Court of Appeal for Ontario

Date: June 22, 2017 Docket: C61429

Judges: Epstein, Hourigan and Paciocco JJ.A.

Between

Matthew Weenen Plaintiff (Respondent)

and

Graziano Biadi Defendant (Appellant)

And Between

Graziano Biadi Plaintiff (Appellant)

and

Matthew Weenen, Fareeda Daniel, Marie Pantalone and Mark Arthur Weenen Defendants by counterclaim (Respondent)

Counsel

John Montgomery, for the appellant Alex Cameron, for the respondent

Heard and Released Orally

June 22, 2017

Appeal Information

On appeal from the judgment of Justice David Salmers of the Superior Court of Justice, dated November 6, 2015, with reasons reported at 2015 ONSC 6832.

Reasons for Decision

[1] Background and Claims

The appellant and the respondent own neighbouring rural properties. Shortly after buying his property, the appellant began adding fill to his property, in order to permit it to be used for farming. The respondent claimed that the appellant's actions caused flooding on his land and brought this action for damages based on negligence, nuisance and under the strict liability doctrine of Rylands v. Fletcher [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330.

[2] Trial Judge's Findings

The trial judge found that, starting in 2002, the appellant dumped thousands of truckloads of material on his property causing severe flooding to the respondent's land. In addition, the appellant improperly constructed a swale on his property that added to the amount of water flowing onto the respondent's land. The appellant also obstructed and failed to maintain a culvert under his driveway, despite being advised that the culvert was blocked, thereby further increasing the flooding. In fact, on two occasions the appellant was caught on camera deliberately blocking the culvert.

[3] Trial Judge's Judgment

The trial judge held the appellant liable to the respondent for damages based on negligence, nuisance and under the strict liability doctrine of Rylands v. Fletcher. In addition to making mandatory orders regarding the appellant's property, the trial judge ordered the appellant to pay the respondent damages totaling $390,000.

[4] Grounds of Appeal

The appellant challenges only the trial judge's assessment of general damages ($250,000) and punitive damages ($125,000).

[5] Standard of Review for Damages

At the outset, we note the general proposition that a trial judge's award of damages attracts a high level of deference. An appellate court is not justified in interfering unless the amount is so inordinately high that it is wholly erroneous.

[6] Appellant's Argument Regarding General Damages

The appellant argues that the award of general damages is so far out of proportion with the magnitude of the harm and with the range of awards in other cases as to be "palpably incorrect". The focus of the appellant's submission appears to be that the quantum of general damages is over 16 times the amount of compensatory damages.

[7] Court's Response to General Damages Argument

This argument has no merit. We do not see any logical connection between the amount of a general damage award for the loss of use and enjoyment of property and the amount of an award arising out of property damage.

[8] General Damages Award Upheld

In considering the claim for general damages, the trial judge found that the appellant's conduct had caused the respondent "significant and prolonged harm including distress, frustration, anxiety, and loss of the reasonable use and enjoyment of his home for over 12 years". In the light of these unchallenged findings, there is no reason to interfere.

[9] Appellant's Arguments Regarding Punitive Damages

As to the punitive damage award, the appellant submits that the findings that informed the trial judge's decision to award punitive damages were not supported by the evidence. The appellant further contends that, in any event, his conduct does not meet the test for punitive damages. Finally, even if warranted, the award for punitive damages is so far out of any reasonable range that it calls for appellate intervention.

[10] Court's Response to Punitive Damages Arguments

We would not give effect to these arguments. In concluding that punitive damages were called for the trial judge relied on findings that established the conduct set out above. The extensive record of this 18-day trial supports the trial judge's findings. In their totality the concerns expressed about improper adverse references to inadmissible evidence do not, in these circumstances, rise to palpable and overriding error. We see no reason to interfere with the trial judge's conclusion that the appellant's conduct could be described as "high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from the ordinary standards of decent behavior". We agree that in the circumstances of this case, particularly given the length of time that the appellant conducted himself in this fashion and his intransigence, an award that addresses the issue of deterrence was clearly warranted.

[11] Characterization of Appellant's Conduct

The record clearly shows the appellant to be a bully who, for over a decade, repeatedly took steps designed to increase the value of his property knowing the harm these steps were causing to the respondent's property and to the respondent, personally. The amount of $125,000 for deterrence purposes is entirely reasonable.

[12] Disposition

The appeal is therefore dismissed.

[13] Costs

The respondent is entitled to his costs of the appeal fixed in the amount of $50,000, including disbursements and applicable HST.

[14] Court-Held Monies

The monies currently held in court, pursuant to the order of Justice Doherty, is to be paid to the respondent to be applied toward any outstanding costs award.

Gloria Epstein J.A. C.W. Hourigan J.A. David M. Paciocco J.A.