Roberts v. City of Portage La Prairie, [1971] SCR 481

Supreme Court of Canada

Roberts v. City of Portage La Prairie, [1971] S.C.R. 481

Date: 1971-02-01

Clark Daniel Roberts (Plaintiff) Appellant;

and

City of Portage la Prairie (Defendant) Respondent.

1970: October 20; 1971: February 1.

Present: Martland, Judson, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Nuisance—Damage to appellant’s land caused by escape of polluted water from respondent municipality’s sewage lagoon—Continuation of nuisance creating new cause of action—Limitation period for bringing of action—The Portage la Prairie Charter, 1907 (Man.), c. 33, s. 135.

A sewage lagoon was constructed by the respondent municipality on its own land in 1958. The appellant commenced action against the respondent on September 20, 1965, alleging that polluted water had escaped from the lagoon on to his land, and claiming damages and an injunction. He asserted that the lagoon was a nuisance maintained by the respondent. Damages were claimed in respect of each of the years from 1960 through to 1968. The respondent asserted that the appellant’s action was barred by s. 135 of The Portage la Prairie Charter, 1907 (Man.), c. 33. It contended that under this section, the lagoon having been constructed pursuant to powers given under ss. 98 to 100 of the Charter, action would have to be commenced within one year after the original cause of action arose, in this case, either when the lagoon was constructed, or, in any event, in 1960 when the first damage to the appellant’s land was alleged.

[Page 482]

The trial judge found that the appellant had discharged the onus of proving that his land had been waterlogged and overburdened by, polluted water from the lagoon and that this constituted an interference with the appellant’s rights. He held that s. 135 did apply, but that, as the continuation of the nuisance created a new cause of action each day, the appellant was entitled to recover all damages sustained from a date one year prior to the issuance of the statement of claim. He assessed damages sustained in the years 1960 to September, 1964, at $4,140. These, he held, were not recoverable because of the operation of s. 135. Damages after September, 1964, through to 1968, when judgment was given, were assessed at $6,000 and he also awarded $3,000 general damages for a total of $9,000. This judgment was sustained on appeal to the Court of Appeal. The appellant, with leave, then appealed to this Court and the respondent cross-appealed.

Held: The appeal and the cross-appeal should be dismissed.

The appellant’s first contention that s. 135 could have no application because the lagoon was not constructed pursuant to powers given in ss. 98 to 134 of the Charter failed. A “system of sewerage” referred to in s. 98 was not to be construed narrowly. It encompassed the whole of the city’s system of sewerage, including disposal facilities, as well as the means of collection. Section 689(a) of The Municipal Act, R.S.M. 1954, c. 173, which authorizes the construction of a “sewage disposal plant”, did not apply in this case, because this lagoon was not constructed under that authority. The respondent built it in reliance on the authority given by its charter.

The further contention that, even if the construction was done pursuant to the relevant sections of the Charter, the respondent could not rely upon s. 135 because the claim against it was for failure to abate a nuisance, and the maintenance of a nuisance was not something authorized by ss. 98 to 134, also failed. Section 135 contemplates that, in the exercise of powers under ss. 98 to 134, an actionable wrong may be committed, and the purpose of the section is to compel action being taken to remedy such a wrong within the stipulated

[Page 483]

periods. The respondent, pursuant to its charter powers, constructed and continued to operate a sewage lagoon, which proved to be a nuisance. An action for damages caused by that nuisance was an action in respect of something done by the respondent in pursuance of its charter powers, i.e., the operation of a system of sewerage.

On the cross-appeal, which was based on the submission that s. 135 debarred the whole of the appellant’s claim, the respondent contended that the cause of action, in nuisance, even when the tort is continuing, arises when the nuisance first arises and not as it continues or recurs. The Court rejected this argument and agreed with the opinion of the trial judge that an original cause of action arose each day the nuisance remained unabated.

Toronto General Trusts Corpn. v. Canadian National Railway Co. (1929), 64 O.L.R. 622; Chaudière Machine & Foundry Co. v. Canada Atlantic Railway Co. (1902), 33 S.C.R. 11, distinguished; City of Portage la Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150; Darley Main Colliery Co. v. Mitchell (1886), 11 App. Cas. 127; Dufferin Paving & Crushed Stone Ltd. v. Anger, [1940] S.C.R. 174, referred to.

APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for Manitoba[1], dismissing plaintiff’s appeal and defendant’s cross-appeal from a judgment of Matas J. Appeal and cross-appeal dismissed.

C.R. Huband, for the plaintiff, appellant.

