Judgment of the Court — PIGEON J.
The judgment of the Court was delivered by
PIGEON J.—The one hundred and seventy-one plaintiffs in the Pugliese action, who are the owners of one hundred and one residential properties in the Township of Nepean in the Regional Municipality of Ottawa-Carleton, and the four plaintiffs in the Dunn action, who are the owners of two residential properties in the same part of the municipality, claim that the ground water table below their properties was substantially lowered by the construction of a collector sewer on lands of the National Capital Commission located nearby, and that their homes and lands were seri-
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ously damaged by the resulting subsidence. There is also a claim that properties involved both in the Pugliese action and in the Dunn action were damaged as a result of drilling and blasting operations.
The defendants in the case are in addition to the National Capital Commission (“NCC”) and the Regional Municipality of Ottawa-Carleton (“RMOC”), the latter’s contractors for the construction of the sewer, Beaver Underground Structures Limited (“Beaver”) and Cosentino Construction Company Limited (“Cosentino”) and Cosentino’s blasting subcontractor, Dibco Underground Limited (“Dibco”). H.Q. Golder & Associates Limited and De Leuw Cather, Canada Limited are third parties in the Pugliese action.
An application was made to Galligan J. pursuant to Rule 124 of the Rules of Practice of the Supreme Court of Ontario, to determine whether the facts as alleged in the plaintiffs’ statements of claim (other than those relating to blasting operations) constitute a valid cause of action. On this application Galligan J. made an order giving leave to the defendants and third parties to set down for hearing the following question:
Assuming all of the allegations of fact contained in the statements of claim (other than the allegations contained in paragraph 116 of the statement of claim in the Pugliese action and in paragraph 13 of the Dunn action) to be true, do the plaintiffs have a valid cause of action in law against any of the defendants?
Having given preliminary consideration to some authorities, Galligan J. came to the conclusion that this was a case in which he should exercise his discretion under s. 35 of The Judicature Act (R.S.O. 1970, c. 228) and refer the point of law to the Court of Appeal for determination [(1977), 15 O.R. (2d) 335].
The Court of Appeal had considerable doubt that this was a proper case in which to resort to s. 35 of The Judicature Act. After hearing the representations for all parties, and with their concurrence, it agreed to determine the following question of law as if it were an appeal from a determination under Rule 124:
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Does an owner of land have a right to the support of water beneath his land, not flowing in a defined channel, and does such an owner have a right of action in negligence or nuisance or under The Ontario Water Resources Act (from the pumping of water in excess of the amounts as set out in permits granted under that Act), for any damage resulting from the abstraction of such water?
In the reasons for judgment, [(1978), 17 O.R. (2d) 129], Howland J.A., as he then was, summarized the allegations of fact as follows (at pp. 132-4):
The allegations of fact which are admitted for the purpose of this hearing are as follows: The Regional Municipality of Ottawa-Carleton (RMOC), with the consent of the National Capital Commission (NCC), entered into a contract with Beaver Underground Structures Limited (Beaver) and Cosentino Construction Company Limited (Cosentino) for the construction of the Lynwood Collector Sewer (LCS) on lands owned by the NCC which were adjacent to some, but not all, of the lands of the plaintiffs. The sequence of the typical soil stratigraphy in the lands owned by the plaintiffs and the NCC was as follows:—
(a) an organic soil layer on the surface;
(b) a layer of silty clay with a high water content;
(c) strata of sands or sands and gravel;
(d) a stratum of compact to very dense glacial, sandy, silty till;
(e) limestone bedrock.
The depth of the limestone bedrock was erratic and varied from a near ground surface elevation to a depth much in excess of fifty feet. The ground water table before construction was commenced for the LCS was generally at a depth of approximately four to fourteen feet below the ground surface. The LCS was to be constructed by a tunnelling operation, and the invert of the LCS was to be installed approximately forty feet below the ground surface. Beaver and Cosentino had the option of controlling the ground water conditions either by the use of compressed air during tunnelling operations, or by dewatering in advance of tunnelling operations. Commencing in the summer of 1974 and continuing until the winter of 1975-76, they adopted a dewatering system of pumping from deep drainage wells. The total quantity of water pumped by Beaver and Cosentino greatly exceeded the daily maximum which was permitted under the “Permits to Take Water” issued by the Ministry of the Environment under The Ontario Water Resources Act, R.S.O. 1970,
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c. 332 as amended. Section 37 of that Act prohibited any person from taking more than a total of 10,000 gallons of water in a day by means of a structure or works constructed after March 29, 1961 for the diversion of water, without a permit. The Act further provided that every person who contravened any of the terms and conditions of a permit was guilty of an offence and on summary conviction was liable to a fine of not more than $200 for every day the contravention continued.
