Hammer v. Kirkpatrick, 2017 ONSC 7150

CITATION: Hammer v. Kirkpatrick, 2017 ONSC 7150

COURT FILE NO.: DC-2-17

DATE: 2017-11-30

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

Ronald Hammer

Plaintiff (Respondent in Appeal)

– and –

Cameron Kirkpatrick and Douglas Kirkpatrick

Defendants (Appellants in Appeal)

Ross Weber - Counsel for the Applicant

Travis J. Weagant - Counsel for the Respondent

HEARD: November 29, 2017

The Honourable Justice James W. Sloan

REASONS FOR JUDGMENT

1This is an appeal from Deputy Judge M. Grossman of the Kitchener Small Claims Court dated January 18, 2017.

2The parties all reside on Olympic Drive in Kitchener. The respondent lives to the east and uphill from the appellants.

3The problem is one of storm water flowing from the respondent’s property onto the appellants’ property and into their basement.

4When the appellants moved into the residence in 2011, the respondent’s driveway sloped gently from back to front towards Olympic Drive. The surface of the respondent’s driveway contained two ruts, which directed water down the driveway and onto Olympic Drive.

5In August 2014, the respondent regraded his driveway and had it repaved on or about July 1, 2015. This eliminated the ruts, which the appellants submit allowed the water to collect and flow onto their property.

6In addition, the appellants submit that the new driveway slopes towards their residence rather than in the other direction, which would direct the water towards the street.

7The appellants allege that by doing so, the respondent redirected the flow of water onto their property causing erosion and flooding.

8The appellants brought an action to have the respondent install and pay for a permanent concrete curb immediately to the west of the respondent’s driveway, to redirect the water flow to the street at a cost of $14,000.

9The appellants appeal from the Deputy Judge’s finding, that the respondent’s alteration of his land was not an actionable nuisance because an actionable nuisance cannot arise from the alteration of drainage patterns.

10An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge: ss. 31 and 21(2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

11Section 2 of the Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00, provides that the Divisional Court has jurisdiction to hear appeals from final orders of the Small Claims Court in excess of $2,500. As the judgment dealt with damages of $14,000, the appeal is properly brought before this Court.

12The standard of review in an appeal of an order of a Judge is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

13The concept of palpable and overriding errors was discussed by the Ontario Court of Appeal in Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at paras. 296-297:

14The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

15An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.

16The trial judge found that the only method to resolve the water flow would be the installation of a curb.

17From the video (Exhibit 6-F) and Exhibit 17 A, B & C (Volume 1 Tab 20 of the Exhibit Book), it is evident that a significant portion of the respondent’s lot is covered by their house and their driveway. The respondent’s single lane driveway goes between the two houses and then opens up into a two lane driveway to allow access to what appears to be a two car garage at the back of the respondent’s home.

18The edge of the respondent’s driveway is approximately 4 feet from the appellants’ home and on that side of the appellants’ home, there are three basement windows, complete with window wells. The top of the appellants’ window wells are slightly above ground level, but appear to be lower than the respondent’s driveway

19From the video and Exhibit 17, it is evident that the respondent’s driveway, at least in between the two houses, slopes towards the appellant’s property and their basement windows.

20It is also evident from the video that the downspout from the respondent’s home discharges water onto the driveway between the two houses, exacerbating the water problem.

21It is evident from the testimony of the respondent that his uphill neighbour, while redoing his driveway, put in a curb on the respondent’s property to protect the respondent’s property from surface water emanating from his uphill neighbour’s property.

The Appellants’ Position

22The appellants submit that the Deputy Judge erred in his decision, because:

I. he relied on outdated law and failed to follow the relevant authorities;

II. relied on a case distinguishable from the present case; and

III. his judgment is internally inconsistent.

23The appellants submit that an actionable nuisance arises where one party substantially or unreasonably interferes with the enjoyment of another’s property. They rely in part on the case of Atrium Truck Centre Ltd. v. Ontario (Ministry of Transportation) 2013 SCC 13, where at paragraph 18 the Supreme Court stated:

The Court of Appeal concluded that a nuisance consists of an interference with the claimant’s use or enjoyment of the land that is both substantial and unreasonable: paras, 79 – 80. In my view, this conclusion is correct.

