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NEGLIGENCE - Duty and standard of care - Contributory negligence - Plaintiff’s knowledge of danger

Tuesday, February 23, 2021 @ 6:17 AM  

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Appeals by the plaintiffs, the defendants, the Province, the District of Sicamous and certain property owners from a judgment apportioning liability for property damage caused by a flood. In 2012, a debris flood of Sicamous Creek caused significant damage to property owned by the plaintiffs, a group of companies that operated a houseboat rental business. The plaintiffs sued the Province, the District and a couple that owned private property for damages for negligence. The plaintiffs submitted that the 2012 flood was caused by inadequate recovery and restoration actions undertaken by the defendants following a similar flood of the Creek in 1997. The trial judge found the defendants equally at fault for the flood and apportioned liability for damages equally, save for a claim based on diminution of property value that was dismissed. The Province was liable in respect of actions undertaken by a Ministry of Environment engineer in respect of the approval process associated with replacement of a bridge owned by the defendant property owners. In the 2012 flood, a vehicle became lodged under the bridge, causing the creek to overflow. The District and the property owners were liable pursuant to s. 21 of the Water Act due to a failure to comply with the bridge and channel restoration approval conditions. In addition, the plaintiffs were found contributorily negligent to the extent of 25 per cent liability due to a failure to mitigate the flooding risks associated with their property. The parties all appealed.

HELD: Appeals by plaintiffs allowed in part; appeal by the Province allowed; appeal by the District allowed in part; appeal by defendant property owners allowed to limited extent. The trial judge erred in finding that the Province owed a private law duty of care to the plaintiffs based on sufficient proximity. The issue of whether a duty of care was owed by the Province to the defendant property owners and if so, whether the standard of care was breached, was remitted to the trial court. The trial judge erred in holding the District liable to the plaintiffs pursuant to s. 21(1) of the Water Act. The appeal was allowed to the extent of setting aside that liability with the issue of the District’s liability in nuisance or negligence remitted to the trial court. The District’s appeal was otherwise dismissed. The trial judge erred in finding the defendant property owners liable under s. 21(1) of the Water Act, but a finding of their liability was sustained under common law negligence analysis. The defendant property owners’ third-party claim against the Province was a matter for after the retrial upon determination of whether the Province owed them a duty of care as regulated parties. The plaintiffs’ appeal was allowed to the limited extent of recognizing an error in the trial judge’s contributory negligence analysis arising from a failure to articulate the standard of care and conduct a proper causation analysis. That issue was remitted to the trial court with the balance of the plaintiffs’ appeal dismissed.

Waterway Houseboats Ltd. v. British Columbia, [2020] B.C.J. No. 2146, British Columbia Court of Appeal, G.J. Fitch, G.B. Butler and P. Abrioux JJ.A., December 30, 2020. Digest No. TLD-February222021004