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Monday Morning Case Bites for August 12, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Majeau v Condominium Corporation No. 0024327, 2019 ABQB 603
Jurisdiction of Provincial Court | Statutory duties under the Condominium Property Act

Britz v Coaldale (Town), 2019 ABPC 199
Flooding | Negligence | Nuisance | Limitations

Majeau v Condominium Corporation No. 0024327, 2019 ABQB 603

This was an unsuccessful appeal of a Provincial Court decision ordering that the action be transferred to the Court of Queen’s Bench. The issue was whether the Provincial Court had jurisdiction to hear a claim involving negligent misrepresentation and obligations of the Condominium Corporation under the Condominium Property Act.

The Court accepted that Provincial Court does not have inherent jurisdiction to hear matters:

[19]           The Provincial Court is not a court of inherent jurisdiction and derives authority from the Provincial Court Act: 527375 Alberta Ltd v EPCOR Energy Services (Alberta) Inc, 2003 ABQB 997 (CanLII) at para 20. The jurisdiction of the Court is clearly set out in ss 9.2 and 9.6. The remedy for lawsuits which fall outside the Provincial Court’s jurisdiction is set out in s 56(1): “If at any time a claim, counterclaim or defence involves a matter that is beyond the jurisdiction of the Court, the Court may order that the matter be transferred to the Court of Queen’s Bench.”

Although the claim was framed in negligence, it was based on alleged breaches of Statutory obligations under the Condominium Property Act.  That legislation restricted jurisdiction to the Court of Queen’s Bench.  The Court also noted that other statutes, such as the Insurance Act, do the same:

[20]           Although the claim speaks of negligence, the Appellants are unequivocal that the claims against the Condo Corp are based on alleged breach of statutory obligations imposed by the CPA. In principle, it is difficult to understand or explain why a claim for recovery by an owner against a condominium corporation – whether described in negligence or breach of statute – should be restricted to Queen’s Bench. However, s 1(1)(1)(i) of the CPA expressly addresses the courts’ jurisdiction and restricts it to Queen’s Bench.

[21]           The CPA is not unique in this regard and numerous other statutes likewise restrict jurisdiction to Queen’s Bench: see, for example, the Partnership Act, RSA 2000, c P-3; Credit Union Act, RSA 2000, c C-32; Insurance Act, RSA 2000, c I-3; Builders’ Lien Act, RSA 2000, c B-7; Personal Property Security Act, RSA 2000, c P-7; Livestock Industry Diversification Act, RSA 2000, c L-17; Tourism Levy Act, RSA 2000, c T-5.5; and Expropriation Act, RSA 2000, c E-13. In contrast, some statutes clearly authorize access to either Queen’s Bench or the Provincial Court: Consumer Protection Act, RSA 2000, c C-26.3, s 58(j); Family Law Act, SA 2003, c F-4.5, s 1(e).

Although it was difficult to understand what the purpose of restricting jurisdiction to Queen’s Bench was, the Court concluded that Provincial Court does not have jurisdiction:

[23]           It is difficult to identify a purpose for excluding claims of statutory non-compliance by the entities list from the remedial authority of the Provincial Court. However, it would be improper for the court to presume or infer that claims for relief are available in both courts. Despite the Appellants’ submission, there is no room in the clear language of the CPA to allow for a purposive interpretation conferring jurisdiction on the Provincial Court to hear this case. As noted, s 36 of the CPA specifically authorizes access to both courts in specific circumstances: to recover sanctions or damages for contravening a condominium bylaw. Interestingly, that provision fixes a monetary limit in Queen’s Bench of only $10,000, which is less than could be granted in Provincial Court. From all of this, it is clear that the Legislature turned its mind to the question of jurisdiction, and determined that the Provincial Court could hear claims only under s 36.

Britz v Coaldale (Town), 2019 ABPC 199

This was a trial decision for damages arising from flooding on a property, in which the Plaintiffs were unsuccessful. The Plaintiff property was located immediately south of land owned by the Defendant Town of Coaldale. The Town was comparatively topographically low, and was subject to springtime flooding.   In 2010-2014 the Defendant’s property was subject to flooding.  As a result, the town pumped water into a drainage ditch adjacent to the Plaintiff’s property.  The Court concluded that by doing so, it assumed responsibility for any potential water overload.   However, the Defendant also placed a relief pipe in the ditch with the intention that the amount of additional water pumped into the ditch would be offset by the second pump.

The Court was satisfied that there was flooding as a result of the drainage ditch, but the issue was whether it was from an overflow caused by the water pumped from the Defendant’s land.

After noting gaps in the evidence by both the Plaintiffs and Defendant, the Court concluded that the Plaintiffs failed to meet the burden of proof:

[16]           Apart from the timing of any complaint Shields may have made, there were many potential sources of the excessive water in the ditch. Shields was not always at home to view what was happening. With the passage of time it would be easy for Shields to conflate his complaints about flooding with the cause of that flooding. That would be particularly easy having regard to the many years of conflict over a multitude of issues between the parties, as evidenced not only in the viva voce testimony in this trial, but the number of Exhibits contained in Exhibit 1, an exhibit entered into evidence by the Plaintiffs.

[17]           The burden of proof is on the Plaintiffs to establish that the Defendant probably contributed to the flooding by failing to remove at the same time as much water as it put into the drainage ditch. They have failed to so satisfy me and therefore have failed to prove negligence on the part of the Defendant, or that the Defendant created a nuisance.

In addition, the Plaintiffs knew of the issue in 2010, but failed to file a claim until 2017.  On that basis, the claim was statute barred.