COURT FILE NO.: CV-16-566169

DATE: 20190930

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHESTER DAWES

Plaintiff

– and –

SUKHDEEP GILL AND SONYA GILL

Defendants

AND BETWEEN:

SUKHDEEP GILL AND SONYA GILL

Plaintiffs by Counterclaim

– and –

CHESTER DAWES and EVELYN DAWES

Defendants by Counterclaim

Kyle Gossen, for the Plaintiffs

Conner Harris and Sarah Spitz, for the Defendants

HEARD: February 25, 26, 27, 28, 2019 and March 1, 4, 5, 6, 2019

REASONS FOR DECISION

J.E. Ferguson, j.

SUMMARY OF PROCEEDING

[1] The plaintiff, Chester Dawes (“Mr. Dawes”), brings his claim against his neighbours, Sukhdeep Gill (“Mr. Gill”) and Sonya Gill (“Ms. Gill”, together, “the Gills”), alleging that they changed the drainage patterns on their property while constructing their new house. He alleges that water now drains onto his property and has infiltrated his basement. He seeks damages and an injunction.

[2] Mr. Dawes owns 11 Armadale Avenue (“11 Armadale”) and the Gills own 13 Armadale Avenue (“13 Armadale”), both in the City of Toronto (“the City”). The Gills' property is located immediately to the east of Mr. Dawes’ property. There is a 1’‑11” paved strip which forms part of 13 Armadale, over which Mr. Dawes’ benefits from a right‑of‑way.

[3] The Gills allege that Mr. Dawes’ landscape construction on his own property caused the water infiltration and as a result Mr. Dawes has not proven causation, which is necessary for him to do in order to be successful in this lawsuit. In the alternative, they submit that they are at most 25% contributorily negligent for any damages, but the Gills deny that they caused any damage.

[4] The Gills' counterclaim for nuisance and trespass. They also allege malicious prosecution and abuse of process as a result of Evelyn Dawes' (“Ms. Dawes”) unsuccessful attempt at seeking a peace bond against Ms. Gill. The Gills also seek punitive damages.

[5] The Dawes (note that I use Mr. Dawes and the Dawes interchangeably, as the house is in Mr. Dawes’ name solely, but the family all reside in the house) submit that Ms. Dawes did not seek the peace bond for any improper purpose and as a result, the claims for malicious prosecution and abuse of process must fail. They also deny that they committed a nuisance and trespass.

SUMMARY OF THE PARTIES’ POSITIONS

The Dawes

[6] The Dawes purchased their house in May of 2014. At the time of purchase, their house had pre‑existing damp proofing, weeping tile, and a sump pump. After moving in, Mr. Dawes installed a backup pump and backup batteries for the sump pump system. They did not notice any water infiltration or evidence of water infiltration in the basement prior to buying the house. The first time they noticed water infiltration was in June of 2016.

[7] Immediately to the east of Mr. Dawes’ house is the Gills' house. The Gills purchased the house, a bungalow, in November of 2013 and demolished it in April of 2015 in order to construct a new larger house. They hired a contractor, Dave Rai (“Mr. Rai”). Mr. Rai runs a family business, Northridge Homes Ltd. (“Northridge”), and a company that builds custom residential homes, CAAJ Construction Ltd. (“CAAJ”). He has a Bachelor of Engineering degree and has been in the construction industry since 1986. The Gills began residing in the newly-constructed house in June of 2016. There was no downspout located at the southwest corner of the original house, and the backyard was quite flat with a slight slope to the southwest. Before the original house was demolished, the water from the Gills' house flowed down the laneway between the houses to the street, and no water was observed flowing from the Gills' front yard onto the Dawes’ driveway.

[8] Once the house was demolished, the Gills excavated the lot line between the two houses, which resulted in the collapse of a portion of the eastern side of Mr. Dawes’ land. The collapse exposed some of the foundation of the Dawes’ house. The Gills' contractor filled the hole and covered it with concrete. I note that a lot of time was spent on the “cave-in” issue which was largely irrelevant to the issues at hand. Between November and December of 2015, Mr. Dawes began landscaping work in his backyard, which included the following: the removal of hard surfaces in the backyard; the removal of concrete and asphalt surfaces in the laneway, including the concrete patch installed by Mr. Rai; the removal of the existing patio and shed; the construction of a fence to demarcate the boundary between the two houses; the addition of a downspout to the second story balcony; and the installation of water management features, including installing a soak‑away pit, installing weeping tile tubes to drain water away from the foundation of the Dawes’ home to the soak-away pit; grading the backyard to slope away from the foundation of the house, and installing a new retaining wall located at the southwest area of his house.

[9] After these changes were made, water was able to reach the permeable dirt surface at the southeast corner of the Dawes’ house. Finishing touches were installed in the early spring of 2016. In addition, in May or June of 2016, horizontal boards were added to the bottom of the Dawes’ new fence, because the Gills had communicated to the Dawes’ contractor that the grade in their backyard would be raised. According to Darren Allen (“Mr. Allen”), owner of Golden Mean Landscapes (“Golden Mean”) and the Dawes’ landscaper, the purpose of the boards was to prevent soil migrating from the backyard of 13 Armadale and damaging the fence posts. After the boards were added, there was still space between the ground and the lowest fence boards. Mr. Allen testified that a building permit, grading plan, or drainage plan were not required for the work done by Golden Mean.

[10] The Gills completed the construction of their house in April of 2016 and moved in by June of 2016. The changes to their property included the following:

(i) a new garage was erected with a downspout directed toward the Dawes’ backyard. The new house and the garage decreased the amount of green space in the backyard significantly;

(ii) a downspout was installed at the southwest corner of the house;

(iii) the grading, completed in May of 2016, was raised, resulting in an increased slope towards the Dawes’ house;

(iv) a swale was installed parallel to the fence to direct water toward the street;

(v) a planter box/retaining wall in the front yard was removed;

(vi) an underground pipe was installed, connecting to and draining water from the northeast and southeast corner downspouts of the house. The front yard pipe directs water towards the Dawes’ house. Therefore, approximately half of the roof of the Gills' house drains to the southwest downspout and toward the southeast corner of the Dawes’ house, and the other half of the roof of the Gills' house drains to the front yard pipe and toward the Dawes’ driveway; and

(vii) no downspout was reinstalled at the northwest corner of the Gills' house.

[11] Mr. Dawes first noticed water infiltration in his basement in June of 2016. He checked that the drain of the exterior basement walk-out was not clogged and checked that the sump pump was working. He then observed that the water originated from the southeast corner, so he tested the cold joint, the point at which the original foundation connects to the extension, and he extended his southeast corner downspout into the backyard towards the soak‑away pit. Infiltration occurred 11 times until mitigation work was completed in November of 2016.

[12] Between June and October of 2016, Mr. Dawes requested that the Gills eliminate the water run‑off to his house. While Ms. Gill claims that the City Inspector told her in August of 2016 that the southwest downspout needed to remain where it was located, Mr. Dawes submits that this evidence should not be given any weight because it is hearsay and Ms. Gill is relying on Mr. Rai’s recollection of the inspection and not her independent memory. I have checked my trial notes on this point. Ms. Gill has a specific recollection of the August 18, 2016 final inspection, where the Inspector was very picky and detailed. Her recollection is not relying on Mr. Rai’s recollection. The Inspector told Ms. Gill that their southwest downspout had to remain where it was after she asked if it could be moved. She did not like the downspout’s location because there was not much space in the area as a result of the location of Dawes’ new fence, which she thought caused a tripping problem. Mr. Rai confirmed that the downspout’s location was passed by the City and was not moved as a result of the City’s inspection. In fact, Mr. Rai also confirmed that the City was involved throughout the rebuild of the Gills' house and that the Gills' property passed all of the City's inspections. In my view, Mr. Dawes seems more concerned that the Gills did not update him as per Mr. Gill’s undertaking, given at Mr. Gill’s examination for discovery, to provide further information regarding the location of this downspout. Ms. Gill testified that she was not aware of this undertaking. Although the undertaking should have been fulfilled, I accept her evidence. There was no intent to mislead. It is clear that the house passed the City’s final inspection with the southwest downspout in that location.