As a result of the dewatering the ground water table was lowered in the lands adjacent to and in the general vicinity of the LCS. At the location of the LCS it was lowered to at least the invert elevation of the LCS. The lowering of the ground water table caused the underlying clay strata to consolidate and the underlying loose sand and silt strata to compress. This resulted in a differential settlement over the base of the foundations of the plaintiffs’ homes. The damages suffered by the plaintiffs included severe cracking and faulting to the floors, foundations, walls, ceilings and fireplaces of their residential structures, including depressed exterior foundation walls, sloping floors to depressed walls, brick or stone veneer cracked or pulled away from walls and severe distortions of door and window frames. Subsidence of the plaintiffs’ lands also occurred with cracking to the curbs, laneways, sidewalks and landings. Damages amounting in the aggregate to approximately two million dollars are claimed, based on nuisance, negligence or breach of statutory duty. The principal allegations of negligence appear to be:
(a) the failure adequately to investigate the subsurface conditions of the lands adjacent to or in the vicinity of the LCS with reference to the proposed construction methods;
(b) the failure to select methods of tunnelling and associated procedures which would alleviate or minimize disturbance to the subsurface conditions of the lands of residents adjacent to or in the vicinity of the LCS; and
(c) the failure adequately to monitor the dewatering and settlement of the lands adjacent to or in the general vicinity of the LCS and to terminate or delay operations when damage was reported, or to take other measures for ground water control and soil stabilization.
The plaintiffs relied on the doctrine of res ipsa loquitur. It was also alleged that the defendants did not use the lands of the NCC for a proper or natural use.
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In conclusion, the question considered by the Court of Appeal was answered as follows (at pp. 157-8):
1. An owner of land does not have an absolute right to the support of water beneath his land not flowing in a defined channel, but he does have a right not to be subjected to interference with the support of such water, amounting to negligence or nuisance.
2. Such an owner does have a right of action
(a) in negligence for damages resulting from the abstraction of such water, or
(b) in nuisance for damages for unreasonable user of the lands in the abstraction of such water.
3. Such an owner does not have a right of action under The Ontario Water Resources Act for damages for subsidence arising from the pumping of water in excess of the amounts set out in permits issued under that Act.
On the application of all defendants and third parties, the Court of Appeal made an order that leave to appeal to this Court be granted and that the question of law to be submitted to this Court shall be as follows:
Does an owner of land have a right to the support of water beneath his land, not flowing in a defined channel, and does such an owner have a right of action in negligence or nuisance for any damage resulting from the abstraction of such water?
At the outset of the hearing of the appeal taken under that order, it was pointed out from the Bench that, on the authority of the decision of this Court in Valley Improvement v. Metropolitan Toronto[3], it did not appear that the decision of the Ontario Court of Appeal on the question of law considered by it was a final judgment within the meaning of the Supreme Court Act.
The parties were heard on this point and the appellants applied for special leave from this Court if it should quash the appeal as instituted. After considering the point, the Court unanimously decided that the appeal should be quashed and leave be granted. This appeal is therefore from the judgment of the Court of Appeal on the question considered by it and not on the more limited question on which it purported to grant leave. As
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was pointed out to counsel, this means that, under Rule 90, this Court is empowered to treat the whole case as open. In the circumstances, I find it desirable to examine the question on that basis.
The appellants’ submissions rest essentially on the authorities reviewed by Howland J.A. under the heading: The English Rule (at pp. 134-139). These culminate in the judgment of Plowman J. in Langbrook Properties, Ltd. v. Surrey County Council[4], in which he said (at pp. 1439-1440):
The authorities cited on behalf of the defendants in my judgment establish that a man may abstract the water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause him injury. In such circumstances the principle of sic utere tuo ut alienum non laedas does not operate and the damage is damnum sine injuria.
Stress was laid by RMOC on the judgment of this Court affirming St. John Y.M.C.A. v. Hutchison[5] a decision said to be based on the English Rule.
