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NUISANCE - Action against Crown - Measure of damages

Monday, September 30, 2019 @ 9:04 AM  

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Appeal by the defendants from trial judgment finding them liable for a nuisance created by the operation of the dam from 2006 to 2011. Cross-appeal by the plaintiffs from damages awarded, being 20 per cent of the damages claimed. For many years, the plaintiffs had farmed low-lying lands near and downstream of a dam. In 2006 and 2007 and in 2010 and 2011, the plaintiffs’ lands were flooded. While there was no flooding in 2008 and 2009, saturation of the ground from the 2006 and 2007 flooding affected farming operations. 2006, 2007, 2010 and 2011 were also years of significant natural flooding. The plaintiffs commenced the present action in 2011 for damages for private nuisance arising from the construction of the dam. In dispute was the extent to which the alleged nuisance exacerbated natural flooding conditions. The judge determined that the flooding damage was caused by both natural flood conditions, as well as artificially by the operation of the dam.  She held the defendants liable in nuisance for the incremental increase caused by artificial flooding. She held that the operation of the dam contributed to the flooding and the lingering wetness in a sufficiently substantial and unreasonable manner to constitute an actionable nuisance. On appeal, the defendants alleged that the judge erred in not finding that damages claimed for 2006 to 2008 were statute barred by s. 21(1) of the Public Officers Act. In the cross-appeal, the plaintiffs argued that the allocation between damage caused by the operation of the dam and that which would have occurred naturally was not possible in law, and the defendants should be responsible for the whole of the flooding damage.

HELD: Appeal and cross-appeal dismissed. The two-year limitation period in s. 21(1) of the Public Officers Act did not apply because the plaintiffs’ action was commenced before the continuing act ceased. The act that created the nuisance, the operation of the dam, was not a discrete event but continued. The trial judge did not err in the apportionment of damages between artificial flooding and natural flooding. Her findings of fact provided a reasonable and logical basis from which to approximate damages, even if the judge had to engage in a degree of guesswork with her ultimate figures. The judge did not conclude that valuing the losses caused by the nuisance was impossible but only that it was exceedingly difficult.

Nerbas v. Manitoba, [2019] M.J. No. 227, Manitoba Court of Appeal, W.J. Burnett, C.J. Mainella and J.A. Pfuetzner JJ.A., August 21, 2019. TLD-September302019002