[1] The plaintiffs originally sued the town of Fort Frances for damages for mental anguish, breach of fiduciary duty and for damages to land owned by the plaintiff Mary Jane Pearson. This action is based upon allegations that the town negligently installed and maintained a storm sewer which crossed her land and her neighbour’s land pursuant to an easement. The plaintiff also argued that the Town had a duty to provide lateral support to abutting land owners.

[2] This action was encouraged by representations said to have been made by the Mayor or a member of Council but which were not binding as a cause of action although they might form the basis of estoppel if delay in initiating the action was in issue.

[3] The plaintiffs claims for damages based upon mental anguish, fiduciary relationship, and the alleged representations of the mayor have been discontinued. Only the claim of The plaintiff Mary Jane Pearson remained.

[4] The town of Fort Frances denies any such negligence. It submits that if the plaintiffs suffered any harm as alleged then the proper tort encompasses the law of nuisance and is statute barred pursuant to section 449 of the Municipal Act. The defendant submits that any wrongful action or failure to act on it’s part was a discretionary power as a result of which no cause of action lies against the municipality pursuant to section 450 of the Municipal Act. The defendant pleads that in any event the proper defendant is the subdivider who installed the sewer because the town of Fort Frances has never formally assumed responsibility for the subdivision.

[5] At the close of evidence the Town of Fort Frances abandoned its counterclaims against both plaintiffs for expenses incurred as a result of the alleged negligence of the plaintiffs.

[6] Documents were introduced as evidence of the facts contained therein with exception of the photos referred to in Tab 39 which were marked F for identification. These were not authenticated.

[7] The plaintiff, Mary Jane Pearson is the owner of a house located on lot 10 in the Olde Shambles Road Subdivision. In was built in the period 1995-97. This is known for municipal purposes as #1218 Olde Shambles Road. This property runs from east to west with the east side fronting on the road. A creek called the Biddleson Creek runs parallel to the road on the west side of the property. A 20 foot easement, 10 feet of which is on her property, and 10 feet of which is on lot 9 being # 1216 runs along the southerly side of the property from the street to the creek. A storm sewer is embedded in this easement. It carries surface water from the street to the creek.

[8] During the month of July 2001 the town of Fort Frances received 231.5 m/m of rain, an unusually high level of rainfall. This represented 30% of the total rainfall for the year. (tab 37)

[9] In June 2002, 292.9 m/m of rain were received, approx. 50 % of the total rainfall for the year.

[10] The back yards of lot 9 [1216] and lot 10 [1218] sustained damage in both 2001 and 2002.

[11] The parties agree that the loss of value of the property at # 1218 is $232,500.

EVIDENCE:

ROSS PEARSON

[12] Ross Pearson is 73 years of age. He is married to the plaintiff, Mary Jane Pearson. He was employed for 25 years in logging where he built bunk houses, a sawmill and roads.

[13] He then became a builder of houses. His brother, RJ Pearson, built some houses and established the Olde shambles Road subdivision. Ross’ children bought lots in the subdivision: Tom bought lot 2, Lori bought lot 10 which she subsequently sold to her mother, Mary Jane Pearson, and Ricky bought lot 11. Lot 10 is 1218 Olde Shambles Rd.

[14] Ross Pearson testified that when the house was built on Lot 10 the backhoe dug from the back of the property to the front. The fill was trucked away. All of it. Pearson denied that he ever added any fill to the backyard

[15] The sub divider put additional fill on the easement. Pearson’s house was two stories over the basement. He built a deck behind the house. One could pass through a door from the basement and proceed directly to the deck which was on the ground level outside.

[16] He had a building permit.

[17] There were never any comments from the town regarding the slope on the land. The town inspected the house as it progressed. He paid his electrical bill to the town.

[18] The deck was 30 inches below grade. One had to walk up steps to the lawn. See tab 95

[19] There had been no movement in the backyard before 2001. He might have taken several trees down around the house but none in the backyard.

[20] Before 2001 the slope was pretty much all the same. It was steep then flattened out 16 to 18 feet from his deck.

[21] The house had four downspouts. Three downspouts drained to the street and one drained down the slope on the West side through a pipe under the deck.

[22] During the summer of 2001 there was heavy rain. Seven or eight inches of water fell over two days.

[23] Mr. Pearson says that after the rain he saw cracks radiating out from the top of the sewer to # 1216 and to #1218. These were about 8 feet long on each side and 2 inches in width. A big crack was forming from the top right-hand side of the storm sewer. There was nothing apparent behind his house. A sinkhole developed on the north side of the house.

[24] Mr. Pearson says that by November 2001 the steps down to the deck had been moved because of a sinkhole by the deck. The sinkhole is marked with an X on the site plan B. He contacted the city

[25] # 1216 had a suspended deck around the main floor supported by a cement pad. The cement tipped and pulled the deck over

[26] About November 19 2001 Mr. Pearson visited Raymond Roy who was superintendent of works. He told Mr. Roy something was leaking under the storm sewer. His suspicion was based upon the earth sinking over the pipe. He put a stake in at that location. Cracks were radiating from that spot. He measured from the street and it was about 100 feet. Later the video inspection showed a break at that location. He told Roy this before the 2002 rain. He thinks it was the preceding November. He thinks he put the stake in the ground before Roy came out.

[27] According to a memo prepared by Mr. Roy for his superiors dated Nov 21 2001 (tab 39) Roy and Skirten met Pearson at his property on Nov. 20. On Nov 21 they ran water through the storm sewer and concluded there was nothing wrong with it. Mr. Pearson says he was not there when Roy and Skirten arrived. I assume that he meant he was not there when they ran water through the pipe on the second visit.

[28] Tab 38 is a letter from Roy denying any liability.

[29] By 29 November 2001 the front end of his deck had tipped and the end had slipped down. Mr. Pearson didn't do anything about it until 2002.

[30] In April of 2002 he began to construct terracing at the bottom of the slope. He decided to terrace his back yard. He was familiar with the use of terracing to shore up slopes from his logging business. He says he knew there was a problem with the storm sewer leaking. He brought in 16 foot timbers which he braced against the big trees on the slope. He started his terracing about 30 feet below the deck. He put timbers along the bottom of the slope. They were 6 in. square. He stacked them about five timbers high. He ran the timbers parallel to the house. At one end they were not five high because the land was higher there. He staggered 16 foot timbers with 8 foot timbers. He tied this in with shorter single timbers into the bank every 4 feet across the property. There were five rows going up the hill.

[31] On 8 May 2002 he stopped work on the terracing. He put no fill behind the timbers. He had access to fill but never got it put in place.

[32] The rain of June 8, 9 and 10, 2002 washed everything down the slope.

[33] He denies cutting trees on the property.

[34] He removed the cribs surrounding the steps to the deck and took the boards off the deck. He had intended to construct a new deck when the terracing was finished. He took the deck apart and put the boards on the crib at the bottom. The Southwest corner of the deck had tipped. He knew that something was going to happen.

[35] He had no discussion with the town about installing the cribs. None of that installation was on the easement. The water did not flow over the top of the ground. It went underneath. Trees and cribs slid 10 feet.

[36] The trees on the easement had been cut. One can see a basement door "D" on exhibit B. One can come out of that door and walk to the north of the building. Fill was placed in that location when the basement was constructed. The other door was originally at ground level. After June 2002 there was an 8 foot drop. It is still an 8 foot drop. He has put tarps on the ground to prevent erosion.

[37] There was no soil movement at 1220, (Lot 11).

[38] At 1216 (lot nine) the ground had sunk 3 feet away and had subsided 2 feet. Cracks radiated out. The whole hill had slumped. Trees had dropped.

[39] Pearson emphasized he drove a stake in the ground and told Roy that the pipe was obviously broken in that location.

[40] At 1216 there was a slab under the deck. The only way out of the basement apartment was out onto the deck.

