REASONS FOR DECISION

INTRODUCTION

[1] The primary question raised by this motion for summary judgment is whether a mandatory injunction should be issued to require the Defendants to remove a mass of concrete with a volume of about 100 cubic feet that they placed on the Plaintiff’s property.

[2] For the reasons described below, I have found that the Defendants are liable in trespass for, amongst other things, the removal of the Plaintiffs’ walkway and the concrete that they placed on the Plaintiffs’ property. I have found that the defence of necessity has not been established by the Defendants. I have adjourned the motion in respect of whether a mandatory injunction requiring the Defendants to remove the encroachment is an appropriate remedy so that the parties could arrange to provide me with a report from a jointly retained professional engineer related to the removal of the concrete. Further, I have also dismissed the counterclaim against the Plaintiffs.

BACKGROUND

[3] The Defendant David Weenen Design Build Inc. (“Corporate Defendant”) operates a home renovation business. The Defendant, David Weenen (“David”), is a general contractor and a principal of the Corporate Defendant.

[4] David purchased a house in June 2014 with the intention of renovating it for re-sale. The Plaintiffs own the house next door. At the time of purchase there was a concrete slab walkway that covers the area between the two houses. The distance between the two houses is about 4 feet, 10 inches wide. The Plaintiffs own all but about 2 inches of the width of the distance between the two houses.

[5] David commenced the renovation of his house in November 2014 with the demolition and removal of parts of the house.

[6] On January 15, 2015 a building permit was issued for the re-construction of David’s house. One of the drawings shows that a second floor was to be added but that the foundation wall and the first floor west wall adjacent to the Plaintiffs’ house was to be retained. The building permit also shows that the west foundation wall was to be underpinned as the basement in order to increase the depth of the basement by 28 inches.[^1] The building permit states:

Permit issuance does not authorize encroachments.

Permit issuance does not include the authority to enter on adjacent property. Refer to City of Toronto Municipal Code, Chapter 363 – Building Construction and Demolition, Article V, Right of Entry, for requirements to allow access onto adjacent property.

Excavation shall be undertaken in such a manner so as to prevent damage to existing structures, adjacent property and utilities.

[7] The Plaintiffs provided David with access across the walkway during the course of construction. They also agreed to allow David to use their backyard for access to his property.

[8] David removed the first floor west wall of his house leaving solely the foundation wall on that side of his house.

[9] A photograph taken in February or March, 2015 was provided by David.[^2] This photo shows that there is no lateral support for the west foundation wall as the joists for the main floor that supported the foundation wall had been removed.[^3]

[10] On March 25, 2015 David obtained a letter from an engineer that stated:

During our site review on March 25, 2015 we noted that the existing west wall of the house is significantly out of plumb (approximately 8 inches) and beyond acceptable tolerances for brick and masonry foundation walls. As such, we advise that the wall is to be removed and replaced with a reinforced 8” CMU wall on a concrete strip footing in accordance with the attached Structural Site Instructions….[^4]

[11] On April 29, 2015 the Plaintiff, Natasha Ramsahai (“Natasha”), responded to a request by sending the following email:

Michael and I do not give permission for any excavating to be done on our property. This does not sit well with us…We still grant you right of way access to walk through, use ladders, etc.… [Emphasis added]

[12] David responded to Natasha that evening:

…the wall that used to be my west basement foundation is [buckling]. This has been happening for some time and needs to be addressed immediately. This is the reason you walk is pulling away from the side of your house. Any further delays in remediating this condition will most assuredly result in the wall collapsing and your sidewalk with it. That failure (collapse) is imminent…I am required to rebuild the west wall of my foundation. I am required to do so by law. With that, I am to be afforded reasonable access to my property to complete work as permitted to do so by the City of Toronto. Normally, a verbal request is asked of the adjacent property owner and a verbal authorization is granted and we carry on.… [Emphasis added]

[13] Natasha also responded to David that evening:

All work that is going to encroach on or affect our property needs to be communicated ahead of time and must include copies of drawings if applicable, permits including right of access, inspector reports, Ministry of Labour reports, utility locate reports, timeframe of work to be done, step by step description of what is going to be done and what materials are to be used on our property. Written approval from us to you is necessary before any work stated above commences.