C.K. Tallin, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal from the unanimous decision of the Court of Appeal for Manitoba¹, dismissing the plaintiff’s appeal from a portion of the judgment at trial. There is also a cross-appeal by the defendant. The matter in issue is as to the application of s. 135 of The Portage la Prairie Charter, 1907 (Man.), c. 33.

[Page 484]

The learned trial judge held that it applied so as to prevent recovery by the plaintiff of any damages incurred prior to September 20, 1964, and it is this part of the judgment which the appellant attacks. The respondent contends that the section in question prevents the recovery of any of the damages claimed in this action, and appeals in respect of those damages, sustained after September 20, 1964, which were held to be recoverable.

The claim relates to damage to the appellant’s land caused by the escape of polluted water from a sewage lagoon constructed by the respondent on its own land in the year 1958. This lagoon was the subject of earlier litigation, which ultimately reached this Court (City of Portage la Prairie v. B.C. Pea Growers Ltd.[2] ) It comprises approximately 168 acres of land, and consists of two primary cells and two secondary cells. Sewage is brought into the primary cells and is then removed into the secondary cells, through pipes or by means of an overflow weir. From the secondary cells the water is pumped through a forced main to the Assiniboine River.

The appellant commenced action against the respondent on September 20, 1965, alleging that polluted water had escaped from the lagoon on to his land, and claiming damages and an injunction. He asserted that the lagoon was a nuisance maintained by the respondent. Damages were claimed in respect of each of the years from 1960 through to 1968. The learned trial judge made the following finding:

I have concluded the plaintiff has discharged the onus of proving that his land has been waterlogged and overburdened by polluted water from the lagoon and that this constitutes an interference with the plaintiff’s rights.

The respondent pleaded s. 135 of The Portage la Prairie Charter, which provides as follows:

135. If any action or suit shall be brought by any person or persons, for anything done in pursuance

[Page 485]

of sections 98 to 134 of this Act, the same shall be brought within six calendar months next after the act committed; or, in case there shall be continuation of damages, then within one year after the original cause of such action arising.

It was the contention of the respondent that, the lagoon having been constructed by it pursuant to the powers given to it under ss. 98 to 100 of the Charter, action would have to be commenced within one year after the original cause of action arose, in this case, either when the lagoon was constructed, or, in any event, in 1960 when the first damage to the appellant’s land was alleged.

The learned trial judge held that s. 135 did apply, but that, as the continuation of the nuisance created a new cause of action each day, the appellant was entitled to recover all damages sustained from a date one year prior to the issuance of the statement of claim. He assessed damages sustained in the years 1960 to September, 1964, at $4,140. These, he held, were not recoverable because of the operation of s. 135. Damages after September, 1964, through to 1968, when judgment was given, were assessed at $6,000 and he also awarded $3,000 general damages for a total of $9,000.

This judgment was sustained on appeal to the Court of Appeal. Leave to appeal to this Court was given by the Court of Appeal.

The first contention raised by the appellant is that s. 135 can have no application because the lagoon was not constructed pursuant to powers given in ss. 98 to 134 of the Charter. The appellant says that the powers there defined are not broad enough to cover the construction of a sewage lagoon. It is argued that a system of sewerage, as referred to in s. 98, refers only to the construction of the pipes or mains to carry sewage to the disposal system, but not to the construction of the disposal system itself. The

[Page 486]

appellant goes on to submit that the authority to construct the sewage lagoon must be found in s. 689(a) of The Municipal Act, R.S.M. 1954, c. 173, which authorizes the construction of a “sewage disposal plant.”

The statutory authority of the respondent to construct the sewage lagoon in question was considered in the B.C. Pea Growers case (supra). At p. 153 this passage appears:

In determining the first question, it is necessary to consider the statutory provisions upon which the appellant relies. These are ss. 98, 99 and 100 of the Charter of the City of Portage la Prairie, 1907 (Man.), c. 33, which provide as follows:

98. The city may and shall have power to install, design, contract, build, purchase, improve, hold and generally maintain, manage, operate and conduct a system of waterworks and sewerage, and all main pipes, buildings, matters, machinery and appliances therewith connected or necessary thereto, in the City of Portage la Prairie, and parts adjacent as hereinafter provided.

99. The city shall have all the powers necessary to enable it to build the waterworks and sewers hereinafter mentioned, and to improve, secure, maintain and enlarge any of said works from time to time as to the said city may seem meet, and to carry out all and every the other powers conferred upon it by this Act.