I do not find it necessary to consider the serious objections taken to the English Rule by the Manitoba Court of Appeal in Penno v. Government of Manitoba[6] and by the Ontario Court of Appeal in the instant case. Assuming the correctness of the English Rule, as above stated, I think it is no longer valid in Ontario by virtue of s. 37 of The Ontario Water Resources Commission Act (R.S.O. 1970, c. 332, (as corrected) enacted 1960-61 (Ont.), c. 71, s. 3, amended 1961-62, c. 99, s. 6, 1964, c. 86, s. 5 and 1966, c. 108, s. 4). The relevant parts of s. 37 provide:
37. (3) Notwithstanding any general or special Act or any regulation or order made thereunder and subject to subsection 5, no person shall take more than a total of 10,000 gallons of water in a day,
(a) by means of a well or wells that are constructed or deepened after the 29th day of March, 1961; or
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(b) by means of an inlet or inlets from a surface source of supply, where the inlet or inlets is or are installed in the source of supply or is or are enlarged after the 29th day of March, 1961; or
(c) by means of a structure or works constructed after the 29th day of March, 1961 for the diversion or storage of water; or
(d) by any combination of the means referred to in clauses a, b and c,
without a permit issued by the Commission.
(4) Notwithstanding any general or special Act or any regulation or order made thereunder, where the taking of water for any purpose, other than the taking of water by any person except a municipality or company public utility for use for ordinary household purposes or for the watering of livestock or poultry and other than the taking of water by any person for fire fighting, interferes, in the opinion of the Commission, with any public or private interest in any water, the Commission may, by notice served on or sent by registered mail to the person who is taking or is responsible for the taking of water that so interferes, prohibit the person from so taking water without a permit issued by the Commission.
(5) Subsection 3 does not apply to the taking of water by any person for use for domestic or farm purposes or for fire fighting.
(6) The Commission may in its discretion issue, refuse to issue or cancel a permit, may impose such terms and conditions in issuing a permit as it considers proper and may alter the terms and conditions of a permit after it is issued.
(7) Where the flowing or leaking of water from a well, or the diversion, flowing or release of water from or by means of a hole or excavation made in the ground for any purpose other than the taking of water, interferes, in the opinion of the Commission, with any public or private interest in any water, the Commission may, by notice served on or sent to the person who constructed or made such well, hole or excavation or to the registered owner of the land in which such well, hole or excavation is located, require the person or owner to stop or regulate such flowing, leaking, diversion or release of water in such manner and within such time as the Commission may direct, or require such person or owner to take such measures in relation to such flowing, leaking, diversion or release of water as the notice may require.
(8) Every person who contravenes,
(a) subsection 3 or 4, or
(b) a notice served on him or received by him or on his behalf under subsection 4 or 7; or
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(c) any of the terms and conditions or a permit issued by the Commission,
is guilty of an offence and on summary conviction is liable to a fine of not more than $200 for every day the contravention continues.
After referring to a few English cases and quoting from the majority judgment in Orpen v. Roberts[7], Howland J.A. said (at pp. 156-157):
In my opinion, looking at The Ontario Water Resources Act as a whole, s. 37(3) had as its object the general regulation of the taking of water and not the prevention of damage by subsidence. Nor was it enacted to protect a particular class of persons against such damage, so that it might be inferred that a correlative right was vested in them which they would be entitled to enforce in a civil action. The duty to obtain and comply with the terms and conditions of the permit was a duty for the protection of the public as a whole. Furthermore the plaintiffs have other remedies by way of an action for negligence or nuisance so that they are not left without a remedy.
I cannot agree with this view of the effect of s. 37. The result of any enactment is always a matter of the proper construction of the statute. Orpen v. Roberts was a ratepayer application for an injunction to prevent the construction of a building in violation of a City of Toronto by‑law and, in Jardins Taché v. Entreprises Dasken[8] another ratepayer application for such an injunction in respect of the violation of a by-law of the City of Hull, Que., the majority of this Court, holding in favour of the granting of the injunction, said of Orpen v. Roberts (at pp. 13‑14):
…The reasons of the majority, as stated by Duff J., as he then was, show, that the fact that the Legislature, after enacting, in 1904, a statute expressly providing that the municipality or any ratepayer could apply for an injunction if a building by-law was violated, later, in 1913, replaced that enactment by a section which provided only that the municipality could seek an injunc-
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tion, was regarded as conclusive against a ratepayer’s right to institute such proceedings.
