ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-27-09SR
DATE: 20121029
BETWEEN:
Denis Pilon Plaintiff – and – 510949 Ontario Limited Defendant
Plaintiff self-represented
Richard R.F. Nolin, for the Defendant
HEARD: September 26, 2012
Robbie D. gordon J.:
Overview
[ 1 ] Denis Pilon, the Plaintiff in this matter, was having water trouble in his basement and determined that he needed to have his weeping tile replaced. He hired the Defendant 510949 Ontario Limited to complete the work. When it was finished, the water problems persisted. The Plaintiff brought this action against the Defendant for the costs involved in resolving the water issue.
Background Facts
[ 2 ] In September of 1988, the Plaintiff purchased his home at 222 Bradley Road, Chelmsford, Ontario. It is an older home that was built in two parts. The original home was built in 1932 and an addition was added at an unknown later date. There is a basement under both parts, but the basement floor under the addition is 14 inches lower than the basement floor of the original home.
[ 3 ] The Plaintiff had water in his basement from time to time. In particular, he had problems in the cold storage area of the basement. In the summer of 2007, the Plaintiff was contemplating building a porch around his home. He determined that before he did this it would be wise to have the water problem looked after. He knew Gerard Belanger, the principal of the Defendant, and was aware that Mr. Belanger did this type of work.
[ 4 ] It is important to understand that the Plaintiff did not hire the Defendant to figure out what the problem was and to correct that problem. The Plaintiff determined on his own that the weeping tiles needed to be replaced. He hired the Defendant to do that work. They entered into a contract by which the Defendant agreed to do the following: (1) excavate around the house; (2) install weeping tiles around the perimeter of the house; (3) apply a sealant to the exterior basement walls; and (4) backfill the excavation. For this it was agreed the Defendant would be paid $6,651, inclusive of GST.
[ 5 ] The Defendant completed the work but the following spring the Plaintiff again had water in his basement. He was getting just as much water in the cold room and was now also getting water in two other areas. In one of those areas the Plaintiff was able to easily detect and resolve the issue. In the other area, in the vicinity of the sump pump, water leakage persisted. In addition, there was now silt entering the sump hole through the weeping tiles.
[ 6 ] The Plaintiff hired Edward Chiesa, a professional engineer, to provide an opinion on the cause of the water leakage. The Defendant conceded Mr. Chiesa’s qualifications as an expert in civil engineering. Mr. Chiesa had the Plaintiff arrange the excavation of two holes so that he could examine the work that had been completed by the Defendant. One hole was in the area of the cold storage room, where the basement of the original home meets the basement of the addition (which I will refer to as test hole #1), and one was at the south east corner of the original home (which I will refer to as test hole #2). He also had the Plaintiff arrange a camera survey of the weeping tile system.
[ 7 ] Mr. Chiesa testified that the Ontario Building Code requires weeping tile be installed at a depth below the underside of the floor slab. His examination of test hole #2 indicated that the weeping tile was appropriately installed in that location. His examination of test hole #1, however, revealed the weeping tile to be about 9 inches higher than the floor slab of the addition. It was his opinion that this deficiency resulted in water runoff entering the basement and explains the water problem in the cold storage room. The camera survey was requested to determine if there were any low spots or significant sagging in the weeping tile system that could result in the collection of water runoff. Although the camera survey found two lower spots, he was of the view that generally, it appeared to be satisfactory.
[ 8 ] Mr. Belanger, as principal of the Defendant, was of a different view. He personally undertook the work on the Plaintiff’s home and testified that he installed the weeping tiles in accordance with the requirements of the Ontario Building Code. He was aware of the depth requirement for weeping tiles and was certain that he had installed to the correct depth. He explained what was seen in test hole #1 by theorizing that the weeping tile had been lifted during the excavation when the excavator punctured the pipe with his bucket.
[ 9 ] The Plaintiff was present when test hole #1 was dug. In addition, the excavator, Mr. Richard Theriault was called as a witness. Mr. Theriault confirmed that the tooth of the bucket used to dig the hole had punctured the weeping tile. Both he and the Plaintiff testified that the weeping tile was not lifted or relocated, but was simply punctured.
