OSHAWA COURT FILE NO.:82285/13

DATE: 2015-11-06

CORRECTED DECISION: 2015-11-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MATTHEW WEENEN

Plaintiff

– and –

GRAZIANO BIADI

Defendant

AND BETWEEN:

GRAZIANO BIADI

Plaintiff by Counterclaim

• and –

MATTHEW WEENEN, FAREEDA DANIEL, MARIE PANTALONE and MARK ARTHUR WEENEN

Defendants to the Counterclaim

A.Cameron, J. Harper, for the Plaintiff, Matthew Weenen and Defendants to Counterclaim, Matthew Weenen, Fareeda Daniel and Mark Arthur Weenen

H. MacKenzie, K. Hashemi, for the Defendant/Plaintiff by Counterclaim, Graziano Biadi

HEARD: November 18 - 22, 25 – 29, 2013,

May 14, 16, 26 – 29, June 2 – 3, 2014

reasons for judgment

sALMERS J.

Introduction

[1] The plaintiff, Matthew Weenen, lives in a rural area, just north of Ajax, Ontario. He bought the property in 1998. Without doubt, a significant portion of his lands have been covered with water for significant periods of time over a number of years. This water coverage has rendered much of his lands unusable and has possibly caused damage to his buildings. Mr. Weenen alleges that the water problem and resultant damage was caused by conduct of the defendant, Graziano Biadi.

[2] The plaintiff submits that there are three causes of action pursuant to which Mr. Biadi is liable for the damage caused to the plaintiff – nuisance, negligence, and the strict liability doctrine of Rylands v. Fletcher[^1].

[3] The main issues required to be decided concerning the plaintiff’s claims are: (a) did Mr. Biadi cause flooding to Mr. Weenen’s lands for which he is liable to Mr. Weenen?; (b) if so, what is the quantum of damages that should be awarded?; (c) what quantum of punitive or exemplary damages should be awarded?; and (d) in the alternative to damages, to rectify Mr. Weenen’s property, should an injunction issue?

[4] The dispute between the parties started soon after Mr. Biadi bought his property which is adjacent to Mr. Weenen’s property. There have been many arguments between the parties. Mr. Biadi has counterclaimed against Mr. Weenen and three other people. The others are Maria Pantalone, Fareeda Daniel, and Mark Arthur Weenen. Ms. Daniel has been the plaintiff’s girlfriend since shortly after Mr. Biadi bought his property. She has lived with the plaintiff on the Weenen property for many years. Ms. Pantalone is the former registered owner of the Weenen property. She never lived on the property at any relevant time. Mark Weenen holds title to the Weenen property as trustee for the plaintiff. There was no evidence that Ms. Pantalone or Mark Weenen ever met Mr. Biadi or any member of his family or that they had any involvement with the matters that are the subject of this litigation.

[5] The defendant has counterclaimed against all of these people for trespass, loss of enjoyment of property, nuisance, harassment, conversion, conspiracy, negligence, and malicious prosecution. The defendant did not argue the claims of conversion and conspiracy in his final written submissions. Accordingly, I am of the view that, after the completion of evidence, he decided not to pursue those claims.

[6] I will first deal with the plaintiff’s claims. I will then deal with the defendant’s counterclaims.

The Plaintiff’s Claims

[7] In the defendant’s submissions, the defendant elaborated and raised some defences but did not dispute the governing law as was set out in the plaintiff’s written submissions. I agree that except when otherwise stated in these reasons, the governing law was correctly stated in the plaintiff’s written submissions. Accordingly, I will often be quoting directly from those written submissions when instructing myself on the law.

The Governing Law on Liability

The Law of Nuisance

[8] A private nuisance is made out where the defendant interferes with his neighbour’s use or enjoyment of land in a way that is both substantial and unreasonable. The interference may come from either causing physical injury to property or by interfering with the use or enjoyment of the land or interest in land.[^2]

[9] The requirement of substantiality only requires something more than a trivial, slight annoyance or trifling interference that cannot be based on excessive delicacy and fastidiousness.[^3]

[10] Once the interference is found to be substantial, the interference must be found to be unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances. The courts have often referred to many factors as being relevant in this unreasonableness determination. However, no factor is specifically necessary to make out unreasonableness; the court should consider the exercise of balancing the competing landowners’ rights in light of the relevant factors in the particular case. [^4]

The Law of Negligence

[11] A property owner owes a duty to neighbouring owners to not use his property in a way that would pose a foreseeable risk to the neighbour’s property, causing it damage.[^5]

The Law on the Strict Liability Claim

[12] Under the doctrine in Rylands v. Fletcher, strict liability will be imposed where the defendant makes a non-natural use of land that results in an escape of something likely to do mischief, causing injury. Where a non-natural use of land permits a collection or accumulation of water, strict liability will ensue if that water subsequently escapes, causing injury.[^6]

[13] A “non-natural” use of land is a use that is special, exceptional, unusual, or out of the ordinary; whereas “natural” takes the meaning of normal, common, every day or ordinary use rather than primitive or in a state of nature.[^7]

Causation

[14] For a party to prove causation, the “but for” test must be applied. In the case of the plaintiff’s claims for negligence and nuisance, the plaintiff must prove that “but for” the conduct of the defendant, the plaintiff’s lands would not have been flooded as they were.[^8]

[15] Prior to giving my detailed reasons on causation and liability analysis, I will summarize my findings on causation.

Summary of Causation Findings

[16] These reasons are long and somewhat complicated. To assist the reader in following these reasons, I will briefly summarize the findings that I have made with respect to causation. The detailed reasons for the findings follow afterwards. To further assist the reader in following these reasons and in understanding this case, I have attached a sketch of the subject properties as Appendix A to these reasons.

[17] Surface water has always drained in a south-easterly direction from the Biadi lands over the Weenen lands. Prior to Mr. Biadi purchasing his lands, parts of the Weenen lands were damp, but not flooded, at times during the year. Surface water drained off the Weenen lands in various ways. Along the eastern boundary of the Weenen lands, surface water drained through a ditch that runs along Salem Road. Along the southern boundary of the Weenen lands, surface water drained by: a) running over part of a driveway, now owned by Mr. Biadi; b) running through a ditch that runs along the northern side of the Biadi driveway, east to Salem Road; and c) running through a culvert that runs under the Biadi driveway.

[18] Shortly after Mr. Biadi purchased his lands, he began adding earth and fill to his lands and he continued doing so for many years. Extensive flooding on the Weenen lands started shortly after Mr. Biadi began adding fill to the Biadi lands. Flooding on the Weeenen lands has continued since that time.

[19] Mr. Biadi has added thousands of truckloads of earth and other fill to his lands. I prefer and accept the expert testimony of Ron McKee to the expert testimony of John McGlone and Stephen Blaney. The addition of earth and fill has raised the elevation of the Biadi lands. This increase in elevation caused surface water from the Biadi lands to flow to the Weenen lands to a much greater extent (both in volume and in speed) than the water had flowed prior to the addition of the earth and fill.

[20] To deal with the additional water flow caused by the additional earth and fill, the municipality required Mr. Biadi to build two swales (shallow drainage ditches). He constructed a north-south swale running very close to and along the entire length of the westerly boundary of the Weenen lands where those lands adjoin the Biadi lands. The north-south swale was designed to drain into a swale that runs easterly from the north-south swale to Salem Road. This west-east swale lies just north of the Biadi driveway but south of the ditch that naturally drained surface water from the Weenen lands to Salem Road. The north-south swale constructed by Mr. Biadi was inadequate in height and capacity to prevent the flow of water from the Biadi lands to the Weenen lands.

[21] There is a narrow driveway that runs from Salem Road to the Biadi lands. That driveway is very close to the southerly boundary of the Weenen lands. Prior to Mr. Biadi purchasing his lands, some surface water from the Weenen lands drained over the driveway and then onto the lands to the south of the driveway. Many of the trucks that brought earth and fill to the Biadi lands used that driveway. Since purchasing his lands in 2001, Mr. Biadi has also added material to the driveway that raised the elevation of the driveway. The raised elevation of the driveway prevents surface water from draining south over the driveway.

[22] The west-east swale is improperly constructed and causes more water to drain into the ditch that runs along the north side of the driveway than would drain into that ditch if the swale had been properly constructed.

[23] For many years, Mr. Biadi did not maintain the culvert that runs under the driveway. Mr. Biadi did not and will not allow Mr. Weenen access to maintain the culvert. The culvert became blocked and prevented surface water from the Weenen lands to drain through the culvert as it had previously.

[24] The conduct of Mr. Biadi has: 1) greatly increased the amount and speed of surface water draining across the Weenen lands; 2) increased the draining of surface waters into the west-east ditch that runs just north of the Biadi driveway; and 3) reduced the amount of surface water from the Weenen lands that can flow across the Biadi driveway and through the culvert that runs out of the Biadi driveway. Those are the causes of the extensive flooding on the Weenen lands that is visible on the dozens of pictures that are in evidence. But for the conduct of Mr. Biadi, that extensive flooding of the Weenen lands would not have occurred. Accordingly, Mr. Biadi caused the flooding of the Weenen lands.

[25] I will now give my detailed reasons for these findings.

The Liability Analysis

General Findings of Fact

[26] The most important finding in this case is whether Mr. Biadi caused flooding to Mr. Weenen’s property. For the following reasons, I find that Mr. Biadi caused flooding to Mr. Weenen’s property. Five factors are critical to this finding:

1. the timing of the commencement of the flooding;

2. the quantity of fill that Mr. Biadi added to his lands and driveway;

3. the effects of the added fill;

4. the improper construction of the swale; and,

5. the blocked culvert under Mr. Biadi’s driveway.

The Commencement of Flooding

[27] Mr. Weenen has been the beneficial owner and has lived at 2568 Salem Road in Ajax, Ontario since 1998. Mr. Biadi purchased lands adjoining the Weenen lands in June, 2001. The Biadi lands adjoin the Weenen lands along the entire west and south boundaries of the Weenen lands. It is undisputed that Mr. Biadi added significant earth and other fill to his lands for several years after his purchase.

[28] Mr. Weenen testified that he did not experience flooding of his lands prior to Mr. Biadi purchasing his lands. Mr. Weenen testified that it was in 2002 that he began to experience flooding of his lands and buildings. Mr. Weenen testified that since that date he has continued to experience extensive flooding of his lands for significant periods of time every year.

[29] The photographic evidence clearly shows that when the flooding occurs, the water can be several inches deep over a large portion of Mr. Weenen’s property. Mr. Weenen testified that there were sometimes 16 to 18 inches of water covering his lands. I find this to be a slight exaggeration. But, based on all of the evidence, especially including the photographs, it is without hesitation that I find that there has often been at least 6 to 9 inches of water covering a very significant area of the Weenen lands. A vast number of photos were filed as exhibits. Those photos were taken from many different positions on the property and at several different times. The photos show a tremendous amount of water covering huge areas of the property. The flooding was very extensive and was more than enough to cause the chicken coop and workshop to be flooded and unusable for significant periods of time.

[30] Other than Mr. Weenen, only three witnesses testified who had observed the Weenen property before 2002. Two of those witnesses, Richard Winter and Wilfred Brown, were called as witnesses by Mr. Biadi. The third witness was Clayton Weller, a Town of Ajax municipal employee.

[31] For his entire life, Richard Winter has lived and farmed in the area of the Biadi and Weenen lands. Mr. Winter did not have a good memory. He did not seem to be particularly observant. Mr. Winter’s testimony was very vague. His testimony was internally and externally inconsistent. Although he had farmed the Biadi lands after Mr. Biadi had added topsoil to the lands, Mr. Winter testified that he had never observed flooding of the Weenen lands that was clearly evident in photos of undisputed flooding that were shown to Mr. Winter. Due to his bad memory, unobservant nature, and the several internal and external inconsistencies which include inconsistencies with undisputed facts, I regard Mr. Winter’s testimony as having extremely low reliability and I give very little, if any, weight to his testimony.