[13] Mr. Dawes undertook extensive mitigation work between November and December of 2016, which was required to deal with the water issues. This work consisted of waterproofing his foundation and the installation of a drainage system to carry water from the area between the southern corners of his house and the Gills' house to the front yard of his house. Further work was undertaken in the spring of 2017 to complete the measures. Since these measures were completed, there has been no further water infiltration, although water continues to flow from the Gills' house onto his property.

[14] I note that much of Mr. Dawes’ evidence was his “opinion” about the issues. This was not particularly helpful and apart from providing background, I place little reliance on his opinions. During the trial, I indicated to counsel that much of this background information should have gone in through an agreed statement of fact, thereby resulting in a much shorter and less expensive trial. Saying that, all counsel did an excellent job for their clients and were extremely organized, well-prepared, and very easy to deal with.

[15] I also note that this claim centres around causation and that in the end only the opinions of the experts hired by the parties, Matthew Hartog (“Mr. Hartog”), for the Dawes, and Douglas McGill (“Mr. McGill”), for the Gills, were necessary on this issue and on whose opinions I rely.

[16] Both Mr. Allen and Mr. Rai provided a lot of opinions regarding the Dawes’ landscape renovations and the Gills' construction. As Mr. Allen and Mr. Rai both have “skin in the game” because they were involved in the construction for the Dawes’ and the Gills’ respectively, very little reliance is placed on their opinions. However, both provided necessary background and factual information.

[17] Mr. Allen’s key evidence included the following:

(i) He has a Bachelor of Science degree and certification from the Interlocking Concrete Pavement Institute. He does not have a degree in landscape construction;

(ii) He advised Mr. Dawes about the water features for his backyard, including the soak-away pit, weeping tiles, grading, and the drainage system;

(iii) All existing hard and softscapes were removed from the Dawes’ backyard (brick, asphalt, and concrete);

(iv) He factored in historic rain patterns when designing and locating the soak-away pit, which was placed as far away from the Dawes’ house as was possible;

(v) He did not change the grade in Mr. Dawes’ backyard;

(vi) His company constructed Mr. Dawes’ new fence, which does not encroach onto the Gills' property. The fence was built, leaving space between the bottom of the fence and the ground. They took into account the existing grade on the Gills' property. He believes that the Gills' grading was raised, particularly up against the fence boards. He agreed in cross‑examination that the fence was placed in an area that used to be asphalt. The new fence used footings and sonotubes with concrete poured around them and then filled material, which was looser than native soil, around the sonotube. The new fence area was also filled in with gravel;

(vii) A grading plan, a drainage plan, and a building permit were not required for the work;

(viii) During a meeting with Mr. Dawes and Mr. Rai, they discussed strategies to deal with the water, which Mr. Allen felt was coming from both the downspouts at 13 and 11 Armadale. He installed an extension on the Dawes’ downspout. He suggested water drainage solutions for the Gills' backyard;

(ix) He agreed in cross‑examination that he is not an expert in drainage, but testified that he deals with drainage all the time;

(x) The final grading of the Dawes’ property, done in the spring of 2016, was completed to the original grade. He does not have notes of the measurements of the original grade. They used existing reference points on the property, such as trees and the original height of the laneway, as markers to maintain the grade. The Gills raised their grading. He did not agree that the fence his company built created a five-inch differential between the properties;

(xi) The Dawes’ backyard water management features were functioning properly.

[18] Mr. Hartog, the expert witness for the Dawes, is a forensic engineer who, among other things, assesses the sources and causes of damage to buildings and identifies the requirements to remediate buildings. He has been involved in the investigation of the cause of water infiltration into buildings in about 100 cases. He deals with the grading of land and surveys, and he will generally deal with matters involving the Ontario Building Code, O. Reg. 332/12, pursuant to the Building Code Act, 1992, S.O. 1992, c. 23 (“OBC”). He has previously been qualified to give opinion evidence in court.

[19] The conclusions in his first report dated September 25, 2018 (made an exhibit), include the following:

(i) The re‑construction of 13 Armadale altered the grading and surface drainage patterns at the southwest and southeast corners of 13 Armadale and 11 Armadale, respectively;

(ii) The alterations to the surface drainage appeared to contribute to bulk water accumulation near the foundation wall of 11 Armadale;

(iii) The water near the foundation wall of 11 Armadale could have entered the basement of the house, if the original foundation wall had a crack, void, or gap (e.g., an improperly filled formwork hole) that allowed water to pass through to the basement. Alternatively, water could have entered if the water overwhelmed the limited capabilities of the original damp‑proofing, which is intended to only retard the transmission of moisture in the soil, and not intended to stop the passage of bulk water;

(iv) The drainage improvements commissioned by the owner of 11 Armadale appear to be appropriate and effective in preventing further water infiltration events.

[20] Mr. Hartog’s direct oral evidence included the following:

(i) After the Gills' house was completed and the southwest downspout added in May of 2016, new and significant sources of water were directed to 11 Armadale from 13 Armadale as follows:

(a) the increased slope of the 13 Armadale backyard directed more water toward the fence. Based on the post-construction survey, the slope of the Gills' backyard had been increased, meaning that water now travelled at a higher rate toward 11 Armadale and less water was absorbed by the soil;

(b) the reduction in greenspace in the backyard of 13 Armadale also reduced the permeation of water into the ground;

(c) water flowed from the backyard of 13 Armadale and flowed underneath the fence;

(d) some water reached the swale on 13 Armadale and flowed north toward the laneway;

(e) the southwest downspout introduced a significant volume of water to the area, accounting for a majority of the new water sources;

(f) the southwest downspout drains about 45% of the roof of the Gills' house, creating a new source of water;

(g) a short extension/elbow was added to the Gills' southwest downspout and, although the direction changed, it continued to direct water toward 11 Armadale and the permeable gravel surface at 13 Armadale;

(h) once the Gills' front yard pipe was installed, water began flowing from that pipe across the grass and onto the Dawes’ driveway, which run‑off continues to this day.

(ii) If the run-off does not stop, it will continue to adversely impact the Dawes’ house despite the mitigation measures, through:

(a) water ponding at the top of the laneway;

(b) water freezing on the laneway and driveway in cold temperatures;

(c) excessive amounts of water being directed to the front yard of 11 Armadale through the drainage system; and

(d) the run-off continuing to direct water to the foundation of 11 Armadale, which causes the Dawes’ sump pump to run more frequently than before the Gills' house was constructed. If the sump pump were to fail, it would “present a risk of future accumulations around the foundation and associated water intrusions”.

[21] I acknowledge that the sump pump failing is merely a possibility, and that Mr. Dawes installed back‑up measures on the sump pump even before the Gills' construction started.

[22] After receiving Mr. McGill’s expert report, Mr. Hartog provided a response report, dated January 18, 2019, containing the following conclusions:

Following our review of the MDS report, our conclusions largely remain unchanged, with the exception that the excavation collapse appears to be a more significant factor in the basement water ingress than previously expressed.

In summary, in addition to the findings and conclusions in our initial report, the following aspects appear to have contributed to or be related to the bulk water accumulations around 11 Armadale:

(i) the raised grading on 13 Armadale and fence ‘curb’ at grade likely acted to divert water collected along the fence line to the north end of the fence. If water could freely flow beneath the fence, a portion of the water may have been diverted to the backyard soak‑away pit in 11 Armadale and some toward the north end of the fence and asphalt drainage path. Therefore, in our opinion, both 13 Armadale and 11 Armadale likely share some responsibility for this aspect;

(ii) the excavation collapse appeared to be a significant contributor to the bulk water accumulations around the foundation of 11 Armadale. The collapse reached close to the foundation of 11 Armadale, meaning the soil material between the two houses would have been backfilled with non‑native soil material with an unknown level of compaction or could have been granular/free‑draining in nature (e.g., sand). The backfilled material may have created a preferential pathway for water to collect and travel below grade towards 11 Armadale. The construction at 13 Armadale did not include the appropriate precautions set out in the OBC and OHSA at the outset to protect the adjacent property during the excavation phases;

(iii) the permeable surface on both sides of the fence, including the 1 ft. pit of gravel placed by 13 Armadale at the north end of the fence, likely provided a direct path to the new volume of backfill material placed below grade due to the excavation collapse and around the foundation of 11 Armadale. The permeable surface/gravel pit/backfilled excavation collapse coincided with existing water sources (e.g., the downspout at southeast corner of 11 Armadale) and three new sources of water from 13 Armadale:

• altered lot coverage and surface run‑off on 13 Armadale;

• new downspout at 13 Armadale; and

• water diverted along the fence line due to raised grading at 13 Armadale.

