CITATION: Berg v. Marks 2017 ONSC 4520
COURT FILE NO.: CV-11-1103-00SR
DATE: 20170726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TERENCE BERG and MATILDA BERG
Plaintiff
– and –
MARILYN SUSAN MARKS
Defendant
Eric Gionet, for the Plaintiff
Marilyn Marks, Defendant, self-represented
HEARD: May 16, 17, 18, 19, 23, 24, 25, 26, 29, 30, 2017
REASONS FOR DECISION
VALLEE J.
Introduction
[1] This matter concerns the use of a laneway between two buildings known as 7 and 9 Mill Street, Tottenham. The plaintiffs own 9 Mill Street. The defendant owns 7 Mill Street. The laneway is located on the defendant’s property abutting the west side of plaintiffs’ building. The plaintiffs state that they have an easement over the laneway, specifically a right of way. A catchbasin is located at the southern end of the laneway. It is connected to the municipal storm sewer by a lateral pipe that runs from the catchbasin north within the laneway to Mill Street. The plaintiffs state that the catchbasin was installed in approximately 1980 to provide drainage to 5, 7 and 9 Mill Street as well as the adjacent lands.
[2] The defendant states that the purpose of the catchbasin is to provide drainage for only her property. She states that the plaintiffs should deal with their own drainage on their property. The defendant was concerned about the safety of the catchbasin. It had a square lid with prongs on the underside to secure it to the round top of the catchbasin structure. At some point, one of the prongs broke off. Subsequently, the lid did not fit properly. It would sit ajar. The catchbasin then became a safety hazard. The defendant was worried that someone would be injured and she, as property owner, would be liable for those injuries. In 2010, the defendant poured a concrete pad over the catchbasin so that it would not be a safety hazard.
[3] The plaintiffs state that the concrete pad has made the catchbasin inoperable. As a result, their property has experienced significant flooding. Water has entered the building and has caused damage. It pools in the parking area. The plaintiffs have three apartment units at the back of their building including one in the basement. As a result of the water damage and its effect on the parking area, they have been unable to rent these units. The plaintiffs claim damages for the loss of the rental income, the cost to reinstate the catchbasin and the cost of repair work required for the basement apartment.
Issues to be determined
A. Do the plaintiffs have a right of way over the laneway? If so, what is its nature and extent?
B. Has the defendant substantially interfered with the plaintiffs’ right to use the laneway?
C. If so, has the defendant committed a nuisance?
D. If so, what is the appropriate remedy?
A. Do the plaintiffs have a right of way over the laneway? If so, what is its nature and extent?
Applicable Legal Principles
Requirements for an Easement
[4] An easement has four requirements: a) there must be a dominant and servient tenement; b) an easement must accommodate the dominant tenement; c) the dominant and servient owners must be different people; and d) a right over land must be capable of forming the subject matter of a grant. A right of way is one of the most common positive easements.[^1]
[5] A private right of way is an easement which permits an owner of the dominant land to pass over some defined portion of the servient land in order to gain access to, or egress from the dominant tenement for some purpose connected with the better enjoyment of the dominant tenement.[^2]
Interpreting the Grant
[6] When an easement is the subject of a grant, the starting point in the analysis must be the “true construction of the grant.” The true nature and extent of an easement created by express grant primarily depends on the wording of the instrument. In construing a grant of easement, regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.[^3]
[7] Absent a direction from the words in the deed, the court may draw assistance from the surrounding circumstances at the time of the deed’s execution to resolve ambiguity.[^4]
[8] The following rules apply in interpreting a grant: [^5]
(a) The grant must be construed in the light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect of the intention of the parties.
(b) If the language of a grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.
(c) The past behaviour of the parties in connection with the use of the right of way may be regarded as a practical construction of the use of the right of way.
(d) In case of doubt, construction should be in favour of the grantee.
[9] Parol evidence of the material facts existing when the deed creating an easement was executed is admissible to apply the words used in a deed.[^6]
Ancillary Rights
[10] An easement includes those ancillary rights reasonably necessary for the easement to be exercised or enjoyed. A typical example of an ancillary right possessed by the dominant tenement would be the right to enter and repair. Repairs may be required to prevent any material interference with or the making of the exercise of the right more difficult or expensive.[^7]
[11] In the case of a right of way, an ancillary right includes the right to enter upon the land of the grantor and to grade the ground (in the case of an unoccupied right of way) so as to keep the way in repair for its proper enjoyment.[^8]
[12] The inclusion of the right of way in the transfers of either tenement is not without consequence. In these cases it will likely be held that the purchasers wanted exactly what their predecessors had.[^9]
Mr. James. Feehely’s Evidence
[13] Mr. Feehely is a lawyer who has practised law in the Village of Tottenham since 1975.[^10] His office is located at 5 Mill Street which is immediately adjacent to the defendant’s property.[^11] He stated that he is very familiar with the subject right of way because he prepared all of the legal documents that created it.
[14] Mr. Feehely stated that he retained a surveyor to prepare a Reference Plan which shows 5, 7 and 9 Mill Street, among other properties. The survey was deposited on title on July 22, 1980 as Reference Plan 51R-9644.[^12] Mr. Feehely explained that in the 1970s, before the Reference Plan was registered, all of the properties shown on it were independently owned.
[15] When the Feehely company purchased part 1 on the Reference Plan (5 Mill Street), another party owned part 13 which is to the south and adjacent to part one. Mr. Feehely stated he had difficulty using the back of his property for parking because it was “hemmed in”.
[16] The Feehely company, along with other companies and people, acquired part 3 (7 Mill Street) and part 6 (9 Mill Street) in the 1970s. One of the owners added an extension to the back of the building at 9 Mill Street at that time.