[32] Wilfred Brown has owned the lands immediately south of the Weenen lands since 1997. The Brown lands are separated from the Weenen lands only by a narrow strip of land currently owned by Mr. Biadi. Mr. Biadi is able to access the vast portion of his lands by using a driveway that runs over that narrow strip of lands.

[33] On the issue of flooding, Mr. Brown was of some, but minor, assistance. He testified that he intermittently observed flooding on the Weenen lands, but he could not say when he made these observations. However, he did testify that he had once discussed with Mr. Weenen that the culvert under the Biadi driveway appeared to be blocked and identified a photo of some flooding that the plaintiff alleged arose because the culvert was blocked. Mr. Brown also testified that in one discussion Mr. Biadi did not know the location of the culvert and Mr. Brown then showed it to him.

[34] Mr. Brown is a man of few words. His memory was not great. Although he is not old and events took place not that long ago, Mr. Brown could not even remember how long he owned his lands before Mr. Weenen purchased his lands. Mr. Brown’s testimony was vague and he gave no reliable testimony on the issue of whether there was flooding on the Weenen lands prior to 2002. If anything, his testimony supported Mr. Weenen’s position that flooding of the Weenen lands started after Mr. Biadi bought his property. This will be discussed later in these reasons.

[35] Mr. Brown’s property is separated from the Weenen lands by the Biadi driveway. Mr. Brown testified that, when he first owned his lands, water used to run from the Weenen lands over the Biadi driveway onto the Brown lands. But, Mr. Brown provided no evidence about whether there had been flooding on the Weenen lands before Mr. Biadi purchased the Biadi lands.

[36] Some of the experts provided evidence about the elevations of the lands, but none observed flooding prior to Mr. Biadi’s ownership and their opinions were of little, if any, assistance on the issue of whether there was flooding on the Weenen lands prior to the Biadi ownership of the neighbouring lands.

[37] Clayton Weller, a Town of Ajax employee, was somewhat familiar with the Biadi and Weenen lands. On and off for over 20 years, Mr. Weller has attended at the Biadi lands and he has observed the Weenen lands. When he observed flooding on the Weenen lands in early 2004, Mr. Weller testified that he had not previously seen flooding like that on the Weenen lands.

[38] Mr. Weenen’s testimony about the commencement of flooding of his lands was not seriously challenged by any reliable evidence. Mr. Weenen’s testimony and evidence on this issue were somewhat supported by the testimony of Wilfred Brown and Clayton Weller. There was no reliable evidence to suggest that Mr. Weenen’s testimony in this regard was not credible or should not be believed. Additionally, Mr. Weenen’s testimony was also supported by the tremendous number of photos that showed the extensive flooding. For those and all of the reasons I have discussed and after considering all of the evidence, it is without hesitation that I find that that the flooding of the Weenen lands, which is the subject of this lawsuit, commenced in 2002, after Mr. Biadi purchased the lands adjoining the Weenen lands. Further, based on the same evidence, particularly that of Mr. Weenen, Fareeda Daniel, and the photographic evidence, I find on a balance of probabilities that the flooding has occurred in this manner every year, commencing in 2002. Some years the flooding was worse than in other years. But, the flooding has occurred every year since it started in 2002.

[39] The next issue to address is whether conduct of Mr. Biadi caused the flooding on the Weenen lands.

The Dumping of Earth and Fill

[40] There was no dispute that soon after Mr. Biadi purchased his property, and in any event since at least January 2002, he began adding many truckloads of earth and other fill to his property. Most of this fill was added to the larger portion of the Biadi lands that lie to the west and north of the Weenen lands. Significant fill was also added to the Biadi driveway that lies immediately south of the Weenen lands. Mr. Biadi added this earth and fill to his property for several years.

[41] As discussed above, Mr. Winter’s testimony was vague and only confirmed that some amount of dumping had occurred.

[42] Pat Doody of the Toronto Region Conservation Authority and Chris Jones, an Ajax municipal employee, were of no assistance on the issue of whether there was water draining from the Biadi to the Weenen lands.

[43] Clayton Weller, a Town of Ajax municipal employee, attended on site in January 2002, shortly after Mr. Biadi had bought his lands. Mr. Weller’s reason for visiting the site at that time was because of mud that was being left on Salem Road by dump trucks. In early 2002, on several occasions, Mr. Weller observed large dump trucks dumping topsoil on the Biadi lands. He was aware that topsoil had been stripped from the lands by a previous owner. Mr. Weller observed that the dump trucks were entering the Biadi lands via the driveway that was very close to the southern boundary of the Weenen lands.

[44] In January 2004, Mr. Weller acted on a complaint about the dumping. The concern at that time was that Mr. Biadi’s dumping was altering the drainage of surface water. Mr. Weller attended the site a few times in early 2004. In January 2004, the Town of Ajax sent a letter to Mr. Biadi advising that Mr. Biadi must obtain a Sediment and Erosion Permit. Mr. Biadi eventually obtained that permit.

[45] In March 2004, Mr. Weller observed a bulldozer moving topsoil around the Biadi lands. He also observed flooding on the Weenen lands that adjoin the Biadi lands. Mr. Weller was shown photos taken around that time, before the construction of the swale. The swale was built in 2004. Those photos showed several inches of water covering extensive areas of the Weenen lands. Mr. Weller testified that those photos depicted the condition of the Weenen lands when he was there in March 2004 to deal with Mr. Weenen’s first drainage/flooding complaint. Mr. Weller said that he had not seen any similar conditions during his previous involvment with the Weenen lands. Mr. Weller took some photos that have unfortunately been destroyed because of the Town of Ajax document retention policy.

[46] In June 2004, Mr. Weller and another Ajax municipal employee observed that Mr. Biadi had been working outside of the permitted area and Mr. Biadi was told to stop. Mr. Biadi told them that he would stop because the project was finished. This was a lie. Mr. Biadi continued to add fill for many years. Mr. Weller has investigated complaints about dumping on the Biadi lands as recently as 2011.

[47] Vincenzo Biadi, the defendant’s son, was of no assistance on the issue of whether water was flowing from the Biadi to the Weenen lands. In any event, his testimony was sometimes inconsistent, sometimes unreasonable and sometimes evasive. He is so invested personally and emotionally that his credibility and the reliability of his testimony were both significantly affected. Therefore, I give very little weight to his testimony.

[48] Charles Tobias testified that he had visited the Biadi lands many times. He testified that the swale worked as it was intended to prevent water flowing from the Biadi lands to the Weenen lands. Mr. Tobias is one of the defendant’s best friends. They have known each other many years. Accordingly, his testimony must be carefully examined for tainting, either intentional or unintentional. In this regard, it must be remembered that his testimony about the swale’s operation was opinion evidence. Mr. Tobias has no qualifications whatsoever about drainage and he was not qualified as an expert. By providing absolutely unqualified opinion evidence, Mr. Tobias was trying to help his good friend, Mr. Biadi.

[49] Throughout his testimony, Mr. Tobias seemed to be opining and tailoring his evidence to favour Mr. Biadi rather than simply testifying about facts that he had observed. As just one example, several times during his testimony, Mr. Tobias was shown photos. He had not taken the photos or was not present when the photos were taken. Despite this, Mr. Tobias always testified that the photos showed situations that favoured Mr. Biadi although the photos could just as easily been showing situations unfavourable to Mr. Biadi. Also, and very importantly, although he testified that he was often at the Biadi property, Mr. Tobias testified that he never looked at the Weenen lands until after the civil suit was launched in 2007. This makes no sense. The Weenen – Biadi dispute had been ongoing for years by 2007. It was a matter that good friends would have discussed. Mr. Tobias testified that he had often driven down the Biadi driveway adjoining the Weenen lands. If Mr. Tobias was on the Biadi property as often as he testified, he would have taken notice of the Weenen lands. Additionally, Mr. Tobias was unsure if farming that had taken place on the Biadi lands, something about which a good friend, who visited often, would have had good knowledge.

[50] For all of these reasons, I found Mr. Tobias to be of very low credibility and I totally reject his testimony about the successful operation of the swale. In general, I give very little weight to any of his testimony where it favoured Mr. Biadi.

[51] Only one witness was called from any of the dumping companies. Larry Pasquariello is the owner of Galbraith Construction. Galbraith dumped topsoil on the Biadi lands. Mr. Pasquariello provided no detail about the amount of topsoil or other fill that his or other companies dumped on the Biadi lands.

[52] For many reasons, where the testimony of Mr. Pasquariello tended to favour Mr. Biadi, I found Mr. Pasquariello to be of low credibility and his testimony to be unreliable.

[53] Mr. Pasquariello has known Mr. Biadi since the 1970’s or 1980’s. Mr. Pasquariello testified that since 2004, he has sometimes been to the Biadi property three or four times per week, sometimes two or three times per day, and that some of the visits were social. He has a very friendly relationship with Mr. Biadi. Their friendship causes concerns about Mr. Pasquariello’s credibility and the reliability of his testimony.

[54] Mr. Pasquariello’s testimony was often inconsistent with other evidence, including the testimony of Mr. Biadi. One such example concerned whether, in 2004, they had observed the driveway culvert. That particular testimony of Mr. Pasquariello was also inconsistent with the testimony of Mr. Brown and the photographic evidence. Mr. Pasquariello also spoke of putting topsoil in a garden near the Biadi house while Mr. Biadi did not even mention gardens. Mr. Pasquariello also incorrectly identified the location of machinery shown on photos. Mr. Biadi testified that London Excavating constructed the swale between the Biadi and Weenen properties. But, Mr. Pasquariello testified that his company, Galbraith Construction, had constructed the swale.

[55] Finally, Mr. Pasquariello’s testimony was vague. He admitted to keeping books, but none were produced at this trial. He remembered very little detail about what he did, as if he were trying to say as little as possible so that his testimony would not hurt his long-time friend, Mr. Biadi.

[56] For those reasons and others, including the examples referred to and many others not referred to, I found that where the testimony of Mr. Pasquariello tended to favour Mr. Biadi, Mr. Pasquariello was of low credibility and his testimony was unreliable. I make these assessments being aware of Mr. Pasquariello’s English language difficulties which I find to be rather minor. I am satisfied that my many concerns with his testimony, credibility, and reliability cannot be explained by the relatively minor language concerns.

[57] However, I do accept some of Mr. Pasquariello’s testimony that was rather straightforward and not contrary to other evidence. As discussed above, Mr. Pasquariello testified that since 2004 he has sometimes been to the Biadi property three or four times per week, sometimes two or three times each day. Only some of the visits were social. The remainder of the visits were for the purpose of dumping earth and fill on the property. Mr. Pasquariello admitted that, at other locations, he usually had to pay $20 to $50 per load to dump fill. He testified that dumping has continued to this day on the Biadi lands. His testimony about the number of loads is not inconsistent with the testimony of the plaintiff and other witnesses called by the plaintiff. Also, Mr. Pasquariello’s testimony about the financial aspects of dumping makes it clear that there were potentially significant financial benefits available to Mr. Biadi for allowing dumping on his property.

[58] Mr. Biadi permitted several companies to add earth and fill to his property. The dispute with Mr. Weenen began many years ago. Since the dispute started, Mr. Biadi has known that the addition of earth and fill to his property was a major issue. Further, since the dispute started, Mr. Biadi has been in contact with at least one surveyor, two engineers, various municipal employees, and lawyers. He knows the names of the companies that dumped fill on his property. Yet, he did not produce any records of his own or from those companies of: the amount of earth and fill that was added to his property; the type of fill that was added to his property; or any monies paid or received by him for the earth and fill. He gave only vague evidence as to exactly where and in what amounts the earth and fill were added.