[ 10 ] Mr. Denis Paquette gave expert evidence on behalf of the Defendant. Mr. Paquette is also a professional engineer and the Plaintiff accepted his expertise in civil engineering. Although Mr. Paquette agreed that the depth of the weeping tile at test hole #1 as shown in the photograph was improper, he was unable to conclude that it had been installed at that level given its subsequent puncture repair. In fact, he offered that the photographs of test hole #1 suggested the weeping tile was raised in that area because where the weeping tile goes into the ground it appears to be going in a downward direction.
[ 11 ] Mr. Paquette was of the opinion that the water seepage experienced by the Plaintiff was likely due to a combination of factors including foundation cracks, poorly sealed foundation joints, improper damp proofing, lack of eavestroughing and improper lot grading. He also opined on the cause of the silt and attributed it to fine grained soils in proximity to the house. He indicated that its presence in the sump hole could have been limited by covering the weeping tile with a filtration sock.
Analysis
[ 12 ] The issues in this case are basically factual and are twofold: Firstly, did the Defendant properly install the weeping tile? And secondly, if not, to what extent, if at all, is the improper installation responsible for the continued water problems experienced by the Plaintiff?
[ 13 ] In my view, the Plaintiff has established on a balance of probabilities that the Defendant did not properly install the weeping tiles around the addition. The photographic evidence of test hole #1, along with the opinion of Mr. Chiesa, establish that the weeping tile in this area of the basement was not installed below the basement floor as required by the Ontario Building Code and so as to prevent water infiltration. Both Mr. Theriault and the Plaintiff testified that the weeping tile had not been lifted when punctured during the excavation process and I accept their testimony.
[ 14 ] Had the weeping tile been installed below the basement floor in the addition, it would have to have dropped at least fourteen inches in elevation between where it had been installed along the original home. The camera survey did not note any such drop and Exhibit 10(a) is not indicative of such a drop, at least where the weeping tile leaves the original home and starts along the addition. It would appear the weeping tile was installed properly below the floor of the original home, but did not transition to the required depth when it reached the addition. Whether it continued to descend gently to the appropriate depth, or was installed improperly all the way along the addition is not clear. What is clear is that at the location of the south wall of the cold room, the weeping tile was not installed deep enough, and potentially was not installed deep enough around the perimeter of the entire addition.
[ 15 ] The Plaintiff complained of two areas of water leakage, both into the basement of the addition. It may be that the improperly installed weeping tile is responsible for that leakage. Certainly the Plaintiff is entitled to have the weeping tile properly installed around the entire perimeter of his home. Once that is complete, if the leakage continues it can be attributed to some other cause, such as cracks in the foundation, a particularly high water table, or improper lot drainage and would not be the responsibility of the Defendant. To be clear, the Defendant is not necessarily responsible for all of the Plaintiff’s water woes. It is responsible for the improper installation of the weeping tile and the costs of correction.
[ 16 ] There was some suggestion that the Defendant should have known to place a filter sock on the weeping tile to prevent silt running into the weeping tile and sump hole. In my view, the Defendant was not hired to provide that level of expertise or to provide such a recommendation. The Plaintiff knew what he wanted and hired the Defendant to provide it. If the Plaintiff now wants something different (that is, a filter sock on the weeping tile), it is his responsibility to pay for it.
Damages
[ 17 ] The Plaintiff led evidence of the costs involved in replacing all the weeping tile. Given that a significant portion of it was installed properly and is functioning as expected, there is no need to replace all of it. The difficulty is in determining the costs of replacing the weeping tile only around the addition. The Defendant’s installation around the entire perimeter of the home cost $6,651.50. What must now be replaced is less than half of that, however the costs can be expected to be a bit higher because of the passage of time and the requirement that some decking be removed and replaced. On the evidence before me, I award the Plaintiff $4,500 in damages.
Costs
[ 18 ] In the event the parties are unable to agree on costs, they may make written submissions to me within 45 days of this judgment. Submissions are not to exceed three pages each.
Robbie D. Gordon J.
Released: October 29, 2012
COURT FILE NO.: C-27-09SR
DATE: 20121029
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Denis Pilon Plaintiff – and – 510949 Ontario Limited Defendant REASONS FOR JUDGMENT Robbie D. Gordon J.
Released: October 29, 2012