We are extremely concerned about your west foundation wall as well, and obviously that needs to be addressed immediately to prevent further slippage. We would need to see engineering reports that indicate the necessity to encroach 2 feet onto our property for excavation right up to our house, as well as any other reports indicating that there is no alternative way to fix this wall in any other way. We would like that wall shored up immediately in the meantime as we’re sure you do too [want] to prevent any collapse and/or injury.… [Emphasis added]

[14] There is no evidence that the west wall of David’s house foundation was shored up after receipt of this email.

[15] On April 30, 2015 a City of Toronto building inspector spoke with David. The inspector’s notes of the conversation are as follows:

Spoke with David Weenen…advised that in order to give him an order for the west foundation wall to be removed it would need to be in imminent danger of collapse. He advised that it is and will have a new eng report submitted. Once we receive this report the inspector will be issuing an order.

[16] On April 30, 2015 Natasha sent the following email to David:

While we are discussing the details of this project, the foundation wall continues to shift. What is being done about bracing or shoring up this wall so that it doesn’t fall in the middle of the night with my family inside? As previously mentioned, any work or corrective measures that alter the current state of our property needs to be put back into its original state at no cost to us…please agree in writing.… [Emphasis added]

[17] Natasha sent a further email to David on May 4, 2015:

…Would you be available to come by tomorrow…around 7:30 p.m.?

We want to help you get going with your project, but not at the expense of our home being made unsafe. As long as we keep the discussions open, we can hopefully get to a point where everyone is satisfied and content, and can move forward. It may take a few more days, but we’re getting there.

[18] Predictably, the relationship of the parties turned sour when David sent the following “without prejudice” reply to Natasha on May 4, 2015:

Right of access is a by-law and will be afforded to me regardless of your consent…I am done now. I expect your cooperation as of tomorrow morning or regrettably, I will be need to get my lawyer involved. [A]…thorough and exacting look into the construction of your front landscaping, and just because…my vigorous pursuit of charges against the “landscaper” that did construction work in your front yard…This will not cost you anything other than a few hours in court in two months from now. My only reward will be the final order allowing construction to commence…and the [sheer] delight of watching you 50,000 landscape job be ripped apart with excavators…Let me know…I am either going to line up my litigator or my excavator…The choice is yours.

[19] On May 4, 2015 the City issued the following Order to Remedy Unsafe Building under s. 15.(2) of the Building Code Act, 1992. It states:

According to David Moses engineer for Moses Structural Engineers Inc. as per his inspection on April 28, 2015 the existing west wall of the house is significantly out of plumb (approximately 8”) and beyond acceptable tolerance for brick and masonry foundation walls. It is now in imminent danger of collapse.

Required action and compliance date: Provide immediate temporary support. Follow the engineers directions for the support and rebuilding of the wall and then apply for a revision to the building permit.[^5]

[20] On May 5, 2015 Natasha sent the following email to David:

Mike and I were requesting a sit-down conversation about this to hopefully come to an agreement…We were hoping to do this tonight so we could you the go-ahead to help you move forward with your project. Instead, you decided to respond to us with a threatening email…If you would like to discuss this, let us know and we will set up a time and date that works for us all. If not, then we will unfortunately have to refuse you permission to construct/excavate on our property. We will leave this in your hands.

[21] David spoke with a City of Toronto building inspector on May 5, 2015. The inspector’s notes stated:

Received telephone call from owner/constructor – Mr. David Weenen…He is also anxious to re-start work on site. I advise him that work may proceed if it is in full compliance with issued permits and work does not deviate. Also work cannot encroach onto adjacent properties. He stated that he cannot avoid the encroachment due to proximity to property line. I explained that for him to gain access to adjacent lands he must receive permissions directly from neighbour(s) or thru MLS – Right of Entry by-law at 850 Coxwell Ave. [Emphasis added]

[22] On May 7, 2015 another “Order to Remedy Unsafe Building” was issued under s. 15.9(4) of the Building Code Act, 1992 S.O. 1992, c. 23 (the “Order”). The Order stated an inspection on May 4, 2015, revealed that the existing west wall of the foundation of his house was in imminent danger of collapse. The Order required David to:

Provide immediate temporary support. Follow the engineers directions for the support and rebuilding of the wall and then apply for a revision to the building permit. [Emphasis added]