[59] Apart from Mr. Pasquariello, no witnesses were called from any other companies that added earth and fill to the Biadi property. It is impossible to determine just how much fill was added. However, all of the evidence was that the addition of fill by Mr. Biadi was extensive and raised the height of his lands, including the driveway.

[60] Mr. Biadi gave no reason for his failure to produce records or call other witnesses from the dumping companies. He knew the names of the companies and some of their key employees and it was not that long ago that he had dealt with them. The records of the companies or testimony of other employees of some or all of the dumping companies would have been useful in determining very important issues in this case. Mr. Biadi’s relationship with these dumping companies was not trivial. Each company dumped considerable earth and fill on the Biadi lands for a considerable amount of time. It is reasonable to infer that each company benefited by doing so. He could reasonably expect that due to each company’s beneficial relationship with Mr. Biadi, the evidence of any witness from those companies would be tainted, either intentionally or unintentionally, in favour of Mr. Biadi and contrary to the interests of Mr. Weenen. Accordingly, I do not fault Mr. Weenen for not calling any witness from these companies.

[61] For these reasons, I am satisfied that an adverse inference should be drawn against Mr. Biadi for his failure to adduce any evidence from the dumping companies other than the testimony of Mr. Pasquariello.

[62] Mr. Biadi testified that at least 500 loads of topsoil were dumped in one area of his property. He also testified that between six and seven loads of asphalt grindings were added to the driveway in 2003-2004 that raised the level of the driveway by three to four inches. At the municipality’s insistence, he obtained a dumping permit. He then exceeded the scope of that dumping permit. Interestingly, although it is not evidence, defence counsel submitted during his opening address that Mr. Biadi admitted that in the summer of 2006 he had added 10 truckloads of grindings to the driveway.

[63] Mr. Biadi was not credible. He repeatedly said that his memory was not good and that he could not remember events that had occurred. He was very uncertain about dates. His testimony was often very vague. He was often evasive. Often his testimony just did not make sense. Just one example was that when he was shown a photo of a large pool of water that was unable to drain through the culvert under his driveway, Mr. Biadi very unreasonably maintained that the photo did not show that the culvert may have been blocked.

[64] His testimony was inconsistent internally and externally, including sometimes with the testimony of witnesses that he called at trial. There were also many inconsistencies between his testimony and his examination for discovery. He lied several, perhaps many, times. Just one example was that he lied several times about an incident on video that clearly showed him plowing snow into the area surrounding the inlet to the culvert. He frequently revised his testimony when it became apparent that he was caught in an inconsistency or a lie.

[65] Mr. Biadi’s bad memory, uncertainty, vagueness, inconsistencies, and falsehoods extended to almost all of his testimony, including everything related to the dumping of fill on his lands, including the driveway.

[66] Further, since Mr. Biadi purchased the property and at this trial, his conduct and testimony demonstrated a very casual, cavalier attitude towards the dumping of fill on his property and raising its elevation. His attitude was that it was his property and he could do as he wanted. So, he did whatever he wanted, including dumping fill on his property. If problems with authorities arose, he filled out any necessary applications and obtained any necessary permits to deal with the problems. As discussed above, sometimes he ignored the restrictions of permits that he did obtain. Basically, he did what he wanted and, if necessary, he begged forgiveness afterwards.

[67] There are many other reasons that would lead a person to question Mr. Biadi’s credibility. But based only on the reasons that I have discussed, I found Mr. Biadi to be of extremely low credibility and I found all of his testimony, including his testimony about dumping, to be very unreliable.

[68] In making this credibility finding about Mr. Biadi, I reject the defence submission that Mr. Biadi’s language difficulties caused any of the perceived problems. Mr. Biadi has been in Canada for decades and he speaks very good, perhaps excellent, English. I was satisfied that he understood everything that he was asked and that his answers were not incorrect or inaccurate due to any language issues.

[69] The aerial photographic evidence of the Biadi lands clearly shows that many irregularities and depressions, including at least one small pond, were filled in and smoothed over by Mr. Biadi’s addition of earth and fill to his property.

[70] At all material times, Clayton Weller was a municipal by-law enforcement officer for the Town of Ajax. Mr. Weller testified that his first involvement with the Weenen-Biadi dispute occurred in early 2002. Commencing in January 2002, he observed fill being dumped on the Biadi lands. Mr. Weller’s initial concern was the mud that the dump trucks were leaving on Salem Road which the trucks used to access the driveway leading to the Biadi lands. This driveway separates the Weenen and Brown lands.

[71] Mr. Weller observed the dumping of fill on the Biadi lands over several years. From 2002 – 2004 and again in 2011. In March 2004, he was concerned that the dumping of fill was causing water to flow from the Biadi lands to the Weenen lands. This led to the construction of the swale.

[72] Mr. Weenen has obtained two quotes for rectification of his lands to deal with the increased flow of water from the Biadi lands. Each of these quotes contemplates the addition of at least 1,550 loads of fill to the Weenen lands. The Weenen lands are much smaller in area than the Biadi lands. If 1,550 loads of fill are required to rectify the Weenen lands, then many times that number must have been dumped on the Biadi lands.

[73] Considering all of the evidence, including the adverse inference together with Mr. Pasquariello’s testimony, I accept the evidence adduced by the plaintiff with respect to the nature, amount, placement, and dumping timetable of fill and earth on the Biadi lands. Accordingly, I find that commencing shortly after Mr. Biadi purchased his lands, he arranged for or consented to the dumping of thousands of truckloads of earth and other fill to his lands that adjoin the Weenen lands.

[74] Most of this fill was added to the larger portion of the Biadi lands that lie to the west and north of the Weenen lands. However, significant fill was also added to the Biadi driveway that lies immediately to the south of the Weenen lands. The addition of fill significantly raised the level of both the larger portion and the driveway of the Biadi lands. By raising the level of his lands, Mr. Biadi increased the flow of surface water that already drained naturally from his lands to the Weenen lands. There was much evidence supporting this and little, if any, evidence to contradict that this was the case.

The Swale

[75] One of Mr. Biadi’s principal arguments was that, at the municipality’s request, he installed a swale that prevents water flowing from his lands to the Weenen lands. The swales are essentially low, wide, grass-lined ditches. The Biadi swale has two components. Firstly, the swale runs just west of and along the boundary where the eastern limit of the Biadi lands adjoin the Weenen lands. I will refer to this as the north-south swale. This north-south swale then curves and drains into a west-east swale that Mr. Biadi had constructed at the same time. The west-east swale runs on Biadi lands between the driveway and the southern boundary of the Weenen lands.

[76] Municipal employees saw the entire swale soon after its completion in June – September, 2004. The municipality has never requested that Mr. Biadi do anything further. Accordingly, Mr. Biadi submitted that this entire swale adequately prevents water draining from his lands onto the Weenen lands. Mr. Biadi further argued that the flooding on Weenen lands was not caused by water draining from the Biadi lands. Mr. Biadi submitted that all of the believable, reliable evidence supported his submission and argument.

[77] For the following reasons, I disagree and I find that, notwithstanding construction of the entire swale, Mr. Biadi’s addition of fill to his lands was a cause of the flooding on the Weenen lands.

[78] As discussed earlier, I have found that the flooding of the Weenen lands commenced after Mr. Biadi had purchased his lands adjoining the Weenen lands.

[79] It is uncertain who built the swale. As discussed earlier, Mr. Biadi testified that London Excavating built the swale. But, Mr. Pasquariello testified that his company, Galbraith Construction, built the swale. There were no plans from whatever company constructed the entire swale. It is impossible to tell whether the swale was properly designed, from an engineering perspective, to ensure that water (or at least excess water) did not drain from the Biadi lands to the Weenen lands.

[80] Both Mr. Weenen and his girlfriend, Fareeda Daniel, testified extensively about the flooding. They confirmed the dozens of photographic exhibits, taken from many different angles, that showed several inches of water covering extensive areas of the Weenen lands at several different times. Mr. Weenen testified that this flooding commenced and occurred every year after Mr. Biadi had purchased his lands and then began adding fill. Ms. Daniel first began frequenting the property in 2005. Mr. Weenen and Ms. Daniel both testified that the flooding, as shown in the photos, has continued long after construction of the swale.

[81] Clayton Weller of the Town of Ajax testified that in March 2004 he noted no ditching between the Biadi and Weenen properties and that concerned him because he thought that was a cause of water being flooded on the Weenen lands. The Town of Ajax insisted that Mr. Biadi construct a swale to address the issue. In June 2004, Mr. Weller observed that Mr. Biadi had constructed a swale on his lands to address that concern. Mr. Weller assumed that the swale was sufficient, but testified that its sufficiency was a matter that had to be addressed by the engineering department. Nobody testified from the Ajax engineering department.

[82] For reasons discussed previously, Graziano Biadi, Larry Pasquariello, Vicenzo Biadi, Richard Winter, and Charles Tobias were of low or very low credibility and/or their evidence was very unreliable. Further, none of them are experts in drainage. Accordingly, I give very little, if any, weight to any of their testimony about whether the swale operated properly and would have prevented water flowing from the Biadi lands to flood the Weenen lands.

[83] Although not formally qualified as an expert, David Comery is a surveyor and provided evidence about drawings, sketches, and surveys of portions of the Biadi lands and of the Weenen lands prepared by either him or predecessors in his current firm. Mr. Comery’s most recent survey[^9] covers only a small portion of the most southerly part of the north-south swale. Concerning the north-south swale, the survey shows: 1) that the western edge of the swale (that is, the edge furthest from the Weenen lands) is the higher edge of the swale; 2) no elevations to the west of the most westerly edge of the swale; 3) that the bottom of the swale varies between approximately 5 cm and 21 cm in depth from the most easterly part of the swale; and 4) only two elevations on the Weenen lands immediately to the east of the north-south swale.

[84] Mr. Comery also provided evidence about the west-east swale and ditch. His most recent survey^10 shows that for a distance of 30 – 40 meters, just after the swale has made its eastward turn, the west-east swale allows water to drain northwards towards the Weenen lands.

[85] Three witnesses gave expert testimony.

[86] John McGlone was qualified as an expert in civil engineering, environmental engineering, terrain evaluation, and the flow of water over land. Due to the nature of his testimony and the manner of his testifying, (both of which I will shortly discuss in some detail) it was difficult to precisely understand Mr. McGlone’s ultimate opinion.

[87] Concerning the north-south swale, Mr. McGlone’s opinion seemed to be that swale reduced the flow of water that flowed naturally in a southeast direction from the Biadi lands to the Weenen lands. Further, it appeared to be his opinion that the real cause of the flooding of the Weenen lands was due to problems with the culvert under the Biadi driveway because somebody had done something to block the north or inlet end of the culvert which he (incorrectly) believed was on Weenen property.

[88] I had numerous concerns with Mr. McGlone’s testimony.

[89] Firstly, although he opined about the north-south swale, he was originally retained only to observe the driveway and problems with the culvert. He was not originally retained to provide an opinion about the north-south swale. This may explain why Mr. McGlone admitted that he has done no calculations about the capacity of the north-south swale or whether it was sufficient to deal with water flowing from the Biadi lands. He performed no calculations to determine volume of flow, rate of flow, or impact of surface material on flow because he believed it was not required by his client for his report. Additionally, he believed that those calculations were unnecessary because he was of the opinion that their efforts should have been concentrated on the blocked culvert beneath the Biadi driveway.

