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Chute Creek flume dispute between Naramata neighbours being sent to trial

A nine-day trial over flume fix
A swamped home in Naramata in May of 2017.

A B.C. Supreme Court judge has ordered a nine-day trial to go ahead in April over a flume fix to avoid further flooding in Naramata.

Naramata property owner Peter Mortifee filed a civil suit against neighbours Judith and Keith Harvey and the province regarding an "urgent need to remediate" a concrete flume and a bridge.

The issue stems from the flume which carries the waters of Chute Creek between Indian Rock Road and Okanagan Lake, which runs between properties owned by the plaintiff and the defendants.

The province owns Indian Rock Road, a nearby bridge and a portion of the adjacent land. The upper portion of the flume — approximately 10 metres in length — is on Crown land.

"There is no dispute that the flume has required repair and remediation over time," reads a decision from B.C. Supreme Court Justice Karen Horsman, issued on Feb. 22.

Both Mortifee and the Harveys jointly retained an engineering consultant to perform repairs in 2002.

By 2016, holes in the Flume were found to be in need of repair. Both parties eventually agreed to approach Jody Good of Mould Engineering for advice.

In May of 2017, Mortifee claims flooding events contributed to increased water flow in Chute Creek, which peaked and overtopped the Bridge and the banks of the Flume in several areas. The plaintiff’s property suffered flood damage, as did several neighbouring properties.

Mortifee and the Harveys undertook interim remedial measures in September of that year, such as plugging holes in the flume with rocks.

In May of the following year, further flooding events were alleged to have caused several portions of Chute Creek overtopped the banks of the flume as well as the bridge, causing flooding to the plaintiff’s property and other neighbouring properties once again.

"This flood event caused the failure of the final five to seven metres of the flume at its terminus where it enters Okanagan Lake. This caused damage and erosion to the foreshore property of the plaintiff and the Harveys."

Throughout the next two years, the neighbours would retain consulting agencies to conduct interim repairs and advise solutions. But they could not come to an agreement.

"It appears from the material before me on these applications that one of the Harveys’ concern is that they do not wish to have a remediation solution that would involve the removal of any trees from the Harveys’ property or encroachment on their land. There is also concern with the costs associated with the proposed remediation options," Horsman said in her decision.

Mortifee filed his notice of civil claim on Nov. 16, 2020 seeking remedies in nuisance and negligence against the defendants and stating all three need to be involved in the fix.

He further requested that all necessary works be completed on Harveys' property and that they share cost on the fix.

While both the Harveys and the province submitted responses to the suits and asked for a summary trial, Horsman stated in her decision on the matter that the case was not suitable and dismissed the applications.

The trial is slated to get underway on April 4.