T-993-75
Lomer Rivard (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, June 5 and 6;
Ottawa, June 15, 1979.
Crown — Torts — Riparian erosion and damage caused by
seaway traffic moving ice blocks in spring — Protective wall
constructed by plaintiff at his own expense — Defendant later
taking action to protect shoreline — Defendant's measures
later interfering with enjoyment of waterfront due to flaw in
planning and execution — Whether or not plaintiff has a valid
claim for erosion damages or for cost of protective wall, or a
servitude requiring Crown's protection — Whether or not
defendant responsible for damages caused by its protective
measures — Crown Liability Act, R.S.C. 1970, c. C-38, ss.
3(1), 4(2),(4),(5).
Plaintiffs property, located on the bank of the St. Lawrence
River and owned by him since 1957, was being seriously eroded
especially by the movement of large ice blocks during spring
time high water levels. The federal authorities are blamed on
the basis that the St. Lawrence is a navigable river under
federal jurisdiction, and that the federal authorities aggravated
the natural effect of the water by constructing the seaway and
especially by permitting spring navigation. Plaintiff constructed
a wall to protect his shoreline although he was advised that the
federal government would not reimburse him. A few years
later, defendant, despite plaintiffs opposition, moved to protect
the shore by placing large rocks against the earth banks and
along plaintiff's wall. The gaps among the boulders were filled
with smaller rocks. Wind and wave action in subsequent years,
however, strewed these smaller rocks over plaintiff's beach,
seriously affecting his enjoyment of it. Plaintiff claims the cost
of the work he did on the property building the retaining wall,
as well as damage and inconvenience suffered as a result of the
erosion, and a further sum representing diminution in the value
of his property as the result of the improper manner in which
the protective works were carried out.
Held, the claim for damages for the improper manner in
which the Crown's protective works were carried out is allowed,
but the other claims are dismissed. The establishment of a
policy providing for the carrying out of works to save the
shoreline does not create the legal liability essential to the
validity of plaintiff's claim for the expenses of building the wall;
the Crown's liability must arise from the Crown Liability Act.
Defendant cannot control the trends in shipbuilding that result
ed in increased winter and early spring navigation and in
increased tonnage on the river and it cannot be considered to be
a fault to permit these ships to navigate the St. Lawrence to the
extent of their limitations. Further, plaintiff has no servitude
under articles 501 ff. of the Civil Code requiring the owners of
a river bed to order stoppage of navigation during certain
seasons of the year so as not to aggravate the flow of water and
ice on his land. In the absence of fault or servitude, no valid
claim exists for the portions of the plaintiff's land lost by the
erosion, for the loss of enjoyment thereof, or for the cost of the
protective wall. No action in tort can lie against the Crown for
delay in installing the protective structures after the intention
to do so was first indicated. When defendant voluntarily
assumed the obligation of installing the protective barrier,
however, it assumed responsibility for seeing that this was
carried out in a proper manner so as not to cause additional
damage. The filling of the gaps among the larger rocks with
smaller stones and gravel was an error in judgment and the
results readily foreseeable.
ACTION.
COUNSEL:
Lomer Rivard on his own behalf.
Claude Ruelland, Q.C. for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiff has since 1957 owned an
attractive home on the bank of the St. Lawrence
River in the parish of St-Joseph de Lanoraie, east
of Montreal. In recent years especially consider
able damage has been caused by erosion of his
property in the spring when the water level is high
and the ice is breaking up which he attributes
primarily to the increase in volume of spring navi
gation. Although his house itself is above water
level the bank was so eroded in the spring of 1974
that there is little land left between the beach and
the house and the house itself was in danger of
being destroyed if this situation continued. He
blames the federal authorities on the basis that the
St. Lawrence River is a navigable river under
federal jurisdiction and they have permitted the
aggravation of the natural effect of the waters by
the construction of dams and dikes and in particu
lar by permitting spring navigation as a result of
which passing ships cause huge blocks of ice to be
thrown on the bordering properties, which when
carried out again by the wave action take parts of
the bank with them. On August 14, 1974, defend
ant through the Minister of Public Works under
took to assume all the costs of necessary protective
works. In September 1974 it became apparent that
these works would not be carried out forthwith,
and, fearing the consequences of spring flooding
and ice action in the spring of 1975 plaintiff
advised the Minister of his intention to carry them
out himself, and late in the autumn of 1974 built a
concrete wall to protect what was left of his
property.