[23] I am going to include a summary of Mr. Hartog’s cross‑examination at this point, though some will be repeated in the causation section:

(i) It was difficult to determine the cause of the infiltration, since the area had been remediated;

(ii) He was aware of the issue of soil erosion at the date of his first report, but did not explore it until later when he “thought it was important to do so”;

(iii) The photos show a crack or “separation of sorts” in Mr. Dawes’ foundation;

(iv) Mr. Hartog is assuming that the area that had to be backfilled following the excavation collapse was in near proximity to the foundation;

(v) He is aware that Jiri Tichy (“Mr. Tichy”), a structural engineer retained by CAAJ for assistance in building the Gills’ new home, was present at the soil excavation collapse, and did not mention anything about the collapse being connected to the water infiltration;

(vi) He agreed that the digging of a 4-foot hole for a 10-inch diameter sonotube for the placement of a fence gate would involve the use of filled material that would be a looser material than native soil. This filled material would provide a preferential path for water flowing across the surface. He also agreed that surface water was the problem and that this could have been caused by Mr. Dawes at the area of the fence gate and that he did not consider this;

(vii) He agreed that when the fence was installed by Mr. Dawes, the Gills' grading had not been completed and that one rationale for Mr. Dawes placing the fence boards was done to deal with the grading change on Mr. Dawes’ property;

(viii) He agreed that the use of gravel by both the Gills and Mr. Dawes made the ground more permeable;

(ix) He agreed that if the contractor for 13 Armadale had no idea about 11 Armadale’s landscape renovations then he was reacting to 11 Armadale;

(x) If 13 Armadale made the changes it did and 11 Armadale made no changes (so the laneway remained the same with asphalt), he could not “say for certain, but it… likely” meant that there would have been no water infiltration as surface water would have been conveyed down the laneway to the street as it had always been done.

The Gills

[24] The street on which the houses are located is a hill that slopes from a high at the eastern end, down toward the lower western end. The Gills' property is located immediately uphill and to the east of the Dawes’ property and is at a higher elevation. As water flows downhill, the Gills' property has always naturally drained surface water to the Dawes’ property. The area of the Gills' and the Dawes’ properties is known to have a high-water table, and properties regularly experience saturated yards and basement water infiltration.

[25] Mr. Rai and CAAJ entered into a contract with the Gills in April of 2015 regarding the rebuild of the house.

[26] The Gills were required to complete an extensive permitting process with the City. The process authorized the building of a larger house and garage on their property. The plans for the Gills' renovations were publicly available. Mr. Dawes received notice and raised no objection. The approval processes for construction also included an application to the Committee of Adjustments, the preparation and approval of a site plan, and an application for a building permit. Construction overlapped with similar construction at 15 Armadale Avenue.

[27] After demolition, the Gills' construction team began the excavation necessary for the rear extension. A company, named Kingsbridge (also known as KingsGroup), was retained to perform the foundation work. Excavation occurred close to the property line between the properties and during that process, the contractors discovered that soil conditions in the area included an “underground watercourse”, about 8 feet down, running from 15 to 13 to 11 Armadale. This gave rise to structural concerns that needed to be rectified before the concrete for the foundation could be poured, resulting in the retainer of both geotechnical and structural engineers to address the foundation’s problems.

[28] In late May/early June of 2015, there was a period of significant rainfall that caused soil in the area under the laneway to erode and cave‑in. The City Inspector was called in and issued an Order to Comply. Mr. Rai took steps to remedy the cave‑in and the area was backfilled. This cave-in caused minor damage to the Dawes’ laneway, which Mr. Rai took responsibility to remediate. The laneway was ultimately restored to Mr. Dawes’ satisfaction with a concrete patch, as he intended to remove the concrete during his own landscaping work. (Note that the issue with the “cave‑in” only became a topic in Mr. Hartog’s responding report even though it occurred well before the preparation of Mr. Hartog’s first report.)

[29] The geotechnical engineer was involved in soil testing to determine the load‑bearing capacity of the soil. Mr. Tichy, the structural engineer, was responsible for determining what type of material could be used for the foundation based on the soil conditions, and for carrying out the necessary design modifications. Mr. Rai took steps to ensure that the Gills' basement foundation was properly waterproofed, that the structure recommended by the engineer was sound, and that proper rebar (a steel reinforcing rod in concrete) was installed to support the foundation. Mr. Tichy reviewed the foundation before the excavated area on the Gills' property was backfilled, and he did not find any issues with the foundation work.

[30] There is a letter from Mr. Tichy, dated June 25, 2015, addressed to KingsGroup, which confirmed that the silty and sandy soils necessitated the redesign of the foundation with underpinnings and other measures to secure the conditions. Mr. Tichy confirmed that the neighbouring properties “were made stable and secured”. He did not mention that the excavation collapse had anything to do with the water infiltration. Mr. Dawes, in an email to Mr. Rai, confirmed his awareness on July 23, 2015 that “the guys at Kingsbridge have completed the back filling [sic]”.

[31] Almost immediately after they informed the Dawes of their renovation plans, Mr. Dawes began to complain about the Gills' construction and made a series of requests for accommodations or guarantees. Although Mr. Dawes complained about a variety of issues, he did not raise concerns about grading, drainage, or water flow until the rebuild was complete.

[32] During their own construction, the Dawes removed most of the greenspace in their backyard, which was replaced with impervious surfaces, including decking, a barbecue and associated concrete pad, and a stone patio, all of which increased run‑off to the soils surrounding their foundation. In addition, Mr. Allen, the Dawes’ landscaper, did not prepare grading or drainage plans, and did not consider the impact of their landscape renovations on the historic drainage pattern between the properties. Mr. Allen confirmed that the Dawes’ construction did not require permits nor plans. Therefore, there was no independent review or supervision of the construction, or its impact on grading, drainage, water flow, the water table, or hydrostatic pressure on their own or other properties.

[33] The Dawes’ construction was completed in the summer of 2016, around the same time as the Gills', after which time the Dawes began to experience water infiltration in their basement.

[34] In particular, Mr. Dawes did the following:

(i) lowered the grade and drainage plane in his backyard and his portion of the laneway (which were already at a lower elevation than the Gills' property) by at least 5 inches which meant that surface water from the Gills' property (including that from the downspout) was more inclined to flow to the Dawes’ property instead of flowing from the backyard and down the laneway toward the street, as it historically did;

(ii) removed impervious surfaces surrounding his house and replaced them with pervious surfaces, including gravel and clear stone, which allow water to permeate through, rather than be conveyed, across the surface. This directed surface water to the area surrounding his house, allowed and encouraged water to accumulate near his basement foundation, and ultimately caused water infiltration in his basement;

(iii) installed a fence on the assumption that the Gills' grading had been completed, which left a gap between the fences’ bottom and the ground caused by the Dawes’ lowered drainage plane and the Gills' unfinished grading. When Mr. Rai brought to the Dawes’ attention that the Dawes’ lowered grading would cause a sharp grade differential between the properties after the Gills' grading was complete, the Dawes installed 2 ft x 8 ft wooden boards along the bottom of the fence. These boards had the effect of acting as a barrier to the pre‑existing surface drainage patterns between the properties, wherein water had travelled in an east to west direction and ultimately down the laneway in a northerly direction. As a result of this change, Mr. Rai installed a swale leading north to the laneway and ultimately to the street, in order to convey surface water in accordance with existing drainage patterns, which was required by the site plan;

(iv) installed a post hole for the fence gate immediately adjacent to the Dawes’ foundation, providing a preferential pathway for water to flow easily into the ground directly against the Dawes’ foundation, thereby increasing hydrostatic pressure on the damp-proofed foundation. The post hole was placed precisely in the area where the Dawes’ fence directs water and where two of his downspouts discharge. The location of the post hole, along with his lowered drainage plane, encourages water to flow and collect. Removal of the laneway asphalt and its replacement with pervious surfaces also contributes to the collection and trapping of water next to the foundation.

[35] The Gills believe that the Dawes’ new fence also encroaches on their property.