[90] His testimony showed some lack of knowledge of the boundaries of the property. For example, he assumed that the blocked north or inlet end of the driveway culvert was on Weenen property. There is no dispute that the north end of the culvert is on Biadi property.

[91] Mr. McGlone was much more involved in the Weenen-Biadi dispute than the other experts. He was first retained in March, 2008. Since then, he has been frequently involved with Mr. Biadi on a professional basis. He has an allegiance with Mr. Biadi that must be considered when assessing his testimony.

[92] While working for Mr. Biadi, Mr. McGlone was personally involved in disputes with Mr. Weenen including at least one incident when Mr. Weenen called the police and alleged trespass by Mr. McGlone. Mr. Weenen also filed a complaint with Mr. McGlone’s governing professional organization listing 48 grounds of complaint about Mr. McGlone. The complaints to police and his professional organization ultimately amounted to nothing, but, they took a lot of time and, undoubtedly, a lot of concern on Mr. McGlone’s part. Understandably, it would be reasonable for Mr. McGlone to dislike Mr. Weenen.

[93] Mr. McGlone’s allegiance with Mr. Biadi and his understandable dislike for Mr. Weenen might cause him to taint his testimony, either intentionally or unintentionally, against Mr. Weenen to the benefit of Mr. Biadi. The possibility of tainting must be considered when assessing Mr. McGlone’s credibility and the reliability of his testimony. Due to the nature of his testimony and the manner in which he testified, I am satisfied that there was tainting of Mr. McGlone’s testimony against Mr. Weenen and in favour of Mr. Biadi.

[94] Sometimes Mr. McGlone relied on very weak evidence to support his opinions. One such example was that Mr. McGlone testified that based on a discussion with Mr. Biadi, Mr. McGlone believed that the swale had reduced the flow of water from the Biadi lands to the Weenen lands. This was something that Mr. McGlone did often – he often based his testimony on what Mr. Biadi had told him. Another example of Mr. McGlone’s reliance on weak evidence was that he guessed at many facts based only on a very grainy set of long distance non-professional photos. There were many other instances of his reliance on weak or very weak evidence that caused him to believe facts or come to an opinion as a result. Sometimes he simply guessed at what had happened on the properties, without any direct knowledge or scientific basis.

[95] Additionally, Mr. McGlone was incredibly defensive throughout his testimony. If he perceived that an answer might possibly portray him in a negative light, Mr. McGlone became tremendously evasive and non-responsive. Also, during cross-examination, whenever plaintiff’s counsel asked questions that suggested an answer (for example, “You would agree…” or “Correct?”), Mr. McGlone answered non-responsively with a very defensive, often rambling, answer that simply reiterated his oft-stated general defence position. Many times, very simple questions had to be re-asked several times before he would responsively answer. Often, I had to re-ask these very simple questions in order to get a responsive answer and even then, he was sometimes non-responsive. Also, he often retracted from previous answers.

[96] When shown photographs, he often just guessed where the pictures were taken. Sometimes, he even based his opinions on such photos, even when there was no context to assist him.

[97] If there were alternative explanations, Mr. McGlone always chose the explanation that favoured Mr. Biaidi. To do so, he often used conclusory reasoning or relied on inaccurate assumptions or facts.

[98] There was at least one incident where, at his client’s instructions, Mr. McGlone did not take steps that might have been useful in coming to his opinion. For example, Mr. McGlone testified that he was told not to look at 2011video evidence about the culvert until May 2014, just before he testified at this trial.

[99] Mr. McGlone was not qualified as an expert in the interpretation of aerial photography, but he repeatedly opined based on aerial photography. Further, hydrology and hydrogeology are relevant and of importance in this case. Although he is a very experienced civil engineer, Mr. McGlone has lesser qualifications in those fields than Ron McKee, an expert witness called by the plaintiff.

[100] Many times, Mr. McGlone testified that portions of his report were written by other people in his firm. Sometimes, he did not know if he or other people had written specific portions of his report. All of this lessened the weight to be given to the entirety of his evidence.

[101] These are just some of the problems and some examples of problems that I had with Mr. McGlone’s testimony. There were many other problems and examples of problems to which I have not referred. Mr. McGlone tried so hard to give evidence that favoured the party who had hired him that I find that he did not properly carry out his duty as an expert as set out in the acknowledgment of expert’s duty that he had signed. For all of these reasons, where his testimony supported the position of the defendant, I find that his credibility and the reliability of his evidence were both very significantly lessened. I give very little weight to his testimony where it favoured the defendant. Accordingly, I give very little weight to his opinion that the swale reduced the water flowing from the Biadi to the Weenen lands.

[102] However, Mr. McGlone’s opinion about the importance of the culvert was consistent with the majority of the other evidence.

[103] Stephen Blaney was qualified as an expert in civil engineering, drainage engineering, storm water management, and the use and application of topographical maps and aerial photo interpretation.

[104] Mr. Blaney was the president and chief executive officer of the consulting company that employed Mr. McGlone, until Mr. McGlone left that company in November, 2012. Mr. Blaney was Mr. McGlone’s ultimate boss when Mr. McGlone worked at the company.

[105] Mr. Blaney first became aware of the Weenen-Biadi dispute in 2008 when his company was retained to do consulting work. However, Mr. Blaney testified that he had almost no involvement with the matter or his company’s work on it until 2012. Between 2008 and 2012, Mr. Blaney received regular reports from Mr. McGlone about the matter, but Mr. Blaney was not involved in working on reports for the matter.

[106] Mr. Blaney testified that his opinion remained as stated in his company’s November 30, 2012 report that was signed both by Mr. Blaney and Mr. McGlone. Essentially, Mr. Blaney testified that the additional fill on the Biadi lands did not increase surface water flowing to the Weenen lands because the fill directed an amount of flow away from the Weenen lands. Mr. Blaney was of the view that the addition of fill to the Biadi lands should not have resulted in flooding of the Weenen lands if there was a proper outlet from the Weenen lands. Mr. Blaney was also of the view that the culvert on the Biadi driveway was open until 2005.

[107] I have several concerns with Mr. Blaney’s opinion and testimony. Many of those concerns are similar to those I have already expressed with respect to Mr. McGlone’s testimony.

[108] Mr. Blaney’s (and Mr. McGlone’s) opinions were based on reports that do not indicate all documents that were utilized and referred to in the making of the reports.

[109] Like Mr. McGlone, Mr. Blaney testified that portions of his company’s reports were written by other people in his firm. Sometimes, he did not know if he or other people had written portions of the report. Sometimes, he testified that he had written certain portions of reports that Mr. McGlone testified were written by himself or other people. While Mr. Blaney’s role was primarily supervisory, he liked to exaggerate his role in work on the report and in its writing. All of this lessened the weight to be given to all of his evidence.

[110] Like Mr. McGlone, Mr. Blaney made assumptions that were not based on the evidence and that were sometimes contrary to other evidence. For example, some of the assumptions and deduced facts in his testimony were contrary to or inconsistent with reasonable, sensible, and straightforward, undisputed portions of Wilfred Brown’s testimony.

[111] Like Mr. McGlone, Mr. Blaney admitted that he had not taken certain steps or investigated certain matters that were relevant to and may have been useful in arriving at his opinion.

[112] Also, Mr. Blaney’s opinion that the culvert was open until 2005 was based on his view of the non-existence of a pond on the Brown property. But, there was insufficient, if any, evidence about when that pond was in existence and when or whether it drained properly. Additionally, Mr. Blaney admitted that he had little, if any, information about the addition of fill to the Biadi driveway or grading of the driveway that may have caused fill to fall near the culvert inlet. He was unaware whether the culvert was maintained. He did not consider that Mr. Biadi may have blocked the culvert. When challenged about the culvert, Mr. Blaney tried to qualify his answers and help himself by speculating, incorrectly, about elevations of the Weenen property and culvert.

[113] Mr. Blaney criticized Mr. McKee’s opinion. Mr. Blaney said that the McKee opinion was flawed because it did not take into account water that flowed from the Baloch[^11] lands that are immediately north of the Weenen lands. It was not disputed that water flows to the Weenen lands from both the Biadi and Baloch lands. However, unlike Mr. Biadi, there was no evidence that Mr. Baloch had done anything to increase the water flowing from his lands to the Weenen lands. Mr. McKee calculated only the increased flow from the Biadi lands. Based on the drawings, Mr. Biadi’s addition of fill may also have increased the flow of water to the Baloch lands, thereby increasing further the flow of water to the Weenen lands in an amount that no expert calculated. When cross-examined on this issue, Mr. Blaney was evasive. Accordingly, I do not find Mr. McKee’s opinion flawed in this manner as Mr. Blaney alleged.

[114] Mr. Blaney also criticized Mr. McKee’s report for lack of data on the recharge theory and porosity of soils. However, Mr. McKee stated that those were matters that would have only heightened the opinion that he had already reached based on the additional earth and fill that Mr. Biadi had dumped on his lands.

[115] Mr. Blaney admitted that his company made an error in assuming that Mr. McKee had said that the entirety of a certain area on the Biadi lands drained to the Weenen lands.

[116] Mr. Blaney acknowledged that he had not considered the importance of the fact that 2002 aerial photos showed that the Biadi lands near the Weenen lands were smooth and without vegetation while 2005 aerial photos showed grass on those lands for the first time.

[117] Mr. Blaney admitted that his ultimate opinion, as contained in the October 21, 2013 report, was based to a very large extent on misinterpretation of measurements in maps that Mr. McKee had composed.

[118] Mr. Blaney was inconsistent in his testimony about his knowledge concerning the creation and construction of the west-east swale.

[119] Unlike Mr. McGlone, Mr. Blaney’s testimony caused me to believe that he felt that it was important to get things done quickly. He seemed dissatisfied with the pace at which Mr. McGlone was proceeding and factors being considered by Mr. McGlone. Mr. Blaney appeared to have decided very quickly what the report should say and then the report was written, by him and others, to state that opinion.

[120] For all of those reasons, I found Mr. Blaney’s opinion to be lacking in reliability.

[121] Ron McKee was qualified as an expert in civil engineering, more specifically in geotechnical engineering including: 1) foundation design and forensic engineering regarding geotechnical failures; 2) hydrology and hydrogeology (surface and ground water); 3) environmental engineering including the adverse effects of surface water, ground water, and soils; and 4) terrain evaluation, including by aerial photo interpretation and physical inspection.

[122] Mr. McKee testified that the addition of earth and fill to the Biadi lands had caused surface water to flow to the Weenen lands to a greater extent (both in volume and in speed) than the water had flowed prior to the addition of the earth and fill. Mr. McKee was of this opinion notwithstanding the fact that Mr. Biadi had constructed the swale that is in question. Mr. McKee’s evidence was that the north-south swale was inadequate in height and capacity to prevent the flow of water from the Biadi lands to the Weenen lands. Mr. McKee testified that, as of 2005, due to the addition of earth and fill to the Biadi lands since 1998, there had been an 81percent increase in the area of the Biadi lands that was discharging water to the Weenen lands. In addition to that increase in area, Mr. McKee testified that when there was no vegetation on the Biadi lands (as was the case in 2002 – 2005), there would be an even greater increase in the water runoff, possibly resulting in twice as much runoff from the Biadi lands to the Weenen lands.

[123] The defence written submissions were highly critical of Mr. McKee. For the reasons that follow, I found many of the criticisms to be of little merit and of little weight.

[124] The defence firstly submitted that Mr. McKee was purely partisan and based his opinion on assumptions rather than proven facts. I disagree. Mr. McKee’s opinion, as referred to above, was based on accurate, easily discernible facts. He did not guess at anything – he only answered questions if there was an empirical answer or an answer that had a scientific basis. He was responsive. When challenged, he provided reasonable explanations and those explanations were based on the facts. I reject the defence submission that he was purely partisan. I found that he understood his duty as an expert and that he provided unbiased scientific evidence in accordance with the acknowledgment of expert’s duty that he had signed.