[41] There wasn't much effect on the easement after the 2002 rain. The ground had slumped on the easement. He contacted the town the next day after the 2002 rain. Roy came out to look. He thinks he was there. He contacted the mayor (Witherspoon). The mayor brought people out. There was talk of putting a camera through the sewer. Pearson claims Roy said the line was perfect. A month later he saw a Cambrian truck doing a line inspection with a camera. Two weeks later they came to his house.

[42] In July 2002 the mayor, Councilor Roy Avis and Pat Hickerson came out. Roy Avis said "if there is a hole [in the sewer] we will fix your backyard"

[43] A camera inspection was conducted afterwards. He was not present when this was done.

[44] Afterwards Hickerson wrote to Mrs. Pearson saying there was a break in the pipe.

[45] In November 2002 the town came and dug a hole in the ground just below where Pearson says he had put the stake.

[46] The pipe was separated 30 inches apart. The bottom part was lower and off to the side. A portion of the pipe was cut off. He wanted to save it. It had holes in it that were 1/2 inches in diameter. He put the pipe on his property. The sewer pipe was repaired and the pipes were joined with a clamp which was not square. He complained that the sewer would leak. He was told it was just a temporary joint for the winter, that it would be replaced in the spring. They had to clean out the bottom of the pipe which was plugged.

[47] Tab 35: photographs taken November 7, 2002

[48] Number one is the bottom that is the downhill portion of the pipe

[49] Number 18 is the pipe which was left by his house about a year. Then his wife and his daughter Laurie met with Doug Brown of the city and the next day the city took down the barricade and removed the pipe.

[50] Buckrell was the first engineer who attended. He wouldn't listen to Pearson. Then Pearson received a call from the CEO of the city asking if he would pay 50% of the engineering costs. He declined. Pearson could not understand the need for an engineer. The city had said that if there was a hole in the pipe they would fix his yard.

[51] The city repaired the pipe, put clay back in but the joint was not straight.

[52] See tab 35, number eight, number nine (note the different angles) and number 12 (note the mesh around the pipe)

[53] The town dumped four truckloads of dirt on the easement. They trucked in the fill and hauled it by wheelbarrow. They then covered this with a wire mesh and covered the whole with sod.

[54] In 2005 the city came and put more fill on the easement. See photographs tab 98

[55] See the photograph tab 97 the trees on the neighbor's property.

[56] He called Brown at the town and asked him to come back next year but was told they weren't coming back again.

[57] 24 October 2002: Hickerson sent a report to Council concluding that the separation of the sewer was not the cause of the slope failure but was due to a combination of fill placement and roof and lot drainage tab 52

[58] 28th of October 2002: Council approved the report of Hickerson. Tab 57

[59] 7th of November 2002: sewer is dug up and repaired. No signs of cracks, open fissures or weakened soil zones were observed on the north side of the trench. The soil layers in the pipe trench were found to be relatively firm to stiff indicating that the soil fill was compacted around the pipe. Tab 73

[60] 4th of December 2002: Hickerson reported to Council on the events of 7 November. Tab 73

[61] 9th of December 2002: Council approved the report at tab 73 tab 76

[62] 5th of February 2003: Pearson asks for information tab 78

[63] 10 February 2003 clerk replies that nothing has changed since the resolution of December 9, 2002 tab 78

[64] 18 June 2004: clerk confirms that on June 14 Council defeated a resolution to reconsider the question of compensation for Pearson. The clerk maintained that Council was denying responsibility in any way for the slope failure and he pointed out that the RJ Pearson subdivision had never been formerly [formally?] accepted by the town of Fort Frances.

[65] Tab 35 consists of the photographs taken on November 7, 2002

[66] Photograph number three in tab 88 shows the back of the plaintiff's property following the final subsidence.

Downspouts:

[67] Tab 93 shows two downspouts, one midway along the south wall which was said to flow to the street and the other is in the middle of the garage which definitely flows to the street

[68] Photograph number 95 shows a downspout on the West wall at the south corner where the cribbing was.

[69] The photograph at tab 94A shows no downspout on the West wall. The water [from spout 95?] ran under the deck. It was the only spout at the back and it ran through a pipe down to the trees.

[70] The footings on the house were excavated some 7 to 8 feet. The house was unusual in that the footing at the back was lower than that at the front.

[71] Photograph 94A shows steps down from the easement to the deck. There is cribbing on both sides. The elevation was such that five steps were necessary to get down to the ground level on the deck. This cribbing around the steps slid down the hill in July of 2001. The deck dropped 2 feet.

[72] Photograph 96 A shows the condition of the steps in late 2001. By this time the stairs were about 15 feet from their original position. Someone carried them to the location shown in the photograph.

[73] The trees at the back of his property slid down the hill with the terracing in 2002. Roots and all.

Terracing

[74] Tab 103 is an end view of the terracing. Number two designates 2 foot timbers that went to the edge of the bank. They were not tied into the bank. The horizontal timbers were supported by the bank at each end.

[75] Mr. Pearson had no building permit for the terracing.

[76] He had experienced no problems before July 2001.

[77] His backyard continues to sink every year. Not by a large amount.

Jeff Peterson:

[78] Jeff Peterson of DST Consulting testified on behalf of the plaintiff. His CV is at tab 106. He was accepted as one competent to give opinion evidence in the area of soils, hydrology and groundwater, terrain and terrain stability. It was agreed that the expert’s written reports did not constitute evidence.

[79] He visited the site on September 16, 2005, November 21 and 23rd 2005 February 16th 2006. May 2008, 2010, November 29, 2011. He walked the creek on two occasions.

[80] As Mr. Peterson testified, the neighboring lot's are generally less steep. He noted that the soil mass behind 1218 has slipped down. There is also ground movement behind 1216. There are cracks in the soil behind 1216.

[81] He conducted three cross-sections and an elevation survey. The benchmark was the hydrant at the front of 1218.

[82] The slope from the easement is approximately 2 m to the house.

[83] He dug boreholes. He checked soil consistency. This is a standard penetration test. The number of blows to advance 2 feet with samples being checked every 2 feet.

[84] Tab 108 is a borehole log.

[85] The first half metre consists of fill and clay with a trace of sand and gravel. Below that there is sand and gravel and silt below that organics with some clay some sand and gravel. The 2 m level is clay with traces of sand and gravel. It is stiff to very stiff, that is, it is very strong and relatively impermeable to water.

[86] The SPTN value is the number of blows needed to advance the probe. The higher the SPT value the stronger, more intact the soil is, indicating stiffness in the soil. The range of moisture was from 10% to 25 to 30% in the Clay. Therefore there was a stronger, more intact clay. The water table is located about 7 m.

[87] Tab 111 are photographs taken November 23, 2005.

[88] There was high plastic clay relatively impermeable to water. Tabs 35, page 1 being the photographs of the excavation of the pipe depicts this.

[89] Tab 88 photos dated November 7, 2002

[90] Sloughing is where soil loses strength and drops down to a lower level

Defence suggestion that slide a result of removal of trees and other ground cover:

[91] Peterson did not observe that trees on the slope had been cut. If the slip face was below the roots then the tree and roots could slide with the surrounding soil.

Michael Fabius:

[92] Michael Fabius specialist in geotechnical engineering. His C.V. is at tab 113.

[93] His practice in Northwestern Ontario has given him experience with respect to a wide range of soils. He is the author of a article on the stabilization of riverbanks.

[94] I accepted him as a person that able to give opinion evidence with respect to soil mechanics, investigation and report on soil subsidence conditions, evaluation of stability of natural slopes and man-made soil deposits, remediation of slope failure.

Observations

[95] Mr. Fabius noted that there were two events: the slide of 2001 and the slide of 2002. One must consider the slide of the pipe and the slide of the land.

(1) The sewer pipe had separated both horizontally and vertically. Separation took place along the lines of the scarp. There is a sharp vertical drop which indicates a deep seated slide. There was a lot more vertical drop on the Pearson side of the pipe.

(2) Land slid at number 1216 (lot nine) and number 1218 (lot 10), both of which abut the sewer easement but land did not slide at lot 1220. Lay people would point to the lawn and retaining wall at 1220 but these are ineffective bars to deep slides such as occurred here with trees, roots and terracing timbers all being carried down the slope.

