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Kamloops diking dispute
July 28, 2001

A recent British Columbia court decision has brought to light a long standing dispute in Kamloops over flood protection works that were constructed during a 1974 flood.

During spring run-off in June 1974, the waters in the South Thompson River began rising dramatically. The South Thompson River flows through the center of Kamloops so urgent action was required to protect adjacent property.

Genarino John Fuoco owned property on the South Thompson River at Kamloops which he had purchased in 1959. Historically, his property had been subject to periodic flooding. However, this time the problem was made worse by the fact that city employees were on strike.

Fuoco invited the Province to enter onto his property to construct a dike. At the same time, the legislature enacted emergency legislation giving the Province authority to construct and maintain a dike on property including that owned by Fuoco. The legislation was the Kamloops Emergency Flood Control Act, S.B.C. 1974, c. 44.

A dike was constructed on Fuoco's property by the Province. However, the statutory authority to maintain the dike ended on July 31, 1974 and Fuoco's agreement with the Province ran out in June 1995. Despite repeated requests by Fuoco, the Province failed to remove it. Fuoco died in 1994.

Patricia Elaine Veness, Fuoco's daughter and executrix of Fuoco's estate, decided to pursue the matter. She commenced action in October 1998 against both the City of Kamloops and the Province of British Columbia, seeking damages for the continued occupation of the property by the dike. Initially, both defendants took the position that the other was liable. However, in March 2000, the City purchased the property and settled the claims brought against it. That left the action outstanding solely against the Province.

The Province then applied to have the action struck out on grounds that no legal cause of action was disclosed. This application was decided in favour of the Province on July 10, 2000 in Fuoco (Estate) v. Kamloops (City) [2000] EXLAW 340. Madam Justice D. Smith ruled that the Limitation Act was applicable.

The Fuoco estate appealed and on April 5, 2001 the Court of Appeal reinstated the action in Fuoco (Estate) v. Kamloops (City) [2001] EXLAW 345.

The Fuoco estate was represented by Reinhard Burke and Jeffrey G. Frame. Lisa Shendroff acted for the Province.

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