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WATER - Water resource management - Dams

Monday, January 15, 2018 @ 1:02 PM  


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Appeal by the plaintiffs from the summary dismissal of their action. The plaintiffs owned and occupied property on the banks of the Souris River. Their properties were inundated by flooding that occurred in June 2011 and they suffered damage to their personal and real property. The plaintiffs claimed that their losses probably would have been avoided if the two dams in the Souris River basin had been operated by the defendants in a way that maximized their flood protection capacities. The defendant Saskatchewan Watershed Authority (SWA) was responsible for the management and conservation of water resources and it owned the two dams in the basin. The plaintiffs alleged SWA was negligent in the operation of the two dams, committed a private nuisance, breached its duty to warn, trespassed, and violated the Environmental Management and Protection Act. The plaintiffs also made the same allegations against Saskatchewan Power Authority (SaskPower). They further alleged that SaskPower improperly influenced SWA to control releases from certain reservoirs in order to preserve its use of a road to transport coal to its power stations and failed to prevent the flooding of a sewage treatment system in the area. SWA pleaded s. 95 of the Watershed Authority Act (Act) as a complete defence to the allegations, asserting that its actions had been carried out in good faith, in the exercise of its statutory powers, prerogatives and responsibilities, and in the exercise and performance of statutory and treaty obligations assumed by Canada. SaskPower pled that it had been authorized by SWA to execute SWA’s decisions and was thereby also entitled to the protection afforded by s. 95 of the Act. It also denied any obligation to prevent flooding of the sewage system. The defendants brought an application to dismiss the action against them. The judge allowed the application, finding that the defendants had not mismanaged the water levels or acted in bad faith. He found that the defendants were protected by s. 95 of the Act and concluded there was no genuine issue for trial. The plaintiffs appealed, arguing that the Chambers judge erred in fact or in law on several grounds, including the following: by proceeding with the respondents' summary judgment application at the outset; by misinterpreting the SWA’s obligations under the Operating Plan; in finding there was no evidence of mismanagement or poor handling of water elevations; and in finding that the Act granted immunity to SaskPower.

HELD: Appeal dismissed. A summary proceeding was a proportionate, more expeditious and less expensive means to achieve a just result than going to trial in the circumstances of this case. The Chambers judge properly addressed the question before him and did not err by deciding to proceed summarily in this matter. There was no evidence to suggest that water elevations in any of the reservoirs were mismanaged, poorly handled or carried out in bad faith. The evidence supported the Chamber judge’s conclusion that the SWA made the decisions with respect to dam operation, as it was required to do. Finally, the Chambers judge correctly interpreted s. 95 of the Act. The defendants’ actions were not done with the intention to do harm or with any knowledge of any fact that would have caused them to act differently. Moreover, there was no evidence to suggest that their acts or omissions were not done in good faith. The Chambers judge did not reverse the burden of proof or hold the plaintiffs to an incorrect standard of proof. The Chambers judge disposed of the matter because the appellants had not met the evidentiary burden in a summary proceeding of putting the issue of the application of the statutory immunity into doubt. They had not established a real chance of success in their claims.

Deren v. Saskpower and Saskatchewan Watershed Authority, [2017] S.J. No. 534, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and J.A. Ryan-Froslie JJ.A., December 6, 2017. Digest No. TLD-January152018002