[96] Fabius confirmed Pearson’s evidence that there were holes in the sewer pipe which is unusual unless the pipe is very old and this pipe was not old. These holes predated 2001 therefore we can conclude that some water was escaping from the sewer prior to the event of 2001.

[97] The creek bed generally had not eroded. However there was significant erosion at the outfall of the sewer.

[98] There were no reports of earthquakes or other vibrations of the earth in the area

[99] There were reports of water pooling at the drain on the street at the upper and of the sewer pipe.

[100] Both events occurred after very heavy rainfall

[101] After the 2001 event things did not occur instantaneously. They occurred over the summer.

[102] The easement backfill was higher than the building backfill.

[103] This was very sticky clay. If it is disturbed it loses its strength. There is a significant loss of strength in high plastic clay as found here. In this clay 40% to 60% loss of strength occurred. The Atterberg test tells us this. [tab 110]

[104] The water table was down quite deep. It is difficult to check exactly because water flows more slowly through clay.

[105] The sewer pipe came apart at the joint. The bottom segment moved down the slope about a metre. The downslope pipe either buckled or the manholes slid as well. Erosion at the outfall might have contributed to the latter.

[106] There were reports of sinkholes after the rain of 2001. Soil was not apparent on the surface down the slope. The most logical view is that the soil washed down the pipe and into the creek. Sink holes need water. One only sees them when a lot of water is running under ground.

Opinion:

[107] When you see a landslide with the pipe down the middle of it you begin by suspecting the pipe as a cause. In this case investigation verified the pipe as a cause of the slide. [emphasis mine]

[108] Fabius noted that there were two events: the slide of 2001 and the slide of 2002. In his opinion the crucial event was the slide of 2001. As a result the decks were going and sinkholes were appearing.

[109] Accepting that Mr. Pearson saw a sinkhole at the pipe after the events of 2001 the first thing that occurs to one is that the pipe was involved but he admits there are other considerations as well.

[110] He analyzed the issues by setting up three categories of potential causation:

loss of soil strength

destabilizing forces

water effects.

[111] He then rated these potential causative factors as to probability

Loss Of Soil Strength

Use of clay in the sewer trench instead of sand and gravel backfill:

[112] He assigned a low causation probability to this. Clay exposed to frost or the sun will crack. This weakens the clay. In this case the clay was deep in the ground.

Water Effects: sources of water

Rain

[113] Rain can cause surface erosion and add to the surface weight causing shallow slipping but not a 3 m deep slide. Where cracks have formed in the earth surface water has deeper access.

Water entering from pipe

[114] Water could enter the ground from the pipe either through the holes in the pipe or as a result of the severance of the pipe. He rated this as a moderate causation factor.

[115] The pooling of water on the street may have been an indication that the pipe was not large enough or that dirt had collected in it.

Water table rise:

[116] Water tables do not fluctuate much in areas of clay such as this. A low probability was assigned

Effect Of Water

[117] Water pressure is important. It may result in

an extra load on top.
As pressure goes up the soil is weaker
Waters injected into the soil (for example if it is coming out of holes in the pipe) may result in the trench fill sliding first.

[118] It is not so much the volume of water but its pressure. The holes in the pipe released water under pressure.

[119] One wouldn’t get a sink hole from a few holes in the pipe.

Destabilizing forces:

Erosion

[120] A common cause of a slide is erosion of the creek bank which destroys the “toe” of the slope along the creek which in turn results in the slope sliding. Here, however, the ground at the toe was fairly level. Nor did he see any erosion. This creek does not have a “normal” flow. Ordinarily, in spring and during other times of flood the rushing water undercuts the creek bank thereby causing erosion. In this case the normal flow is quite gentle. It flows into the Rainy River. In periods of flood the Rainy River rises and backs up the creek. This slows the flow of water down the creek and causes it to spill over a flood plain between the creek and the toe. The standing water at the foot of the slope tends to stabilize the slope.

Fill dumped on the slope increasing the weight

[121] Another common cause of such a slide is the addition of fill to the slope. This increases the weight on the slope. Piling fill on the top or in the middle of the slope is useless. The worst thing is to inject water or add soil but it is intuitive to replace the soil when it sinks.

[122] Mr. Pearson denies that additional fill was added to the slope at 1218. This denial seems borne out by the fact that the ground level at the deck was lower than the original slope, by the fact that normally the addition of fill will trigger a slide relatively soon after the addition of the fill and by the fact that in this case, even if fill had been added to the back slope at 1218, the excavation of the basement had reduced the overall weight on the hill so than the addition of a bit of fill would not have made a difference. He assigned a low probability to this.

[123] Another consideration is the placement of fill by the municipality on the slope in the easement.

[124] The town had been raising the level of the easement. The Wardrobe Engineering Company had done elevations in the 1970s. Comparisons between those elevations and elevations charted by his firm show that the crest of the slope had been moved out on the easement with the deposit of fill making the elevations on the easement higher. Pearson says this and the boreholes confirm this.

[125] There is no conclusive [emphasis mine] evidence that there was pre-slide soil slippage in the easement.

[126] There is no evidence the pipe pulled apart prior to 2001.

[127] The important thing was that Pearson reported a sinkhole.

[128] He concluded that it was more likely than not that the pipe was involved but he could not say so 100%.

[129] One couldn’t miss a sink hole as shown in tab 96.

[130] Mr. Fabius concluded that, based upon probabilities, the 2001 slide was caused or contributed to by slippage in the easement. The easement was not steeper but the soil in it was weaker than the soil in the adjacent property. Slippage in the easement was caused or contributed to by water escaping under pressure from the holes in the sewer pipe which probably predated that slide, the installation of the sewer trench which weakened the surrounding clay; the added weight placed on the easement; the erosion at the foot of the sewer outfall, the steepness of the pipe.

[131] According to Mr. Fabius, these factors resulted in the 2001 slide which severed the pipe as evidenced by the creation of sink holes. These take time to develop and are only seen when there is a lot of water running underground. The soil that was disappearing was not being washed down the slope. It was logical to assume that there was a severance in the pipe and the soil was being flushed down the pipe to the creek. The 2001 slide destabilized the abutting properties and opened cracks in the ground which allowed more water to flow into the soil of the adjoining properties.

[132] In his opinion, once 2001 occurred the whole slope was much more susceptible to sliding. The soil was weaker and the surface was more open to water which increased pressure

[133] According to him, given the damage sustained by 1216 and 1218 it is logical to conclude that the slide had something to do with the pipe

[134] The 2002 slide was caused or contributed to by the water which was escaping from the severed pipe which moved into the abutting land weakening the soil stability and the water that flowed into the cracks in the ground.

CAIUS PRISCU

[135] Mr. Priscu was accepted as qualified to give opinion evidence on the principles of soil mechanics, investigation and report on subsurface conditions and evolution of stability of the slope and remediation

[136] Mr. Priscu has never worked for a municipality or designed a municipal storm sewer. He was retained by Mr. Peterson in 2004 to inspect the area and provide an assessment of what happened. He attended twice: October 14 or 16th 2004 and July 2005. Sketch prepared tab 117. By October 2004 the backyard of 1218 had slid approximately 4.8 m down the Hill. The earth had dropped .8 m vertically at the top of the slope failure on the adjacent Southern property. 1216. See Photos tab 118

[137] The wooden flower cribs were empty. They had slid when the slide occurred. He walked the backyard from the Street to the bottom of the slope. He walked along the toe. Photographs at 118 were taken by him in October 2004. The top edge of the slope was at the foundation of the building.

[138] The slide was a rotational failure:

A segment slid down the slope
As it went down the slope the bottom was raised somewhat while the top dropped.

[139] 1216 to the South had a slope similar to the Pearson property. In 1220 there were no tension cracks on the soil

[140] By July 8, 2005 there was an increased slump on the slope. There was a small increase in the distance between the manhole at number two and a manhole at number three.