[17] Mr. Feehely testified that the group of owners wanted to obtain parts 10 and 11 which were south of 7 Mill Street so that they would have more parking for their properties. They worked out an agreement regarding how a right of way would be created over the laneway (part 5) and how the Feehely company would obtain parts 10 and 11. The municipality had concerns about the extension that the owner had added to 9 Mill Street. The building had deficiencies. Mr. Feehely stated that he met with municipal representatives to work out a right of way over the laneway and correct the deficiencies. As part of this negotiation, he was able to obtain parts 10 and 11 which allowed him to have extra parking spaces.
[18] Once the agreement with the municipality had been negotiated, Mr. Feehely retained the surveyor to prepare the Reference Plan noted above and deposit it on title. A right of way over the laneway was created for the benefit of all of the owners and the municipality. A person could access the laneway from Mill Street, which runs east and west, by entering and crossing part 5. One could then proceed over parts 8, 12 and 13. A person would then exit on to Queen Street which runs north and south. This route was more or less in the shape of a backwards ‘L’.
[19] Mr. Feehely stated that he prepared the various documents that were registered on title to create the right of way. He prepared a deed dated July 15, 1988, in which 341949 Ontario Limited, the owner of part 5 at the time, transferred ownership of part 5 to the Village of Tottenham. This deed was registered on August 7, 1980 as instrument number 712676.
[20] On the same date, the Village of Tottenham transferred back to 341949 Ontario Limited part 5 but in doing so reserved “a right of way in, over and upon part 5” in favour of the Village and the owners from time to time of parts 1, (5 Mill Street) part 6 (9 Mill Street) and part 12 on the Reference Plan. This deed was registered on August 7, 1980 as instrument number 712680.
[21] Mr. Feehely stated that he used the broad description “in, over and upon” when he drafted the deed granting the right of way so that the various owners could maintain it and keep it viable if it needed to be graded, if something need to be excavated or if the Village needed to install a pipe.
[22] Mr. Feehely stated that in 1980, the right of way was already serving another purpose. When the addition was constructed on the building at 9 Mill Street, the Village had concerns about drainage. The land at the rear of 5, 7 and 9 Mill Street was below the street elevation so water was accumulating. There were complaints about this in the early 1980s. At the time, the owner of 9 Mill Street agreed to install a catchbasin and drainage pipe within the laneway. The owner obtained permission to connect it to the municipal storm sewer through a manhole located on Mill Street. The catchbasin was located in part 5 just past the back of the building at 9 Mill Street. The pipe proceeded from the catchbasin in part 5, northerly within the laneway, under the sidewalk on Mill Street and then into the manhole. Mr. Feehely stated that he negotiated with the Village for permission to do this. It was done on a handshake in 1980. The agreements were finalized early in the spring. He drafted the related documents and registered them in August.
[23] In 1986, the owners of parts 3, 4, 5 and 14 (7 Mill Street) were Zofia Koza and Jadwiga Ostrowski. By instrument number 890864, they transferred the property to Joao and Maria De Melo. This transfer contains a description of the right of way which is the same as the description in the transfer from the Village to 341949 Ontario Limited. The document shows that Mr. Feehely prepared it. It was registered as instrument number 890864.
[24] In 1995, the owner of 7 Mill Street, which included part 5, was Mr. J. Marks, the defendant’s husband at the time. On January 25, 1995, he transferred to her parts 3, 4, 5 and 14 subject to the right of way described in instrument number 890864. Mr. Feehely was Ms. Marks’ lawyer for the transaction. He prepared the document. It was registered as 01276038.
[25] Mr. Feehely stated that he saw the catchbasin in the laneway working for its intended purpose because, in the early 1980s, he often used the laneway to access the back of his property for parking. He stated that water drained to the catchbasin from the rear of 5, 7, 9 and perhaps 11 Mill Street. He stated that the catchbasin has been a collecting point for water since 1980.
[26] Mr. Feehely stated that approximately five years ago, Mr. Clifford, who is Ms. Marks’ partner, invited him over to the laneway to see what was happening. Mr. Clifford was annoyed by something that the owners of 9 Mill Street had done. He was filling in the catchbasin and covering it. Mr. Feehely understood that Mr. Clifford felt that he had the right to do this because Ms. Marks was the owner of the property where the catchbasin was located. Mr. Feehely stated that he did not make any comments at the time because he did not want to get into an argument. His view was that the laneway and the catchbasin should be kept open.
[27] Mr. Feehely stated that currently the catchbasin area has become a little pond. He sees it every day on his way to his office. It does not affect his property; however, he would not drive on the laneway now because he would be uncertain as to what might be under the water. He now has a different route to access his parking lot.
[28] Ms. Marks asked Mr. Feehely why the catchbasin and drainage pipe were not disclosed to her when she purchased 7 Mill Street. He stated that the catchbasin was visible. The right of way is described on her transfer. The property description does not specifically identify the catchbasin. It was installed back in 1980 and was treated as part of the right of way by the owners at that time.
[29] Mr. Feehely agreed that the description of the right of way “in, over and upon” does not refer to drainage but stated that it is sufficient to have the laneway function. In order for it to function, it requires drainage.
[30] Mr. Feehely reviewed a letter from the Town of New Tecumseth to the defendant dated February 21, 2014, written in response to an inquiry she made. In the letter, the Town stated that it had no record of an “up-right culvert structure located within the private laneway of 7 Mill Street East being connected to the Town’s storm water sewer.” Mr. Feehely explained that the drainage work was authorized by the Village of Tottenham prior to its amalgamation into the Town of New Tecumseth. He believed that there was no written record of the work back in 1980.
