A recent decision of the Newfoundland Court of Appeal has held that the defence of statutory authority is still available to public authorities in nuisance cases in the province of Newfoundland. The legal principle involved has importance across the country and will be welcome news to municipal governments. On the other hand, property owners affected by actions of public authorities will not find much comfort in this decision.
In Lake v. St. John's (City), the court considered an appeal in a municipal law case arising in the City of St. John's. The plaintiffs suffered damages to their house in March 1995 when melting snow flooded their basement. Water on the street would normally have been collected in a storm drain located in the street in front of the
plaintiffs' home but on the day of the incident, the storm drain was blocked by a buildup of ice that had accumulated during winter snow clearing operations. The melting snow overtopped the curb and flowed into the plaintiffs' basement. Although the blocked drain was cleared promptly by the city after the plaintiffs complained, the plaintiffs nevertheless suffered damages totalling approximately $2,200. A small claims court judge found the City was liable for creating a nuisance and ordered it to compensate the plaintiffs for the damage caused. An appeal by the City to the Trial Division was unsuccessful. The City then launched a second appeal in the Court of Appeal.
On the further appeal the court had no difficulty agreeing with the small claims court that the City's conduct would have been actionable nuisance if it had been a matter between private land owners. However, it noted that the City is a public authority which was exercising its powers pursuant to the provincial statute that incorporated the City. After analyzing the case law, including several decisions of the Supreme Court of Canada, the Court held that the proper test to apply was whether the flooding was an inevitable consequence of the exercise of the City's power to construct and maintain streets, curbs, sidewalks, gutters and water sewers. The court took a practical rather than theoretical approach and found that flooding was an inevitable consequence in this case. The defence of statutory authority was therefore available to the City and the appeal was allowed.
The decision also comments upon a specific provision in the municipal statute that allowed the City to avoid liability for flooding caused by circumstances over which the city had no control. Similar provisions are found in many other municipal statutes across the country. The court found that this provision was applicable to the facts in Lake even if the common law defence had not been available.
The City was represented on the appeal by Carol Senciall. Rebecca Phillipps appeared for the property owners. The decision is reported at (2000) 191 D.L.R. (4th) 616.