While the flooding in 1975 was not extraordi
nary, in the spring of 1976 a very serious situation
developed again and according to plaintiff, if he
had not built the wall, damage to his property
would have been irreparable. It was not until early
1977 that the Government authorities carried out
works on plaintiff's and neighbouring properties by
placing large rocks weighing one or two tons each
on a slope against the banks to receive the force of
the movement of the ice blocks and water and
prevent further erosion. As he already had a verti
cal concrete wall in place these rocks were not
placed at a sharp angle on his property, as on the
neighbouring properties, but nevertheless a trench
was dug to a level below the base of his vertical
wall and the large rocks were placed therein as
well as above the beach surface against his wall,
which was thus protected by the rocks although
the slope of the bank rocks was not as great as on
adjacent properties where they were merely laid
against earth banks. Unfortunately in doing so,
and at the apparent request of a number of neigh
bouring proprietors, although plaintiff did not
make the request himself, and in fact opposed it,
smaller rocks were also placed on top of the large
blocks of rock so as to fill in the openings and
holes between them and present a less irregular
surface, which was perhaps more attractive, and
according to one of defendant's witnesses was also
done for reasons of safety in case someone jumped
from the adjacent property at a higher level onto
the rocks, as they would be less liable to injure
themselves than would be the case if they attempt
ed to do this on the highly irregular bank of large
rocks. The unfortunate consequence of this was
that, as might have been foreseen, wave and ice
action in subsequent years carried these smaller
rocks outwards so that plaintiff's beach which had
once been a fine sand beach is now littered with
rocks of various dimensions, making it unsuitable
for playing games thereon, uncomfortable for sun
bathing, and necessitating entering the water for
swimming off the end of the removable pier which
is on the property for the docking of plaintiff's
motor boat. The water is four or five feet deep off
the end of the pier.
As plaintiff's son testified there are now a
number of large rocks in the water on which the
propeller of the boat has been broken on occasion
and water skiing from the beach, in which he likes
to indulge, is more difficult and dangerous. It is
also very difficult now to launch and remove the
boat in the spring and fall from plaintiff's property
due to the large rocks obstructing the direct route
down the access ramp to the beach from the
property which is used to get the boat to the water.
He also testified that when installing or removing
the dock or working on the launching of the boat it
is necessary to wear some sort of footwear in the
water as it is not now possible to walk on the beach
barefoot.
Plaintiff's claim really comes under two head
ings. He claims $10,117.90 for the cost of the work
he did on the property building the retaining wall,
as well as damage and inconvenience suffered as a
result of the erosion, and a further sum of $10,000
representing diminution in the value of his prop
erty as the result of the improper manner in which
the protective works were carried out. While the
Crown denies any legal responsibility to him for
the protection of his property, as there was no
contract between them nor any fault nor accept
ance of responsibility for the cause of the erosion,
it was nevertheless admitted that if there were
some responsibility to plaintiff for his cost of
building the retaining wall the amount would be
$7,500. Defendant pleads that at Lanoraie since
time immemorial bordering properties have been
subjected to the effects of the river waves resulting
either from the wind or from passage of ships or a
combination of both, that the freezing and thawing
varies with the season and that as a result slabs of
ice moved by the wind and passing ships have
caused erosion. With respect to public works such
as dams, or the St. Lawrence Seaway, carried out
further up the river or on rivers entering into the
St. Lawrence it is denied that these have aggravat
ed these effects and in fact they are factors in
controlling the water level thereby reducing the
dangers of erosion. In this connection it should be
noted that plaintiff made no attempt to make any
proof of the allegations in his amended declaration
that these public works were a contributory factor
to the damages claimed, relying entirely on the
aggravation of the effects of nature by the increas
ing number and size of ships passing on the river
as the basis of fault for which he attempts to hold
defendant responsible in connection with the first
part of his claim. Defendant further pleads that
there is no legal obligation to protect plaintiff's
property from erosion, and there is no actionable
fault imputable to defendant resulting from dam
ages caused whether by wind or by ship navigation
or a combination of both.