Analysis
[31] There is no doubt that in 1980, the Village of Tottenham created an easement by grant, being a right of way “in, over and upon” part 5 for itself and the benefit of the owners of part 1, 6 and 12 as designated on the Reference Plan. The language in the 1980 deed clearly states this. The plaintiffs own part 6; therefore, I find that they have a right of way over part 5.
[32] I will now turn to consider the nature and scope of the right of way. To do so, I must determine what is meant by “in, over and upon”, the language used in the grant. I must consider the wording of the right of way in the context of the circumstances that existed when it was created.
[33] Parole evidence of the facts existing when the right of way was created is admissible to apply the language used in the deed. Mr. Feehely was the only witness who provided evidence about the circumstances that existed and were known to the parties when the Village granted the right of way. I find Mr. Feehely’s evidence to be entirely credible.
[34] The right of way was granted to provide access to parking at the rear of 5, 7 and 9 Mill Street. The rear of those properties required drainage because they were lower than the elevation of the street. I find that through certain negotiations, Mr. Feehely obtained municipal permission to have installed, within the laneway, the catchbasin and the lateral pipe which connected it to the municipal storm sewer.
[35] In accordance with the right of way, the laneway was used to access property for parking at the rear of 5, 7 and 9 Mill St. for a number of years. The catchbasin and lateral pipe located within the laneway provided drainage from approximately 1980 until 2006, when Mr. Clifford, the defendant’s partner, took certain actions described below. Using a contextual approach, I interpret the language in the grant, “in, over and upon”, to mean that the owners of parts 1, 6 (the plaintiffs) and 12 have the right to pass over and upon part 5. Based upon the circumstances existing at the time of the grant, I find that the language of the grant “in” provides for the drainage infrastructure including the catchbasin and the lateral drainage pipe to be located under the surface of the laneway to provide drainage for the rear of 5, 7 and 9 Mill Street.
[36] In accordance with the right of way, the owners of parts 1, 6, and 12 have the right to use this catchbasin and lateral pipe to drain water from their properties. They have the right to enter and repair the surface of the laneway and the drainage infrastructure so that it can continue to function for its intended use.
[37] I find that the language of the grant “upon” permits the owner of 9 Mill Street to use the laneway to make repairs to the west side of the building and to access the apartments.
B. Has the defendant substantially interfered with the plaintiffs’ right to use the laneway?
Mr. Terrence Berg’s Evidence
[38] Mr. Berg and his wife purchased it in 1997 as a rental property. It is comprised of parts 6, 7, 8 and 9 on the Reference Plan. Mr. Berg stated that when he purchased 9 Mill Street, he understood that part 5 was a laneway which was subject to a right of way in his favour. The Bergs’ building contains four apartment units. A pizza shop is located at the front of the building. Above it is an apartment. In the rear addition, there are three apartments, one in the basement, one on the main floor and one on the second floor. The laneway provides the only access to the apartments through a door on the west side of the building.
[39] Mr. Berg stated that he viewed the property before he bought it. He walked along the laneway and saw a catchbasin located there, across from the end of his building. At that time, it had a metal lid and provided drainage.
[40] With respect to the catchbasin chamber, Mr. Berg stated that it is a circular metal structure, the bottom of which was 4 feet underground. A 4 inch weeping tile pipe is connected to it. The other end of the weeping tile is connected to the gutters on the defendant’s building and provides an outlet for her roof drains. In addition, a 10 inch diameter lateral pipe is connected to the catchbasin chamber, approximately 12 inches above its bottom. Debris would accumulate at the bottom of the catchbasin chamber below the level of the pipe’s connection. As long as the debris was below this level, the lateral pipe would not clog. The catchbasin needed maintenance to remove the debris.
[41] Mr. Berg took some photos of the laneway and the catchbasin in June 2006. He stated that the laneway and the catchbasin looked the same in these photos as they did in 1997. There was a flat plate on top of the catchbasin. It was level with the laneway’s elevation. Behind the catchbasin to the south, the ground was generally dry. Some ponding did occur in tire tracks.
[42] Mr. Berg stated that when he bought 9 Mill Street in 1997, all of the apartments were occupied. The parking area for the tenants was at the rear of the building. The land had gravel on it. There was room for 4 or 5 spaces on the east side and 3 spaces on the west side.
[43] From discussions with his lawyer prior to purchasing the property, Mr. Berg stated that he understood that the right of way over the laneway provided access to the building. Vehicles were to move freely over the right of way. It was not to be blocked. The water from the rear of his property would flow into the catchbasin, along the lateral pipe and then out to the municipal storm sewer. Mr. Berg stated that the use of this laneway was very important to him because it provided the only way for his tenants to access the rear of the building for parking and then to enter the building. There is no other access to the apartments.
[44] When Mr. Berg purchased the property, his lawyer told him that the owner of 7 Mill Street was Marilyn Marks. He did not meet her immediately. He had no reason to discuss anything with her. There were no issues.
[45] Toward the end of 1998, Mr. Berg’s tenants called him. There was water in the basement apartment. He went to the building and saw that the entire parking area and the laneway were flooded. The water was not draining to the street. This occurred because the catchbasin was blocked. He spoke to Ms. Marks to advise her of the problem.
[46] Mr. Berg stated that he called Tottenham Public Works. The municipality sent staff with a pumper truck. They were able to clear the blockage. When he called Public Works, he did not know whether there would be a bill or how much it would be. He thought that because the catchbasin was connected to the municipal storm sewer, the municipality would look after the matter. In January 1999, Ms. Marks called him and said that she had received a bill from the municipality in the amount of $391.30 for the work to clear the drain.
[47] Mr. Berg stated that in 2000, a major flood occurred in the parking area at the back of his building. The water was more than 1 foot deep. He called Public Works again but this time, they refused to send anybody. Staff stated that a blockage was not the municipality’s responsibility because the catchbasin and lateral pipe were on private property.