[36] Mr. Rai’s key evidence included the following:

(i) The contract between the Gills and his company, provided that the contractor “shall ensure that all work passes the required inspections from the applicable municipal authorities or other governing agencies such that an occupancy permit can be granted”. The contract also stated that all work would be carried out in accordance with the OBC and applicable regulations;

(ii) The Gills' plans were authorized by the City as reviewed and approved. His company was authorized to carry out the work described in the contract, and construction on the Gill’s property was carried out in accordance with those permits and the contract;

(iii) Construction at the Gills' property overlapped with similar construction at the property to the east, 15 Armadale Avenue. During excavation the contractors discovered that soil conditions and an “underground watercourse”, which gave rise to structural concerns that had to be rectified. In late May/early June of 2015, there was a period of significant rainfall that caused soil in the area under the laneway to erode and cave‑in;

(iv) In response to both the unexpected soil conditions and the excavation cave-in, Mr. Rai:

(a) attended at the Gills' property to address the situation;

(b) called the City Inspector, who came to the site and noted that modifications to the foundation design were necessary because of soil conditions which were noted in an Order to Comply;

(c) Retained a geotechnical engineer for soil testing to determine the load‑bearing capability of the soil; and

(d) Retained Mr. Tichy, a structural engineer, to determine what type of material should be used for the foundation based on the soil conditions and to carry out the necessary design modifications.

(v) Mr. Rai then took steps to ensure that the Gills' basement foundation was properly waterproofed; that the structure the engineer recommended was sound; and that the proper materials were installed to support the foundation based on Mr. Tichy’s recommendations;

(vi) The excavation cave-in caused minor damage to the Dawes’ property, which was ultimately restored to Mr. Dawes’ satisfaction;

(vii) The City completed the final interior inspection in June of 2016 and the Gills received occupancy clearance that month. Final inspections of the Gills' property were conducted by the City on August 18, 2016, and approvals were received on August 22, 2016 (where it is noted that the work was complete and all permits were closed);

(viii) Both Mr. Rai and Ms. Gill were present during the City’s final inspection. The inspector paid particular attention to the downspout at the southwest corner of the Gills' property because it was closest to the Dawes’ property; and

(ix) The final inspection of the Gills' property took place at a time when Mr. Dawes alleges he was experiencing water infiltration. The Dawes raised no issues with the City about it, apart from an alleged phone call to complain.

[37] Mr. McGill, the expert witness for the Gills, is a land development consultant with experience in residential development, particularly as it relates to grading and drainage and the preparation of grading or drainage plans. He was previously designated as a Certified Engineering Technician, but he let the designation lapse as it was no longer required for the work he performs. Mr. McGill estimated that he has worked on grading and drainage for the development of more than 15,000 residential lots. He has been previously qualified as an expert in land development and has given opinion evidence relating to grading, water flow, drainage, subsurface flow, the slope of land, and how that all affects real estate.

[38] The conclusions in his report dated November 22, 2015 report (which was made an exhibit at trial), include the following:

(i) as -30- Forensic [the name of the forensic engineering company where Mr. Hartog, the other expert witness, works] observes, the re‑construction of 13 Armadale has altered surface coverage conditions on its property which result in increases in flow rates and volumes from the property. We agree. We disagree that 13 Armadale has altered surface drainage patterns; rather, it is 11 Armadale’s actions with its fence installation as a drainage barrier and its driveway asphalt removal that has caused the alteration to the surface drainage patterns;

(ii) we have provided evidence demonstrating that the 13 Armadale flows were directed to the alleged basement leaking location as a consequence of 11 Armadale’s own actions with its backyard renovation works. This was not advisable; we would observe that 11 Armadale did nothing to replace the function of the historic drainage outlet when completing its work. This action, coupled with the removal of impervious surfaces adjacent to its basement walls, directly caused water to pond adjacent to its basement walls and soak into the ground. This situation resulted in the alleged water infiltration to the 11 Armadale basement;

(iii) we agree with -30- Forensics conclusions… on the reasons/manner in which the water entered the basement and the importance of the removal of the impervious surfaces adjoining the basement walls as a factor in that occurring…These actions are all attributable to 11 Armadale and are not a consequence of 13 Armadale’s construction;

(iv) we disagree with the concept that the increases in flow volumes and rates from 13 Armadale in and of themselves are a factor in 11 Armadale’s basement leakage. …these changes in flow arising from 13 Armadale’s reconstruction activities would have been accommodated by the historic drainage system that existed on 11 Armadale. Rather, it was the destruction of that historic drainage condition by 11 Armadale’s backyard renovation, its removal of impervious surfaces adjacent to its damp‑proofed basement, and its failure to provide an alternative drainage solution as part of the initial backyard works that has directly led to its own basement leakage issues;

(v) we agree with -30- Forensics that the drainage improvements completed by 11 Armadale have been appropriate and effective at solving its original oversight. There does not appear to be any reason, however, for any adjustments to 13 Armadale’s current drainage arrangements.

[39] I am going to include a summary of Mr. McGill’s cross‑examination at this point, though some will be repeated in the causation section:

(i) The grading along the fence on the Gills' side had not changed consequentially as a result of the rebuild, though there could have been a couple of inches of change;

(ii) He bases that opinion on the fact that water was pooling on each side of the backyard fence, which meant that the points were “pretty close to the same level”;

(iii) The changes at 13 Armadale increased the flow rates (the speed), with more water flowing to the property line because of the larger garage, the larger roof on the house, and the Gills' new southwest downspout;

(iv) He agreed that a video shows a lot of water coming from the downspout;

(v) The impermeable surface in the backyard of 11 Armadale drains water to the permeable surfaces;

(vi) The fundamental problem is that there is a basin beside Mr. Dawes' basement that does not drain;

(vii) Water infiltrated the basement of 11 Armadale because of increased hydrostatic pressure.

KEY ISSUES:

A. Are the Gills liable to Mr. Dawes in nuisance?

B. Are the Gills liable to Mr. Dawes in negligence?

C. What are Mr. Dawes’s damages?

D. Should an injunction be granted to eliminate the run-off from the Gills' property to the Dawes?

E. Counterclaim: Are the Dawes liable, and did the Gills suffer damages in relation to the Gills' allegations regarding: (i) trespass; (ii) the right-of-way; (iii) the fence; (iv) the outdoor television; (v) the security camera; (vi) the peace bond request; and/or (vii) punitive damages?

POSITION OF THE PARTIES ON THE KEY ISSUES

[40] I have separated out the submissions on nuisance from negligence. However, the key issue for both is causation, which require the same analysis. It is the plaintiff's burden to prove causation on a balance of probabilities.[^1]

A. Are the Gills liable in nuisance?

The Test

[41] The Dawes and the Gills agree on the law regarding the tort of nuisance:

(i) Nuisance occurs where a person substantially and unreasonably interferes with another’s use or enjoyment of land.[^2] A “substantial” interference is one that is non-trivial and more than a “slight annoyance”. It establishes a threshold to screen out weak claims.[^3] Determining a "substantial interference" is a fact-specific analysis on the circumstances of each particular case.[^4] An “unreasonable” interference with the use and enjoyment of land is one that would not be tolerated by the ordinary occupier of property.[^5] Not every interference is actionable and some interferences must be accepted as part of the normal give and take of life.[^6] The determination of whether the interference is “unreasonable” requires balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances.[^7]

(ii) For an interference to be "substantial", it must be one that substantially alters the nature of the property itself, or it interferes to a significant extent with the actual use being made of the property. It must rise above the levels of a "trifling interference" and cannot be based upon excessive delicacy;[^8]

(iii) Relevant factors in the balancing include: the severity of the interference, the character of the neighbourhood, the sensitivity of the plaintiff, and the frequency and duration of the interference.[^9] Where actual physical damage to property has occurred, the interference will generally be considered substantial and unreasonable.[^10] The interference may come from either causing physical injury to property, or by interfering with the use or enjoyment of the land.[^11] Fault and intention are not elements of the tort of nuisance;[^12]

(iv) The balance between a defendant’s conduct and a plaintiff’s injury is “inherent in the law of nuisance”.[^13] The focus of the balancing exercise is to determine whether it would be unreasonable, in all of the circumstances, to require a plaintiff to suffer the interference complained of without compensation.[^14] Liability for damages is imposed where the harm is disproportionate, in that the harm suffered is greater than the plaintiff ought to be required to bear without compensation.[^15]

(v) When assessing the utility of the defendant's conduct, a distinction is drawn between the nature of the defendant’s conduct and the purpose of that conduct.[^16] Where the nature of that conduct is reasonable, it may be exculpatory and have bearing on whether the defendant subjected the plaintiff to an unreasonable interference.[^17]

Position of the Dawes

[42] The Dawes submit that the Gills are liable in nuisance. They directed water from their property to the Dawes’ property, which led to the water's infiltration into the basement and the pooling and accumulation of water, so that the Dawes needed to do mitigation work. This represents a substantial and unreasonable interference with the Dawes’ use and enjoyment of their land that is more than trivial and not part of the normal give-and-take of life. Through the Gills' rebuild, they significantly increased the amount of water directed to the Dawes’ house, and the run‑off continued for months after Mr. Dawes informed Mr. Gill that it was causing the water infiltration events. Mr. Gill has confirmed that he never took any steps to reduce the amount of the run‑off flowing from 13 Armadale to 11 Armadale or to prevent future flooding of the Dawes’ basement, nor had he instructed anyone else to take those steps.