[23] Sometime following May 4, 2015 David installed two or three lateral metal railings between the two foundation walls of his house in order to provide temporary lateral support for the west foundation wall and the adjacent sub-soil underlying the Plaintiffs’ walkway. There is no evidence that the Defendants sought engineering advice for the design of the temporary support as required by the Order.[^6]

[24] In any event, shortly thereafter, David removed the lateral support railings.[^7] He used a backhoe to dig the soil out of his basement to commence the process of underpinning the west foundation wall to facilitate lowering of the basement floor.[^8] As a result of this work, the bricks at the bottom of the west foundation wall caved in.[^9] David found that the bricks in the west foundation wall were rotten and saturated.

Removal of Walkway & Soil

[25] David took matters into his own hands on May 12, 2015. Rather than seek to continue to underpin the west foundation wall, David used a backhoe to remove the west foundation wall, the Plaintiffs’ concrete walkway, and the soil beneath it. He did not seek permission to access the Plaintiffs’ Property from the Plaintiffs or the City of Toronto in accordance with the building permit.

[26] David states that the foundation wall collapsed in “one shot”. However, the photos show that the existing foundation wall was removed in sections.[^10] Also, the photos show a fairly uniform removal of soil along the entire length of the Plaintiffs’ walkway, except for about the 12-18 inches closest to the Plaintiff’s house, to a depth of several feet below grade.[^11]

Shoring on the Plaintiffs’ Property

[27] David put in shoring on the Plaintiff’s Property after removing the foundation wall and the excavation of the Plaintiffs’ Property. David states that shoring was located about 12 inches from the property boundary; however, the photos provided suggest that the shoring was more than 12 inches from the property boundary.[^12] This shoring consisted of several steel I-beam columns that were placed into the ground on the Plaintiffs’ property where the concrete walkway had been located. Wood planks (2 inches by 8 inches) that were five feet in length were placed horizontally between the steel columns and the remaining soil on the Plaintiffs’ property to a height of about 4 feet about the basement floor of David’s house.[^13] There were about six of these planks that were placed horizontally one atop of the other. They were not connected to the steel columns.

[28] The excavation of the Plaintiffs’ walkway and the installation of this shoring permitted David to install the forms for the new concrete footing and foundation along the west wall of his house just one inch on his side of the property line.

[29] On May 29, 2015 David told a City building inspector by email that he had installed the shoring “quickly and rather primitively”.[^14] On cross-examination, David admitted that he designed the shoring without the direction of a professional engineer.[^15] He thought that the shoring was adequate, but he admitted that he was not a shoring engineer.[^16] Later in cross-examination, he testified that there was no way to shore the soil on the Plaintiffs’ Property better than he did.[^17] There was no explanation for his inconsistent views on the quality of the shoring. There is no evidence of why David determined that the shoring could not have been improved upon or how he determined that the design and construction of shoring was adequate given the load that it carried.

[30] On May 21, 2015 the Defendants poured the concrete footing for the new west foundation wall.

Concrete Overpour

[31] On May 28, 2015 the Defendant poured the concrete foundation atop of the concrete footing. While David poured the new foundation wall, whose forms were about four feet above the new concrete footing, the shoring that was holding up the soil on the Plaintiffs’ property “let go”.[^18]

[32] Once again, David took matters into his own hands. David took the hose that was pumping concrete into the form for the foundation and put it on the other side. As a result, the concrete was poured not only in the form for the foundation wall but also on both sides of the shoring given that the overpour extended over the property line by about 18 inches at one end and 30 inches at the other for a length of about 12 feet and to a depth of 4 feet.[^19]

[33] In David’s opinion the overpour had the effect of stabilizing the soil at the Plaintiff’s property and prevented any disturbance to the Plaintiff’s foundation. The overpour is about three feet below the finished grade of the walkway.

[34] David said he did not try to consult with anyone before he decided to overpour the concrete, including his engineer, because he had a concrete hose in hand.[^20] David said that he made the decision to overpour the concrete against the shoring in order to hold up the Plaintiffs’ house. David stated that it would not have affected his construction whatsoever if the shoring had collapsed.

[35] The overpoured concrete went under the gas line of the Plaintiffs’ property and ended almost against the foundation of their house. Natasha called the City of Toronto’s Building Inspection Department. She was advised that the Defendants had not obtained a permit for the excavation work on the Plaintiffs’ property.