100. It shall be the duty of the council of said city to examine, consider and decide upon all matters relative to supplying the said City of Portage la Prairie, by the means contemplated by this Act, with a sufficient quantity of pure and wholesome water for the use of its inhabitants, and also to provide, build or construct the necessary waterworks, sewers, buildings, machinery and other appliances requisite for the said object.

Section 98 gives to the city the power to install, maintain and operate a system of waterworks and sewerage in the city and parts adjacent. The lagoon in question was in a part adjacent.

Section 99 confers on the city all powers necessary to enable it to build the waterworks and sewers

[Page 487]

mentioned in the subsequent sections of the Act and to improve, maintain and enlarge them from time to time.

Section 100 relates not to the city, but to the city council, upon which is imposed the duty to decide upon matters relating to supplying the city with a sufficient quantity of pure and wholesome water, i.e., to formulate the plans necessary for that purpose, and also to carry them out by providing, building or constructing the necessary waterworks, sewers, etc., requisite for that object.

The combined effect of these sections, in relation to the circumstances of this case, is that the appellant was granted the power to build and maintain a sewerage system, with a duty imposed upon its council to devise the necessary plans for the object of providing a water supply and to carry them out, including the provision of sewers. There was no direction to adopt any particular method of sewage disposal. The appellant was given the power to construct a sewage lagoon but it was not subject to a specific mandate to do so irrespective of whether a nuisance was thereby created or not.

While the possible application of s. 689(a) was not considered in that case, this was because the respondent itself relied upon those sections of its charter as its authority for the construction.

In my opinion, a “system of sewerage” referred to in s. 98 is not to be construed narrowly, as urged by the appellant. It encompasses the whole of the city’s system of sewerage, including disposal facilities, as well as the means of collection.

I do not think that s. 689(a) of The Municipal Act has any application in this case, because this lagoon was not constructed under that authority. This provision is found in Part VIII of the Act, dealing with “Local Improvements”. Section 688 defines various municipal works which may be undertaken as local improvements. Section 689 then goes on to provide:

689. In addition thereto any work of the character or description following may be undertaken as a

[Page 488]

local improvement by any city or town, or by a municipality for any local improvement district within its limits, that is to say:

(a)The construction or acquisition of any waterworks, gas works, sewage disposal plant, or lighting, power, or heating system, the laying, extending, and maintaining, of all mains, conduits and pipes, the erection of all poles and wires, the making of connections with all buildings and premises, and the construction of all such other buildings and works, and the doing of all other things, necessary for the disposal of sewage or the supplying of water, gas, electric light, heat, or power for public as well as private use.

Part VIII contains various requirements to be fulfilled before the defined works, in ss. 688 and 689, can be undertaken as local improvements. There is no evidence whatever that the sewage lagoon in question was constructed as a local improvement. The respondent built it in reliance on the authority given by its charter.

The appellant also contended that, even if the construction was done pursuant to the relevant sections of the Charter, the respondent cannot rely upon s. 135 because the claim against it was for failure to abate a nuisance, and the maintenance of a nuisance was not something authorized by ss. 98 to 134 of the Charter.

This submission overlooks the purpose of limitation provisions, such as s. 135. If the thing done by the respondent under those sections of the Charter did not result in an actionable wrong, there would be no need to invoke the section. The section contemplates that, in the exercise of powers under those sections, such a wrong may be committed, and the purpose of the section is to compel action being taken to remedy such a wrong within the stipulated periods. In this case the respondent, pursuant to its charter powers, constructed and continued to operate a sewage lagoon, which proved to be a nuisance. An action for damages caused by that nuisance is an action

[Page 489]

in respect of something done by the respondent in pursuance of its charter powers, i.e., the operation of a system of sewerage.

The learned trial judge, in dealing with this submission, relied upon para. 340, p. 188, of vol.24 of Halsbury’s Laws of England (3rd ed.). I agree that the following passages are applicable:

A private person or company to whom special powers are given to carry out particular works, when sued for some unauthorised act, and when entitled to the benefit of a special period of limitation for an act done in pursuance of execution of the statute, generally comes within the protection of the statute, if in doing the act complained of the person or company was intending to carry out the particular works contemplated by the statute…

…A person acting under statutory powers may erroneously exceed the powers given, or inadequately discharge the duties imposed, by a statute, yet if he acts bona fide in order to execute such powers or to discharge such duties, he is considered as acting in pursuance of the statute. Where a statute imposes a duty, the omission to do something that ought to be done in order completely to perform the duty, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done within the meaning of a statute which provides a special period of limitation for such an act.