A large number of photographs of the subject
property both before and after the spring disasters
of 1974 and 1976, and following the protective
works carried out on behalf of defendant were
produced during the course of the evidence, and if
ever the old adage that a picture is worth a
thousand words is true it is in the present case
where the pictures demonstrate, far more clearly
than any verbal description could, exactly what
has taken place. Plaintiff has a very attractive
modern bungalow on a well treed grassy slope
sufficiently above the flood level of the river and
far enough back when it was built to appear to be
safely located. The picture taken in 1957 shows an
attractive sand beach in front with the movable
dock extending out from it. The ship channel is
comparatively narrow in that area as can be seen
from the photo of a ship proceeding up it in a
corner of one of the pictures. In the spring of 1974
when the water level reached 24.69 feet above the
point of reference (at Cap Chat far down the river
to the east), enormous damage was caused by
erosion to all the properties at Lanoraie. Pictures
show a swimming pool of a near neighbour of
plaintiff built adjacent to the beach which is total
ly demolished, and also the remains of a concrete
retaining wall on another property which has also
been entirely destroyed. By comparison the highest
daily mean elevation ever recorded took place on
April 11, 1928 when the water reached 31.55 feet,
but, in 1975 the highest level was 22.75 feet on
April 27. In 1976 however there was again an
unusually high level of 26.61 feet in April at Sorel
which is further east and evidence indicated that
the water level at Lanoraie would be slightly
higher than this. Pictures taken in 1976 show flood
waters over the top of the retaining wall which
plaintiff had built in 1974, and coming right up to
the house which very probably would have suffered
severe damage had the retaining wall not been
built before that date.
In October 1973 a very complete report was
prepared for the Marine Engineering Design and
Construction Branch of Public Works of Canada
by William F. Baird who testified as a witness.
During June and July 1973 measurements had
been taken of ships' speed and the distance at
which they pass the Lanoraie shoreline, and the
height and period of the waves generated by them
were measured, as well as records of local winds
and the wind generated waves. The energy of the
ship generated waves was recorded and calculated
as well as of the wind generated waves in an
attempt to determine the extent that ship waves by
themselves contribute to erosion compared with
erosion resulting from all natural causes. Readings
taken at two locations in the vicinity indicated that
during the periods March, April and May the
proportion of energy attributable to the wind and
to navigation is 38 per cent from ship generated
waves and 62 per cent from wind generated waves
in one location, and 47 per cent from ship gener
ated waves and 53 per cent from wind generated
waves in the other location. It was pointed out that
there are natural processes other than wind waves
that contribute to the breakdown of the bank. The
conclusion was that, in the vicinity of Lanoraie,
navigation is responsible for somewhat less than
one half of the erosion. Plaintiff contests the
accuracy of the findings as the experiments were
carried out in June and July, but the measurement
of wave lengths and energy does not depend on the
time of the year in which the measurements are
made, and statistics were available and included in
the report as to the number of ship passages in the
months in question. Tables included in the report
indicate that the average net tonnage of ships both
ocean going and inland arriving at the Port of
Montreal have nearly doubled between 1960 , and
1974, with the gross tonnage showing a similar
pattern as may be expected. The number of ships
so arriving has actually decreased somewhat how
ever. The report is a very scientific and thorough
one, and it was as a result of it that it was decided
to install the protective works in the form of the
sloping banks of large rocks along the Lanoraie
shoreline.
In a letter to Mr. Rivard on August 14, 1974, L.
A. Deschamps, the Deputy Minister of Public
Works stated that the Minister would assume costs
of undertaking necessary protective works. He
points out however that although they have been
approved in principle they will not be done during
the course of the year as this is subject to their
order or priority and to the availability of funds.
Mr. Rivard replied to this on August 23rd stating
that it would not be possible to wait to undertake
the necessary protective works as, if there were
further erosion in the spring of 1975, the founda
tion of his house might be destroyed. He had
already sent an estimate of the cost of his proposed
work which he had estimated at $12,500. In Mr.