[36] A City of Toronto building inspector recorded the events occurred on June 11, 2015:

Spoke with David Weenen…we discussed the situation with regards to the very large footing that was poured and is encroaching onto the neighbour to the west – his engineer is reviewing the site and the fact that the footing is reinforced and constructed to support the building to the west as the excavation is within the angle of repose…All this was done without consultation with Toronto Building. I was handed the reports on site on May 2th. The footing was to be constructed according to the design of David Moses (engineer)…[and] was not constructed that way it would poured approx. 3.5 [feet] wide and now encroaches onto the west side yard (neighbours)

The owner of the property to the left does not want this on her property and David is now looking into ways to have it removed but 1. The footing is designed to retain the house to the west so the engineer needs to assess what action to take and the contractors that he has called to possibly remove it say they can’t do it [as] its not physically possible because of the location and the reports from the engineer. He will be submitting reports asap but to date the house to the west is safe.[^21]

[37] On June 22, 2015 the City of Toronto issued another Order to Comply. It states that:

[E]xcavation has been carried out and shoring has been installed in the excavation on the west side encroaching on the neighbour’s property.

Required action and compliance date: 1. You are required to submit plans and obtain a permit for the shoring. 2. You are required to retain the services of an engineer and submit a report to this department to assess the location of the excavation and determine that the excavated area is not within the angle of repose of the building [Plaintiff’s house]. In the alternative to obtaining a permit – provide an engineer’s report stating that it is safe to remove.

[38] After the concrete had solidified, one of the Defendants’ labourers attempted to chip the concrete away from the Plaintiff’s house using an electric jackhammer. This work was done without the Plaintiffs’ consent.

[39] The manner of the construction of David’s house has led to numerous orders being issued by the City of Toronto.[^22] These orders have led to the numerous delays. The Defendants hold the Plaintiffs responsible for some of these delays.

[40] The Defendants have refused the Plaintiffs’ request to remove the concrete that was poured onto their property which has led to this proceeding.

ANALYSIS

[41] A motion for summary judgment is governed by Rule 20 of the Rules of Civil Procedure. Summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[42] In Hryniak v. Maudlin[^23] the Supreme Court of Canada stated:

… the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[43] On a motion for summary judgment a court must consider the evidence submitted by the parties and it may, unless the interests of justice dictate otherwise, weight the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence. The onus is on the moving party to show that there is no genuine issue requiring a trial.

[44] I have been provided with affidavits from Natasha and David as well as the transcripts from their cross-examinations as well as the cross-examinations of a certified engineering technician and two real estate appraisers. The parties, with one exception, have provided sufficient evidence to adjudicate the issues raised by the claim and counterclaim issues in a fair and just manner. I have adjourned that portion of this motion that deals with the Plaintiffs’ request for a mandatory injunction in order to determine whether, considering all the circumstances including additional engineering evidence to be provided by the parties, it is an appropriate remedy.

ISSUE #1: ARE THE DEFENDANTS LIABLE IN TRESPASS FOR THE REMOVAL OF THE WALKWAY AND THE OVERPOUR?

[45] The Defendants deny that they trespassed on the Plaintiffs property. Alternatively, the Defendants submit that the defence of necessity, although not pleaded, applies and thus they are relieved from liability in trespass.

Trespass to Land

[46] Trespass to land is actionable per se without any proof of damage. The tort of trespass to land requires proof that the Defendant entered upon land in the possession of the Plaintiff, remained upon such land or placed or projected any object upon it without legal justification.[^24]

[47] Ownership and possession of the surface of land brings with it ownership and possession of all the underlying strata as well.[^25] Thus, the intrusion of a concrete foundation on a neighbouring property is an actionable trespass.[^26]

[48] The evidence on this motion clearly shows that the Defendants are liable to the Plaintiffs in trespass. The Defendants have trespassed onto the Plaintiffs’ property and have caused a continuing trespass. The evidence shows that the Plaintiffs were in possession of their property. It also shows that the Defendants entered upon the Plaintiffs’ property and did the following things without the Plaintiffs’ consent: 1) removed the Plaintiffs’ walkway; 2) removed soil from the Plaintiffs’ Property; 3) drove steel columns into the Plaintiffs’ property; 4) added wooden planks between those steel columns to be used as shoring in respect of the remaining soil against the Plaintiffs’ house ; 5) added about 100 cubic feet of concrete onto the Plaintiffs’ property which appears to have entombed some or all of the steel columns and the wooden planks.