The appellant relied upon the decison of the Appellate Division of the Supreme Court of Ontario in Toronto General Trusts Corporation v. Canadian National Railway Co.[3] In that case, the railway company had built a line across the farm of the deceased and had dug deep pits alongside its track on property purchased from the deceased. The line of railway was abandoned, but the pits remained, and were allowed to fill with water, which seeped on to the adjoining land, causing damage. It was held that a limitation provision in the Railway Act in respect of actions for damages sustained by reason of the construction or operation of the railway was not

[Page 490]

applicable. The contention of the railway company was dismissed, in one sentence, at p. 626, as follows:

As to this, I have no doubt that the limitation of the Railway Act has nothing to do with the question, the right sought to be enforced not coming from the statute and having no reference to the status of the defendants.

This proposition, even if it is correct, in the case in question, has no application in this case. The present action is for damages for a nuisance caused by the exercise by the respondent of its statutory power to construct and operate a sewage lagoon, and, that being so, is within the specific wording of s. 135.

For these reasons, I would dismiss the appeal.

The respondent’s cross-appeal is based on the submission that s. 135 debarred the whole of the appellant’s claim in this action. The respondent contends that the cause of action, in nuisance, even where the tort is continuing, arises when the nuisance first arises and not as it continues or recurs. The nuisance in the present case, it is said, first occurred at least as early as 1960, and, accordingly, an action could not be brought in respect of it after the lapse of one year thereafter.

The respondent relies upon the judgment in this Court in Chaudière Machine & Foundry Co. v. The Canada Atlantic Railway Co.[4] In that case the railway company, in 1888, ran its line through Britannia Terrace, in Ottawa, and in connection with it, built an embankment and raised the street level. The foundry company became owners of land on the street in 1895. In 1900 it sued the railway company, alleging that the embankment was built and the street level raised unlawfully, and that it had suffered damage, in the flooding of its premises and obstruction to its ingress and egress.

The Court held that the wrong alleged by the foundry company, which was described by it as

[Page 491]

trespass or nuisance, occurred and was actionable when the embankment was built, and its claim was barred by the lapse of time.

The Court distinguished the judgments of the House of Lords in Backhouse v. Bonomi[5], and in Darley Main Colliery Co. v. Mitchell[6], on the ground that in those cases (involving subsidence resulting from colliery operations) the act which caused the damage was, when done, lawful, and gave rise to no claim until damage accrued.

It is clear, therefore, that, on the facts of the Chaudière case, the Court was of the view that the cause of action had become complete when the embankment, the construction of which was alleged to be unlawful, was complete, the damage from such structure having occurred at that time.

The present action is one for nuisance. The construction of the lagoon, in itself, was lawful, being within the respondent’s statutory powers. A cause of action did not arise until damage occurred. Furthermore, the nuisance continued. The respondent operated and maintained the lagoon over a period of time, causing continuing damage. The wrong complained of was not one which was complete, once and for all, once the lagoon was constructed.

I adopt the proposition of law stated in Salmond on Torts, 15th ed., at p. 791, as follows:

When the act of the defendant is a continuing injury, its continuance after the date of the first action is a new cause of action for which a second action can be brought, and so from time to time until the injury is discontinued. An injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly past. Thus the wrong of false imprisonment continues so long as the plaintiff is kept in confinement; a nuisance continues so long as the state of things causing the nuisance is suffered by the defendant to remain upon his land; and a trespass continues so long as the defendant remains present upon the plaintiff’s land. In the case of such continuing injury an action may

[Page 492]

be brought during its continuance, but damages are recoverable only down to the time of their assessment in the action.

This is in accord with the decision of the House of Lords, in the Darley case (supra), and with what was said by Davis J., in this Court, in Dufferin Paving and Crushed Stone Ltd. v. Anger[7], at page 181:

Where damage is the cause of action or part of the cause of action, a statute of limitation runs from the date of the damage and not of the act which caused the damage. If there be fresh damage within the statutory period, an action in respect of those damages will not be barred (Crumbie v. Wallsend Local Board, [1891] 1 Q.B. 503, following the decision in the House of Lords in Darley Main Colliery Co. v. Mitchell, (1886) 11 App. Cas. 127).

For these reasons, I am of the opinion that the learned trial judge was correct in concluding:

In the instant case an original cause of action arose each day the nuisance remained unabated. The plaintiff is entitled to recover damages for the one-year period immediately prior to the issuance of the statement of claim, i.e., from September 20, 1964.

In the result I would dismiss the appeal and the cross-appeal, both with costs.

Appeal and cross-appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Richardson & Company, Winnipeg.

Solicitors for the defendant, respondent: Tallin, Kristjansson & Company, Winnipeg.