No such considerations apply in respect of s. 37. On the contrary, subs. 7, enacted in 1964, amended in 1966, makes it apparent that this provision is not only in the public interest but also in the private interest of all land owners who are liable to suffer damage from excessive pumping. Furthermore s. 37 is really not an enactment creating a statutory duty, it is a restriction on whatever right a land owner previously enjoyed as such to abstract the water under his land which percolates in undefined channels. Whenever such abstraction causes damage to other lands, it prima facie comes within the definition of a nuisance: “The gist of private nuisance is interference with an occupier’s interest in the beneficial use of his land” (Fleming, The Law of Torts, 5th ed., p. 399). However, “In order to merit legal intervention, the annoyance or discomfort must be substantial and unreasonable” (ibid. p. 401). Assuming that at common law no abstraction of subterranean water not flowing in a defined channel could be considered unreasonable no matter how damaging, this is no longer true in Ontario since 1961. Such abstraction is unlawful above 10,000 gallons a day except on the authority of a permit. Therefore, as I see it, the damage caused can no longer be said to be damnum sine injuria, the exception to the rule sic utere tuo ut alienum non laedas has been repealed by the statute. The statute has defined what is reasonable. As a result of this definition any pumping above 10,000 gallons a day is unreasonable unless a permit has been granted. In view of these considerations any pumping in violation of s. 37 is to be considered as a nuisance when causing damage to other properties.
I would reach the same conclusion in considering the matter from the standpoint of the law of negligence. For any pumping of subterranean water over the legal limit, no one may claim to have been acting in the exercise of a right and consequently free of negligence. No one is now allowed to make his own judgment of what may be taken without undue risk of damage to others.
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Approval must be sought from a public authority which is also empowered to order remedial action if necessary in the interest of those who are suffering prejudice. It is clear in my view that this statute is not concerned only with the public interest but also with the protection of private interests.
I have made a review of the authorities on the difficult question of civil remedies as a result of statutes with penal sanctions. In my opinion, on the whole, they lend support to the view I have already indicated. The leading case holding a statute enforceable only be criminal proceedings is the decision of the House of Lords in Cutler v. Wandsworth Stadium Ld.[9] It was held that:
No action lies at the suit of an individual bookmaker against the occupier of a licensed dog-racing track on which a totalisator is lawfully in operation for failure to provide him with “space on the track where he can conveniently carry on bookmaking,” in accordance with s. II, sub-s. 2 (b) of the Betting and Lotteries Act, 1934. The obligation imposed by that section is enforceable only by criminal proceedings for the penalties specified in s. 30, sub-s. I, of the Act.
In his consideration of the case Lord Simonds made these valuable observations (pp. 407-8):
…The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the preexisting law, in which it was enacted. But that there are indications which point with more or less force to the one answer or the other is clear from authorities which, even where they do not bind, will have great weight with the House. For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration. But “where an Act” (I cite now from the judgment of Lord Tenterden C.J. in Doe v. Bridges 1 B. & Ad. 847, 859) “creates an obligation; and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.” This passage was cited with approval by the Earl of Halsbury L.C. in Pasmore v. Oswaldtwistle Urban District Council (1898) A.C. 387, 394. But this general rule is subject to exceptions. It may be that, though a specific remedy is provided by the Act, yet the person injured has a personal right of
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action in addition. I cannot state that proposition more happily, or indeed more favourably to the appellant, than in the words of Lord Kinnear in Black v. Fife Coal Co. Ltd. (1912) A.C. 149, 165: “If the duty be established, I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex D. 441, 448, and by Lord Herschell in Cowley v. Newmarket Local Board (1892) A.C. 345, 352 solves the question. We are considering the scope and purpose of the statute and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. An earlier and a later example of the application of this principle will be found in Groves v. Wimborne (Lord) (1898) 2 Q.B. 402 and Monk v. Warbey (1935) I K.B. 75, in the former of which cases the Act in question was described by A.L. Smith L.J. (1898) 2 Q.B. 402, 406 as “a public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit.”
Similar comments were made by Lord Normand who said in particular (p. 413):
…The inference that there is a concurrent right of civil action is easily drawn when the predominant purpose is manifestly the protection of a class of workmen by imposing on their employees the duty of taking special measures to secure their safety. The penalties provided by the Act apply when a breach of the duty occurs, but each workman has a right to sue for damages if he is injured in consequence of the breach.
As I have already indicated, I do not view the enactment for the protection of land owners from damage by excessive pumping as creating a duty but as a limitation on whatever right existed of doing it with impunity. How inadequate is the enforcement by penalty when this is $200 a day and the damage is probably in excess of $2,000,000.
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It is now necessary to give consideration to s. 47 of The Ontario Water Resources Act which provides:
47. Where land is expropriated by a municipality for sewage works or is injuriously affected by the construction, maintenance or operation of sewage works by a municipality, The Expropriation Act applies.
In The Expropriations Act (R.S.O. 1970, c. 154) there is in s. 1 a definition of “injurious affection” which appears unchanged from s. 1 of The Expropriation Act 1968-69 as follows:
1. (1) In this Act,
...
(e) “injurious affection” means,
...