Necessity

[49] The plea of necessity is a defence which must be pleaded and proved by the Defendant who bears the onus of proving the facts upon which it is based.[^27]

[50] The plea of necessity is only available in situations of imminent peril.[^28] It must be shown that any reasonable man in the circumstances would have concluded that there was no alternative to the act of trespass if the property endangered was to be preserved.[^29]

[51] The high threshold for establishing the defence of necessity was explained as follows:

But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear - necessity can very easily become simply a mask for anarchy. [Emphasis added]

[52] The Defendants submit that the Plaintiffs’ property was in imminent peril of collapsing if David had not poured concrete onto the Defendants’ property when he did so. David’s evidence is as follows:

On May 21, 2015 we began pouring concrete into new footings for the new Foundation ordered by the City. In the course of doing that, the temporary shoring we had installed suddenly started to give. Again, we had to take immediate action to prevent the damage to the Plaintiffs’ property. We immediately poured concrete into the forms and beyond, on to and across the abutting the subsoil at [the Plaintiff’s property].[^30] [Emphasis in original]

[53] On cross-examination, David stated “the shoring, I could see it move a little bit, I made the decision to pour”. He admitted that he did not contact his engineer or the Plaintiffs as he was busy monitoring the pouring of the concrete foundation. David decided to take the hose that was pumping concrete into the form for the foundation of his house and poured concrete on the other side against the other side of the shoring. He stated that he did this to prevent the adjacent wall of the Plaintiffs’ house from falling.[^31]

[54] The Defendants have failed to establish that the fact that the shoring “moved a little bit” resulted in an imminent peril that the Plaintiffs’ house would fall. Similarly, the Defendants have failed to establish that the pouring of the concrete on the Plaintiffs’ property prevented the Plaintiffs’ house from falling. David is not a professional engineer. No expert engineering evidence was provided to support David’s assertions. David’s opinion that an imminent peril existed and that the pouring of the concrete onto the Plaintiffs’ property served to prevent the Plaintiffs’ house from falling are nothing more than self-serving statements upon which I place no weight. Further, David’s stated concern for the Plaintiffs’ safety and protection of their property is not credible given that he failed to install shoring as requested by Natasha in the emails from late April, 2015, described earlier, while knowing the condition of the foundation given his engineer’s letter dated March 25, 2015 and the fact that he only installed shoring after the Order was issued.

ISSUE #2: SHOULD THE DEFENDANTS BE REQUIRED TO REMOVE THE CONCRETE OVERPOUR?

[55] The Plaintiffs submit that a mandatory injunction is the appropriate remedy to address the continuing trespass caused by the continuing encroachment of the mass of concrete on the Plaintiffs’ property.

[56] An injunction is a discretionary remedy. A mandatory injunction to remove a continuing trespass has often been seen as an appropriate remedy.[^32] The Defendants submit that damages are a complete and adequate remedy. Until recently, whether it was appropriate to substitute damages in lieu of an injunction turned on the application of the principles described by the Court of Appeal in Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287 which states:

In my opinion, it may be stated as a good working rule that –

(1) If the injury to the plaintiff’s legal rights is small,

(2) And is one which is capable of being estimated in money,

(3) And is one which can be adequately compensated by a small money payment,

(4) And the case is one in which it would be oppressive to the defendant to grant an injunction –

then damages in substitution for an injunction may be given.

[57] Slavish adherence to the four-part Shelfer analysis has given way to a more flexible approach that does not place constraints on the factors that a court may consider in assessing the adequacy of damages: see Lawrence v. Fen Tigers Ltd., [2014] 2 W.L.R. 433, [2014] UKSC 13 (UK Supreme Court).

[58] In my view, further evidence is required to assess the appropriate remedy in this case. The parties have agreed to jointly retain a professional engineer to provide an opinion regarding the feasibility, safety and cost of removing the mass of concrete from the Plaintiffs’ property. I also direct that this professional engineer provide his or her views on the potential interference with the use and enjoyment of the Plaintiffs’ property, including any safety issues that may result if the concrete is not removed. Accordingly, this aspect of the Plaintiffs’ motion is adjourned.

