A lengthy lawsuit that seemingly ended 19 months ago didn’t and is again heading back to the courtroom.
In June 2019, Waterway Houseboats and Vinco Holdings won $2 million in compensation after successfully suing several parties for damages following a debris flood in 2012.
In that ruling, the court found that a debris flood in Sicamous Creek caused a blockage under a private bridge, causing the creek to overflow, with Waterway Houseboats being seriously impacted by the debris.
The judge found the Province of B.C., the District of Sicamous and landowners Bryan McLaughlin and Constance equally at fault for the flooding and liable for damages.
However, it was a bittersweet moment for Waterway Houseboats, which had been seeking $10 million for property damage and business losses.
The company, which later went into receivership, said it thought about appealing for more money, but said “that process could take approximately two years and it could cost hundreds of thousands of dollars.”
A licensed insolvency trustee later revealed that Waterway Houseboats owed $13.392 million, but had $13.331 million in assets.
And late last month, the defendants successfully appealed that 2019 court decision.
On Dec. 30, the B.C. Court of Appeal said the appeal was “allowed on the issue of contributory negligence which is remitted to the trial court for reconsideration.”
Specifically, it said “the judge erred in failing to sufficiently articulate the applicable standard of care and conduct a proper causation analysis.”
The province’s appeal was allowed in respect of its liability in negligence on the basis that it did not owe a private law duty of care to the plaintiffs.
The district’s appeal was allowed in respect of its liability to individual houseboat owners, but remitted whether the result could be upheld on the basis of common law negligence.
The McLaughlins’ appeal was dismissed except with respect to its claim for contribution and indemnity, and whether they were owed a duty of care by the Province as regulated parties.
The appeal said the McLaughlins, owners of the bridge, sought to construct a replacement bridge following a debris flood in 1997, while the district consulted with the province over plans to dredge and restore the creek channel.
That 1997 flood saw debris build up underneath the McLaughlin’s bridge, resulting in blockage and the creek overflowing.
“In addition, the channel bed was infilled by three to five feet of sediment, gravel, rocks, and other material over a distance of approximately 600 metres upstream from the bridge,” said the appeal.
Both the bridge reconstruction and channel restoration were carried out in 1998 after an engineer for the province issued approvals for both projects pursuant to the Water Act.
In 2012, another debris flood occurred, with a truck becoming lodged underneath the bridge.
“This blockage caused the creek to overflow, which in turn caused significant damage to property below the bridge owned by Vinco and used by Waterway for the operation of a houseboat business,” said the appeal.
The houseboat company and 63 individual houseboat owners associated with Waterway sued the province, the district and the McLaughlins for their actions following the 1997 flood.
The original trial judge found the province liable in negligence, with the district and McLaughlins liable under Section 21 (1) of the Water Act.
Notably, though, the trial judge also found the plaintiffs contributorily negligent for moving to the property and failing to take flood mitigation measures and apportioned 25 per cent of the liability to them.
The judge awarded damages to the individual houseboat owners on the basis of their common venture with Waterway.
The plaintiffs all appealed.
The B.C. Court of Appeal said it is now inviting written submissions on costs of the appeals, adding the submissions should be filed before Jan. 29, 2021.
To view the lengthy B.C. Court of Appeal decision, click here.