[48] Mr. Berg spoke to Ms. Marks about how to solve the blockage. He took charge of the matter. He rented a sewer snake for $69 and ran it through the catchbasin with the assistance of a friend. This did not solve the problem so he took the snake to the street, opened the municipal manhole and ran the snake through the pipe outlet. The blockage proved to be at the end of the pipe where it connected to the municipal manhole. The blockage cleared quickly and the flood drained away.
[49] He stated that he did not discuss with Ms. Marks what he had done. He was happy that the problem was fixed. He figured that she had paid for the first blockage and he had paid for the equipment and had done the work to fix the second blockage. He believed he and Ms. Marks had a shared responsibility to keep the drain working.
[50] Mr. Berg stated that in 2001, there were no flooding issues. He realized that the catchbasin required attention because it had to be maintained. He stated that he opened it monthly, looked at the bottom and cleaned out the area below the lateral pipe connection approximately every other month. He did not want to have another blockage incident.
[51] Mr. Berg maintained the catchbasin in this manner up until 2006. He carried out some minor grading on the laneway to fix some potholes so that no issues would arise regarding access over the laneway. He did not have much conversation with Ms. Marks during this time.
[52] Mr. Berg stated that in May 2006, the wife of one of his tenants needed to use a cane for walking. The surface of the laneway was uneven. Some water was pooling. He rototilled the laneway to level it. He lowered some of the high areas and moved the material to the south of the catch basin. The water flowed properly to the catchbasin which kept the laneway dry. During this work, he had no discussions with Ms. Marks. From 2000 to 2006, the catchbasin was working well. It was keeping the laneway dry.
[53] Mr. Berg began to have some concerns about the square metal lid on the catchbasin and thought it could be improved. He had some discussions with Ms. Marks about the issue. He thought it should be similar to a regulation storm catchbasin lid, a solid cast iron piece with slots in it to facilitate drainage and allow it to be opened. He thought that there should be an apron around the catchbasin so that it could be below the grade of the laneway. The apron could be concrete or asphalt. When he spoke to Ms. Marks, he learned that she was concerned about the lid as well. He told her that he was prepared to purchase a regulation grate and do the work to install it. She told him that he should proceed if he wanted to do it. He offered to pay for the lid and do all of the work at his own cost. Mr. Berg stated that he purchased a new regulation grate in Kitchener for $409.46. Mr. Berg provided the invoice for the grate dated 06/07/2006.
[54] Mr. Berg stated that in preparation to do the work, he brought some gravel, cement and a transit to the laneway. He needed the transit to check elevations. He was setting up to do this when a large black dually truck drove quickly down the laneway and over the top of the catchbasin toward him. Mr. Clifford got out of the truck and spoke to him. He stated that the laneway was private property. He told Mr. Berg to stop what he was doing. Mr. Berg stated that he felt intimidated by Mr. Clifford. He stopped the work and put the new grate along the side of his building.
[55] After Mr. Clifford told Mr. Berg to stop doing the work, Mr. Berg spoke to his lawyer and his municipal counsellor to figure out how to improve the catchbasin. He stated he also spoke to staff at the Property Standards Department. The municipality did not take any action.
[56] On July 18, 2006, after he purchased the catchbasin lid, he wrote a letter to Betty Aldridge, a municipal councillor. The letter begins by saying that there is an emergency at 9 Mill Street with water leaking into the basement. Mr. Berg stated that the elevation of the top of the catch basin was above the height of the rear foundation of his building. He stated that he confirmed this on June 10, 2006, by using a laser level. He stated that the elevation of the top of the catchbasin should be lowered by 12 inches to allow proper grading for rain and water runoff. He commented that the design for the existing catchbasin was inferior and hazardous. The metal lid did not allow for proper flow of water and led to blockage of the pipe connecting to the municipal storm sewer. This caused major flooding in his rear parking area and water leaking into the basement apartment at 9 Mill Street, costing thousands of dollars of repairs. He described this situation with the catchbasin as “a major catastrophe just waiting to happen”.
[57] Almost two years later, on April 4, 2008, Mr. Berg wrote another letter, this time to Steve Wynnyk, who was the Road Supervisor. Again, he described the emergency relating to the drainage. He stated that the current height of the catchbasin was approximately 8” too high. It had been pushed upward by frost and was now too high relative to the basement walls of his building. The rest of his letter was similar to the letter he wrote on July 18, 2006. He asked that the municipality “require and enforce that the… catchbasin meet engineered standards and that the elevation of the catchbasin… be of such height as to not negatively impact on nine Mill Street”. The municipality took no steps.
[58] In 2009, Mr. Clifford covered the catchbasin lid with gravel. This was the beginning of a blockage. Mr. Berg stated that he saw a big pile of gravel that Mr. Clifford had brought in. He was putting gravel under the deck area of 7 Mill Street and along the foundation of the building. He raised the ground elevation along the foundation. Mr. Berg then had concerns about the elevation of the laneway because the sill plate on top of the block foundation of his building was only 2 inches above the elevation of the laneway. He was worried that in a heavy rain, water would flow over the top of the foundation and into his basement.
[59] In November 2010, Mr. Clifford built a 4 foot square wood form around the catchbasin’s lid. He put reinforcing steel in the form and poured a concrete slab in it over the top of the catchbasin. This made the catchbasin completely inoperable. Surface water began to pond behind the catchbasin because it had nowhere to drain.
[60] Mr. Berg stated that he took some measurements to determine the elevation of the concrete pad on the top of the catchbasin relative to the top of the foundation walls of his building. He determined that the concrete pad was 2 inches above the top of his foundation.