Deschamps' letter replying to this on September
23, 1974, he advises that when Parliament
approves the necessary funds it is the intention to
undertake the protective work for a distance of
about 14,500 feet in Lanoraie, and this work has
priority for the following year. He states very
clearly however:
[TRANSLATION] If a proprietor decides in the interval to do the
work himself the Crown will in no way share the cost of these
works.
Faced with this situation Mr. Rivard took what
may have been a logical step and had the work
done himself, but he certainly did so with the
knowledge that defendant would not undertake to
reimburse him for it. While these works may have
protected his property from serious damage in
1976 and hence diminished his claim, they cannot
be said to have benefited defendant by reducing
the cost of the works which were eventually under
taken. If anything they increased the cost because
it was necessary to dig a trench some 20 feet from
the retaining wall which plaintiff had had built in
order not to undermine same when the digging was
at a lower level than the base of the wall, and the
rocks had to be placed in the trench and against
the wall in such a manner as to protect the base of
it. This was presumably a more costly operation
than simply piling the rocks in a slope running
from the beach to the edge of plaintiff's property.
Defendant's witnesses contend that this protective
rock work was necessary anyway as otherwise
plaintiff's wall would not have lasted long as the
water would have got underneath it and under
mined it and knocked it down as in the case of one
of the walls shown in the picture after the 1974
disaster. There is evidence to the effect that a
vertical concrete retaining wall is not a good pro
tection against the action of waves and ice in any
event. Plaintiff for his part points out in the pic
tures a number of other vertical concrete retaining
walls which have been built on other properties
some as long as 20 years ago and still remain in
place. In any event the most that can be said is
that plaintiff's wall duplicated and did not lessen
the amount of work which was subsequently done
to protect his property and those of the other
bordering proprietors.
In order to claim for the expenses of building his
wall it is not sufficient for him to establish that
this was necessary, but he also had to establish
that there was a legal obligation on the part of the
defendant to carry out protective works to save the
Lanoraie shoreline from erosion. A Public Works
Directive dated July 26, 1974, sets out the policy
of the Department of Public Works in connection
with such remedial works. Paragraph 2 with the
heading BACKGROUND reads as follows:
BACKGROUND
1. The British North America Act delegates the responsibility
for the control of navigation to the Federal Government. A
Cabinet Directive on remedial works recorded on November 6,
1966 provided for federal government participation in remedial
works where erosion is caused by commercial navigation or the
presence of a federal government structure.
2. On behalf of the Government, the Department of Public
Works has been discharging the responsibility of constructing
protection works along shores of the St. Lawrence River and
other navigable waters where waves from commercial naviga
tion cause erosion.
3. The Department also considers erosion to be its responsibili
ty when a government structure is deemed the cause of erosion
and when a government property is threatened by erosion from
natural causes, i.e. waves, currents, seepage, rain, frost, ice, etc.
4. It is realized that there should be some reasonable relation
ship between the cost of the protection work to be built and the
value of the property to be protected, otherwise the government
could be blamed for having built costly works for the protection
of properties of very little value.
5. To ensure that a fair and reasonable relationship criteria is
applied, the 1966 Cabinet Directive was amended and approved
by Cabinet on May 2, 1974. All memoranda on this subject,
written prior to the introduction of the revised policy, excluding
references to criteria and guidelines developed by the Depart
ment of Public Works, are superseded.
Under the heading paragraph 3 POLICY we find
the following:
POLICY
The revised policy is summarized as follows:
(a) the Department of Public Works is authorized to con
struct remedial works and assume the total cost of such
works in the event that more than 50 per cent of the erosion
can be attributed to navigation or a federal government
structure, and the value of the land or property to be
protected is equal to or greater than the cost of such remedial
works;
(b) where erosion results mainly from natural causes but
where navigation or the presence of a federal government
structure is a contributing factor, the Department of Public
Works may contribute to the cost of such remedial works in
proportion to the effect these causes have on erosion. Contri
butions will be based on a cost that DPW considers sufficient
to provide adequate protection.
Strictly speaking it would appear that it would
be paragraph 3(b) which would apply but the
Department asked for no contribution, applying
paragraph 3(a), giving plaintiff the benefit of the
doubt since it appeared that possibly 50 per cent of
the erosion was caused by navigation. The fact
that a policy has been established providing for the
carrying out of these works however does not in
my view create a legal liability against the Crown
which would not have existed if no such policy had
been established.
