COURT OF APPEAL FOR ONTARIO

CITATION: Monette v. Tebo, 2014 ONCA 516

DATE: 20140703

DOCKET: C56791

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Robert Monette and Ginger Monette

Respondents (Plaintiffs)

and

Martin Tebo and Donna Tebo and Bruce Sellers

Appellants (Defendants)

AND BETWEEN

Martin Tebo and Donna Tebo

Appellants (Plaintiffs by counterclaim)

and

Robert Monette and Ginger Monette, John Peter Roxon and Julie Elaine Margaret Roxon

Respondents (Defendants to the counterclaim)

M. Philip Tunley, for the appellants

Kurt Robert Pearson, for the respondents

Heard: June 19, 2014

On appeal from the judgment of Justice Brian Abrams of the Superior Court of Justice, dated February 15, 2013.

ENDORSEMENT

[1] The appellants appeal from a judgment dismissing their counterclaim for damages and an injunction. Notwithstanding the fact that the trial judge indicated that he would have awarded nothing for damages had he found liability, (which would engage s. 19 (1.1)(d) of the Courts of Justice Act R.S.O. 1990, C.43) the claim for an injunction and the appeal that includes that claim gives this court jurisdiction to hear the appeal (s. 6(1)(b)).

[2] The parties were neighbours on large rural properties near Napanee, Ontario. The Tebo property is 11 acres while the Monette property (which they have now sold) is 30 acres. In the counterclaim, the Tebos claimed that the result of the Monettes’ construction of a six-hole golf course on their property was that surface water ran from the Monette property onto the Tebo property causing excessive flooding and pooling of water on their property near the property line. They also included a claim for harassment relating to incidents including golf balls on their property and burial by the Monettes of their dog near the property line.

[3] The appellants submit that the trial judge erred by failing to give effect to what counsel characterized in oral argument as the uncontested fact that there were 27 events of flooding on the Tebo land after the development of the golf course by the Monettes. They further submit that the evidence showed that water flowed from the Monette land to the Tebo land in two particular places following construction of the golf course and that the evidence was that the new construction created a barrier that prevented the pooled water from dissipating for weeks at a time.

[4] We do not agree that the trial judge erred as alleged. The trial judge had to determine whether the flooding conditions on the Tebo property after construction of the Monette golf course were worse than before. He concluded, based on all the evidence, that they were not. At paragraph 213 of his amended reasons for judgment he found:

Accordingly, the Court finds that there has not been a material change with respect to the development of the golf course exacerbating flooding on the Tebo property as alleged.

[5] At paragraph 214 he added:

The Court further finds that, if anything, the flooding on the Tebo property has been mitigated by the additional fill imported to the Monette property, which as Mr. Fraser [Fraser Armstrong] opined, acts as a sponge. Put simply, more soil equals more absorption; less soil equals less absorption.

[6] Finally, he concluded at para. 218:

With respect to the issue of water flow, the more important point is this: Even if at certain times, and in certain conditions, water can be seen flowing from the Monette property to the Tebo property now, the level of flooding has never been as widely disbursed or as deep as it was during [Hurricane] Frances (Hurricane Frances). Put simply, on all of the evidence, the “bowl” has never again been as full as it was during Frances. Where is the water going? The Court is drawn to conclude, as Mr. Fraser [Armstrong] did, that the water is being absorbed by the additional soil imported to the Monette property.

[7] This court was not taken to any expert evidence that contradicted the trial judge’s finding. Furthermore, much of the evidence given by the independent neighbours and former property owners substantiated the conclusion reached by the trial judge on the issue of comparing conditions before and after the golf course construction.

[8] The appellants also argue that the trial judge should have found that the failure of the respondent to fully comply with the Quinte Conservation Authority’s requirements for construction of the golf course constituted evidence that the golf course was not constructed in a reasonable manner and was evidence of nuisance. The problem with this submission is that it does not assist the appellants when the trial judge’s finding was that there was no causal connection between the golf course and the alleged flooding. He was not satisfied that any accumulation of water on the Tebo land was exacerbated by the golf course or that it constituted a nuisance.

[9] Finally, the appellants submit that the trial judge made findings of credibility against Mr. Tebo on a basis that constituted a misapprehension of certain evidence. In particular, they submit that he misapprehended Mr. and Mrs. Tebo’s evidence regarding the extent of the flooding following Hurricane Frances, and thought they were describing flooding on the same date when in fact they were talking about two different dates. However, they do not go as far as alleging that the trial judge was not entitled to reject Mr. Tebo’s evidence on other bases that he described. In our view, even if the trial judge did misapprehend the reason for the discrepancy in the descriptions of the flooding after Hurricane Frances, he was entitled to prefer the evidence of Mrs. Tebo and discount Mr. Tebo’s credibility on the other bases that he articulated.

[10] The trial judge heard evidence and argument over nine days. Although his reasons for judgment are largely descriptive and somewhat conclusory, they explain the conclusions and the evidence he relied on to reach those conclusions. In our view, he made no reversible error and was entitled, based on the whole record, to reach the findings that he did.

[11] The appeal is therefore dismissed, with costs in the agreed amount of $25,000, inclusive of disbursements and HST.

“K. Feldman J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”