[43] Section 629-20C(2) of the City of Toronto’s Municipal Code states that “above-ground discharge from a downpipe or pipe shall be directed to discharge and be contained on the property in a manner that is not likely to cause damage to any adjoining property.”[^18] Section 9.14.6.1 of the OBC also states that a building “shall be located and the building site graded so that water will not accumulate at or near the building and will not adversely affect any adjacent properties”.

Position of the Gills

[44] The Gills submit they are not liable in nuisance.

[45] Mr. Dawes alleges two interferences: water infiltration into his basement, and the presence of water on his property. The Gills state there is no substantial or unreasonable interference with the use or enjoyment of Mr. Dawes’ property that would give rise to liability in nuisance. The alleged interference does not rise above the level of being non‑trivial.[^19]

[46] The only complaint from Mr. Dawes that could potentially be a substantial interference is water infiltration into his basement. Its substantiality, however, is undermined by the nearly three years it took him to remediate the alleged results of that interference.

Conclusion

[47] I find that the Gills are not liable in nuisance, based on my findings below. There is no substantial or unreasonable interference with the use or enjoyment of Mr. Dawes' property.

[48] In his report, Mr. Hartog wrote that water infiltration in the Dawes’ basement was the only “water‑related impact” on the Dawes’ property, apart from the potential for ice formation in the laneway. He confirms that water infiltration is no longer at issue because of Mr. Dawes’ installation of the exterior drainage system and the waterproofing. Mr. Hartog also agreed that ice in the laneway is dealt with relatively easily through de‑icing salts or chipping which demonstrates the lack of substantiality.

[49] Mr. Dawes also alleges that water from the Gills' property is causing the interlocking patio stones on a portion of the laneway to settle. Mr. Allen (and Bob Papadopoulos, the individual involved in the inspection of both homes before purchase) testified that settlement of patio stones is common and that interlocking patio stones shift from time to time, which means that settlement and shifting of patio stones is therefore common and not an interference.

[50] The nature of the Gills' conduct shows its utility. It was reasonable for them to purchase an older house and rebuild it. To hold such conduct as unreasonable would severely limit the ability of property owners to develop, redesign, or build on their own property. The reasonableness of the Gills' conduct is further supported by the fact that they retained experts to design and rebuild their house. They applied for and obtained permission and approvals from the City and completed all of the required site inspections. The Gills' house received final approval after multiple inspections by the City. The Gills' work was inspected for compliance with the OBC and the work was approved by the City.

[51] There is no artificial gathering or casting of water onto the Dawes’ property by the Gills. Surface water (including water discharged from the downspouts) is directed to the existing drainage patterns, down the laneway in a well-defined channel, and to the street. I find that those patterns, to the extent they have been interrupted, were interrupted by Mr. Dawes’ construction, and I discuss this later in my reasons. The cases relied on by Mr. Dawes include factual situations where only one party (usually the defendant) carried out construction or work on their property, and the cause of flooding or water infiltration could be easily traced to them. That is not the case here, where there was contemporaneous construction by the Dawes.

[52] The more modern legal approach to establishing nuisance applicable to a factual situation similar to the current case is set out in Kay v. Caverson, a decision upheld by the Ontario Court of Appeal post-Antrim.[^20] There, the defendants did home renovations, which included adding a second story above the garage, an enlargement of the back of the house, and a larger patio. The plaintiff alleged that the defendants' renovations caused water from the defendants' property to drain into a swale located between the plaintiff's and defendants' homes. As a result of increased water accumulating in the swale, the plaintiff stated that she suffered damages, including mould, and cracking and subsidence in the structure of the house. The plaintiff asserted causes of action in nuisance and trespass on property.

[53] In deciding whether the plaintiff established her claim in nuisance, Justice Daley considered the reasonableness of the defendants' use of the property. He found that the defendants' conduct in carrying out the renovations to their home was reasonable, pointing to the defendants' use of experts to design and complete the renovations, applying and obtaining permission and approvals from the municipality, and passing site inspections.[^21] Furthermore, Justice Daley assessed causation. Based on the evidence, he could not find, on a balance of probabilities, that the water accumulation and the plaintiff's damages were caused by the defendants' renovations.[^22]

B. Are the Gills liable in negligence?

The Test

[54] The Dawes and the Gills essentially agree on the law regarding the tort of negligence:

(i) Negligence is a failure by a party who owes a duty of care to another to take such care as would be reasonable in the circumstances.[^23] The following four factors must be proven by the plaintiff on a balance of probabilities for a successful claim in negligence: (i) the existence of a duty of care owed to the plaintiff by the defendant; (ii) the conduct of the defendant that fell below the applicable standard of care; (iii) that the plaintiff suffered actual damage; and (iv) the damage was caused by the defendant’s breach of the standard of care (as mentioned above causation follows below);[^24]

(ii) The “neighbour principle” is well established.[^25] The Gills are the Dawes’ neighbours and both are subject to the same duty of care owed by all neighbours to one another; and

(iii) The standard of care is governed by reasonableness. That is, the standard is one that is expected of an ordinary, reasonable, and prudent person in the circumstances, and in this case that which would be expected of a reasonable homeowner. The standard is objective. What is “reasonable” will depend on the facts of each case, including the likelihood of known or foreseeable harm, the gravity of the harm, and the burden or cost that would have been incurred to prevent the injury.[^26]

Position of the Dawes

[55] The Gills owed, and continue to owe, Mr. Dawes the duties of care: (a) to not direct water from their property to his in any manner that could cause damage or interfere with its use or enjoyment, and (b) to ensure their property was graded, landscaped, maintained, and that structures on their property were located such that water from their property does not adversely affect his.[^27] In addition, the harm was reasonably foreseeable. The applicable standard of care to carry out work on their property was to ensure that water would not flow to Mr. Dawes’ property.[^28] This standard is also codified in the following legislation:

(i) Subsection 1.1(4.1)(a) of the Building Code Act, 1992: “It is the role of a building owner, (a) to ensure that the building or part of the building is maintained, repaired and evaluated in accordance with this Act and the building code”;

(ii) Subsection 1.1(1)(a) of the Building Code Act: It is also the “role of every person who causes a building to be constructed, (a) to cause the building to be constructed in accordance with this Act and the building code and with any permit issued under this Act for the building”;

(iii) Subsection 9.14.6.1 of the OBC, and as stated in the building permit issued to the Gills: a building “shall be located and the building site graded so that water will not accumulate at or near the building and will not adversely affect any adjacent properties.”

(iv) Section 629-20C(2) of Chapter 629 of the City of Toronto’s Municipal Code: Any above-ground discharge from a downpipe or pipe shall be directed to discharge and be contained on the property in a manner that is not likely to cause damage to any adjoining property or create a hazardous condition on any stairway, walkway, street or boulevard.

[56] Even if the minimum standards in the municipal code and the OBC were met, this does not mean that the standards can never be breached or absolve the Gills of their requirements under the common law.

Position of the Gills

[57] It was not reasonably foreseeable that renovating the Gills' property in accordance with City permits and approvals (requiring an extensive permitting and regulatory process), hiring an experienced contractor (and experts as necessary), passing all inspections, maintaining existing drainage patterns, and complying with grading and drainage requirements (which included ensuring downspouts followed those requirements), would have any adverse impact or would cause harm to Mr. Dawes. A reasonable homeowner undertaking construction would take all these steps and that is what the Gills did. When the Order to Comply was made by the City, it did not reference any breaches of the OBC or other standards related to the Gills' excavation. That Order to Comply required a re‑design in light of the property’s soil conditions. Prior to construction, the Gills and their contractors had no information that would have led them to believe that the Dawes were planning to remove the asphalt from the laneway, lower the drainage plane on their own property, interrupt existing drainage patterns, and cause collection of surface water in the laneway in an area that was no longer impervious.