[141] In his opinion there are two issues: how did it happen and why it happened

[142] Priscu understood the water levels in the Creek were high in 2001 and 2002. He also understood that quite a bit of water accumulated on the street. It was not draining fast. He considered this important.

[143] Because of the high water level in the creek the sewer was full of water and under pressure. He understood that this happened often. This type of pipe is not designed for water under pressure. This gives the potential for the pipe to open up.

[144] He understood that photograph number 96 was taken in late 2001. The eroded area was left there between the two rainfalls. It became a collection trench for a lot of water.

[145] The size of the culvert compared to the output of a fire hose wouldn't tell spectators much except whether the pipe was totally blocked.

[146] Photograph Tab 35 shows a lateral movement and a downward movement. A large cavity was created. The cavity was from water that was coming out of the pipe under pressure. This could well have been an ongoing problem that predated 2001.

He thinks the severance was well before 2002

[147] Because of the bulging effect at the toe he thinks that the slide was caused by deeper issues. It is difficult to say whether the erosion of the easement at the Creek was caused by carrying soil down to the Creek.

[148] As for extra fill being dumped on the Hill he did not see any and the situation was such that it could not have been removed

[149] There was fill on the top of the slope on the easement between the two houses.

[150] There is a distinction between 2001 and 2002

[151] The slide of 2002 was caused by the slide of 2001. Tension cracks were created and this weakened the connection with the easement trench that heavy rain fell

[152] The slide of 2001 was likely caused by the break in the culvert. This was something that had been taking place over a number of years. The excavation of the sewer trench had weakened the area. Pressure built up in the upper portion of the sewer. The sewer running along the street was 24 inches in diameter with a grade of 1%. The sewer from manhole number three [the one at the street] to manhole number two [the middle manhole] was an 18 inch pipe with a grade of 13.48%

[153] From manhole number two to manhole number one [closest to the creek] it was a 24 inch pipe with the grade at 1.60% [tab 14]

[154] Priscu understood that photograph 96 was after the 2001 slide but before the 2002 slide. This represents a deep hole. The soil had to go somewhere. There is considerable settlement around manholes number 2 and 3. [ Did he mean the middle and bottom manholes? There was confusion in their numbering] The question is why?.

[155] He considered other causes:

(1) The addition of fill is a common cause. There was no evidence of that here other than on the easement. The fill would not have all washed away over the years. He looked for evidence of the deliberate removal of fill. The vegetation was too thick to support that theory.

(2) The removal of pre-existing structure: no evidence of this

(3) If a slide occurs it means that the driving force must have increased or the resisting forces must have decreased.

(4) Rainfall: he reviewed the weather records. [see tab37] The precipitation for the years 1982 2001.

July 1987: 247.04 mm for month

July 2001: 230.5 mm 107.2 mm in two days 87 in 1 day

June 2002 292.9 mm 213.4 in three days (8,9,10) 118.4 in one day, 81 day after

July 2001 was the second-highest month found. (sic) and June 2002 was the highest month between 1980 and 2002

[156] The 2001 event prepared the ground with cracks and slumps.

[157] In 2002 rain had a more critical role.

[158] There were no tension cracks apparent on 1220.

[159] Terracing can help but it can be overdone.

[160] At the toe of the slope soil had collapsed into the Creek. This is not erosion. The toe has moved up causing overhang. He had reviewed Halim's report. He had a different perspective and did not agree with it.

[161] There are two types of inspection for problems with a sewer pipe:

i.a visual inspection: in which one looks for settlement in the ground, cave-ins, tension cracks along the culvert, eroded or washed out material, one may check the integrity of the manholes and compare the "as built" drawings with the actuality in the field. However, an absence of settlement does not exclude leaking or separation of the pipe.

ii.a camera inspection: this is very common. It costs from $5000-$10,000.

[162] Flushing water down the pipe is not very useful as an inspection tool. The capacity of the culvert is much greater than the capacity of the hose pumping water in. However, if there was a separation it might show discoloration in the effluent but previous flow over time would have eliminated this in this case.

[163] Pressure inside the pipe would result in the water escaping from the pipe being under pressure. Pearson had mentioned that water was backed up on the street at the top of the sewer. This means that water would leave the pipe more slowly than it entered thereby increasing pressure in the pipe. Even if water was not backed up it might still increase the pressure for other reasons.

[164] One time he was there the Creek was half a foot inside the outlet. Water will take the path of least resistance. If the creek is up eight or 9 feet this slows the exit of water.

[165] If the water rose the pressure would increase in the pipe.

ERIC LESSMAN:

[166] Mr. Lessman is a friend of Pearson family. He helped to install the cribbing at 1218 in the spring of 2002. He confirmed that no fill was put on the slope nor was soil removed while he was there and no trees were cut. He says the deck was still at the back of the house when he was there. He says that there was a cave-in or washout on the left side of the house [ie. the easement side] and they had to take the timbers down the right side of the house because of the washout.

[167] Having been shown photo 96 he did not remember the washout being as bad as that shown in photo 96. The deck was still at the house. He doesn't remember if the stairs were still there.

SCOTT CLENDENNING:

[168] Mr. Clendenning is the occupant of 1216. He bought it in November of 2004. He had a large concrete slab off the lower level of his house. He removed this concrete because it had been dipping and sliding into the ravine.

[169] Every spring there are changes on the side of the house. Trees have slipped three or four feet down the easement.

[170] The town has laid down more soil on the easement together with chicken wire and sod. He has never been told that the town was not maintaining the road or sewer.

GLENN WITHERSPOON

[171] Mr. Witherspoon was Mayor of Fort Frances from 1991 to 2003. He has known Mr. Pearson since they were young men in that small town. He attended at 1218 at the request of Mr. Pearson in the summer of 2001.

[172] At that time Pearson thought that his problems were caused by the sewer. The deck had pulled away from the house slightly. The ground had sunk in the area between borehole number one and borehole number two almost as far as manhole number two. It looked like it was eroding underneath. The soil was intact but it had sunk. It was similar to what may be seen in photo 96.

[173] Witherspoon thinks that the stairs were still in place on the deck in 2001 and that the crib at the corner of the house was still in place in 2001.

[174] He returned to the town and asked Mr. Hickson [Manager of operations and facilities] to have someone look at the problem and write a report. Hickson had Raymond Roy deal with the issue. The depression in the ground in 2001 was obvious. Roy should have seen it.

[175] Witherspoon went back in June or July 2002. He took Roy Avis, Chairman of operations and facilities. Mr. Hickson met them. The ground had sunk more than three or 4 feet. The entire deck had gone into the gully. It was a mess. They were shocked at what they saw. Pearson alleged that there was either a hole in the sewer or it had pulled apart. Witherspoon said as mayor that if the town was at fault they would make it right.

LAURIE MOXHAM

[176] Ms. Moxham is a daughter of the Pearsons. She has been a teacher for 14 years. She was the previous owner of 1218 before selling it to her mother. The house was built in 1995.

[177] She and her children lived in the house in the years 1997 to 2000. They lived in the basement. The children played there. At that time the bush came right up to the deck. In 2000 she moved across the street to 1202. She is still there.

[178] After the slide in 2001 she noticed the back deck sloping down. There was a hole on the easement between the houses. You could see the hole, it was a sinkhole. She was there when Roy attended. She says he looked at the hole. The family expected him to do something about it but he didn't.

[179] After the flood of 2002 the deck in the backyard slid down the hill.

[180] She confirms that after the slide of 2001 the deck was still in place.

[181] In 2001 the town talked about putting a camera down the pipe but they didn't do it until after the slide of 2002.

[182] In 2002 the whole backyard slid. Trees went down to the bottom of the ravine. When the sewer pipe was taken out of the ground it was full of rust holes. A piece of the pipe was put beside her mother’s house. Several years later she was told the town hadn't assumed the subdivision. She protested. She said they had plowed the roads, fixed the sewer, put up a barricade. The next day the town took down the barricade and took away the old pipe her father had saved that had been replaced.