[61] Because the catchbasin was not functioning, after a heavy rain, significant ponding occurred in the parking area at the back of 9 Mill Street. At one point, the water was 12 inches deep. Mr. Berg referred to a photograph that shows the water up to the bottom of the bumper on his car. There were problems in the winter as well. Ponding on the laneway turned into ice. When there was significant ice, it was dangerous to walk on the laneway. In the winter when the ground froze, it could not absorb the water.
[62] To try to address the problem, Mr. Berg put a sump pump in the flooded area with a flexible pipe going down the laneway toward the street. He attempted to lower the water at the back of his building. He stated that after the concrete pad was poured, he has drained the back of his property with a sump pump two or three times per year. Mr. Berg stated that the area at the back of his building is constantly flooded. There is now a pond behind his building.
[63] Mr. Berg stated that Tottenham experiences major storms three or four times a year. In 2010, after Mr. Clifford covered the catchbasin, water came into the basement at 9 Mill Street. It came down the stone foundation walls in the back southwest corner next to the laneway. During each storm, water flows into his basement. The situation is getting worse. Black mould is growing in the drywall. He stated that the entire apartment requires remediation but there is no point in doing any work until the drainage issue is resolved.
[64] Mr. Berg stated that the defendant operates a bar at 7 Mill Street. She uses the laneway as her parking spot. This blocks Mr. Berg’s use of the laneway. Sometimes there are two cars parked in the laneway.
Mr. Harold Clifford’s Evidence
[65] Mr. Clifford met Ms. Marks at her bar in October 2003. They became friends. He fixed numerous things inside her building. At some point they became romantically involved. Subsequently, Mr. Clifford moved in to Ms. Marks’ residence (which is not 7 Mill Street) and continues to reside there. Ms. Marks designated Mr. Clifford to be her representative in all matters relating to the laneway.
[66] Mr. Clifford stated that in June 2006, he received a call from Ms. Marks. She was very upset and wanted him to come to 7 Mill Street. She told him that the neighbour had the lid off the catchbasin and she was concerned about what he was doing. Mr. Clifford stated that he went to 7 Mill Street. Ms. Marks directed him to tell Mr. Berg to stop what he was doing. Mr. Clifford then had an encounter with Mr. Berg in the laneway. He told Mr. Berg that he was there on Ms. Marks’ request and asked him what he was doing. Mr. Clifford stated that Mr. Berg ignored him and would not answer. Mr. Clifford told Mr. Berg that he had to leave the catchbasin alone because it already had enough problems. He recalled that Ms. Marks was on her patio adjacent to the catchbasin where he and Mr. Berg were standing at the time.
[67] Mr. Clifford stated that he did not have any knowledge of the catchbasin at that time. He did not know who owned it or who installed it. He did not know who owned the laneway. He thought that the person who installed the catchbasin had no concern for people who would be walking through the laneway because the lid was not securely fastened. Ms. Marks had told him that people had come into the bar after driving over the catchbasin and claimed that it had damaged their cars. They expected her to pay for the damage. Lynda Cameron was one of Ms. Marks’ customers at the bar. One day, she came to the bar and alleged that she had fallen into the catchbasin and hurt her ankle. This could have resulted in a claim
[68] Mr. Clifford stated that when he was in Ms. Marks’ building, he heard the catchbasin’s lid bumping up and down. He wondered what he could do about it. He and Ms. Marks believed that one day the catchbasin’s condition was going to cause an accident. She had been bothered by it since 1991. He always knew that he had to do something with it; however, it was not within his area of expertise. He believed that there would be an incident involving the catchbasin which was going to harm to Ms. Marks’ livelihood. He had to deal with it.
[69] In March 2008, Mr. Clifford noticed that there was some erosion around the catchbasin. He described it as a sinkhole. He backfilled the area with aggregate and compacted it as best as he could. He then did some research on Google and learned about drainage pits. He believed that the only subsurface connection to the catchbasin was Ms. Marks weeping tile pipe. He concluded that the catchbasin must be a drainage pit for only Ms. Marks’ use because nothing else was connected to it.
[70] Between 2003 and 2010, Mr. Clifford performed maintenance on the area around the catchbasin when he saw erosion. He filled in these areas.
[71] Mr. Clifford stated that prior to his pouring the concrete pad, water from the surrounding area did not make its way to the catchbasin. This was because the catchbasin was higher than the surrounding area. He stated that the traffic on the laneway helped create concave areas around the catchbasin. There was no outlet for any surface water.
[72] Mr. Clifford stated that he built the concrete pad on top of the catch basin to cover it. He did this because there were other occasions when he had to repair erosion around it. The concrete pad resolved the safety issue for Ms. Marks.
[73] In July 2010, Mr. Clifford corresponded with the municipality because it had advised Ms. Marks that someone had made a complaint. In his correspondence, Mr. Clifford referred to himself as the “laneway representative”.
[74] Mr. Clifford stated that he read the statement of claim which was served in 2011. He assisted Ms. Marks in preparing her statement of defence. Paragraph 5 of the claim states that the catchbasin “is connected to the town storm drain and had served as storm drainage for the rear parking area for approximately 30 years”. Mr. Clifford stated that he did not see anything that justified this statement.
[75] Mr. Clifford stated that he had never seen a cast iron lid except in Mr. Berg’s photographs. Before he built the concrete pad over the catchbasin, installing a cast iron storm sewer grate never crossed his mind. He stated that he did not explore any other options before deciding to build the concrete pad. In his view, it was the best solution. He did not consider installing a storm sewer grate because Mr. Berg was directing his property’s drainage toward Ms. Marks’ property. He stated that Mr. Berg would not leave the catchbasin alone. This was the primary reason for his pouring the concrete pad over the catchbasin. Mr. Berg would not contain his water on his property. He was improperly directing his water on to Ms. Marks’ property. A cast iron storm sewer grate would have allowed Mr. Berg’s drainage to go into the catchbasin. He stated that the catchbasin was not a neighbourhood community drain. It was not a community sewer. It was a private hole in the ground on Ms. Marks’ property to contain her drainage which would be absorbed by the soil.
