will fix them based on written submissions. Mr. Henderson shall have 15 days from receipt of these reasons to provide Mr. Lee with his written costs submissions. Mr. Lee shall have a further seven days after that to send his written response to Mr. Henderson. Mr. Henderson shall then have a further seven days to send his reply, if any, to Mr. Lee. I would ask Mr. Lee to put all of the submissions in a bound volume and forward them to me.
MOLLOY J.
Released: April 22, 2008
COURT FILE NO.: 101/07
DATE: 20080422
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Molloy J.
B E T W E E N:
RICHARD CRAIG HENDERSON
Plaintiff
(Respondent; Appellant in Cross Appeal)
- and -
HER MAJESTY THE QUEEN
Defendant
(Appellant; Respondent in Cross-Appeal)
REASONS FOR JUDGMENT
Molloy J.
Released: April 22, 2008