[183] Pearson's slide was worse than the neighbors. Originally one could access the deck straight through the door out of the basement. After the rain of 2001 the deck was still accessible by the door but the steps down from the high ground on the easement were removed. The corner of the deck had tipped

[184] After the storm of 2001 not a lot happened in the backyard but a hole developed.

THOMAS PEARSON

[185] Mr. Thomas Pearson is a son of the plaintiff's. He lived in 1220 before 1995. He helped his father build the houses [at 1218 and 1220]. All of the fill was carried away from the basement.

[186] No dirt was laid down at the back. The foundation was backfilled but there was enough fill to cover the footings. The Earth under the deck was dug out.

[187] In late summer of 2001 a hole and cracks began to appear in the ground. There had been no cracks before 2001. He places the location of the hole around the word "reported" on the sketch tab 114. T. Pearson says he saw the hole in September or October. [He operates a tourist lodge during the summer] It was a sinkhole. The hole was slanted down into a dark area. It was between the corner of the deck and the sewer pipe.

[188] T. Pearson says he took photograph 96 in the fall of 2001 when the problem began. He says the hill on the left of the sinkhole is still there in the backyard in the picture. By 2002 the backyard was gone.

[189] In the 2002 storm all of the ground in photograph 96 slid down. He points for example to the tree up on the top left of the photograph. After 2002 it was 2 feet lower down the slope. The land slid 30 or 40 feet in 2002.

[190] He was present when the town excavated. When the pipe was taken out it was full of holes. It was put by his father's house and later disappeared. He pointed out the cracks in the ground radiating from the pipe.

[191] In 2005 the town came back and did some other work. Photograph 97 was taken before the “chicken wire” repair in 2005. The town dumped more fill on the easement and it began to crack again. Photograph 99 was taken by him in 2006 after the town did work. The area on the easement has slipped. The town came back and put on more fill. Tab 100 is a sinkhole created over the sewer.

[192] There was no fill dumped in the back after the house was built. No soil taken from the basement was put on the slope.

EDWARD BERRY

[193] Mr. Edward Barry was an employee of town of Fort Frances 1988 – 2001. He dealt with subdivision developers. He was the liaison between the engineering department and the subdivider. The Olde Shambles Road subdivision was underway several years before he took over.

[194] Tab 26: this is the initial acceptance of completion of the subdivision as of February 18, 1987. Warrantee to expire February18th 1989.

[195] Prior to final acceptance upon the expiry of the warranty the subdivider was required to file a statutory declaration as per section XII 3 of the agreement to the effect that all debts had been paid.

[196] He raised deficiencies in the subdivision and the subdivider produced tab 26 as acceptance. Tab 28 is a list of deficiencies on the final inspection. Especially the sewer system. The concrete apron of the outfall was to be stabilized. According to tab.29, on October 30, 1989 the town drew $20,000 to cover the cost of corrective maintenance and incomplete works. A list of deficiencies [28] was enclosed. If the work was satisfactorily completed on or before June 30, 1990 the $20,000 plus interest would be returned less outstanding insurance charges and administration costs incurred. According to tab 30 on August 23, 1990 time of completion was extended to September 28, 1990. By tab 31 September 21, 1994 Mr. Berry acknowledged satisfaction of the subdivision agreement at no cost to the town of Fort Frances. He authorized repayment of the $20,000 plus interest. By tab 32 on September 22, 1994 the town repaid the developer $29,529.68, the money being held as security for completion.

[197] By tab 33 dated Feb 17th 1995 Mr. Ian MacLennan, a local Barrister and Solicitor, sought confirmation on behalf of another client that the town of Fort Frances had accepted the subdivision and that all conditions of the subdivision agreements had been completed.

[198] By tab 34 Berry had replied that the subdivider had satisfied all the conditions of the subdivision agreement but the subdivision had not yet been formally accepted by the town.

[199] Berry says that as of 2001 when he left his employment with the city no statutory declaration had been delivered by the contractor. He was informed that the work at the outfall of the storm sewer had been completed.

Admissions read into the record by the plaintiff

[200] Admissions read into the record:

(1) The town maintains the sewer on the easement. The date of assumption is unknown.

(2) There are no records of inspections, repairs, maintenance between 1990 and 2000.

(3) The town has no policies in place regarding inspection and maintenance of sewers.

Other Agreed Facts

[201] The parties agree that the loss of value of the house as result of the slide is $232,500.

[202] The plaintiffs admit that they moved out of the house, not because of the slide but because they were downsizing and had acquired a new house. They intended to sell this house.

[203] The ideal form of remedial work to shore up and restore the slope would cost $405,000.

DEFENCE OPENS

RAYMOND ROY

[204] Mr. Raymond Roy testified that he has lived in Fort Frances since 1980. Since January 1, 2004 he has been with the Rainy River School Board as Manager Of Plant and Operations.

[205] Prior to 2004 Roy was with the Town of Fort Frances as a Superintendent of Operations, responsible for town infrastructure such as roads sewers etc. He is a civil engineering technologist. This involves three years of study by correspondence. He originally came to the city as a surveyor.

[206] Roy has been involved in storm sewer repairs and installation. He has dealt with many hundreds of storm sewers. As superintendent he reported to the Manager Public Works. This was Pat Hickerson in the years 2001 and 2002.

[207] He knows 1218 Olde Shambles Rd.

[208] Roy confirmed that R. Pearson expressed concern about the back of his property. He claimed that the storm sewer was broken. Roy went and investigated. He went out the same day and met Pearson. He inspected the manholes and the outflow. He says he was looking for any failure in the ground for example a cave-in. He looked in the manholes 1, 2 and 3 as shown on A 1 14. He saw nothing. [Note: The manholes are numbered in the reverse order on the older plans such as tab 13.]

[209] Roy testified that if there is a pipe failure there is usually mud in the outflow. Here it was normal. There was no water in the manholes when he checked him.

[210] He went back to the site the next day, hooked up a fire hose and put it into manhole number 1. [on the street]. R. Pearson had said there was water coming out of the pipe. He looked into manholes 2 and 3. He was interested in the volume of water and the clarity the water. There was no apparent change in the volume of the water and no discoloration. He would have expected to see a lower volume of water coming out and water flowing outside the pipe.

[211] Roy says he walked along the toe looking for evidence of water flow. There was none present when he did the line flushing.

[212] Roy concluded the sewer was functioning as designed with no exfiltration.

GLEN TREFTLIN

[213] Mr. Treftlin has been the Town Clerk since May 2, 1988.

[214] He wrote the letter which is tab 81 to the effect that On June 14, 2004 Town Council considered a motion to reconsider its denial of compensation for erosion and denied it. In the letter he mentions "as a matter of interest" that their records indicate that the subdivision has never been “formerly” [sic] accepted by the town of Fort Frances.

[215] He claimed the Town has never received the requisite statutory declaration or "as built" drawings. It is concerned that any claims outstanding against the project might be assumed by the town.

RAMLI HALIM:

[216] Mr. Halim holds the degree of Master of Engineering in Geotechnical Engineering.

[217] Geotechnical Engineering involves soil mechanics and hydrology. Soil penetration tests are the only way an engineer has to learn about soil. About 50 to 60% of his time is spent on foundations and soil mechanics.

[218] I accepted Mr. Halim as a person qualified to express opinions on the principles of soil mechanics and soil testing, investigation, analysis and assessment of slope failures, natural slopes, subsurface soil conditions, soil movement, slope instability groundwater effect and hydrology.

[219] Mr. Halim began by stating basic principles: the slope failed because of an imbalance between the driving forces and the resisting forces, ie the mass on the surface putting weight down and exceeding the friction between the sliding mass and the stable mass.

[220] When a slope is in equilibrium the driving force is less than the resisting force. This equation may be affected by variables such as the steepness of the slope, the consistency of the soil or the addition of water. The presence of water can affect the equilibrium in several ways:

(1) Water on the surface or in organic soil adds weight to the driving force.

(2) Saturation at the toe decreases the weight of the toe and reduces its effectiveness as a resisting force. If the toe is submerged and washed away its effectiveness as a resisting force ceases.