The liability, if any, of the Crown for damages
to plaintiff must arise from the provisions of the
Crown Liability Act'. Paragraphs (a) and (b) of
section 3 read as follows:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the Crown,
or
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
Subsections (2) and (4) of section 4 read:
4....
(2) No proceedings lie against the Crown by virtue of para
graph 3(1)(a) in respect of any act or omission of a servant of
the Crown unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in tort
against that servant or his personal representative.
(4) No proceedings lie against the Crown by virtue of para
graph 3(1)(b) unless, within seven days after the claim arose,
notice in writing of the claim and of the injury complained of
(a) has been served upon a responsible official of the depart
ment or agency administering the property or the employee
of the department or agency in control or charge of the
property, and
(b) a copy of the notice has been sent by registered mail to
the Deputy Attorney General of Canada.
Failure to give the notice required by subsection
(4) can be excused by the Court however pursuant
to subsection (5) which reads:
4....
(5) In the case of the death of the person injured, failure to
give the notice required by subsection (4) is not a bar to the
proceedings, and, except where the injury was caused by snow
or ice, failure to give or insufficiency of the notice is not a bar
to the proceedings if the court or judge before whom the
proceedings- are taken is of opinion that the Crown in its
defence was not prejudiced by the want or insufficiency of the
notice and that to bar the proceedings would be an injustice,
notwithstanding that reasonable excuse for the want or insuffi
ciency of the notice is not established.
' R.S.C. 1970, c. C-38.
If the defence depended on the failure to give
notice, which it does not, I would in any event have
no hesitation in applying the provisions of subsec
tion (5), as the extensive correspondence indicates
that representatives of the Crown were well aware
of the problem and the Crown was not prejudiced
by the want of formal notice.
There is no doubt that the St. Lawrence River,
being a navigable river is property in the "owner-
ship, occupation, possession or control" of the
Crown in right of Canada. It is not necessary for
the purposes of the present proceedings to go into
the question of the demarcation line at which the
banks become property owned by the Crown in
right of the Province, nor the line at which the
land becomes property owned by the neighbouring
proprietor, in the present case the plaintiff herein.
The liability under paragraph 3(1)(b) however
arises only "in respect of a breach of duty", so
unless the plaintiff can establish that defendant
owed a duty to him to protect his property from
erosion by the action of the water and ice in the
river he can have no claim under this section for
the damages sought in the first portion of his
claim. I have examined the extensive jurisprudence
referred to by plaintiff and the arguments made by
him and I do not conclude that such a duty exists.
Perhaps the most important case on which he
relies is that of Nord-Deutsche v. The Queen 2
confirmed in appeal in the Supreme Court on this
point in [1971] S.C.R. 849 which found the Crown
50 per cent liable for a ship collision resulting from
one of the vessels being misled as the result of a
range light on which it relied for navigation having
been displaced by the action of the ice. The facts
are quite different from the present case in which
the damage was caused by the action of the river
and ice itself which is certainly not under the
control or care of the Crown in the same sense as
an aid to navigation placed in or on the bank of the
river. As plaintiff contends, liability can certainly
result from an act of omission as well as an act of
commission by a servant of the Crown, both under
the provisions of the Crown Liability Act or by
applying the provisions of the Quebec Civil Code.
It is plaintiff's contention that the omission by the
2 [1969] 1 Ex.C.R. 117.
Deputy Minister or other persons empowered to do
so to order a cessation of navigation in the river
altogether when the waters are unusually high and
the ice is breaking up is an actionable tort under
paragraph 3(1)(a) of the Crown Liability Act or a
breach of duty under paragraph 3(1)(b) and also
comes within the provisions of article 1054 of the
Quebec Civil Code dealing with vacarious liability
arising from the fault of persons under the control
of the person against whom the claim is made or
for things under his care. The cases cited by
plaintiff in this area of his argument can be distin
guished however. They deal with the evident re
sponsibility of the Crown where the damages were
suffered from a fall on the slippery floor of an
airport, where a motorcyclist was thrown off his
cycle as a result of a sonic boom of a military
aircraft flying overhead, a ship striking an obstruc
tion in the navigational channel of the St. Law-
rence River, pollution of water from sewage of a
National Defence housing site, damages suffered
by the lessee from the Crown of a property on the
banks of the Lachine Canal which was closed as a
result of the opening of the St. Lawrence Seaway,
and similar claims. While the Crown would be
responsible for any flooding caused by the building
of a power or navigation dam or other public work
on the river, there is no evidence that any works so
built resulted in the erosion of plaintiff's property.