[58] Mr. Dawes claims that the Gills owe him a duty of care to not direct water onto his property. The Gills submit that there is no reference to a specific duty of care to keep water off neighbouring properties anywhere in the case law he cites.[^29]

Analysis

[59] I find that the Gills met the standard of care. The record is absent any evidence of what the Gills did or failed to do that was below the standard of care.

[60] The Dawes allege that the Gills' construction was in violation of the site plan, the City’s Municipal Code, and the OBC, particularly as it related to grading, downspouts, and the direction of water. However, construction was inspected and approved for compliance with those requirements. No evidence was produced by the Dawes to demonstrate that the approvals and inspections were somehow performed inadequately. Mr. Rai was not cross-examined as to whether the work performed by his company was in breach of the OBC, the City of Toronto's Municipal Code, building permits, or site plan. Mr. Hartog has a “specialized professional competenc[y]” in OBC compliance and could have commented on the Gills' breaches of the Municipal Code and the OBC, but he did not.

[61] The only alleged breach of the OBC commented on by Mr. Hartog is related to the excavation cave-in which he alleges created a “preferential flow path” for water to the Dawes’ foundation, leading to water infiltration. This new theory of the case was only presented for the first time approximately one month prior to trial. Mr. Hartog knew about this issue at the time of his first report and did not comment on it at all.

[62] In any event, any “preferential path” would have been obliterated during the Dawes’ excavation of their backyard. Whatever portions of the “path” that existed after the Dawes’ excavation would not have been anywhere near the foundation, and it would have been located at a depth of at least 12 inches. The issue in this case is surface water, not ground water travelling at a significant depth below the surface.

[63] In addition, there is no requirement that all surface water from renovations of a property be confined solely within the limits of that property. Nor is there a requirement that surface water cannot flow toward an adjacent property in accordance with existing elevations and drainage patterns.

[64] The Gills' site plan and/or building permit did not require containment of all water on the Gills' property or even additional water. The Gills were required to maintain the existing grading elevations and drainage patterns, and they did so. While Mr. Dawes maintains that the Municipal Code requires water from downspouts and other surfaces to be contained on a property, the governing requirement is that water flows and drainage are to be handled in accordance with the OBC and Municipal Code and not have an adverse impact on neighbouring properties.

[65] The construction of a larger house on the Gill property would have led to a higher amount of surface water. There is nothing wrong with this; it would have been obvious (and approved) during the various applications made by the Gills for their renovations.

[66] The Gills did not breach the standard of care and Mr. Dawes has failed to meet his burden of proof to demonstrate that they did.

[67] Even though I find the Gills' met their standard of care, even if the Gills' had not met their standard of care, the Dawes' claim would have failed because the Dawes' did not meet their burden to prove causation, which I deal with below.

CAUSATION

The “but for” test

[68] With the torts of nuisance and negligence, the Dawes must prove that the tortious act of the wrongdoer must have caused the injury in order to justify compensation to the “victim” out of the pocket of the wrongdoer.[^30] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.[^31]

[69] The Supreme Court of Canada offered the following guidance on applying the “but for” test in Clements (Litigation Guardian of) v. Clements:

The “but for” test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [citations omitted][^32]

[70] Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury. In other words, that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry.[^33]

The “material contribution” test

[71] There are exceptional circumstances where the plaintiff can prove causation with the “material contribution” test.[^34] The court can refuse to apply the “but for” test and apply the “material contribution” test if the following two conditions are met:

(i) It is impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors outside of the plaintiff’s control; for example, the current limits of scientific knowledge; and

(ii) It must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the injury must have fallen within the ambit of risk created by the defendant’s breach.[^35]

[72] One example when the material contribution test can be utilized is where two individuals have breached their duty of care and caused injury, but it is impossible to say which individual injured the defendant. If it is established that two individuals’ behaviour carelessly or negligently created an unreasonable type of risk of injury, and the defendant suffered that type of injury, then the material contribution test is appropriate.[^36]

Position of the Dawes

[73] Mr. Dawes’ case is established through a “but for” analysis. But for the Gills' conduct, the damage to Mr. Dawes’ property would not have occurred. There were no water infiltration issues until the Gills began directing the run-off towards the Dawes’ house. For years the damp-proofing on the Dawes’ house had been sufficient to repel water accumulating around the foundation. The flooding was directly caused by the Gills' run-off and their failure to stop it. In Mr. Hartog’s opinion, the Gills introduced water by regrading their backyard and adding the southwest downspout. Mr. Hartog also opined that the backfilling of the Gills' excavation and the soil collapse between the houses helped to direct water toward Mr. Dawes’ house, because the soil used to fill the collapsed area was looser than the native soil that was excavated.

[74] In addition, the water infiltration was not caused by Mr. Dawes. The removal of the hard surfaces on his property did not cause the water infiltration because they were removed in November of 2015, whereas the infiltration did not occur until June of 2016, after the southwest downspout was installed by the Gills and their backyard was regraded. The Dawes’ new backyard water management features did not cause the infiltration as they were designed and installed by a company that regularly addresses drainage issues.

[75] The expert witness for the Gills', Mr. McGill, opines that the infiltration resulted from the Dawes’ renovations due to: (a) the replacement of impervious surfaces adjacent to the Dawes’ house with pervious surfaces; (b) the removal of the existing drainage arrangement at the Dawes’ house (the asphalt in the backyard and laneway); (c) the draining of impervious surfaces to pervious surfaces; and (d) the extension of the fence towards the ground are also challenged; (e) and the location of the new fence post for the gate.

[76] In response to Mr. McGill's opinion, Mr. Hartog testified that the infiltration would have occurred even if the surface next to Mr. Dawes’ foundation had remained impermeable because the Gills introduced new sources of water. Further, the Gills have no right to increase run-off onto Mr. Dawes’ property. The presence of permeable surfaces next to impermeable surfaces is irrelevant as this does not increase the amount of water reaching the impermeable surfaces.

Position of the Gills

[77] The Gills submit that are not liable to the Dawes under either nuisance or negligence because the damages claimed are caused by factors unconnected to the Gills. Even if the Gills breached the standard of care that they owed to Mr. Dawes, such breach did not cause him damage. Mr. Dawes must prove that “but for” the Gills' actions or omissions, he would not have suffered harm.[^37]

[78] The Gills submit that neither the Gills nor their contractor intentionally or negligently directed surface water to the Dawes’ property. The drainage solutions put in place maintained the existing drainage patterns as required by the site pan and building permit, where water historically flowed in an east-west direction and onto the paved laneway between the properties. That water then flowed down a channel in the middle of the laneway (on the Dawes’ property) north to Armadale Avenue. To the extent that water infiltrates or pools on the ground of the Dawes’ property, it is encouraged and directed to do so as a result of Mr. Dawes’ landscape construction, like the placement of his fence, the removal of asphalt on the laneway, and lowering the drainage plane on his property. Had the laneway not been removed by the Dawes, there would have been no water infiltration. Surface water would instead have been conveyed down the laneway without issue, in accordance with the existing drainage pattern. Ms. Dawes confirmed that water from the southwest downspout on the Gills' property pools on the east side of the fence on the Gills' property before traversing down to Armadale Avenue.

[79] More water alone would not cause the water infiltration. Surface water needed to be collected near the Dawes’ foundation in order to find a way into the ground. Mr. Dawes caused both the collection of water next to his foundation and provided an opportunity for it to seep into the ground. With or without the Gills' renovations, the Dawes’ construction would have led to water infiltration due to the collection of water in the problem area from various sources, such as the Dawes’ own downspouts, his backyard where impervious surfaces, such as paving stones and concrete, replaced the pervious surfaces that used to collect and discharge water onto the clear stone next to the Dawes’ foundation, and rainfall. That collection of water would have occurred with or without Mr. Dawes’ lowered drainage plane, but it exacerbated the problem. Overall, any water from the Gills property that discharges onto Dawes' property is the result of Dawes' own actions.