(3) There is also the drawdown effect. As water on the toe goes down it tends to suck the toe with it thereby reducing its effectiveness as a resisting force.

[221] Sliding on a riverbank is commonly triggered by the raising and lowering of the water level in the river.

[222] Anything put on the crest can contribute to the driving force.

[223] Halim was retained by the town of Fort Frances to give an opinion as to whether there was any relation between the failure of the pipe and the slide of the slope. He spoke to Mr. Pearson, his wife and daughter. He attended the excavation of the pipe and took pictures November 7, 2002

[224] In the excavation he saw a bulb or cavity surrounding the joint. The pipe was buried 2 to 3 m. The pipe separated and shifted about 1 foot to the side. The cavity was this perfect sphere 1 m in diameter. [See tab 35]. In his opinion the cavity developed after the slope slid. The pipe was pulled and water escaped. Water flushing down the upstream portion sculpted a sphere 1 m in diameter at the point of separation.

[225] A scarp, that is a drop, occurred upstream of the break. The scarp is indicative of the slide. The slide involves the whole slope moving. The upper pipe is held in place while the bottom pipe is moving. It opens at the joint and water gushes out. From this he concluded that water escaping from the sewer is not a factor [because the slide occurred first then the water escaped]

[226] The downstream section of the pipe shifted. The upstream portion was stationary. There were holes in the pipe 2 cm to 3 cm in range. These holes were no cause of the slide.

[227] Typically there were low-water levels. The slope was in a state of equilibrium. If rain should wash away the toe then the slope is no longer in equilibrium.

[228] The creek is slow most of the year. He didn't see significant exposed soil. Erosion was an element of the slide but the degree was conjectural.

[229] Cause of pipe separation: the bulb was created after the sliding happened. This was a unique situation that caused a failure here and not the other properties. A lot of elements went into the slope failure for example the cracks as a result of the 2001 slide.

[230] The trench would usually be twice the width of the pipe it was an 18 inch pipe at this point

[231] The original soil usually sticks together better than disturbed soil even if the latter is compacted.

[232] If the easement had failed this may have been the cause of the pipe failing.

[233] A fill triggered slide usually happens right away after putting on the fill.

[234] He wouldn't express an opinion as to the appropriateness of flushing water down as a method of testing the pipe for severance.

GERALD WILFRED BUCKRELL

[235] Mr. Buckell is a waterworks engineer. He has been involved with storm sewer since his graduation in 1972. Primarily preparing and reviewing drawings.

[236] I accepted him as qualified to give opinion evidence on the reading and interpretation of engineering drawings and in particular of storm sewer designs, lot grading and general layout plans relating observations to those drawings.

[237] Mr. Buckrell was doing a job for Fort Frances when asked his opinion. He visited the site in September 2002 for half an hour to three quarters of an hour. He took photographs at tab 87

[238] He considered the scene was a classic slope slump or failure. He focused on #1218. He did not concern himself with #1216. The lot grading plan shows that the final grade was 4 feet more or less above grade. The top of the embankment is now about 20 feet further down from the Street.

[239] In general, storm sewers ought to be inspected from time to time.

ANALYSIS:

Standard Of Proof

[240] Although this case deals with physical occurrences and evidence has been given based upon scientific principles the decision of the court need not be based upon scientific certainty. While engineers look for 100% certainty, lawyers look for and are content with 51% probability.

Onus Of Proof

[241] The plaintiff, in this case Mrs. Pearson, has the burden of proving on the balance of probabilities that the defendant, in this case the Town of Fort Frances, either did that which it ought not to have done or failed to do that which it ought to have done and that this conduct of the defendant “caused” the injury suffered by the plaintiff.

Causation

[242] While philosophers and engineers may argue that the flap of a butterfly’s wings in China may affect the weather in North America, the law must have more transparent rules for the identification of causes.

¶ 16 . . . Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense". Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. (Athey v. Leonati 1996 183 (SCC), [1996] 3 S.C.R. 458.)

¶ 17 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. (Athey v. Leonati 1996 183 (SCC), [1996] 3 S.C.R. 458.)

¶21 . . . the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute. (Hanke v. Resurface [2007] 1 S.C.R. 458)

Duty Of Judge In The Face Of Disagreement Between Experts

¶ 10 . . . a trial judge is not obliged to accept all of the evidence. What is essential is that there be evidence to support the findings of fact he or she makes. . . . (Hanke v. Resurface 2007 SCC 7, [2007] 1 S.C.R. 333)

[243] Faced with disagreement between experts it is the duty of the judge to consider their opinions and theories but to form his or her own opinion. He or she should consider all of the evidence accepted by the judge and adopt that theory which is considered to be most consistent with that evidence and, therefore, more probable. (Gallant v. F.W. Woolworth Co. Ltd. (1970) 1970 662 (SK CA), 15 D.L.R.(3d) 248 (Sask. C.A.) ¶¶ 21,22)

ISSUES

[244] Why did the plaintiff’s slope slide?

[245] Is the town liable? Specifically,

(1) was it responsible for the sewer?

(2) Did the Town react properly to evidence of a problem after June 2001?

(3) Did the town fail to provide lateral support to abutting properties?

[246] If the town is liable, what damages are appropriate?

FACTS ACCEPTED BY THE COURT

[247] It was agreed that the expert’s reports and the quotation of them in municipal reports were not to be treated as evidence of the facts alleged although they might be used for some other purpose.

1980 August 11 - a subdivision agreement was signed whereby the Town agreed to pay 90% of the cost of the storm sewer.

1988 - the subdivider installed the storm sewer.

1987 - The Town issued an interim acceptance of the subdivision. [tab 26]

1989 - The town conducted an inspection and listed the outstanding deficiencies [tab 28]

1990 - The town conducted the final inspection. [tab 30]

1994 - The town acknowledged satisfaction of the subdivider’s liabilities and repaid its deposit amounting to $29,529. [tab 32]

1995 February - The solicitor for a third party wrote to confirm that the subdivision had been accepted and the agreement satisfied. The town replied that the agreement had been satisfied but the subdivision not yet formally accepted. [tab. 33, 34]

1995 04 - A building permit was issued by the town. [tab 92]

1996 03 - The house was finished and occupied.

1999 12 - Town issued an occupancy certificate. [tab 36]

[248] In 2001 and earlier there were holes in the sewer pipe. Water was getting out of the sewer and into the trench in which the sewer pipe sat and presumably into the surrounding area.

[249] The sewer easement slid. The only other properties along this ravine that also slid were the properties on either side of the sewer easement: #1218 (the subject property) and #1216.

[250] The slopes slid twice. In July 2001 and more massively in June 2002.

[251] 2001 July 30-31 A heavy rainfall occurred. The deck behind #1218 pulled away from the house and the outer edge dipped. A crack appeared radiating from the top of the sewer towards #1216 and #1218 8 ft. in each direction, 2 inches in width. The ground over or near the sewer began to sink.

[252] The Plaintiff got the Mayor out to the site. The deck had pulled away from the house slightly. The ground had sunk in the area between the two houses almost as far as the middle manhole. The soil was intact but it had sunk. The Mayor went back and asked a Town employee to look into the problem. There is no evidence that he did.

2001 Nov. 00 - R.Pearson planted a stake where he considered the sewer pipe was leaking

2001 Nov. 19 - Pearson visited Raymond Roy and expressed concerns that the storm sewer pipe had a hole in it which was causing his property to erode. [Tab.39]

2001 Nov. 20 - Roy attends at the site and runs water through pipe.

2001 Nov. 21 - Roy reported denying any problems attributable to the town but concluded there was a serious problem with which Hickerson & Natorkach should deal. [tab 38 & 39]

2002 April 00 - Pearson began to construct terracing on his slope. Timbers were brought in but no fill. Work stopped in May.

2002 June 08-09-10 - Another rainfall. The slope slid another 15 feet.

2002 July 00 - Pat Hickerson, Manager Operations & Facilities attended at the site with Mayor Glenn Witherspoon & Councillor Roy Avis and decided that the storm pipe would be videoed when the CCTV contractor was in town during the summer.