24The court went on at paragraph 29 to state:

29 … A finding of reasonable conduct will not, however, necessarily preclude the finding of liability. The editors of Flemings the Law of Torts puts this point well at s. 21.120:

… Unreasonableness in nuisance relates primarily to the character and extent of the harm caused rather than that threatened…[T]he “duty” not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict. At the same time, evidence that the defendant has taken all possible precaution to avoid harm is not immaterial, because it has a bearing on whether he subjected the plaintiff to an unreasonable interference, and is decisive in those cases where the offensive activity is carried on under statutory authority… [I]n nuisance it is up to the defendant to exculpate himself, once a prima facie infringement has been established, for example by proving that his own use was natural and not unreasonable.

25The appellants also rely on the cases of Keryluk v. Lamarche, [2006] OJ No. 5215, which was affirmed on appeal, Jennings v. Redmond, 2000 CarswellOnt 2053 and Weenen v. Biadi, 2015 ONSC 6832.

26In the Keryluk case the court stated at paragraph 20:

The flooding of Mr. Keryluk’s property, which I find occurred in the spring of 2003, consisted of sheet drainage of water resulting from improper grading of Lot 8 and improper placement by Mr. Lamarche of his two 6 inch drainage pipes. On the evidence, I reject the argument that there existed a defined watercourse or drainage pattern flowing naturally downhill onto the property which Mr. Lamarche was entitled to make use of to drain his property. I accept the evidence of Mr. Keryluk and Mr. Levac as to the true situation. This flooding constitutes an actionable nuisance in that it created an unreasonable interference with the plaintiff’s enjoyment of their property.

27On the somewhat complicated facts in the Jennings case, the court stated at paragraph 75:

I am satisfied that the flow of water meets the test for nuisance and trespass and emanates from the outlet of the original drain which flows from the Jennings property, the inadequate 1985–1986 correction and the opening of the drain onto the Jennings lands in 1995. These acts were intentional in that they were done knowingly and purposely. They were unreasonable because they caused new and excessive flooding to the neighbour’s property.

28In the Weenen case the court stated at paragraphs 151 & 152:

Mr. Biadi did not take proper steps to divert water from the Weenen lands and, in fact, Mr. Biadi’s conduct added to the flow of water to the Weenen and lands. If Mr. Biadi had properly constructed the swale, it may have been able to deal with the water and prevent water from flowing to the Biadi lands. Blockage of the culvert was another cause of the flooding. Since 2002, Mr. Biadi has been aware of the culverts role and importance in the drainage of the Weenen lands. Notwithstanding this knowledge, for years Mr. Biadi knowingly did not maintain the culvert. Even worse, Mr. Biadi forbade Mr. Weenen from entering on Biadi lands to clear the culvert. When balancing the gravity of the harm against the utility of Mr. Biadi’s conduct, the interference caused to Mr. Wennen’s land is clearly unreasonable.

In these circumstances, without doubt, the flooding caused by Mr. Biadi has substantially and unreasonably interfered with Mr. Weenen and use and enjoyment of his land. Accordingly, Mr. Weenen has proven that the conduct of Mr. Biadi was a private nuisance that has caused damage to Mr. Weenen.

29The appellants further submit that the Deputy Judge relied on outdated law when he relied on the case of Dean v. Sudbury (City) Park Management Board, 1939 CarswellOnt 131, stating that, the Dean case has been overridden by the Building Code which requires building sites to be graded to prevent water from adversely affecting neighbouring properties.

30In addition the appellants submit that in the Dean case “there was no allegation in the pleadings nor was any proof offered that the work was negligently or improperly done.”

31The appellants further rely upon the Ontario Court of Appeal case in Barrie v. Trinidad Leasehold Canada Ltd. 1953 CarswellOnt 282, where the court stated at paragraphs 7 and 8:

7 … I would hesitate to state that in Ontario the law as to surface waters can be said to be settled so definitely. Authorities are not lacking and need not here be cited to support the proposition that one must not collect surface waters on one’s own land and “cast them in a body” or artificially “channel them” on to the lands of another to that others injury…

8 I respectfully adopt the reasoning set out in that judgment and for the purposes of this appeal restrict myself to holding that in this Province an occupant of land who, by artificial means, prevents the natural absorption in that land or alters the natural drainage therefrom of water caused by melting ice or snow or of rain-water naturally falling there is bound to take all reasonable means of preventing that water from collecting on the artificial surface he has created and draining from that surface on to his neighbour’s land to the injury of his neighbour…

The Respondent’s Position

32The respondent takes the opposite position to that of the appellants and in essence states:

I. The entire street exhibits a similar slope and in each case the flow of water is managed by the use of a curb between neighbouring properties, however it was the appellants who removed the “landscaping curb arrangement to keep the water from coming onto their property”.

