Court File and Parties

CITATION: Peel (Regional Municipality) v. Baldassare, 2007 ONCA 634

DATE: 20070917

DOCKET: C44629

COURT OF APPEAL FOR ONTARIO

FELDMAN, SIMMONS and MacFARLAND JJ.A.

BETWEEN:

THE REGIONAL MUNICIPALITY OF PEEL

Appellant (Defendant)

and

SANFILIPPO BALDASSARE, ET AL.

Respondents (Plaintiffs)

and

THE CORPORATION OF THE CITY OF BRAMPTON

(Respondent) Defendant

Counsel:

John P. Mullen for the appellant, Regional Municipality of Peel

Gustavo F. Camelino for the respondents (plaintiffs) Baldassare, et al.

Christine G. Carter for the respondent, Corporation of the City of Brampton

Heard and released orally: September 7, 2007

On appeal from the judgment of Justice Murray of the Superior Court of Justice dated November 17, 2005.

ENDORSEMENT

[1] The appellant Region’s main argument is that Brampton undertook and did provide a storm sewer system in accordance with its statutory authority or responsibility, that the system that it provided was deficient in relation to pre-1974 houses and caused or contributed to the flood damage to the plaintiffs’ houses.

[2] We agree with the respondent, Brampton, that based on the record and the specific findings of the trial judge in this case, that argument cannot prevail. The trial judge found that certain houses in Brampton built before 1974 had their foundation drains connected to the sanitary sewer system. In 1974 the region took over responsibility for the sanitary sewer system. That system included the storm drainage for those homes through the foundation pipe connections.

[3] The flooding from the two heavy rainfalls in this case in 1995 and 1996 was caused by a failure of the sanitary system generally, as a result of the connection of the foundation drains to many pre-1974 Brampton homes. The trial judge found that there was no evidence that the Brampton storm sewer system was negligently operated causing significant excess water to enter the sanitary sewer system and it was therefore not the cause of the flooding.

[4] The trial judge emphasized that by statute the Region is fully and solely responsible for the sanitary system and any damage it caused. There is no suggestion that the Region, which was fully aware of the problems with the sanitary system and the potential for flooding, treated the issue as other than its own responsibility. There is no evidence that the region approached the City before the floods to ask it to assist with the problem or to change its storm system. In those circumstances, we see no error in the trial judge’s conclusion that because the damage was caused by the sanitary system, the Region is solely responsible for the damage.

[5] The appeal is dismissed with costs to the respondent, Brampton, fixed at $12,500 inclusive and to the respondent plaintiffs fixed at $4,325 inclusive.

Signed: “K. Feldman J.A.”

“Janet Simmons J.A.”

“J. MacFarland J.A.”