(ii) where the statutory authority does not require part of the land of an owner,
a. such reduction in the market value of the land of the owner, and
b. such personal and business damages,
resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,
The above definition shows what is contemplated under the expropriation act as “injurious affection” for which compensation may be allowed under that act when, as here, no part of the land of the claimant is acquired. This is damage for which the statutory authority would be liable if the construction were not under the authority of a statute. This is the kind of damage for which this Court held in C.N.R. v. Trudeaul[10] that, because it is claimable only under the statute it may be recovered only in the manner therein provided. Locke J. said for the majority (at p. 405):
The right of a claimant such as the respondent to recover damages for injurious affection, if it exists, must be founded upon s. 166 of the Railway Act, R.S.C. 1952, c. 234, which reads:
The company shall, in the exercise of the powers by this or the Special Act granted, do as little damage as possible, and shall make full compensation, in the
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manner herein and in the Special Act provided, to all persons interested, for all damage by them sustained by reason of the exercise of such powers.
The same principle was applied in The Queen v. Loiselle.[11] This principle has no application when the damages are claimed, as they are here, for an illegal act. In such situation the public authority which has not resorted to expropriation proceedings, cannot claim immunity from suit before a court of competent jurisdiction, although in some circumstances the claim will be assessed on the same basis as on an expropriation. Such was the decision of this Court in Jalbert v. The King[12], which was affirmed by the Privy Council. The claim against the federal government was for compensation for the taking of a water lot by the Chicoutimi Harbour Commission, Davis J. said speaking for the Court (at pp. 62-63):
…Technically the acts of the Dominion are acts of trespass. There is no lawful authority for the actual taking possession of the lands in question. From that point of view the action in the Exchequer Court on the petition of right should be treated, If a technical rule is applied, as an action in trespass and the damages assessed as in any other action in trespass. But virtually the lands were expropriated and we think the proper course is to proceed to determine the amount of compensation to which the suppliant would have been entitled had expropriation proceedings been taken...
In the instant case no land was taken and the damages claimed are not for the legal consequences of the execution of the drainage work by proper means but by improper and unlawful means. On the basis of the allegations which are assumed to be true, the pumping that was the cause of the damage was not inevitable, the work could have been done by resorting to other means or methods of execution.
For the above reasons I would dismiss the appeals with costs. I would, however, vary the judgment below so that the answer to the question will read: “In an action by an owner of land in negligence or nuisance from the pumping of
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ground water not flowing in a defined channel for any damage resulting from the abstraction of such water, no right of another owner to pump such water avails as a defence in respect of any pumping exceeding the quantity authorized under The Ontario Water Resources Act”.
Appeals dismissed with costs.
Solicitor for the appellant National Capital Commission: Eileen Mitchell Thomas, Ottawa.
Solicitors for the appellant H.Q. Golder & Associates Limited: Scott & Aylen, Ottawa.
Solicitors for the appellant De Leuw Cather Canada, Limited: Outerbridge, Manning & Mueller, Toronto.
Solicitors for the appellant Beaver Underground Structures Limited: Gowling & Henderson, Ottawa.
Solicitors for the appellant Regional Municipality of Ottawa-Carleton: Hughes, Amys, Toronto.
Solicitors for the appellant Dibco Underground Limited: Binks, Chilcott & Simpson, Ottawa.
Solicitors for the appellant Cosentino Construction Company Limited: Fitzpatrick, O’Donnell & Poss, Toronto.
Solicitors for the respondents Pugliese et al.: Nelligan, Power, Ottawa.
Solicitor for the respondents Dunn & Garvie: Allan L. Morrison, Ottawa.
Footnotes
- [1] (1977), 17 O.R. (2d) 129.
- [2] (1977), 15 O.R. (2d) 335.
- [3] (1967), 60 D.L.R. (2d) 480, [1967] S.C.R. vi, viii.
- [4] [1969] 3 All E.R. 1424.
- [5] (1879), 18 N.B.R. 523, Stevens Digest, p. 19.
- [6] (1975), 64 D.L.R. (3d) 256.
- [7] [1925] S.C.R. 364.
- [8] [1974] S.C.R. 2.
- [9] [1949] A.C. 398.
- [10] [1962] S.C.R. 398.
- [11] [1962] S.C.R. 624.
- [12] [1937] S.C.R. 51 aff'd 1938, 82 sol. Jo. 252.
Cases cited
- 15 O.R. (2d) 335 15 O.R. (2d) 335
- 17 O.R. (2d) 129 17 O.R. (2d) 129
- Pasmore v. Oswaldtwistle Urban District Council A.C. 387
- Black v. Fife Coal Co. Ltd. A.C. 149
- Cowley v. Newmarket Local Board A.C. 345