II. The previous owners of the appellants’ residence experienced water infiltrating their basement.

III. There was no palpable and overriding error with respect to any findings of fact.

IV. The resurfacing of the driveway was necessary given its state of deterioration and not out of character for a reasonable homeowner.

33The Deputy Judge , relied on the Dean case where the Court of Appeal stated in part:

The owner of land is entitled to alter the surface and grades of his lands, and to the level and otherwise improve them, without incurring any liability for surface water which in the course of nature falls upon the lands, and in the course of nature drains from them.

34The respondent also relies on the case of Southon v. Gauley, 2011 ONSC 7518, where the court stated that it was bound by the Dean case and at paragraph 2 stated:

Assuming without deciding that the defendant Gauley did cause the flooding that is alleged by the plaintiff, the law is clear that such a modification of the flow of water to the detriment of one’s neighbour is not actionable.

35In the Southon case the plaintiff was self-represented.

36The respondent submits that the Weenen, Jennings and Keryluk cases are all distinguishable on their facts, because in Weenen, the defendant added thousands of truckloads of earth and other fill to his land over many years, did not maintain the culvert and the plaintiff’s lands were covered with 6 to 8 inches of water; in Jennings, the flooding complained of, was new and excessive and caused by the installation of a tile drainage system and in Keryluk there was significant excavation and alteration of the property on which a new home was being built and, in addition, the construction damaged the plaintiff’s drainage system.

Findings

37In his Judgment, the Deputy Judge states “all of the other neighbours have resolved the flow of water from one property to the other, by the use of a curb.”

38An example of such a curb is shown in the picture at Exhibit 34A which has been reproduced at Volume 2, Tab 38 of the exhibit book.

39It therefore appears to have been well-known in the neighbourhood that a curb similar to the one at Tab 38 of the exhibit book was common in the area. In fact, the respondent’s uphill neighbour did that very thing.

40As set out in the Deputy Judge’s reasons, the respondent went out of his way to stymie the appellants from building a curb and he further stated that all parties involved in the case agree that the only method to resolve the water flow problem is the installation of a curb.

41If the law, as set out in the Dean case, is still good law in Ontario and I fail to see how it could be, the facts of the Dean case are distinguishable from the facts of this case.

42In this case everyone who lived on Olympic Drive knew they had to take care not to discharge water from their lot onto their downhill neighbour’s lot.

43In the Dean case the court dealt with natural water falling onto the lands and naturally draining away, which would include seeping into the ground.

44In this case, given the large surface area of the paved driveway and large surface area of the shingled roof, none of those areas would allow for the natural seeping of water into the ground, and therefore, unlike in the Dean case, this is not a case of water naturally falling upon lands and naturally draining from them.

45The pavement and shingle surfaces, by their very nature, repel water and funnel it to the path of least resistance, which is downhill.

46Although the respondent may have angled his driveway from the back of his lot towards the street he (his paving contractor) unfortunately appears to have angled the entire driveway also towards the appellants’ property. By doing so he improperly altered the previous drainage.

47It would have been patently obvious to the respondent, that by sloping the driveway towards his neighbours lot, would cause water falling upon his large driveway and that being discharged from his roof, to flow towards and onto the appellants’ property and into his basement windows wells.

48While it would have been simple to make sure that the driveway did not slope towards the appellants’ property, it may also have been possible to have the paving contractor fashion an asphalt curb down the edge of the driveway to contain the water on the driveway during its journey to the street and into the municipal storm water management system. Unfortunately this was not done.

49The estimates before the trial judge for the construction of a curb were in the $14,000 range which appears to have been an appropriate amount in the eyes of the trial judge.

50Based on the foregoing reasons I allow the appeal and enter judgment for the appellants in the amount of $14,000.

51The appellants are entitled to their costs fixed at $3,500 and disbursements fixed at $1,800.

James W. Sloan