ISSUE #3: SHOULD THE COUNTERCLAIM BE DISMISSED ON THE BASIS THAT THE DEFENCE OF QUALIFIED PRIVILEGE AFFORDS A COMPLETE ANSWER?

[59] The Defendants filed a Counterclaim against the Plaintiffs in the amount of $250,000.00 on the basis that their losses were incurred as a result of the Plaintiffs contacting the local municipal building authority to oversee work that resulted in several weeks’ delay and additional cost of the Defendants, none of which was reasonably necessary.

[60] Given the evidence before me, there is no basis to suggest that Michael contacted the City of Toronto building department. The Counterclaim is dismissed against him on that basis. Further, David acknowledged that there were no delays caused by the Defendants until May 4, 2016 when a building inspector attended the site following receipt of a complaint from Natasha. The complaint was well founded, because as noted earlier, an Order to remedy the unsafe condition of the site was issued a few days later which, amongst other things, required the Defendants to provide immediate temporary support for the west foundation wall.

[61] Had the re-construction been conducted within the law and in a reasonable manner, there would been no delay necessitated by the presence of the City of Toronto building inspectors, nor would there have been any need for the issuance of an Order under the Building Code Act, 1992. I find that any delays in the construction of David’s house solely resulted from the Defendants’ own behaviour and were not caused by the Defendants.

[62] In any event, the defence of qualified privilege is a complete answer to the Counterclaim.[^33] Natasha had an obvious interest in calling the City of Toronto building department as David admitted that Natasha had called the City’s building inspection department because she was worried that his construction activities might harm her house. Her concern was well-founded given the issuance of the Order on May 7, 2015. These circumstances also show that Natasha made this communication without malice. The City had a duty to receive the communication and it acted on it.

[63] For these reasons, the Counterclaim is dismissed.

CONCLUSION

[64] I find that there is no genuine issue requiring a trial in respect of the issues addressed above. As a result, I dismiss the Counterclaim. I find that the Defendants have committed actionable trespasses on the Plaintiffs’ Property, as described above, and I find that the Defendants have not established the defence of necessity.

[65] I adjourn the balance of this motion for summary judgment. At the hearing of this motion the parties agreed to jointly retain a professional engineer to provide an opinion regarding the feasibility, safety and cost of the removing the mass of concrete (including any embedded steel or wood) from the Plaintiffs’ property within two weeks of the date of this decision. The professional engineer shall also provide his or her views on the potential interference with the use and enjoyment of the Plaintiffs’ property, including any safety issues may result, if the concrete is not removed.

[66] The professional engineer shall, within three weeks of the date of this decision, be given instructions to be mutually agreed upon by counsel for the parties and such instructions shall include the direction that I have described above. In the event of any dispute in that regard, counsel may re-attend before the Court by way of teleconference call. The cost of this engineer’s services shall be shared equally by the parties subject to further order of this Court. The professional engineer shall make best efforts to deliver his or her report to counsel within nine weeks of the date of this decision. The report shall be delivered to counsel contemporaneously and counsel shall have an opportunity to ask questions of the engineer with respect to his or her opinions and underlying analysis. The parties shall make best efforts to complete this process within 12 weeks of the date of this decision. I direct that counsel attend a case conference to be held by telephone on June 30, 2016 at 8:45 a.m.

Mr. Justice M. D. Faieta

Released: April 12, 2016

CITATION: Ramsahai-Whing v. Weenen, 2016 ONSC 2427

COURT FILE NO.: CV-15-532436

DATE: 20160412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NATASHA RAMSAHAI-WHING and MICHAEL WHING

Plaintiffs

– and –

DAVID WEENEN and DAVID WEENEN DESIGN BUILD INC.

Defendants

REASONS FOR JUDGMENT

Mr. Justice M. D. Faieta

Released: April 12, 2016

[^1]: Affidavit of David Weenen, sworn February 1, 2016, Exhibit P, Building Section S201. An Order to Comply issued by the City of Toronto, dated June 22, 2015, states that the exterior north and west walls as well as 2^nd floor joists have been removed contrary to the approved plans. David was required to submit a revision for unauthorized work and to cease all construction immediately. See Affidavit of Natasha Ramsahai, sworn February 25, 2016, Exhibit D.