[125] The defence was also critical of Mr. McKee’s opinion on possible soil permeability. However, possible soil permeability was only one factor that Mr. McKee stated might explain his findings referred to in paragraph 122 above. Those findings stand without any reliance on the soil permeability speculation or opinion of Mr. McKee. Accordingly, whatever Mr. McKee might have stated about soil permeability does not affect his ultimate opinion that is set out in paragraph 122 above.

[126] The defendant’s written submissions also criticized Mr. McKee’s reliance on aerial photo interpretation. The criticism is without merit. Mr. McKee was qualified as an expert in terrain evaluation by aerial photo interpretation.

[127] The defence also described Mr. McKee’s report as inherently flawed because it did not refer to several particular years. I disagree. His report and testimony examined and referred to a sufficient number of particular years that were appropriate in the circumstances of this case. He referred to years before the Biadi ownership, the first year of the Biadi ownership, a year following construction of the north-south swale, and sufficient years thereafter to enable Mr. McKee to opine as to whether Mr. Biadi’s dumping of fill may have caused flooding on the Weenen lands. It was not necessary for Mr. McKee to address additional years. The reliability and weight to be given to his opinion may be assessed based on the years that Mr. McKee did consider.

[128] The defence had some other criticisms of Mr. McKee. Some of these criticisms were based on inaccurate defence recollections and/or interpretations of evidence.

[129] In summary, as stated earlier, Mr. McKee’s opinion, as referred to in paragraph 122 above, was based on accurate, easily discernible facts. He was responsive. He provided reasonable explanations when challenged and those explanations were based on the facts. He was able to provide a sensible reply report that properly answered concerns of the defence experts. I reject the defence submission that he was purely partisan. I found him to understand his duty as an expert who provided unbiased scientific evidence in accordance with the acknowledgment of expert’s duty that he had signed. I found him to be a very credible witness and his findings and opinion (referred to in paragraph 122 above) to be very reliable.

[130] I have earlier discussed the problems and concerns that I found with the evidence of Mr. McGlone and Mr. Blaney. In general and with respect to the swale in particular, I find Mr. McKee’s evidence to be more reliable than that of Mr. McGlone and Mr. Blaney. I prefer and accept the evidence of Mr. McKee to that of Mr. McGlone and/or Mr. Blaney whether considered individually, cumulatively, and/or with all of the evidence. To be clear, in particular with respect to the swale, I prefer and accept the evidence of Mr. McKee.

[131] After considering all of the evidence, including the evidence and reasons that I have just discussed, I have made several findings. Since he purchased his lands, Mr. Biadi has added thousands of truckloads of fill to his lands. The dumping of fill has continued for many years, although the amount of dumping has decreased in recent years. The fill has raised the elevation of the Biadi lands which in part always drained in a southeast direction over the Weenen lands. The increase in elevation caused surface water from the Biadi lands to flow to the Weenen lands to a much greater extent (both in volume and in speed) than the water had flowed prior to the addition of the earth and fill. Flooding of the Weenen lands commenced in 2002 and has continued to date, despite the fact that Mr. Biadi constructed or had constructed the swale in 2004. On the evidence that I accept and prefer, I find that the north-south swale was inadequate in height and capacity to prevent the flow of water from the Biadi lands to the Weenen lands.

The West-east Swale, the Driveway, and the Culvert

[132] It was undisputed and I find that along the southern boundary of the Weenen lands, surface water has always drained by: a) running through a ditch that runs easterly to Salem Road along the northern side of the Biadi driveway; and b) running through a culvert that runs under the Biadi driveway. Further, I accept that evidence of Wilfred Brown which is undisputed, reasonable, and sensible, namely that in the early days of his ownership, the Weenen lands also drained along their southern boundary by running over part of the Biadi driveway.

[133] Mr. Brown’s evidence was also undisputed that for some time the Weenen lands have not drained over the Biadi driveway. All of the evidence was consistent and I find that since Mr. Biadi purchased his lands, he has had added fill/material to the driveway that has raised its elevation. As discussed above, Mr. Comery’s most recent survey shows that for a distance of 30-40 meters, just after the swale turns eastward, the west-east swale allows water to drain north towards the Weenen lands. These facts, together with all of the other evidence, lead me to find that the west-east swale and the raising of the driveway have added to the amount of water flowing from the Biadi lands to the Weenen lands and also have prevented water from draining off the Weenen lands. The water could no longer flow over the Biadi driveway, so it had to flow through the culvert or eastward through the ditch to Salem Road. Both the culvert and the ditch are on lands owned by Mr. Biadi.

[134] There has always been a culvert under the Biadi driveway. The culvert allows water from the Weenen lands to drain south onto the Brown lands. For this culvert to be effective there must always have been some sort of ditch running on the Biadi lands parallel to and just north of the driveway.

[135] The culvert drains water from the Weenen lands south to Mr. Brown’s lands. Mr. Brown testified that at some point he noticed that water had stopped flowing through the culvert which indicated to him that the culvert may have been blocked. He testified that he has never observed any blockage at the outlet of the culvert from which water runs onto his lands.

[136] Mr. Brown identified several of the many photos that show large amounts of water pooling in the area around the inlet to the culvert, that is, the end of the culvert that allows water to drain off the Weenen lands and then into the culvert. Those photos are very strong evidence that the culvert has been blocked on multiple occasions. The blocked culvert is part of the reason that water has been prevented from flowing off the Weenen lands.

[137] All of the experts testified that keeping the culvert clear was a key to aiding the flow and drainage of surface water off the Weenen lands.

[138] Mr. Biadi submitted that Mr. Weenen blocked the culvert when Mr. Weenen was doing work on the Weenen lands. For the reasons that follow, I reject that submission.

[139] Firstly, it does not make sense that Mr. Weenen would have done anything to block the culvert or anything else to cause the dreadful flooding that has occurred on his lands. On the issue of the culvert, Mr. Weenen’s testimony was consistent with all witnesses other than Mr. Biadi and his family and friends. Mr. Weenen’s testimony made sense and was supported by the many photos that showed water pooling around the area just in front of the inlet of the culvert. Accordingly, I find Mr. Weenen to be a credible witness and I accept his testimony that he has been aware of the culvert since at least 2002 when the extensive flooding first started.

[140] Mr. Biadi claimed that he was unaware of the culvert’s existence until 2006 or 2007. I say 2006 or 2007, because his evidence about the date was inconsistent and unclear. In any event, I do not believe him. As stated earlier, he is of very low credibility. Also, it makes sense that Mr. Weenen would have advised Mr. Biadi about possible problems with the culvert as soon as Mr. Weenen was aware of those problems. It does not make sense that Mr. Weenen would not have done so.

[141] Mr. Weenen testified that starting in 2002 and for a few years thereafter, he told Mr. Biadi on multiple occasions that the culvert was blocked and causing flooding on the Weenen lands. Mr. Weenen testified that whenever he told Mr. Biadi that the culvert was blocked, Mr. Biadi would either laugh it off or tell him not to worry because he would fix it. I accept this testimony of Mr. Weenen’s because of his general good credibility and also because this testimony makes sense considering Mr. Biadi’s attitude to do whatever he wanted and then deal with consequences later, if at all.

[142] The Weenen-Biadi relationship worsened over the years. Several times, Mr. Weenen asked permission to enter on to the Biadi lands so that he could clear the culvert to assist with drainage of the Weenen lands. Mr. Biadi denied each such request. And the flooding continued.

[143] In addition, Mr. Brown testified that, in 2006, he told Mr. Biadi that the culvert was blocked.

[144] Mr. Biadi did no maintenance on the culvert until the summer of 2008. That summer, for the first time, Mr. Biadi looked at the culvert in detail and attended to having it cleaned. After it was unblocked, water flowed through the culvert for a time, lessening the severity of the flooding of the Weenen lands. However, the flow of water forced debris into the culvert and water again began pooling around the culvert in the spring and fall.

[145] In 2011, the culvert was fully cleared. But, there still continues to be heavy flooding on the Weenen lands in the spring and fall, although to a lesser degree than before the culvert was cleared.

[146] In summary, there was no extensive flooding of the Weenen lands before Mr. Biadi purchased his lands and began adding fill. The evidence was insufficient to persuade me that Mr. Weenen has done anything that has caused his lands to be flooded. Mr. Biadi did no maintenance of the culvert until 2008 and very little after that until 2011. Mr. Biadi forbade Mr. Weenen from going onto the Biadi lands to perform necessary maintenance of the culvert. Accordingly, but for the blockage of the culvert, the lands would not have been flooded as they have been since 2002. I am satisfied and it is without hesitation that I find that since Mr. Biadi purchased his lands, the culvert has been blocked on multiple occasions, sometimes for long periods of time.

[147] For all of the above reasons, I find that the extensive flooding of the Weenen lands would not have occurred but for each of four reasons, all of which are attributable to Mr. Biadi:

1. the addition of earth and fill to the Biadi lands that lie to the west and north of the Weenen lands. This addition of earth and fill has raised the elevation of the Biadi lands and significantly increased the flow of water (both in volume and speed) from the Biadi lands to the Weenen lands;

2. the addition of material and fill to the Biadi driveway. This addition of material and fill has raised the elevation of the driveway so that the driveway now prevents water from the Weenen lands to drain over the driveway as happened prior to the addition of the material and fill;

3. the improperly constructed swale. The north-south portion of the swale is inadequate in height and capacity to prevent the flow of water from the Biadi lands to the Weenen lands. The west-east portion of the swale is improperly constructed and has added to the amount of water flowing from the Biadi lands to the Weenen lands; and

4. the driveway culvert. Despite being advised on multiple occasions that the culvert was blocked. Mr. Biadi took no steps to maintain or clear the culvert. Further, he forbade Mr. Weenen from coming onto the Biadi lands to clear the culvert. Even after it had been cleaned in 2008, it soon became at least partially blocked. Any blockage of the culvert reduces the water draining off the Weenen lands.

[148] Those four reasons are all causes of the flooding of the Weenen lands. Those causes are all attributable to Mr. Biadi. Accordingly, it is without hesitation that I find that Mr. Biadi has caused the extensive flooding of the Weenen lands that has occurred since 2002.

Analysis of the Plaintiff’s Claims

[149] I have used the foregoing findings of fact in the following analyses of the plaintiff’s claims.

Analysis of the Claim of Nuisance

[150] Mr. Biadi has caused the extensive flooding that has occurred on the Weenen lands since 2002. As discussed and found above, there has often been anywhere from six to nine inches of water covering a very significant area of the Weenen lands every year since 2002 during flood seasons, usually spring and fall. The flooding has prevented Mr. Weenen from using his yard, chicken coop, and workshop for the significant periods of time every year during flood seasons. There is no doubt that this flooding has substantially interfered with Mr. Weenen’s use or enjoyment of his lands, including the yard, chicken coop, and workshop.

[151] Mr. Biadi did not take proper steps to divert water from the Weenen lands and, in fact, Mr. Biadi’s conduct added to the flow of water to the Weenen lands. If Mr. Biadi had properly constructed the swale, it may have been able to deal with and prevent water from flowing to the Biadi lands. Blockage of the culvert was another cause of the flooding. Since 2002, Mr. Biadi has been aware of the culvert’s role and importance in the drainage of the Weenen lands. Notwithstanding this knowledge, for years Mr. Biadi knowingly did not maintain the culvert. Even worse, Mr. Biadi forbade Mr. Weenen from entering on Biadi lands to clear the culvert. When balancing the gravity of the harm against the utility of Mr. Biadi’s conduct, the interference caused to Mr. Weenen’s land is clearly unreasonable.