2002 Aug. 07 - The Storm pipe was videoed. The video showed that the pipe had a substantial separation at a join.

2002 Nov 07 - The town dug up a section of the sewer pipe just below where R Pearson had planted the stake a year earlier. The pipe had separated at a join down-stream of that location. The down stream section had slid downhill about a metre and had moved off to the side about 1 ft. The scarp being the uppermost area of the slide was upstream of the separation. [tab 124]

[253] Water coming down this sewer pipe was under pressure. A significant area was being drained by the sewer upstream. There was a steep slope in the sewer between the street and the creek where it discharged. A 24 inch pipe dumped the water into an 18 inch pipe thereby increasing the pressure. Holes had developed in the pipe apparently over a period of time. There was erosion of the toe at outflow of the sewer thereby reducing the stability of the easement. A separation occurred in the pipe thereby allowing large volumes of water to escape the confines of the pipe.

Potential Causes of the Slope Failure:

[254] When a slide occurs involving a sewer pipe easement and abutting land one immediately suspects the pipe but one must also consider other common causes of such slides. [Fabius]

Erosion of the toe eliminating support for the slope:

[255] Erosion of the toe of the slope is a common cause of slope failure but was not a factor in this slide except for its contribution to a failure of the easement. In this case, except for the erosion found at the out flow of the sewer, there was in fact no erosion observed at the toe of the slope at # 1218. (Peterson, Fabius, Priscu.) (Halim expressed the view that erosion was an element of the slide but the degree was conjectural.)

Removal of pre-existing structure:

[256] The removal of a pre-existing structure can be the cause of the slope failure. There was no evidence of such a removal in this case. (Pricu)

Placement of fill etc. on the slope thereby increasing the weight.

[257] A common error is to dump fill on a slope thereby disturbing its equilibrium and creating a slide.

[258] This was not a factor with respect to the slope at #1218. No significant extra weight was added to the slope at # 1218. The weight of the timbers placed on the slope for terracing was easily counterbalanced by the weight of the soil removed when excavating the basement. (Fabius, Peterson, Prisc, R. Pearson, T.Pearson)

[259] On the other hand, the slope on the easement had been built up over the years from the original grade. Wardrobe had done elevations in the 1970s. Comparisons between those elevations and more recent elevations show that the crest of the slope had been moved out on the easement with the deposit of fill making the elevations on the easement higher. Pearson says this and the boreholes confirm this. (Fabius)

Removal Of Ground Cover

[260] This was not a factor at #1218. There was no evidence of it and the slide was so deep the slip face was below the roots and the trees and roots slid with the entire mass.(Peterson)

Inappropriately directed roof drains

[261] There was no cogent evidence that the discharge from the roof drains was a significant factor in the slide.

[262] Having eliminated these common causes of slides one is drawn back to the easement as the origin of the slides. We know that additional weight had been applied to the easement raising its grade. We know that 24 inch piping directed water into 18 inch piping on a steep slope thereby increasing the pressure in the 18 inch portion. We know that there were holes in the pipe which had existed for some time which allowed water to escape under pressure into the easement trench.

[263] I accept that the initial separation in the pipe occurred during the 2001 slide which was relatively benign. The separation might have occurred prior to the 2001 incident, it might have occurred after the 2001 incident and before the 2002 incident, or it might have occurred after the 2002 incident. Investigation in the fall of 2002 indicated a final severance of a metre or more but given that there were two phases to the collapse of the slope, it is possible that the initial severance might have occurred after the 2001 incident but that the full severance of a metre was not realized until after the 2002 incident.

[264] I accept on a preponderance of evidence [R Pearson, Witherspoon, Moxham, T Pearson,] that by November of 2001 there was visible evidence of a break of some magnitude in the pipe in the form of subsidence of the easement. The soil was not being washed away on the surface. It was being flushed out under the surface. This is a common manifestation of a break in such a pipe. As a result the alarm was raised with the town. This could not have been simply because of the holes in the pipe. They had been leaking for some time without visible adverse effect. I conclude from the evidence that by the fall of 2001 there must have been a severance in the pipe.

[265] I take comfort not only from the preponderance of evidence but also from the presumption enunciated by Taschereau, J in Lefeuntun v. Beaudoin (1897) 1897 51 (SCC), 28 S.C.R. 89 to the effect that “it is a rule of presumption that ordinarily a witness who testifies to an affirmative is to be credited in preference to one who testifies to a negative . . .” See also: Cowley v. Simpson (1914) 31 O.L.R. 200 @ 201 (CA) and Garcy v. Milner, Ross [1943] OWN 155 (Plaxton, J)

[266] The defense challenges the statement that there was a visible manifestation of a break. The defense challenges the timing of the photograph which was filed as tab 96. The town points to the evidence of Mr. Roy who says he went to the site specifically for the purpose of looking for evidence of sewer problems and found none.

[267] Laurie Moxham said that in 2001 there was a hole on the easement between the houses. She said that you could see the hole, it was a sinkhole. She said she was there when Roy attended. She said he looked at the hole.

[268] Lessman helped move timbers down the slope the Spring of 2002. These had to be moved down on the right or north side of the house because of the sunken nature of the land on the left or easement side.

[269] I do not consider it crucial to determine the date of Tab 96. Whether the photograph tab 96 was taken in 2001 or after the slide of 2002 the preponderance of the evidence is that from the late summer 2001 there were cracks radiating out about 8 feet from the midline of the easement running both north to 1218 and south to 1216 and subsidence to be seen on the easement. Both got worse as time went on. That subsidence corresponded with the location where the break was eventually found and where a hole is shown in that photograph.

[270] By November 2001 the steps down to the deck had been moved because of a sinkhole by the deck. The sinkhole is marked with an X on the site plan B. R Pearson contacted the city again. His first contact being in the summer when he got the Mayor to come over. [Witherspoon].

NEGLIGENCE

Was a duty owed by the town to the plaintiffs?

[271] The defence denies that the town was responsible for the easement and it's sewer. It alleges that the town never formally acknowledged its assumption of the subdivision. However the town admits it maintains the sewer on the easement although the date of assumption is unknown.

[272] On March 26, 1981 the subdivider conveyed the sewer easement over lots 9 and 10 (#1216 and #1218) to the town. (tab 25). This was pursuant to a subdivision agreement dated 11 August 1980.

[273] The subdivision agreement dated 11 August 1980 [Tab 23] page 8 paragraph 3 says

"Until the Corporation has accepted the roads and services, the developer shall be responsible for their maintenance including snow removal and any liability to the public. . . .the doing of [developer’s] work shall be at the developer's expense, and the doing of the work by the Corporation shall not amount to a waiver by the Corporation of its rights to require that the work be done by the developer, nor shall the Corporation be deemed to have accepted the roads. [Emphasis mine]

[274] Page 21 paragraph XII says:

“3. Before final acceptance, a statutory declaration must be provided to the Corporation by the developer certifying that all accounts outstanding for the work have been paid.

After completion of all work required under the maintenance period and after final inspection and approval, acceptance of the subdivision will be acknowledged [my emphasis] in writing by the Corporation.”

[275] Was the sewer assumed by the town? The town says it was not. The town is faced with the difficulty of relying upon an assertion that something was not done.

[276] The town relies upon the plaintiff‘s failure to produce the statutory declaration which was to be the precondition of acknowledgment of acceptance in writing by the Corporation. It is concerned that any claims outstanding against the project might be assumed by the town.

[277] The town Clerk, Mr. Treflin, said the Town has never received the requisite statutory declaration or "as built" drawings. [this is the only mention of a need for “as built” drawings.]

[278] The plaintiff was not the developer. She was under no obligation to file the declaration nor would she have received the acknowledgement.

[279] The plaintiff points to the following circumstances and asks the court to conclude that the sewer was in fact assumed by the municipality.

[280] In 1981 the easement was conveyed to the town. Tab 25. A sewer was built on it.

[281] Article 18 (page 23) provided that the town would be responsible for paying 90% of the cost of this sewer. Under the circumstances, a statutory declaration stating that the developer's portion of the expenses had been paid was of little importance.