[76] Mr. Clifford took several photographs of the various stages when he was constructing the concrete pad. They showed that initially he constructed a dirt berm to dam the water back away from the catchbasin. He built up the area on the south side of the concrete pad so that it was the same elevation as the catchbasin. The photos show that the area farther south of the catchbasin was then at a lower elevation.
[77] Mr. Clifford stated that he did not know that the catchbasin was connected to the municipal storm sewer until after he saw the plaintiffs’ lateral scope video which was served on the defendant on February 15, 2013.
Analysis
[78] I accept Mr. Berg’s evidence that he maintained the laneway to keep it free of pot holes and ponding water. He maintained the catchbasin by taking the lid off and inspecting it monthly. Every second month, he cleaned out the catchbasin so that the debris did not reach the level where the lateral pipe connected to it. He kept the catchbasin in good working order. Mr. Clifford’s testimony supported this when he stated that Mr. Berg would not leave the catchbasin alone. By virtue of the right of way in Mr. Berg’s favour, he had the right to maintain the laneway and the catchbasin. I find that they were critical to the access to and use of his building as well as the parking lot.
[79] I accept Mr. Berg’s evidence that in 2006, he had a discussion with Ms. Marks about doing some grading on the laneway, creating an apron around the catchbasin, so that it would be below the laneway’s elevation and installing a regulation storm sewer grate on the catchbasin. I accept his evidence that she agreed to it. He likely would not have travelled to Kitchener and spent $409.46 on a cast iron sewer grate unless he had her permission to do the work and install the grate. There was no evidence to the contrary.
[80] Ms. Marks designated Mr. Clifford as her representative in all matters relating to the laneway and catchbasin. She did not testify at trial. Mr. Clifford was completely mistaken in his belief that the catchbasin’s sole purpose was to provide a drainage pit for water runoff from only Ms. Marks’ property. He was also completely mistaken in his belief that Mr. Berg’s right of way in, over and upon the laneway included only the right to travel across it.
[81] Mr. Clifford should not have approached Mr. Berg in 2006 while he was setting up to do the work and told him to stop what he was doing. Mr. Clifford admitted that when he did this, he had no knowledge of the catchbasin or who owned the land where it was located. I accept Mr. Berg’s evidence that he was intimidated by Mr. Clifford. He is a large man.
[82] Shortly after this encounter, Mr. Berg wrote a letter to Ms. Aldridge dated July 18, 2006, complaining about the state of the catchbasin and the fact that something had to be done to it. I find that this is consistent with Mr. Berg’s reason for discussing the matter earlier with Ms. Marks and obtaining her permission to do the work. His letter to Mr. Wynnuyk dated April 4, 2008, is consistent on the topic.
[83] There are two discrepancies in Mr. Berg’s letters in contrast to his evidence at trial. In his 2006 letter to Ms. Aldridge, he stated that, “the elevation of the top of the catch basin is above the height of the rear foundation walls at 9 Mill St…” In his 2008 letter to Mr. Wynnuyk he stated, “The current height of the catch basin in the right of way between 9 & 7 Mill St is approximately 8” too high to provide natural drainage for all surrounding properties in the rear parking area. Frost over the years has pushed this make shift drain up. It is now too high relative to basement walls of 9 Mill Street.”
[84] In his testimony, Mr. Berg stated that the top of the concrete pad installed on the catchbasin in 2010 was 2 inches lower than the sill plate on his foundation wall.
[85] Mr. Berg explained the discrepancies by stating that he made errors when he was measuring. I find that these discrepancies are relatively minor. His purpose in writing the letters was to bring the drainage problem to the attention of municipal officials with the hope that the municipality would take some steps. Mr. Clifford had prohibited him from doing the necessary work.
[86] I find that when Mr. Clifford covered the top of the catchbasin with the concrete pad, he made the catchbasin inoperable for surface drainage from Mr. Berg’s property. According to his evidence, this was his intention. I find that Mr. Clifford’s various actions substantially interfered with the plaintiffs’ right to use the laneway, to access their parking lot, to access to their building and to use the catchbasin in the laneway for drainage.
[87] I find that in 2011, when the statement of claim was served, Ms. Marks was put on notice of Mr. Berg’s allegation that the catchbasin was connected to the municipality’s storm sewer and had served as storm drainage for the rear of the properties for 30 years. Mr. Clifford stated that he read the statement of claim but had not seen anything to justify this allegation. He continued to believe that the catchbasin was a drainage pit for only Ms. Marks’ use. His misperception could have been corrected immediately if he and/or Ms. Marks had simply walked next door to Mr. Feehely’s office to discuss the matter with him. Ms. Marks and Mr. Feehely were not strangers. As noted above, he was Ms. Marks’ lawyer when she purchased the property.
C. Has the defendant committed a nuisance?
Applicable Legal Principles
[88] In the vast majority of cases, private nuisances are interference for a substantial length of time by owners or occupiers of property with the use or enjoyment of the neighbouring property.[^13]
[89] Where harm from unreasonable interference with a use of property results in damages, it is easier to demonstrate interference with use and enjoyment of land.[^14]
[90] A deliberate act or negligence is not an essential ingredient of nuisance. Some degree of personal responsibility is required.[^15]
Mr. Berg’s Evidence
[91] Mr. Berg stated that a significant quantity of water ponds behind 9 Mill Street and along the laneway. The water in the laneway has made it unsafe for pedestrians, specifically Mr. Berg’s tenants. At times, the water has entered the basement of 9 Mill Street. It has damaged the apartment and created an environment for mould to grow.