[152] In these circumstances, without doubt, the flooding caused by Mr. Biadi has substantially and unreasonably interfered with Mr. Weenen’s use and enjoyment of his land. Accordingly, Mr. Weenen has proven that the conduct of Mr. Biadi was a private nuisance that has caused damage to Mr. Weenen.

Analysis of the Negligence Claim

[153] Mr. Biadi added thousands of truckloads of earth and fill to his lands. He also added material and fill to his driveway. The purpose of adding fill was to raise elevations of his lands and the driveway. A reasonable person would have foreseen that the addition of so much fill to the Biadi lands would have caused an increase in water flowing from the Biadi lands to the Weenen lands. Since, 2002, Mr. Biadi has been aware of Mr. Weenen’s complaints that the Weenen lands were being flooded because of the fill being added to the Biadi lands. Yet, Mr. Biadi continued to add fill to his lands.

[154] In 2004, the municipality was of the view that the additional fill was causing increased water to flow from the Biadi lands to the Weenen lands. The municipality insisted that Mr. Biadi construct a swale to divert the flow of water from the Weenen lands. The north-south portion of the swale is inadequate in height and capacity to prevent the flow of water from the Biadi lands to the Weenen lands. The west-east portion of the swale is improperly constructed and has added to the amount of water flowing from the Biadi lands to the Weenen lands. Considering all of the evidence and my earlier findings, I find that Mr. Biadi caused damage to the Weenen lands. This damage occurred because Mr. Biadi did not take sufficient steps to ensure that the swale would be constructed properly so that it would prevent water flowing to the Weenen lands and prevent damage to the Weenen lands.

[155] Since at least 2002, Mr. Biadi has been aware of the culvert on his lands (under the driveway) and its role and importance for proper drainage of the Weenen lands. Mr. Biadi took no steps to maintain the culvert until 2008. Even after 2008, he took insufficient regular steps to ensure that the culvert was clear. His lack of action and insufficient action have led to the culvert being unable to drain water from the Weenen lands as the culvert was designed to do.

[156] Mr. Biadi owed a duty to Mr. Weenen not to cause damage to the Weenen lands by adding fill that could foreseeably cause damage to the Weenen lands. For the reasons stated above, since at least 2002, Mr. Biadi has breached that duty in at least three ways: 1) by continuing to add fill knowing that it was foreseeable that by doing so it may have been a cause of the flooding of the Weenen lands; 2) by taking insufficient steps to ensure that the swale was properly constructed so that it diverted water from the Weenen lands; and 3) by failing to maintain the culvert and, later, inadequately maintaining the culvert because he took insufficient steps to enable the culvert to drain water from the Weenen lands as the culvert was designed to do. Each of these three breaches of duty by Mr. Biadi were causes of excessive flooding resulting in Mr. Weenen’s loss of use and enjoyment of his lands. Accordingly, Mr. Weenen has proven negligence on the part of Mr. Biadi.

Analysis of the Strict Liability Claim

[157] Based on the facts and findings in this case, Mr. Biadi made non-natural use of his lands in at least three ways.

[158] First, Mr. Biadi added fill to his lands that are north and west of the Weenen lands. Mr. Biadi added the earth and fill to raise and level the lands so that they would be of better use for farming. However, by adding the earth and fill, he raised the elevation of his lands resulting in a significant increase in the flow of water (both in volume and speed) from the Biadi lands to the Weenen lands. This was a cause of excessive flooding of the Weenen lands.

[159] Second, Mr. Biadi improperly constructed the west-east portion of the swale which increased the amount of water flowing to the Weenen lands. This is another cause of the excessive flooding of the Weenen lands.

[160] Thirdly, Mr. Biadi added material or fill to his driveway to make it a better driveway. However, by doing so, Mr. Baidi also raised the elevation of the driveway. By raising the elevation of the driveway, Mr. Biadi interfered with the previous pattern of water draining from the Weenen lands over the driveway. This is another cause of the excessive flooding of the Weenen lands.

[161] Each of these three non-natural uses of his lands by Mr. Biadi are causes of the excessive flooding of Mr. Weenen’s lands. Under the doctrine of Rylands v. Fletcher, Mr. Biadi is strictly liable to Mr. Weenen for damages caused by these non-natural uses of the Biadi lands.

Defences Raised

[162] The primary defence raised was that the plaintiff has not proven causation. For the reasons stated above, that defence is rejected. The plaintiff has proven that, but for Mr. Biadi’s conduct, the flooding on the Weenen lands would not have occurred.

[163] The defence also argued that Mr. Weenen caused flooding by blocking the culvert. I reject that defence. As stated above, at all material times, Mr. Weenen was aware of the existence of the culvert. It makes no sense that he would do anything that would interfere with water flowing through the culvert. In any event, the evidence is insufficient to satisfy me that he did anything to do so.

[164] The defence also submitted that Mr. Weenen’s construction of the new shop building and his attempts to change drainage patterns also caused flooding on his property. The only evidence that could be considered as possibly supporting this proposed defence was from Mr. McGlone or Mr. Blaney. As stated above, I found their evidence to be unreliable. Accordingly, I do not find that either Mr. Weenen’s construction or the attempts to change his property’s drainage were the cause of flooding to his lands.

[165] In his written submissions, for the first time, Mr. Biadi raised three affirmative defences - a defence based on the Limitations Act[^12], the defence of prescriptive easement, and the defence of failure to mitigate. None of these defences were specifically pled, nor were any of them referred to in defence counsel’s opening address. Accordingly, none of these defences were properly before the court.[^13]

[166] In any event, none of those affirmative defences were made out on the evidence.

[167] The statement of claim was issued on June 6, 2007. As found above, Mr. Biadi’s dumping and other offensive conduct continued for many years, including after June 6, 2005. Resultant flooding on the Weenen lands continued at least until the date of trial. Accordingly, there is no merit to the limitations defence.

[168] If available, the defence of prescriptive easement would not be applicable in this case because, as found above, Mr. Biadi’s conduct since 2002 has caused a significant increase in the flow of surface water over the Weenen lands. Further, prescriptive easement is not a defence to the blockage of the culvert, a significant cause of flooding.

[169] Finally, on the evidence before me, Mr. Biadi has not satisfied me that Mr. Weenen did not make reasonable efforts to mitigate his damages or that further mitigation was possible in the circumstances where the north-south swale was inadequate, the east-west swale added to water on the Weenen lands, and the culvert was blocked. In fact, I am satisfied that Mr. Weenen mitigated as much as was possible considering that Mr. Biadi continued to add fill for many years and he prohibited Mr. Weenen from coming on Biadi lands to address and attempt to rectify the problems that were due to conduct of Mr. Biadi.

Summary on Liability

[170] For the reasons set out above, Mr. Weenen has proven that Mr. Biadi is liable to Mr. Weenen for damages caused by the excessive flooding of the Weenen lands. This liability has been proven in nuisance, negligence, and strict liability under the doctrine of Rylands v. Fletcher. There is no merit to any of the defences raised by Mr. Biadi. Therefore, he is liable for the full amount of damages that I will assess.

Assessment of the Plaintiff’s Damages

Loss of reasonable use and enjoyment

[171] There are few cases that provide guidance on the amount of damages to be awarded for loss of reasonable use and enjoyment of land.

[172] The defence submitted that Foley v. Parry Sound (Town)[^14] should be viewed as a benchmark for this head of damages. I disagree. Foley’s facts are very different. In Foley, the flooding occurred all in a single year. The damages did not continue for over 12 years as in this case. Further, in Foley, a basement was flooded, not large amounts of property as in this case. Finally, in Foley, the defendant was not liable for a large amount of the flooding that did occur. Foley is of very little, if any, assistance in assessing the damages in this case. The damages awarded in Foley are far lower than would be appropriate in this case.

[173] The plaintiff submitted that I should take some guidance from Medomist Farms Ltd. v. The Corporation of the District of Surrey[^15]. While it is of some assistance, that case dealt only with three incidents of flooding that occurred in a single year and were quickly rectified. The damages in this case are far greater. In this case, flooding for significant periods of time has occurred for many years and continues to occur.

[174] At all relevant times, Mr. Weenen has lived in his home on the subject lands. I have found that for significant periods of time, every year since 2002, there has often been at least six to nine inches of water covering a very significant amount of the Weenen lands. The photos filed as exhibits show this large amount of water covering huge portions of the property that was unusable for any purpose when such flooding occurred. The flooding was extremely extensive. In addition to rendering unusable the vacant portions of the Weenen lands, Mr. Weenen’s chicken coop and workshop were also flooded and unusable for significant periods of time. As I said, this flooding has occurred for significant periods of time every year since 2002.

[175] The consequential effects on Mr. Weenen of having to live in these conditions were undisputed and I accept them. As a result of the flooding caused by Mr. Biadi, Mr. Weenen has suffered: stress; depression; sleep troubles; relationship difficulties; worry for his spouse, Ms. Daniel; fear that leads him to frequently monitor security cameras; increased alcohol consumption; and lost earning opportunities. The testimony of Ms. Daniel supports many of these effects on Mr. Weenen. Looking at the photos and considering all of the evidence, these effects are understandable. It is very hard to imagine how difficult it has been for Mr. Weenen to live in these conditions for such a long time. For days on end, every year, he has seen this flooding on his lands, he has been unable to do anything about it, and he has known that his lands and sometimes some buildings were unusable as a result.

[176] Considering those facts and taking some guidance from Medomist Farms, I am satisfied that the plaintiff has sustained very significant damages for many years due to reasonable loss of use and enjoyment of his lands and buildings. I assess those damages in the amount of $250,000.

Rectification of the Weenen Lands

[177] Mr. Weenen seeks damages of $235,664.59 plus H.S.T. to rectify his lands, including by building swales and drains, to mitigate the impact of the increased water flowing from the Biadi lands.

[178] At trial, Mr. Weenen provided two quotes to have this rectification work done. The amount requested is the amount of the higher quote, grossed up for inflation since it was made in 2007. Although representatives from the rectification companies did not testify at this trial, neither quote was challenged by the defence and both quotes seemed to contemplate work that was designed to address the problem caused by the increased water flow from the Biadi lands. Since there was no evidence from either rectification company, I am satisfied that either rectification quote would adequately address the problem of the increased water flow. A small rear (westerly) portion of the Weenen lands were always wet or damp, but not covered with water, in rainy times. So either rectification quote would provide Mr. Weenen with some betterment. However, the betterment is very minor. Considering the amount of land that was previously damp or wet, the times that it would be damp or wet, and the amount of work contemplated by the rectification quotes, I find that only approximately five percent of the value of the rectification quotes is attributable to correcting the previously damp or wet Weenen lands. For these reasons, I am satisfied on a balance of probabilities, that 95 percent of the lower quote, namely $153,045 plus H.S.T., is the proven amount of damages required for rectification. Since the quote was made in 2007, it must be grossed-up for inflation.

[179] However, either rectification quote involves the dumping of at least 1550 loads of fill on the Weenen lands. Mr. Weenen’s property is subject to regulation by the Toronto Region Conservation Authority (TRCA). In the past, when Mr. Weenen tried to address the increased water problem by adding fill and/or altering the drainage pattern of his lands, TRCA prevented him from doing so. Although it seems to make sense to allow the rectification work, it would be speculative to think that Mr. Weenen could obtain a permit to perform the work contemplated in the rectification quotes.

[180] I have found Mr. Biadi to have caused the increased water flow and flooding on the Weenen lands. At trial, the defendant did not dispute the mandatory order that Mr. Weenen requested as the alternative to damages for rectification costs.