Winter and early spring navigation on the river
has greatly increased due to trends in shipbuilding
with many ships now having reinforced hulls suit
able for breaking through ice, and the evidence
also indicates that although the number of ships
navigating the St. Lawrence has not increased, the
tonnage has doubled from 1959 to 1973 the last
year for which figures were given, and there is no
reason to doubt that this trend has continued.
Defendant cannot control the trends in shipbuild
ing nor can it be considered a fault to permit these
ships to navigate the St. Lawrence River to the
extent that they are able to under the limitations
of the depth of the channel, the dimensions of the
locks in the canal system, and the judgment of the
captains and pilots of the feasibility of navigating
through the ice. In many areas of the river where
the channel passes close to the shore, even summer
navigation causes large waves which tend to erode
or damage bordering properties, but it cannot be
contended that because of this such navigation
should be stopped, and I believe that the same
must be said for spring navigation so that there is
no fault in permitting it to continue.
The responsible thing for the Government
authorities to do is to minimize as much as possi
ble the damages caused to bordering properties, by
the construction of appropriate public works as
provided for in the Policy Directive of the Depart
ment of Public Works referred to above. The fact
that such policy has been voluntarily adopted does
not indicate however that in the absence of such
voluntary undertaking an action in tort would lie
against the Crown for permitting the continued
navigation of ships not owned or operated by the
Government on the St. Lawrence River during the
spring flood and ice break-up season.
Plaintiff also invokes the provisions of the
Quebec Civil Code in articles 501 and following
relating to servitudes which arise from the situa
tion of property and refers to jurisprudence there-
under, in contending that he has a servitude over
the owners of the river bed not to do anything with
it to aggravate the condition of his property. Thus
the proprietor of land through which a stream
flows cannot dam it up so as to prevent or interfere
with its flow through the property of his neighbour
at a lower level, nor can he use it for sewage
purposes so as to interfere with other uses of it by
owners of land through which it flows after leaving
his property.
Among the jurisprudence referred to is the case
of Procureur général du Québec v. Bélanger 3 in
which the respondent had claimed damages for
depreciation of his bordering property as a conse
quence of the formation of alluvial deposits in
water in front of it caused by public works carried
3 [I975] C.A. (Que.) 887.
out by the Government on adjacent higher land.
The Court in dismissing his action held that he
must establish that he had the equivalent of a
servitude over the public domain conferring on
him the right to a beach different from that of
other citizens. Moreover the first portion of the
present claim is not based on public works carried
out on behalf of defendant. I cannot find that
plaintiff has a servitude requiring the owners of
the river bed to order a stoppage of navigation
during certain seasons of the year so as not to
aggravate the flow of water and ice on his land.
Other jurisprudence referred to by plaintiff deals
with claims against ships themselves for damages
caused by their passage, which is not the case here.
As I have found that plaintiff does not have a
claim in tort against the Crown for the erosion
damages caused by passing ships nor a servitude
requiring the Crown to protect him from such
damages by prohibiting the passage of ships during
certain seasons of the year, it follows that he has
no claim either for the portions of his land lost by
the erosion or for the loss of enjoyment thereof, or
for the cost of the protective wall which he built at
his own expense after having been duly warned
that if he did so he would not be reimbursed for
this. The fact that it was a sensible and even
necessary action for him to take, and that had he
not done so his property would presumably have
suffered very severe damages in the spring of 1976
does not give him a cause of action against the
Crown which does not otherwise exist. It should be
noted in passing that evidence indicated that other
proprietors of nearby properties had in previous
years built similar walls, some of which had been
there for many years and it is not suggested that
defendant indemnified them for the cost of such
protective structures. The fact that plaintiff did so
just at the time when defendant had indicated its
intention to install necessary protective works as
soon as possible can give him no greater right than
these other proprietors who had built their walls at
an earlier date. Finally it may be said that no
action in tort can lie against the Crown for the
delay in installing the protective structures after
the intention to do so was first indicated in the
autumn of 1974. By analogy a municipality may
decide after a series of accidents in the vicinity of a
school crossing or at a dangerous intersection to
install traffic lights at that intersection but if
another accident takes place, causing injury or
death in the interval between the time the decision
to install the traffic lights was made and the time
when they were actually installed after making the
necessary appropriation and awarding the contract
for the installation, this would not give the victim a
right of action against the municipality. In any
event the Court is not called upon to decide wheth
er, if plaintiff had not installed the retaining wall
prior to the spring flooding of 1976, he would have
had a claim against the Crown for the damages
suffered in that flooding as a result of the Crown's
undertaking to install protective works but delay in
giving effect to this decision.
