Case: LeBourdais v. British Columbia (Public Guardian and Trustee), 2025 BCCA 319 (CanLII)
Keywords: culvert; water damage; Water Users’ Communities Act, RSBC 1996, c 483; Water Sustainability Act, SBC 2014, c 15; expert evidence
Synopsis:
The Appellant owns property adjacent to and downstream from lands through which Cherry Creek also flows. These lands, called the “Asquini property”, are owned by the Public Guardian and Trustee. (See paras. 1-2). In 2012, the Public Guardian replaces a culvert at a road crossing over the creek; according to the Appellant, the culvert is subsequently washed out/displaced downstream; obstructs Cherry Creek and diverts the path of the creek. (See para. 2). The Appellant claims that, thereafter, numerous trees begin to dam the creek; the water forces debris onto her property, eroding the ground, and leaving a large trench that undermines structures on her property – and that the erosion and degradation continue to progress. (See paras. 3-4).
The Appellant brings a civil action in nuisance and negligence against the Public Guardian. (See para. 5). The action is dismissed following a five-day summary trial on liability; the Summary Trial Judge (Hori J.) concludes the Appellant did not establish the Public Guardian failed to exercise its regulation-based duty to exercise reasonable care to avoid damaging the property of others. (See para. 9). As reported by the Court of Appeal (Willcock, Fisher, Iyer, JJ.A.), “[h]e did not engage in a distinct analysis of the statutory claim for damages arising out of alterations in the course of a waterway”, and did not address the question of causation of damages in negligence. (See paras. 11; 41-42). The Summary Trial Judge did, however, accept evidence that “the washout of the crossing would not have affected the flow of Cherry Creek and the opinion that whether the culvert remained intact or washed out was immaterial to the flows on the [A]ppellant’s property.” (See para. 11). As to nuisance, the Summary Trial Judge found the Appellant “failed to establish that any interference with her property was caused by a nuisance created by the Public Guardian.” (See para. 13). The Court of Appeal finds the Summary Trial Judge also erred by misapprehending the expert opinion evidence; the claim is remitted for trial. (See paras. 46-47, 51).
Importance:
This case is quite literally about downstream liability – in particular, the strict liability regime imposed on landowners who alter the natural flow of water in streams under the Water Users’ Communities Act, R.S.B.C. 1996, c. 483 and Water Sustainability Act, S.B.C. 2014, c. 15.
As described by the Court of Appeal, s. 21 of the Water Act, R.S.B.C. 1996, c. 483 or, subsequent to 2014, s. 29 of the Water Sustainability Act, S.B.C. 2014, c. 15, “imposes a duty to exercise reasonable care upon a person who makes changes in and about a stream.” (See para. 7).
The Court of Appeal found the Summary Trial Judge failed to properly address the Appellant’s claims under this regime and observed that the Public Guardian “had a duty to exercise reasonable care to avoid damaging the appellant’s “land, works, trees or other property” and to compensate her for damage or loss resulting from the failure of the culvert.” (See para. 41).
The Court of Appeal also found the Summary Trial Judge had committed a palpable error (i.e., by “accepting at face value the opinion in Dr. Millar’s report without accounting for his admissions in cross-examination”). (See para. 45). This is a helpful, clear example of what palpable means. In cross-examination, Dr. Millar “corrected the impression left by his report that he had estimated peak flows on any particular date” including by acknowledging that “some of the factors contributing to heavy runoff were not yet present” and that “the culvert failed before the peak event”. (See para. 44). Despite these admissions/corrections/changes, the Summary Trial Judge fixed the maximum flow of water to a particular date. The Court of Appeal reproduced para. 43 of the Summary Trial Judge’s reasons, which illustrates the point clearly:
[43] Dr. Millar observes that during May 2017, the interior of British Columbia experienced widespread flooding due to high temperatures and above average snowpack. According to Dr. Millar, the maximum flow of water in Cherry Creek at the PGT Property and the Plaintiff’s Property on May 4, 2017, was 5.9 cubic metres per second. Dr. Millar estimates that the return period for the flooding on Cherry Creek on May 4, 2017, to be approximately 1 in 75 years. (See para. 45; emphasis in original).
Of course, it is not sufficient that the error be palpable. The Court of Appeal went on to find that it was also overriding in the sense that “[i]t is not possible to say that the judge would have rejected the inference that the crossing failed due to a build up of debris, poor maintenance or inadequate inspection as the appellant contended, if he had not misinterpreted the opinion evidence of Dr. Millar” and this undermined a number of key conclusions made by the Summary Trial Judge. (See para. 48).
Counsel for the Appellant, appearing in person: Corine LeBourdais
Counsel for the Respondent: Sandra Besanger (Besanger Law, Kamloops)