Analysis
[92] Mr. Clifford’s actions on behalf of the defendant began to interfere with the plaintiffs’ use of their property in 2006 when he ordered Mr. Berg to stop doing the work that was required to maintain the laneway and catchbasin. Mr. Clifford’s pouring the concrete pad on top of the catchbasin made it inoperable. The laneway and the back of the plaintiffs’ property required drainage. Mr. Clifford’s covering the catchbasin resulted in Mr. Berg’s being unable to rent the three apartments at the back of his building. He has suffered a corresponding loss of rental income. While he is required to have a final inspection of the gas furnaces in these three apartments before he can rent them, I accept his evidence that these inspections could be done quickly if laneway and drainage issues were resolved. There was no evidence to the contrary.
[93] The defendant’s interference has now lasted for 11 years which I find constitutes a substantial length of time. I conclude that the defendant has committed a nuisance.
D. What is the appropriate remedy?
[94] The nuisance committed by the defendant has caused the plaintiffs to suffer damages. The plaintiffs and their tenants are entitled to use the laneway to access the building as well as the parking lot at the rear of the building. The plaintiffs are entitled to have the laneway and the parking lot drain to the catchbasin. The plaintiffs are entitled to be compensated for the lost rent. Therefore, I find that they are entitled to the following:
a) a declaration that work be performed to reinstate the catchbasin so that its drainage function is restored;
b) a declaration that the defendant shall not block the laneway nor shall she permit anyone else to block it;
c) damages for their losses relating to the flooding and the cost to have the reinstatement work done on the catchbasin.
Work Required to Reinstate the Catchbasin
[95] As noted above, in 2010, Mr. Berg retained a surveyor, Mr. Pesce, to do a topographical survey. It is dated November 19, 2010, and shows the elevations on the laneway, in the depressed areas and the direction of water flow.
[96] Mr. Berg stated that once he had the topographical survey, he retained Mr. John Kuntze, a professional engineer who specializes in drainage, to determine the solution to the problem.
Mr. John Kuntze’s Evidence
[97] Mr. Kuntze was qualified as an expert in municipal drainage matters. He reviewed the Reference Plan and the topographic survey. He also reviewed a video of an inspection of the lateral pipe from the municipal manhole going southerly toward the catchbasin that was covered by the concrete pad. He stated that it showed a functional drainage system until the camera arrived at a location in the pipe where there was debris and gravel.
[98] Mr. Kuntze stated that the drainage problem was fairly striking on site. There was a depressional area toward the south end of the laneway where a large quantity of water was located. All of the land sloped toward that area. Water from the surrounding land was draining to it. There was no natural drainage outlet.
[99] Mr. Kuntze noted that an addition had been built on 9 Mill Street. He stated that without a rear yard catchbasin, the Chief Building Official likely would not have issued a building permit for the addition. Mr. Kuntze stated that the only resolution to the drainage problem was to reinstate the rear yard catchbasin to a functional catchbasin with an open grate on top. It was the simplest solution and one that had worked in the past.
[100] He stated that if work was going to be done, the structure should be replaced with something more robust. A new 2 x 2 foot square concrete catchbasin structure with a grate on top that would sit flush with the laneway would be appropriate. This would be similar to the type of grate that one would see on a street. Traffic could drive over of it. Mr. Kuntze prepared a specification and drawing for a new catchbasin. He specified an elevation for the top of it so that water could drain into it and then along the lateral pipe out to the street. The top elevation had to be lower than the top elevation of Mr. Berg’s foundation. He believed that Mr. Berg needed only a plumbing permit to do the work.
[101] Mr. Kuntze stated that while he had not done a specific drainage assessment, he had no reservation that the catchbasin, if built in accordance with his specifications, would function. He stated that its capacity will be exceeded at times but this happens to any drainage system if the water volume exceeds the design. He noted that the drainage area is small. He was confident that the catchbasin would drain the water away.
[102] Mr. Kuntze stated the location of the catchbasin was appropriate because it is on an easement that is shared between the parties. The drainage is shared between the two properties. If it were to be relocated farther to the south end of the laneway, it would not interfere with pedestrians or vehicle access. It would be more convenient for traffic but it would not solve the drainage problem. If the catchbasin were located farther south, it would not be at the low point for drainage purposes.
Mr. William Heywood’s Evidence
[103] Mr. William Heywood[^16] is a professional engineer whose area of practice focuses on drainage. He reviewed Mr. Kuntze’s reports and drawings. He attended at the site and saw the catchbasin covered with the concrete pad. He stated that the concrete pad made the catchbasin inoperable. As a result, surface water had no drainage outlet.
[104] Mr. Heywood reviewed an earlier photo of the catchbasin with its square metal lid askew and with some erosion around it. He stated that from an engineering viewpoint, this was an unsafe condition. He stated that if a proper lid had been secured on the catchbasin and if some grading had been done around it to permit the water to flow to it, the catchbasin would have been safe.
[105] Mr. Heywood stated that when he learned that the municipality required only a plumbing permit to replace the catchbasin, he concluded that replacing the catchbasin at the same location as proposed by Mr. Kuntze would be the optimal solution, taking everything into account.
Mr. Michael Ip’s Evidence
[106] Mr. Ip is the engineering coordinator for the Town of New Tecumseth. He stated that he was familiar with the right of way across part 5 and the dispute between the parties. With regard to the letter that the Town sent to the defendant dated February 21, 2014, Mr. Ip stated that the Town would not have any record of an “upright culvert structure” in the laneway because nothing of the sort exists. Mr. Ip stated that he had never heard of an upright culvert structure. A drainage catchbasin system is located in the laneway.
[107] Mr. Berg sent Mr. Kuntze’s design for the proposed new catchbasin to Mr. Ip for review. After making some comments and receiving a revised drawing, Mr. Ip was satisfied that the proposed work was appropriate. He stated that it was considered to be maintenance work; therefore only a plumbing permit is required.