Turning now to the second portion of plaintiff's
claim I find that this situation is substantially
different. When the Department of Public Works
decided to install the protective barrier of large
rocks it voluntarily assumed an obligation but at
the same time assumed responsibility for .seeing
that this was carried out in a proper manner so as
not to cause any additional damage to plaintiff or
other neighbouring proprietors resulting from the
manner in which it was carried out. While the
representative of defendant in charge of supervi
sion of the work acted in good faith and with the
best of intentions in permitting or directing the
contractor to fill in the gaps between the large
rocks with smaller rocks and gravel so as to pro
vide a somewhat smoother surface which might
perhaps be more pleasing aesthetically and in his
opinion presented less danger for anyone jumping
on or traversing the rock barrier, I find, as subse
quent events proved, that this was an -error in
judgment and that it was readily foreseeable, and
should have been foreseen, that the smaller rocks
would be dislodged by the water and ice action and
drawn back out to the beach, thus doing consider
able damage to what was formerly a sandy beach
suitable for recreational purposes. It is true that
subsequently the Government representatives did
what they could to remedy the situation, calling
back the contractor to remove certain of the larger
rocks whose presence on the beach could only be
explained in the first place by the possibility that
the contractor in piling rocks on the beach before
installing them in the breakwater had allowed
some to roll out toward the water's edge and had
not retrieved them. The evidence indicated that
these rocks were too large to have been drawn into
the water by the action of the ice, yet they were
undoubtedly there. This did nothing however to
alleviate the problem caused by the thousands of
small rocks and gravel on the beach which are
readily apparent in photographs. One of the
defendant's witnesses, an engineer Jean Louis
Raby submitted a very rough estimate that there
was about one rock per linear foot to be removed
on a frontage of 800 feet comprising the property
of Mr. Rivard and five of his neighbours, that it
would take 15 minutes to remove one such rock,
and that therefore 200 hours of time would be
involved at $10 an hour making a total of $2,000
for all six properties. It was explained that what
would actually be done was to dig a hole with a
mechanical digger, and push the offending rocks
into it, and cover it over with sand, and that it
would be just as easy to push a number of rocks
into the holes as one rock. An examination of the
photographs indicates however that far from there
being one rock per linear foot there are thousands,
in front of plaintiff's property alone. Possibly they
can be scraped up in some manner, as gathering
them by hand would be a slow and laborious
process. Moreover there is nothing to indicate that
each year the beach would not be covered again
with similar accumulation of rocks as flood water
and ice receded drawing out more and more of the
small rocks used to fill in the spaces between the
one and two ton rocks in the protective wall.
Plaintiff claims the sum of $10,000 as diminution
in value of his property due to improper execution
of the works, but submitted no proof of this other
than his own statement and the photographs. It is
difficult to say what a good beach is worth to the
owner of a property or a prospective purchaser.
The house remains intact and the land is now
hopefully protected from further erosion. The view
over the river remains the same and access to it is
still available from the removable dock which was
always on the property at which plaintiffs boat is
docked and from which bathers can enter the
water. Nevertheless a sandy beach presents certain
advantages and attractions which a rock strewn
beach does not. I would fix the diminution in value
of plaintiff's property as a result of this at the sum
of $1,500 and award judgment for that amount.
Since he pleaded his own case the fees must be
allowed only up to, but not including trial, plaintiff
having been represented by an attorney up to that
stage.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.