[^2]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 188.

[^3]: Affidavit of David Weenen, sworn February 1, 2016, Exhibit B.

[^4]: Affidavit of David Weenen, sworn February 1, 2016, Exhibit C. The instructions referenced in the letter were not included to the Exhibit C.

[^5]: Affidavit of Natasha Ramsahai, sworn February 25, 2016, Exhibit “C”.

[^6]: Affidavit of David Weenen, sworn February 1, 2016, Exhibit J.

[^7]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 534.

[^8]: Affidavit of David Weenen, sworn February 1, 2016, Exhibit L; Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 539.

[^9]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 536.

[^10]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 570.

[^11]: Affidavit of Natasha Ramsahai, sworn November 23, 2015, Exhibits K & L.

[^12]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Questions 598-601.

[^13]: See the photo attached as Exhibit “M” to the Affidavit of Natasha Ramsahai, sworn November 23, 2015. The top of the shoring appears to be a few feet beneath grade.

[^14]: Supplementary Affidavit of Natasha Ramsahai, sworn February 25, 2016, Exhibit A, page 12.

[^15]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 580.

[^16]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 586.

[^17]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 615.

[^18]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 619.

[^19]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Questions 635-636, 689; Affidavit of David Weenen, sworn February 1, 2016, para. 26.

[^20]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Question 652.

[^21]: Affidavit of Natasha Ramsahai, sworn February 25, 2016, Exhibit A.

[^22]: See the Affidavit of Natasha Ramsahai, sworn February 25, 2016, Exhibit “C”. This affidavit notes that the City of Toronto’s Building Department has issued to the Defendants at least five Orders to Comply and four Orders to Remedy Unsafe Building conditions.

[^23]: [2014] S.C.J. No. 7, 2014 SCC 7, at 22.

[^24]: Salmond & Heuston: Law of Torts 21st Edition (Stewart & Maxwell 1996), page 40.

[^25]: Salmond & Heuston: Law of Torts 21st Edition (Stewart & Maxwell 1996), page 45.

[^26]: Willcox v. Kettel [1937] 1 All E.R. 222.

[^27]: Sherrin v. Haggerty [1953] O.J. No. 776, [1953] O.W.N. 962.

[^28]: Southwark London Borough Council v. Williams, [1971] 2 W.L.R. 467 (per Davies L.J.)

[^29]: Salmond & Heuston: Law of Torts 21st Edition (Stewart & Maxwell 1996), page 468.

[^30]: Affidavit of David Weenen, sworn February 1, 2016, para. 25.

[^31]: Transcript of the Cross-examination of David Weenen, March 28, 2016, Questions 636-645; 651-656.

[^32]: Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd. [2005] O.J. No. 3687, aff’d [2007] O.J. No. 2179

[2007 ONCA 413](https://www.canlii.org/en/on/onca/doc/2007/2007onca413/2007onca413.html); Gross v. Wright [1922 CanLII 16 (SCC)](https://www.canlii.org/en/ca/scc/doc/1922/1922canlii16/1922canlii16.html), [1923] S.C.R. 214; Charlie Properties Ltd. v. Risetall Ltd., [2014] EWHC 4057 (Ch.)

[^33]: Ebaugua v. National Rent A Car et al, 2015 ONSC 979, paras. 31-33.

Ramsahai-Whing v. Weenen, 2016 ONSC 2427

Case Summary

REASONS FOR DECISION

INTRODUCTION

BACKGROUND

Removal of Walkway & Soil

Shoring on the Plaintiffs’ Property

Concrete Overpour

ANALYSIS

ISSUE #1: ARE THE DEFENDANTS LIABLE IN TRESPASS FOR THE REMOVAL OF THE WALKWAY AND THE OVERPOUR?

Trespass to Land

Necessity

ISSUE #2: SHOULD THE DEFENDANTS BE REQUIRED TO REMOVE THE CONCRETE OVERPOUR?

ISSUE #3: SHOULD THE COUNTERCLAIM BE DISMISSED ON THE BASIS THAT THE DEFENCE OF QUALIFIED PRIVILEGE AFFORDS A COMPLETE ANSWER?

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 1