The Cost to Reinstate the Catchbasin
[108] Mr. Berg stated that in approximately February 2015, based on Mr. Kuntze’s opinion and specifications, he applied for a plumbing permit to conduct work on the catchbasin; however, the building department said that he would need a letter of permission from the owner of the land, Ms. Marks, to allow the work to proceed. Mr. Berg stated that Ms. Marks has never given her consent for the work to be done.
[109] Mr. Berg obtained a quote from Rayburn construction dated August 22, 2014, in the amount of $10,762 for the work to install the catchbasin and the related laneway work. The defendant did not challenge the amount. I accept Mr. Berg’s evidence that the cost to reinstate the catchbasin will be at least $10,762.
Loss of Rent
[110] Mr. Berg stated that since 2010, he has been unable to rent the two apartments at the back of the building as well as the basement apartment. From 2001 to 2009, the average monthly rental income from all of the apartments in the building, including the apartment over the pizza shop, was $2,510. He stated that from 2010 to May, 2016, he expected to receive $193,270 in rent for all of the apartments. He actually received $23,525 for only the apartment over the pizza shop. Therefore, he suffered a loss of income of $169,745.
[111] The defendant challenged Mr. Berg’s loss of income only on the issue of the outstanding inspections required for the new gas furnaces. As noted earlier, I accept Mr. Berg’s evidence that this is a relatively minor issue. The inspections could be arranged quickly. The defendant provided no contradictory evidence on those issues. Accordingly, I accept Mr. Berg’s evidence and find that his loss of income up to May 2016 is $169,745.
Cost of Repairs to the Basement Apartment
[112] Mr. Berg obtained an estimate dated March 18, 2014, for the cost of the work required to repair the basement apartment. This includes exposing the sill plate and replacing it with new framing materials and siding, removing all drywall, framing, insulation and vapour barrier and replacing them, and installing new flooring. The amount of the estimate is $27,420 plus HST ($3,564.60) which totals $30,984.60.
[113] The defendant did not challenge the cost of the work. Accordingly, I accept Mr. Berg’s evidence regarding the cost.
Total Damages Sustained by the Plaintiffs
[114] Based on the above, I find that the plaintiffs have sustained the following damages:
Loss of rental income $169,745
Cost to repair the basement apartment $30,984.60
Cost to reinstate the catchbasin $10,762
Total $211,491.60
[115] Because this matter was commenced as a Simplified Procedure action, the plaintiffs have limited their claim to $100,000. Accordingly, the plaintiffs are entitled to damages in the amount of $100,000.
Summary
[116] The plaintiffs are entitled to a right of way in, over and upon those parts of Lots 2 and 3, Plan 310 designated as Part 5 on Reference Plan 51R-9644.
[117] The defendant or any agent on her behalf shall be enjoined from interfering with or otherwise impeding the plaintiffs’ reasonable use of the right of way, including the plaintiffs’ tenants and invitees. Such reasonable use of the right of way includes vehicular and/or pedestrian traffic and access to the west side of the plaintiffs’ building at 9 Mill Street, immediately adjacent to the right of way, to carry out repairs and/or maintenance to the building.
[118] The plaintiffs are authorized to proceed with the remedial catchbasin work in accordance with Mr. Kuntze’s design and specifications as reviewed by the Town. The defendant’s consent is dispensed with.
[119] The defendant shall pay to the plaintiffs $100,000 for damages.
Costs
[120] If the parties cannot agree on the costs of this action, they may make written submissions. The text of the submissions shall be no longer than five pages with 1.5 spacing, regular margins and 12 point font, not including a bill of costs or case law. The plaintiff may serve and file submissions within 2 weeks of the release date of this decision. The defendant may serve and file responding submissions within a further week.
VALLEE J.
Released: July 26, 2017
[^1]: Stella Psarakis Medicine Professional Corp. v. Gonnesen, 2015 ONSC 25, 51 R.P.R. (5th) 77, at para. 9. [^2]: PATCO Developments Ltd. v. 3195972 Nova Scotia Ltd., 2016 NSSC 9, 370 N.S.R. (2d) 34, at para. 32, quoting Anne La Forest, Anger & Honsberger Law of Real Property, 3d ed. (Aurora: Canada Law Book, 2006) at para. 17.20.30(a)). [^3]: Weidelich v. De Koning, 2013 ONSC 7486, 39 R.P.R. (5th) 261, at para. 19 citing Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10. [^4]: PATCO, at para. 29 citing Knock v. Fouillard, 2007 NSCA 27, 252 N.S.R. (2d) 298, at paras. 59-60. [^5]: Ibid. [^6]: McKinnon v. Canada (Attorney General), 2002 BCSC 1053, 2 R.P.R. (4th) 300, at para. 29. [^7]: Stella Psarakis, at para. 15 quoting Hardinge Stanley and Giffard Halsbury, Halsbury`s Laws of England, 4th ed., Vol. 14 (London: Butterworths, 1980) at 10, para. 20. [^8]: MacKinnon, at para. 34. [^9]: Stella Psarakis, at para. 74. [^10]: The Village has since been amalgamated into the Town of New Tecumseth. [^11]: Mr. Feehely stated that a management company Corif Investments Inc. owns 5 Mill Street. One of its shareholders is his wife. Corif has owned the property since 1977. For ease of reference, I will refer to this as the Feehely company. [^12]: See Schedule A. [^13]: Smith v. 663556 Ontario Ltd., 2011 ONSC 4496, 10 R.P.R. (5th) 240, at para. 9. [^14]: Smith, at para. 12. [^15]: Smith, at para. 13. [^16]: [Footnote missing in original]