[181] Mr. Biadi’s conduct has caused this problem. His lands have been improved and their value increased by his addition of thousands of trucks of fill. In all of the circumstances, Mr. Biadi should take whatever steps are necessary to bring Mr. Weenen’s lands back to their previous condition. Accordingly, the mandatory order requested by Mr. Weenen in his written submissions shall be made. Mr. Biadi shall perform the necessary work by February 29, 2016. Mr. Biadi has a proven history of non-compliance. Accordingly, to ensure that Mr. Biadi satisfactorily performs this work in a reasonable time, he shall pay into court as security, the amount proven by Mr. Weenen for rectification, namely, $153,045 plus H.S.T., grossed-up for inflation since 2007. If Mr. Biadi performs the work by February 29, 2016, then the deposit shall be returned to him.

The Workshop Fire

[182] In 2005, the workshop on Mr. Weenen’s lands burned down. Mr. Weenen alleges that the fire was electrical due to flooding in the building’s electrical system.

[183] Mr. Weenen is a handyman and somewhat skilled in construction. But, he is not an electrician and nothing in his skill set satisfies me that he is capable of providing a reliable opinion that flooding caused the electrical fire. There was insufficient, if any, other evidence about flooding causing this fire. Accordingly, I am not satisfied on a balance of probabilities that flooding caused by Mr. Biadi was the cause of the fire that burned down Mr. Weenen’s workshop.

[184] For those reasons, Mr. Weenen has not proven that Mr. Biadi is liable for damages arising from the workshop fire.

The Chicken Coop

[185] Mr. Weenen alleged that the flooding caused by Mr. Biadi has caused the chicken coop building on the Weenen lands to sink into the ground so that it is no longer usable and must be replaced. Accordingly, Mr. Weenen claims damages of $110,000 to replace and rebuild the chicken coop. The damages are based on old quotes that have been grossed up for inflation.

[186] Mr. Weenen gave his layman’s opinion that the flooding had caused the chicken coop to sink into the ground. His testimony is subject to the same problems discussed earlier with regard to his workshop testimony. He is simply not qualified to provide a reliable opinion that flooding caused the chicken coop to sink into the ground.

[187] The only other causation evidence about the chicken coop was provided by Ron McKee who testified that it was reasonable to conclude that flooding had disturbed the soil under the chicken coop. Mr. McKee was certainly qualified to give that opinion. However, during cross-examination, Mr. McKee also testified that the footings of the chicken coop were built on sensitive soil. Such footings would also have been subject to and damaged by the usual Canadian winter freeze-thaw cycles. The older aerial photos show areas of recurring wetness around the chicken coop, indicating that wetness around the chicken coop has always been present.

[188] At all relevant times, the chicken coop was a very old, dilapidated, poorly constructed, and poorly maintained structure. The damages claimed by Mr. Weenen would result in a very significant betterment. Further, not all of the damages were caused by flooding from the Biadi lands. Taking into account all of the circumstances, I assess the damages to the chicken coop that were caused by flooding from the Biadi lands in the amount of $15,000.

Other Damages to Mr. Weenen’s Property

[189] Mr. Weenen claims $7,800 for damage to his driveway. These damages are based on a quote that would be a betterment. In any event, there was insufficient evidence to satisfy me that the flooding was a cause of the damage to the driveway. Accordingly, neither causation nor the amount of damages have been proven.

[190] Mr. Weenen claims $2,000 for a cracked garage floor. Again, there was insufficient evidence to satisfy me that flooding was a cause of this damage. Causation has not been proven. If it had been proven, the amount of damages claimed was reasonable as it represented only the cost of materials.

[191] Mr. Weenen also claims damages for 600 trees that he planted on the property. Again, there was insufficient evidence to satisfy me that flooding caused the trees to die. The trees may have died in any event. There was also insufficient evidence to satisfy me on a balance of probabilities that the cost of the trees and their expected selling prices should be given the values proposed by Mr. Weenen. Only Mr. Weenen testified about these values and there was no evidence that he has any experience or expertise in the field. No documents or other evidence was adduced. In these circumstances, neither causation nor the amount of damages have been proven.

[192] There was insufficient, if any, evidence to enable a finding that Mr. Weenen has proven that the flooding has caused an ascertainable amount of damage to the fair market value of his property.

Exemplary and Punitive Damages

[193] Since 2002, Mr. Biadi has dumped thousands of truckloads of fill on his property, including the driveway. Mr. Weenen complained almost immediately to Mr. Biadi that the fill was causing the Weenen lands to be flooded. Mr. Biadi laughed it off and continued to add fill for a number of years.

[194] In 2004, the municipality became aware that the fill was causing flooding of the Weenen lands and the municipality insisted that a swale be built in an attempt to deal with the problem. Mr. Biadi then built a swale that was inadequate to prevent water from flowing onto the Weenen lands and, in fact, on its west-east route, the swale added to the water being directed towards the Weenen lands. Mr. Biadi also exceeded the dumping permit granted by the municipality and then lied to the municipality and said he was finished dumping when the dumping then continued for several years afterwards.

[195] Although Mr. Weenen told Mr. Biadi of the importance of the culvert, Mr. Biadi did not maintain the culvert for many years and has only sporadically maintained the culvert since 2008.

[196] On two occasions in 2013, Mr. Biadi was caught on video using machinery to clear snow into the area where he knew the inlet of the culvert was located. He knew that the culvert might be blocked by doing so and that flooding of the Weenen lands might occur. Mr. Biadi’s conduct was unnecessary and mean-spirited. The snow could have very easily been pushed elsewhere without risking flooding or damage to anybody.

[197] Mr. Biadi refused and continues to refuse to allow Mr. Weenen to go on Biadi lands in order to keep the culvert clear. There is no sensible reason for Mr. Biadi’s refusal. There is no evidence that Mr. Biadi would suffer any damage by allowing Mr. Weenen to enter on Biadi lands in order to maintain the culvert.

[198] Since 2002, Mr. Weenen, personally or through his counsel, has requested Mr. Biadi to allow relief and/or to cease his unnecessary conduct that was causing so much harm to Mr. Weenen. Apart from the inadequate and damaging swale (built at the municipality’s insistence) and some sporadic cleaning of the culvert since 2008, Mr. Biadi has done nothing. In fact, he has taken steps to worsen the situation.

[199] Mr. Biadi has benefitted by making his property more attractive for farming and development. Further, based on the adverse inference drawn earlier, I am satisfied that if records or witnesses from the dumping companies had been presented or called by Mr. Biadi, they would have shown that Mr. Biadi benefitted financially from loads that were dumped on his lands.

[200] In these circumstances, it is without hesitation that I find that Mr. Biadi’s misconduct has been high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from ordinary standards of decent behaviour. The community denounces and will not condone behaviour such as that of Mr. Biadi. He and others must be deterred from similar misconduct in the future. I am not satisfied that the other awards for damages made herein against Mr. Biadi will adequately achieve the necessary objectives of retribution, deterrence, and denunciation. In these circumstances, an award for punitive damages is required.

[201] I have considered:

• Mr. Biadi’s egregious conduct;

• the very significant harm that his conduct has caused;

• the fact that Mr. Weenen was unable to protect himself from this harm other than by pursuing this lawsuit;

• Mr. Biadi’s potential financial gains as a result of his conduct;

• the other damage awards being made in this judgment; and

• the fact that Mr. Biadi’s property is worth millions of dollars.

I have also taken some guidance for that fact that Mr. Biadi requested $50,000 in his counterclaim. Even if I had believed Mr. Biadi (which I most certainly do not), the egregious nature of Mr. Weenen’s conduct would be but a small fraction of and pale by comparison with the egregious conduct of Mr. Biadi. After considering these factors and for all of these reasons, I find that in order to achieve the objectives of retribution, deterrence, and denunciation, an award for punitive damages must be made against Mr. Biadi in the amount of $125,000.

The Counterclaims

[202] Mr. Biadi’s counterclaim includes claims for loss of reasonable enjoyment, harassment, trespass, malicious prosecution, and punitive damages. The defendants to the counterclaim include not only Mr. Weenen, but also Fareeda Daniel, Marie Pantalone, and Mark Arthur Weenen.

Claims against Marie Pantalone and Mark Arther Weenen

[203] As stated at the outset of these reasons, Ms. Pantalone is the former registered owner of the Weenen property. She never lived on the property at any relevant time. Mark Weenen holds title to the Weenen property as trustee for the plaintiff. There was no evidence that either Ms. Pantalone or Mark Weenen has ever had any contact of any sort with Mr. Biadi. There was no evidence that either of them has had any personal involvement or anything to do with the Weenen-Biadi dispute at any time. There was no evidence that Ms. Pantalone or Mark Weenen ever met Mr. Biadi or any member of his family or that they had any involvement with the matters that are the subject of this litigation. In the defendant’s written closing submissions, no argument was offered that any claim should be found to have been proven against either Ms. Pantalone or Mark Weenen. For those reasons, all claims against Ms. Pantalone and Mark Weenen are unproven and dismissed due to lack of any evidence. I do not know why claims were brought and pursued against Ms. Pantalone and Mark Weenen. Those claims should have been dropped long before the trial. The bringing and continuation of the claims only exacerbated the bad will between the real parties to this litigation, Matthew Weenen and Graziano Biadi.

Claims against Fareeda Daniel

[204] Fareeda Damiel has been Mr. Weenen’s girlfriend since shortly after Mr. Biadi bought his property. She has lived with the plaintiff on the Weenen property for many years. In the defendant’s written closing submissions, no argument was offered that any claim of loss of reasonable enjoyment of land, harassment, and trespass should be found to have been proven against Ms. Daniel. This makes sense. The real dispute has always been between Matthew Weenen and Graziano Biadi. Although she has suffered much aggravation as a result of the dispute, Ms. Daniel was little more than an onlooker to the dispute who suffered significantly as a result of the dispute. There was certainly insufficient evidence to satisfy me that her conduct caused any damages to Mr. Biadi.

[205] There was insufficient evidence to satisfy me that the conduct of Mr. Daniel had caused Mr. Biadi any loss of reasonable enjoyment of his lands.

[206] There was little, if any, evidence that Ms. Daniel had trespassed on the Biadi property. If Ms. Daniel trespassed on Biadi lands, it was very fleeting and trivial and certainly did not cause any damages to the property or to Mr. Biadi.

[207] Similarly, if Ms. Daniel harassed Mr. Biadi, it was extremely trivial and most certainly excused as being a response to misconduct of Mr. Biadi.

[208] Concerning these claims that Ms. Daniel committed the torts of loss of reasonable enjoyment of land, harassment, and trespass, these were extremely trivial matters that the court should not have been bothered with. As with the claims against Ms. Pantalone and Mark Weenen, the bringing and continuation of these claims against Ms. Daniel only exacerbated the bad will between the real parties to this litigation, Matthew Weenen and Graziano Biadi. All of these claims are best described by the old Latin phrase, de minimus non curat lex.

[209] The defendant also claims against Ms. Daniel for malicious prosecution.

[210] Ms. Daniel did institute a criminal proceeding against Mr. Biadi.

[211] Mr. Biadi entered into a peace bond to put an end to the proceedings. Mr. Biadi was not found guilty, but in these circumstances, it cannot be found that the criminal proceedings terminated in Mr. Biadi’s favour.

[212] Further, on a balance of probabilities, I am satisfied that Ms. Daniel heard Mr. Biadi threaten death. The only people that he would have threatened with death were Mr. Weenen or Ms. Daniel. I do not find that the defendant has proven that when Ms. Daniel went to the police she did not have reasonable cause to do so. Additionally, I do not find that she acted maliciously. Ms. Daniel and Mr. Weenen lived in a relatively isolated rural area. The Weenen-Biadi dispute was very heated for many years. Considering all that had occurred, Ms. Daniel had reason to fear Mr. Biadi.