[282] Tab 26 is a letter from the municipality dated 20th of March 1987 which states:

"this letter constitutes initial acceptance of completion of the subdivision as of February 18, 1987 therefore the warranty which commences February 18th, 1987 shall expire on February 18, 1989.

Please note that prior to final acceptance, upon expiration of the warranty, you are required to file a statutory declaration as per section 12 3. of the agreement."

[283] On August 23, 1990 the municipality hand delivered a letter which required the developer to complete certain deficiencies on or before September 28, 1990. Failure to complete the deficiencies would result in the town completing the work utilizing the funds drawn from the letter of credit posted by the developer. (Tab 30)

[284] On Sept. 21,1994 Berry, the Manager of Planning and Development wrote the town Treasurer that the Developer had satisfied the Subdivision Agreement at no cost to the town and repayment of the security deposit should be made. (Tab 31)

[285] On 22 September 1994 the Town wrote the Developer, expressed satisfaction that the outstanding deficiencies in the subdivision had been completed and returned the sum of $29,529.68 being the funds which had been deposited as security for completion. (Tab 32) The Developer acknowledged receipt of the letter and funds.

[286] On the 17 February 1995 the solicitor for a person who was buying lot 11 (neither of the lots affected by the slide) asked if the conditions in the subdivision agreement had been completed and if the town had accepted the subdivision. (Tab 33).

[287] On 28 February 1995 the municipality confirmed in writing to this third party that the developer had satisfied all of the conditions in the subdivision agreement but claimed that the subdivision had not yet been “formally” accepted. (Tab.34). The admissibility of this statement as evidence of the facts as between the plaintiffs and defendants is admitted although the plaintiffs were not a party to the document.

[288] At that time the developer was in a position to compel acceptance of the sewer.

[289] Subsequently the municipality issued building permits and occupancy permits for the subdivision. With respect to the sewer specifically, the municipality placed fill on it, landscaped it, dug it up and repaired the pipe.

[290] It has now been 17 years since these documents would have been exchanged. The town may be taken to have known that there were no outstanding claims against the job for which the municipality might become liable as an owner of the easement when it repaid the developer’s security deposit.

[291] Given these circumstances the plaintiff asks the court to conclude that the sewer was in fact assumed by the municipality notwithstanding that a statutory declaration or further acknowledgment in writing have not been produced.

[292] The plaintiff argues in the alternative that even if the sewer was not in fact accepted the town should be deemed to have accepted it. All the preconditions for acceptance were met, the developer would have been entitled to compel the town to accept the sewer and the town acted in a manner consistent with acceptance. The prohibition found at page 8 paragraph 3 against a deemed acceptance relates to roads. That paragraph distinguishes between “roads” and ‘services”.

[293] With respect to the services I accept that the facts lead to the conclusion that the town acknowledged its acceptance of the sewer, in writing by tab 31 and 32 and by returning the security deposit. This was manifested by its subsequent work on the sewer.

Was There A Breach Of This Duty

[294] The plaintiffs rely upon negligence in the maintenance of the sewer in two respects.

i. In the first place, there were no general inspections.

ii. In the second place it is alleged that when presented with evidence of probable separation of the pipe the steps taken to avoid damage were ineffective. The evidence is that in November 2001 there was physical evidence from which even a layman such as R Pearson could conclude that there was a break in the sewer pipe. City employees ran water from a fire hydrant on the street down the sewer then pronounced that all was well. Mr Roy said he was looking for discolouration of water flowing through manholes, reduction of volume through manholes and water coming down and exiting outside of the pipe. Mr. Pricu said that given the size of the culvert [24” at the top end, 18” further down], the fire hose wouldn’t tell much except whether the pipe was totally blocked. Mr. Halim declined to express an opinion on the efficacy of this method of testing for a pipe severance.

[295] It was argued that the town had a general duty to inspect its sewers from time to time. Mr. Buckrell made the point that this should be done. I do not deal with this argument in this case. This argument gives rise to questions such as whether the non-inspection was the result of a conscious decision and if so, whether that was an operational decision or a policy decision, no action flowing from the latter. There was no explanation given for not inspecting.

[296] In addition, it is by no means clear that periodic inspection would have disclosed the preliminary leaking from the pipe through the holes in the pipe.

[297] But it is argued that once physical manifestations of a break in the pipe became apparent the steps taken to investigate the break and to remedy that situation were ineffective.

[298] I accept that under the circumstances, running water down the line was not helpful and that the slide of 2001 and the subsequent subsidence of the soil on the easement following that slide called for a more aggressive investigation. Failure to recognize the manifestations of a break in the pipe on the inspection of November 2001 and failure to act decisively on that evidence constituted negligence on the part of the town which triggered the subsequent damage.

RIGHT OF LATERAL SUPPORT FROM EASEMENT

[299] The Plaintiffs also argue that a landowner has a right of lateral support from an adjoining property. If the plaintiffs were entitled to the support of the defendant’s land and were deprived of it the absence of negligence is immaterial. Boyd v. Toronto (1911) 23 O.L.R. 421 (CA).

[300] The defendant submits that this cause of action was not pleaded. The plaintiff laid it out in her statement of fact and law. The facts led in support of the other causes of action are the same facts relied upon for this cause of action. If an amendment to the Statement of Claim is necessary to support this allegation then the appropriate amendment shall be deemed to have been made.

[301] The evidence is that digging the trench for the pipe weakened the ground in the easement. A section of the pipe, including manholes, slide down the slope. There was argument as to which occurred first, the slide of the pipe which precipitated the slide of the slope or the slide of the slope which carried the pipe with it. Having heard the opinions I have concluded that the most probable sequence was the slide of the pipe followed by the slide of the easement slope which precipitated the slide on #1216 and #1218. The pipe had holes in it. Over time water was forced out into the trench under pressure reducing the strength of the trench and surrounding land. The pooling of water at the street level indicated that the 24” pipe on the upper end was full thereby applying pressure on the 18” pipe further down which was also full. The toe of the easement had eroded. The weight in the pipe pulled it apart in the trench which was back filled with clay and not the usual sand and gravel. The clay was made slick by water which had been forced into the trench through the holes in the pipe apart thereby compounding the weakening of the easement.

[302] The disturbance in the easement was transmitted to the slopes at #1216 and #1218.

DAMAGES

[303] The Plaintiffs’ admit they moved out because they had acquired a new house. They did not buy the new house because of the problems with this house. They intended to sell this house. They wanted to downsize.

[304] Given that the ideal form of remedial work to shore up and restore the slope would cost $405,000 and that the parties agree that that the loss of value of the house as result of the slide is $232,500 the principle in Taylor v. King, 1993 6859 (BC CA), [1993] 8 W.W.R. 92, ¶ 50 appears to be practical:

¶50 When assessing damages in this type of case, McGregor On Damages 15th edition (1988) makes these observations at page 865:

The difficulty in deciding between diminution in value and the cost of reinstatement arises from the fact that the plaintiff may want his property in the same state as before the commission of the tort but the amount required to effect this may be substantially greater than the amount by which the value the property has been diminished. The test which appears to be the appropriate one is the reasonableness of the plaintiff's desire to reinstate the property; this will be judged in part by the advantages to him of reinstatement in relation to the extra cost to the defendant in having to pay damages for reinstatement rather than damages calculated by the diminution in the value of the land.

[305] Judgment shall issue directing the defendant town to pay to the plaintiff. Mary Jane Pearson the sum of $232,500 plus pre-judgment interest.

[306] I may be spoken to regarding Costs.

______”original signed by”

The Hon. Mr. Justice J. deP. Wright

Released: September 10 , 2012

COURT FILE NO.: CV-05-0056

DATE: 2012-09-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARY JANE PEARSON and ROSS PEARSON

Plaintiffs

and –

THE CORPORATION OF THE TOWN OF FORT FRANCES

Defendant

REASONS FOR JUDGMENT

J. deP. Wright J.

Released: September 10 2012

Final #5

/mls