[80] The Gills submit that Mr. Dawes is arguing that the Gills are liable because their work was a “material contributing cause to his harm”. That test for causation however only applies where it would be impossible for Mr. Dawes to prove that the Gills' conduct caused his harm.[^38] That is not the case here. There are no extenuating circumstances outside Mr. Dawes’ control, such as current limits of scientific knowledge, that prevented him from conducting a thorough analysis to determine the source of the water infiltration. When the foundation of Mr. Dawes’ property was extensively excavated as part of the waterproofing, an expert could have reviewed the exposed foundation to determine any potential sources of water infiltration beyond a cursory visual inspection, but the expert did not do so.

Analysis of Material Contribution Test

[81] I find that this is not a case where the material contribution test applies. The material contribution test is not applied merely because there is more than one potential cause of an injury.[^39] Even where testing could have been carried out, but was not due to unforeseen circumstances, the “material contributing cause” standard does not apply.[^40]

[82] In addition to Mr. McGill's evidence that Mr. Dawes’ own construction was the cause of the water infiltration, Mr. Hartog confirmed in cross‑examination that without Mr. Dawes’ work, there “likely” would have been no water infiltration, as surface water would have been conveyed to the street down the laneway in accordance with the existing drainage pattern, as it always has been. That admission is sufficient to dispose of causation, as it establishes that Mr. Dawes’ work is the cause of his alleged damage on either the "but for" or the material contribution test.

[83] Both experts agreed that the construction of a larger house and garage on the Gills' property would have led to a higher amount of surface water. There is nothing wrong with this and it would have been obvious and approved of during the various applications made by the Gills for their rebuild.

[84] The experts disagreed on why water collects next to Mr. Dawes’ foundation and the role played by the Dawes’ construction.

[85] Mr. McGill opined that more water alone would not cause the water infiltration and that surface water needed to be collected near the Dawes’ foundation in order to find a way into the ground and cause the infiltration. Mr. Dawes caused both the collection of water and provided an opportunity for it to seep into the ground.

[86] In his first report, Mr. Hartog opined that the damage resulted from increased surface water runoff that caused bulk water accumulation next to the Dawes’ foundation. His second report shifted attribution of the problem to the placement of loose sandy/granular fill under the laneway following the excavation cave‑in, which provided a preferential underground pathway from the 13 Armadale downspout to the 11 Armadale basement. I have already noted that this cave‑in occurred before Mr. Hartog’s first report.

[87] The subsurface nature of any such “preferential pathway” conflicts with the overall agreement that the problem in this case is surface water, not groundwater. Mr. Tichy was present during the cave‑in and the foundation re‑design and he did not mention that a preferential flow path of water caused the cave‑in.

[88] Mr. Hartog also opined that the slope in the Gills' backyard had been increased, which increased water flow to the Dawes’ property. He eventually agreed that the areas of slope comparison were now in completely different locations of the Gills' backyard. When he compared pre-construction to post‑construction slopes, the pre-construction slope is now located inside the newly built house. The slope that Mr. Hartog claims was increased cannot be compared with the pre‑construction location.

[89] Mr. Dawes’ submission that the alleged slope increased to a degree of between 2% and 2.5% demonstrate a breach of the site plan requirement to maintain existing grade elevations and drainage patterns is unfounded. Mr. Rai confirmed that the grading was restored to its original condition, which was inspected in detail and approved by the City. That evidence was unchallenged on cross‑examination. Mr. McGill confirmed that, apart from potential localized changes in sloping or elevations, the overall grade of the Gills' property remained the same.

[90] Mr. Hartog also acknowledged that, in opining on the creation of a preferential flow path, he did not consider the possibility that the post holes dug for the Dawes’ fence gate (in an area that used to be asphalt) would create a preferential flow path for water directly next to the Dawes’ foundation, thereby increasing hydrostatic pressure on the foundation.

[91] Mr. Hartog’s opinion on the creation of a preferential flow path also ignored the fact that Golden Mean excavated to a depth of 12 inches on the Dawes’ property, which would have obliterated any “preferential flow path” for surface water almost in its entirety.

[92] Based on the “but for” analysis, Mr. Dawes has not met his burden of proof. The material contribution test has no applicability on these facts.

[93] I prefer the opinion of Mr. McGill for the following reasons:

(i) He did not change his opinion and come up with a new theory midway through his retainer. Mr. Hartog had changing opinions. Mr. Hartog first opined that the damage was from increased surface water that caused water accumulation next to Mr. Dawes’ foundation. He then shifted to another theory that the hypothetical placement of loose, sandy/granular fill under the laneway following the cave‑in created a preferential underground pathway;

(ii) Mr. McGill reasonably and fairly relies on the approval of the City with respect to the Gills' rebuild including an application to the Committee of Adjustments, approval of the site plan, and the granting of building permits. He also relied on the fact that the Gills' passed City inspections;

(iii) He relied on the findings of the engineers retained when the “soil conditions” on 13 Armadale Avenue became known;

(iv) Mr. Hartog originally opined that the crack in Mr. Dawes’ foundation was not the cause of water filtration because Mr. Dawes' had conducted a test to see if water would seep through the crack. He agreed in cross‑examination that the water testing done by Mr. Dawes was not in accordance with industry guidelines and was not a proper water test;

(v) Mr. Hartog’s evidence that the slope in the Gills' backyard was increased was shown to not make sense, as he compared different locations in the Gills' backyard to arrive at his opinion;

(vi) Mr. Hartog’s did not sufficiently consider how the deep post holes dug for the fence gates by Mr. Dawes could have contributed to the creation of a preferential flow path.

Causation - Where there are expert opinions which are equally convincing

[94] The onus of proof becomes a "tie-breaker" when the evidence of the opposing parties is “so evenly balanced” that the trier of fact can come to “no sure conclusion”.[^41]

[95] In Rhesa Shipping Co SA v. Edmunds and another, the House of Lords noted that:

No judge likes to decide cases on burden of proof if [s]he can legitimately avoid doing so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding the burden of proof is the only just course for [her] to take . . . [the trial judge] should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowner had failed to discharge the burden of proof which was on them.[^42]

[96] This rule has been adopted and applied throughout Canada.[^43] The plaintiff bears the onus of proof to establish the elements of the tort of negligence and, in this case, nuisance.[^44]

Conclusion

[97] I agree that the best that can be said from the evidence is that it appears that the Dawes’ water infiltration was caused by water collecting near the top of his portion of the laneway. If I give both experts equal weight with respect to their “theories” (which I have not), Mr. Dawes has still not met his onus of proof.

C. What are Mr. Dawes’ damages?

Position of the Dawes

[98] Mr. Dawes submits that he should be reimbursed his direct costs, the cost of mitigation measures, and non-pecuniary damages relating to inconvenience, loss of amenities, and interference with enjoyment of land. The breakdown of damages being claimed is as follows:

rent abatement

$450.00

waterproofing

$17,119.50

air conditioner removal

$423.75

air conditional re-installation

$423.75

installation of drainage system and restoration of laneway

$15,672.98

driveway grading and restoration

$31,005.68

minor items related to mitigation measures

$606.18

connecting sump pump to drainage matrix and fixing collapsed walkway

$1,475.53

cost of laminate flooring

$1,431.27

non-pecuniary damages relating to inconvenience, loss of amenities and interference with enjoyment of land

$15,000.00

TOTAL

$83,608.64

[99] It was reasonable and necessary for Mr. Dawes to replace the damaged laminate flooring and to pay his tenant a rent abatement, in light of the significant inconvenience caused by the water infiltration.

[100] There was an obligation on Mr. Dawes to mitigate his damages. In Alfarano, the damages awarded to the plaintiff were discounted because the plaintiff discovered the water seepage and was told to waterproof his foundation, but he failed to do so for four years.[^45]

[101] A plaintiff is entitled to the cost of mitigating damages.[^46] Mr. Hartog testified that it was reasonable for Mr. Dawes to undertake the mitigation measures in order to prevent further water infiltration. He also testified that it was reasonable for Mr. Dawes to direct the significant new volumes of water in the vicinity of the laneway and southeast corner of the Dawes’ house to the front yard via the drainage system, and to the street via the laneway and driveway.

[102] Mr. McGill agreed that the “drainage improvements” were “appropriate and effective”.