[213] For those reasons, I do not find that the defendant has proven that Ms. Daniel committed the tort of malicious prosecution.

Claims Against Matthew Weenen

Loss of Reasonable Enjoyment and Harassment

[214] Mr. Biadi has counterclaimed against Mr. Weenen for loss of reasonable enjoyment and harassment. As a result of his long-running dispute with Mr. Weenen, Mr. Biadi claims to be in fear and that he can no longer use his property as he did in the past. This claim is without merit.

[215] All of the impugned conduct of Mr. Weenen was in connection with the Weenen-Biadi dispute. Almost all of the impugned Weenen conduct were attempts to address flooding problems caused by Mr. Biadi’s conduct or responses to other conduct of Mr. Biadi. As I have extensively discussed above, the Weenen-Biadi dispute arose because of the conduct of Mr. Biadi. The dispute could have been solved very easily, and probably inexpensively, by Mr. Biadi in 2002. All that he had to do was ensure that the addition of fill did not increase water flowing to the Weenen lands. Those costs would have been a pittance compared to the costs of this litigation.

[216] Over the years, Mr. Biadi’s conduct exacerbated the dispute – the continual addition of fill, the improperly constructed swale, the lack of maintenance of the culvert, refusing Mr. Weenen access to clear the culvert, and plowing snow in front of the culvert’s inlet are just some of the examples of Mr. Biadi’s continuing misconduct.

[217] In these circumstances, Mr. Biadi was the author of any misfortune that he may have suffered and he is not entitled to damages for loss of reasonable enjoyment or harassment.

[218] Mr. Biadi also claimed damages for harassment attributable to a construction lien registered by JBC General Contracting Ltd. Mr. Weenen was a former shareholder of JBC, but there was no evidence that Mr. Weenen had shareholder or other status with JBC at any relevant time related to the lien. Further, this lien was never perfected. While it may have been a minor annoyance to Mr. Biadi, the evidence was insufficient for me to find that the lien harassed Mr. Biadi or that it was part of a larger pattern of harassment by Mr. Weenen. Neither harassment nor any damages attributable to the lien have been proven.

Trespass by Mr. Weenen

[219] Mr. Biadi claimed the costs for a survey[^16] as damages for the alleged trespass. The invoice for this survey shows that it was ordered in 2009, after this litigation began, and that it was ordered by the defendant’s counsel at this trial. The survey was necessary to assist in possibly resolving the parties’ dispute that arose due to the misconduct of Mr. Biadi. Further, it appears that the survey was ordered as part of the defendant’s preparations for this litigation. For both of these reasons, no damages will be awarded to the defendant for this counterclaim.

[220] For trespass, Mr. Biadi secondly claims $23,763.90 as damages to restore the Biadi property from damage caused by a trench. In an attempt to alleviate the flooding problem, Mr. Weenen did put in a trench at one time. In doing so, he may have damaged a few of Mr. Biadi’s trees.

[221] However, I have numerous concerns with the quote that is the basis of Mr. Baidi’s claim for $23,763.90. First, for $9,875, the quote proposes the installation of a hedge of approximately 250 cedar trees along approximately 150 meters of the 204 meter length of the Biadi driveway. There has never been a hedge, let alone a hedge of that length, along the driveway. There were only some scrubby trees along the north side of the driveway for, at most, 30 meters running from the westerly edge of the driveway. The proposal of this hedge is a huge betterment. Without a quote for trees comparable to those taken down by Mr. Weenen, this part of the counterclaim has not been proven.

[222] My second concern with the proposal is the amount of $9,180 for a fence along the driveway. The evidence of fencing along the north side of the driveway shows that where the fence existed, it was very ramshackle in the areas where Mr. Weenen dug his trench. Further, the evidence was insufficient for me to find that Mr. Weenen caused any part of that fence to be destroyed. The quote is for the installation of 200 meters of fence. Certainly, Mr. Weenen’s conduct did not cause 200 meters of fence to be destroyed. For these reasons, Mr. Biadi has not proven that he is entitled to damages of $9,180 for the installation of a new fence.

[223] My next concerns about the quote are the amounts for ditch repairs ($4,550) and a catch basin near the culvert ($7,300). I am not satisfied on the evidence that Mr. Weenen’s alleged trespass caused the need for these proposed repairs. These repairs should have been undertaken by Mr. Biadi years ago in order to alleviate the flooding that he caused to the Weenen property. They will constitute part of the mandatory order being made against Mr. Biadi.

[224] The last damages that Mr. Biaidi claimed for trespass relate to a willow tree on Mr. Weenen’s property that Mr. Biadi alleges fell on a hydro line on his property. Mr. Biadi requests $4,793.75 for these damages.

[225] Mr. Weenen and Ms. Daniel both confirmed that, at some point, branches from a willow tree on the Weenen lands fell onto a hydro line on the Biadi lands. However, from the evidence it is very difficult to determine when this incident occurred. The first quote is dated August 20, 2007, the second quote is dated March 8, 2008, and Mr. Biadi’s demand letter is dated October 1, 2008.[^17] Interestingly, the dates on two of those items appeared to have been altered by hand. Also, both quotes relate to only the cutting back of branches, not the removal of an entire fallen tree which Mr. Biadi testified had occurred. There was some evidence that this willow tree incident may have been related to a very heated incident that occurred on April 12, 2008. If that is the case, then neither quote provided by Mr. Biadi, is relevant to the incident. Further, Ms. Daniel testified that Mr. Biadi attended to the removal of the branch on his own. Nobody testified to having removed the branch for Mr. Biadi. Lastly, Mr. Biadi admitted that similar incidents had occurred on his own lands, not related to Weenen property. Considering Mr. Biadi’s extremely low credibility, the evidence on this issue was insufficient to satisfy me that Mr. Biadi had proven the amount of damages arising from the willow tree branches falling on his hydro lines.

Malicious Prosecution

[226] The counterclaim for malicious prosecution arises from the complaint that Ms. Daniel made to the police. I have already found that Mr. Biadi has not proven malicious prosecution on the part of Ms. Daniel. Therefore, the claim against Mr. Weenen for malicious prosecution cannot succeed. In any event, there was insufficient, if any, evidence, that Mr. Weenen caused Ms. Daniel to make her complaint to the police. Further, there was insufficient, if any, evidence that Mr. Weenen personally acted or caused Ms. Daniel to act without reasonable cause or act maliciously. This counterclaim is dismissed.

Punitive Damages

[227] Punitive damages are to be awarded only when some other damages are awarded. I have awarded no other damages to Mr. Biadi.

[228] In any event, considering what he was faced with due to the egregious conduct of Mr. Biadi, the defence has not satisfied me that Mr. Weenen’s conduct has been high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from ordinary standards of decent behaviour. Even if I had accepted Mr. Biadi’s position as to what had occurred, the behaviour of Mr. Weenen that most merits any criticism would have been his digging the trench on Biadi lands. In the circumstances of this case, that behaviour does not come close to meeting the standard for the awarding of punitive damages.

Conclusion and Summary

[229] For the reasons set out above, I have found that Mr. Biadi caused flooding to the Weenen lands resulting in very significant damages. Mr. Weenen’s claims have been proven in each of nuisance, negligence, and strict liability. Mr. Biadi’s conduct was offensive to the court’s sense of decency and a significant award of punitive damages has been made against him. Mr. Biadi’s counterclaims were utterly without merit and unproven. The counterclaims only served to extend the length of this trial.

[230] This is a case where Mr. Biadi was in the wrong from the outset. Early in 2002, Mr. Biadi could have resolved this dispute by taking steps to ensure that the addition of fill did not increase water flowing to the Weenen lands. Those costs would have been a pittance compared to the costs of this litigation. Instead, Mr. Biadi continued to act in a reprehensible fashion and he worsened the situation.

[231] A mandatory award is part of this judgment. I have little faith in Mr. Biadi complying with the mandatory award, therefore, I have ordered that he post security and, in addition, that this judgment may be registered on title to the Biadi lands. Hopefully, Mr. Biadi will comply with the mandatory order so that no further steps will have to be taken by Mr. Weenen.

[232] For all of these reasons, judgment shall go as follows:

a) Mr. Biadi shall pay Mr. Weenen $250,000 for damages for loss of reasonable use and enjoyment of his lands;

b) a mandatory order requiring that Mr. Biadi, by February 29, 2016, have designed and built a berm and/or ditch with capacity to withstand a 1-in-100 year storm event on the east side of Mr. Biadi’s property and north of his driveway to direct surface water away from Mr. Weenen’s property and toward the existing culvert;

c) as security for his obligations in b) above, Mr. Biadi shall immediately pay into court as security, the amount proven by Mr. Weenen for rectification, namely, $153,045 plus H.S.T., grossed-up for inflation since 2007. If Mr. Biadi performs the work required in b) above by February 29, 2016, then the deposit shall be returned to him;

d) a permanent mandatory order requiring Mr. Biadi and his successors in title to inspect and maintain the culvert following the guidelines set out in Chapter 10 of the Handbook of Steel Drainage & Highway Construction Products, Canadian Edition, as amended from time to time;

e) Mr. Biadi shall pay to Mr. Weenen, for damages to the chicken coop, $15,000;

f) Mr. Biadi shall pay to Mr. Weenen $125,000 for punitive damages; and

g) Mr. Biadi’s counterclaim is dismissed.

[233] I have in hand, but not yet opened, the envelopes containing the parties’ cost submissions. If the parties cannot agree on costs or interest or wish to clarify anything in this judgment, they are to contact the Oshawa trial coordinator to schedule an appointment before me to make submissions.

Salmers J.

Released: November 6, 2015

Corrected Decision Released: November 18, 2015

Corrigendum

A correction was made to the sentence starting in the third line of paragraph 48, the sentence now reads, “Mr. Tobias is one of the defendant’s best friends.”

A correction was made to the sentence starting in the third line of paragraph 95, the sentence now reads, “Also, during cross-examination, whenever plaintiff’s counsel asked questions that suggested an answer (for example, “You would agree…” or “Correct?”), Mr. McGlone answered non-responsively with a very defensive, often rambling, answer that simply reiterated his oft-stated general defence position.”

A correction was made to the sentence starting in the third line of paragraph 185, the sentence now reads, “Accordingly, Mr. Weenen claims damages of $110,000 to replace and rebuild the chicken coop.”

[^1]: [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330.

[^2]: Antrim Truck Centre Ltd., 2013 SCC 13, [2013] 1 SCR 594 at para. 18.

[^3]: Ibid. at para. 22.; Tock v. St John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181 at p. 1191.

[^4]: Antrim at para. 26.

[^5]: Alfarano v. Regina, 2010 ONSC 1538 at paras. 69-70.

[^6]: Rylands v. Fletcher, (1868), L.R. 3 H.L. 330; Alfarano at para. 58.

[^7]: Alfarano at para. 60.

[^8]: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

[^9]: Exhibit 61, survey dated October 21, 2013.

[^11]: Mr. Baloch was interchangeably referred to as Mr. Ballick. The correct spelling is immaterial to these reasons.

[^12]: Limitations Act, 2002, S.O. 2002, c. 24.

[^13]: Rules of Civil Procedure, RRO, Reg. 194, r. 25.07(4); Kalkanis (Litigation Guardian of) v. Allstate Insurance Co. of Canada, 1998 CarswellOnt 4255 (C.A.) at para 12.

[^14]: [1995] O.J. No 435

[^15]: 1991 CanLII 325 (BC CA), 62 B.C.L.R. (2d) 168 (C.A.)

[^16]: Exhibit 46.

[^17]: Exhibit 44.