A rural corner of North Saanich near the former Sandown race horse track has become the object of a legal standoff involving three parties arguing about the blockage of a waterway.
Central to the dispute is a lawsuit by Satnam Dheenshaw, owner of Gobind Farms, and his mother Gurmej Dheenshaw, against co-defendants Ulrich Cristof Georg Jaeckel, Vincenzo and Vincenza Greco filed on Nov. 1, 2022.
The Dheenshaws own a property in the 1700-block of John Road where Gobind Farms headquartered in Central Saanich grow a variety of fruits including blueberries and strawberries. This property borders the properties of the other parties in the lawsuit within the watershed of Wsikem Creek.
The Dheenshaws’ suit says Jaeckel unlawfully blocked a tributary in the fall of 2021 by a erecting dam across it on the farm’s side, as well as erecting a retaining wall of some 125 metres along the common property to connect the dam with the abutments on either side of the bridge across the tributary on Jaeckel’s side.
According to the Dheenshaws’ lawyer, this happened without the knowledge or permission of the Dheenshaws or any authority as the tributary falls within the federal Fisheries Act.
According to the suit, the dam and the retaining wall blocked the tributary’s drainage and flooded the farm for months starting in November 2021. But the Dheenshaws did not discover the dam and the retaining wall until Jan. 9, 2022 after they had tried to pump water from the tributary into a drainage ditch, which the municipality owns. This move had been of “limited utility and utterly failed” when the pumping system caught fire, which destroyed the pump and the tractor operating it.
Following discovery of the dam and retaining wall, the Dheenshaws sought approval from the federal government to remove the structures. But on Jan. 12, the “defendant Jaeckel or persons on his instruction or, in the alternative, persons unknown to the plaintiffs” entered the farm to remove dam and some of the retaining wall without knowledge or permission of the Dheenshaws nor any authorities, according to the filing.
Jaeckel then used the materials salvaged from the dam and retaining wall to erect a second dam across the tributary on his property without the knowledge or permission of the plaintiffs or of any authority having jurisdiction, the lawsuit alleges. This second dam also “severely restricted” drainage on the farm, according to the Dheenshaws’ lawyers.
Following drainage work by the farm, Jaeckel filled in the tributary on his land as well as on the land of the Grecos, whom the suit accuses of permitting or acquiescing in the unlawful infilling of the tributary, the lawsuit says.
Ultimately, Jaeckel stands accused of breaching riparian common law concerning the water drainage rights, violating sections of the provincial water sustainability act and the federal fisheries act and trespassing among other charges such as negligence and nuisance.
“At all material times, the defendant Jaeckel carried out the Jaeckel Wrongs in a malicious, oppressive and high-handed manner that represents a marked departure from the ordinary standards of decent behavior and as such he should be punished with an award of punitive damages to the plaintiffs,” it reads.
John Upward, a spokesperson for the farm, said the flooding caused “significant damage” with a dollar figure unavailable at this stage. Rootrot caused by the flooding forced the farm to pull out 2.7 acres of strawberries, he said. Experts will recommend later this spring what to do with the farm’s blueberries. They are currently approaching their most productive phase, he added. Upward could not give a specific figure when asked about compensation and anticipates a length dispute.
Jaeckel as well as the Grecos have denied the charges against in a filing dating Dec. 15, 2022 the same date on which they filed a counterclaim with the District of North Saanich subject to a third party notice.
A review of the response to the initial and the subsequent counterclaim sees Jaeckel and Grecos argue that “one or more of the Plaintiffs, wrongfully or unlawfully excavated a new perimeter ditch within the Farm near the southern border” and that this ditch “unnaturally, collects and continues to collect water from a pond” located on the farm as well as water from a neighbouring property owned by the municipality, the so-called Sandown Lands.
Jaeckel and the Grecos argue that the ditch disrupted “either or both the drainage system and the natural watercourses located at the lands in and near the Farm, the Jaeckel Property and the Greco Property.” Ultimately, this caused the farm to collect more water from the neighbouring properties with a higher elevation, from where it then drained onto Jaeckel’s property and a residential building, also flooding the Grecos’ property. The counterclaim says that this water intrusion affected the hay fields on both properties. The initial file claims that “at no time material to this action” Jaeckel had used the land for agriculture.
As for North Saanich, the third party notice filed by Jaeckel and the Grecos states that the municipality has the “duty to satisfactorily implement drainage or other systems to effectively prevent flooding at the Jaeckel Property, the Greco Property and the nearby areas in general.”
Shellene McConnell|, communications and engagement manager with the District of North Saanich, said the municipality would not comment at the time as this is an active litigation matter.
Black Press reached out to lawyer representing Jaeckel and the Grecos, asking whether they would be available for comment.
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