[103] Mr. Dawes should be compensated for the cost of installing interlocking brick in the laneway and driveway. Interlocking brick was used instead of asphalt because asphalt is more likely to crack and crumble due to water, and asphalt is more difficult to remove if removal is necessary. If it is determined that the Dawes should only be compensated for the cost of installing asphalt, the quantum of damages would be as follows:

(vii) the cost for each is the same for the laneway; and

(viii) asphalt on the driveway would include a setup fee of $1,200.00 to $2,000.00 and a cost of $2.50 to $7.00 per square foot (compared to $3.00 to $10.00 per square foot for the interlock). If we assume that asphalt would cost approximately 70% of the cost of interlock on a square foot basis, the cost to pave the driveway with asphalt would be $10,093.20 (70% of $14,418.86), plus a setup fee of $1,600 (the middle of the range provided by Mr. Allen), for a total cost of $11,693.20.

[104] General, non-pecuniary damages are awarded where a nuisance has interfered with a plaintiff’s enjoyment of land. In this instance, the water infiltration and the continuing nuisance caused by the run‑off have had an impact on the Dawes’ lives, and the Gills’ refusal to take any steps to stop or reduce the run‑off, justifies an award of damages in the amount of $15,000.00.[^47]

[105] There is no evidence regarding the Gills' submission that the laminate flooring was “towards the end of the flooring’s natural life”. The flooring was in fine condition other than the separation of floor boards, which first occurred after the water infiltration began in June of 2016.

[106] There is no contributory negligence on the part of Mr. Dawes.

Position of the Gills

[107] The Gills are liable for Mr. Dawes’ losses only if they were caused by negligence on the part of the Gills. Therefore, the Gills' submissions are similar to their submissions on causation.

Foreseeability

[108] Mr. Dawes did not prove that any act or omission by the Gills caused him actionable harm. His reliance on the “thin skull” principle is misplaced. As the Supreme Court of Canada explained in Mustapha v. Culligan of Canada Ltd:

[…] the law of tort imposes an obligation for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damage, not at perfection, but at reasonable foreseeability. The purpose of focusing on a person of ordinary fortitude for the purpose of determining foreseeability is not to be confused with the “eggshell skull” situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected.” Rather, it is a threshold test for establishing compensability of damage at law.[^48]

[109] Water damage in the Dawes’ basement was not a reasonably foreseeable consequence of the Gills' construction efforts as they had no knowledge that:

(i) the Dawes’ basement was only damp‑proofed, and not waterproofed. Waterproofing is recommended as the standard in a high water table area (as in this case) and in situations where hydrostatic pressure on a foundation will increase (confirmed by evidence of Mr. Papadopoulos, another expert witness for the Dawes', and Mr. Hartog);

(ii) Mr. Dawes significantly lowered the grade of the drainage plane on his property, encouraging water to flow to it;

(iii) Mr. Dawes installed a fence that directed backyard surface water to the top of the laneway, to his impervious surfaces and to his lowered drainage plane;

(iv) Mr. Dawes installed pervious surfaces in his portion of the laneway that collected and trapped water which allowed it access to his foundation;

(v) Mr. Dawes dug a fence post hole directly next to his foundation in an area where water flowed and collected; and/or

(vi) Mr. Dawes’ foundation had a crack in close proximity to the area where water flowed and collected.

[110] The damages Mr. Dawes claims are a result of water flowing from the Gills' property to his own were not reasonably foreseeable. It was not reasonably foreseeable that the presence of water on the Dawes’ property would cause damage, particularly when none had occurred in the past.

[111] If the Gills are held liable, the damages claimed by Mr. Dawes are excessive and not all are recoverable. The only real damage Mr. Dawes may have suffered is water infiltration in his basement.

[112] Even if Mr. Dawes’ alleged damages were a reasonably foreseeable consequence of the Gills' actions or omissions, at least a portion of those damages are as a result of Mr. Dawes own actions. Contributory negligence apportion liability between a plaintiff and a defendant who are both partially at fault. The Gills are at worst contributorily negligent and Mr. Dawes should be accountable for his relative blameworthiness by being held responsible for at least 75% of his claimed damages.

The waterproofing

[113] Mr. Hartog confirmed that foundation waterproofing was sufficient to prevent future water infiltration. The cost of Mr. Dawes’ waterproofing measures is the only damage that may be recoverable in the event liability is found. The removal and reinstallation costs of the air conditioner incurred as a result of the waterproofing measures are part of the costs of the waterproofing measures. Even then, Mr. Hartog and Mr. Papadopoulos agreed that foundation waterproofing was appropriate for Mr. Dawes' home.

Rent Abatement

[114] Mr. Dawes’ provision of a rent abatement to his tenant was entirely voluntary, not attributable to the Gills and they should not bear the cost of it. Furthermore, there is no evidence for example that the tenant was going to leave without a rent abatement.

Installation of the drainage system

[115] Installation of Mr. Dawes’ drainage matrix, trench drain, and the re‑paving of his driveway with interlocking brick were for the purpose of addressing the presence of water on his property. The installed expensive drainage system was unnecessary. Voluntary betterment is not part of mitigation and the cost of that work is neither recoverable nor attributable to the Gills.

The flooring in the basement

[116] It was not until three weeks before the start of trial that Mr. Dawes installed new laminate hardwood flooring in his basement. The only reason given for the delay in installing the new laminate flooring was that he “wasn’t able to do it” beforehand.

[117] The costs associated with replacement of the flooring are too remote to be attributed to any damage caused by the Gills' alleged negligence. It is not established that the floors were replaced because of water damage.

Non‑pecuniary damages

[118] There is no basis for an award of non-pecuniary damages, as claimed by Mr. Dawes. No such damages have been proven.

Conclusion on damages

[119] In the event that I am incorrect with respect to my findings on liability, I find damages to be $17,967.00 with respect to the waterproofing (subject to my finding on contributory negligence).

Contributory negligence

[120] Although I have not found liability on the part of the Gills with respect to Mr. Dawes’ claim, if I had found there to be liability, I would have found there to be 50% contributory negligence.

D. Should an injunction be granted to eliminate the run-off from the Gills' property to the Dawes’?

Position of the Dawes

[121] Where a property owner has increased the flow of water onto a neighbouring property, damages and an injunction to prevent the continued flow of water are appropriate.[^49]

[122] An injunction should be granted to require the Gills to eliminate the run-off because (a) water continues to be directed to the Dawes’ house; (b) water continues to pool around their house during heavy rainfalls; and (c) water continues to freeze when the temperature drops, which creates a safety hazard. In addition, Mr. Hartog testified that the Gills could take measures to reduce the run-off, including relocating the southwest downspout, regrading, and installing a soak-away pit or drainage matrix. The Gills have not taken any of these steps.

Position of the Gills

[123] An injunction is inappropriate in these circumstances as the water infiltration to Mr. Dawes’ basement has stopped. No more than waterproofing was required. There is no continuing damage or harm that would make an injunction appropriate.

Conclusion

[124] An injunction is not granted.

[125] I have not found any liability on the part of the Gills. In the event that I am incorrect, the only recoverable damage I have found is that related to the basement infiltration wherein the evidence establishes that only waterproofing was required. That water infiltration has stopped and as a result, an injunction is not required.

E. Counterclaim: Are the Dawes liable and did the Gills suffer damages in relation to the Gills' allegations regarding: (i) trespass; (ii) the right-of-way; (iii) the fence; (iv) the outdoor television; (v) the security camera; (vi) the peace bond request; or (vii) punitive damages

(i) Trespass claim

The Dawes

[126] The trespass claim is trivial. Items were left slightly over the property line for short periods of time and Golden Mean avoided trespassing to the best of its ability. There is no evidence of damages.

The Gills

Overall position (that appears to apply to all of their counterclaims)

[127] During the course of the ownership of their property, the Gills have suffered a series of interferences with their property rights that, on their own, may be viewed as trivial. However, taken together, this intentional conduct constitutes harassment, intimidation and/or invasion of privacy. It is, in essence, a manifestation of the tort of nuisance[^50] and a nominal damages award is appropriate in the circumstances.[^51]

[128] The Gills did not make any specific submissions regarding this issue of trespass (the items left on their property). They do raise trespass with respect to the Dawes’ fence, which is dealt with separately.

Conclusion

[129] I make no finding on this issue and this aspect of the counterclaim is dismissed.

(ii) The right-of-way

The Dawes

[130] In law, the scope of the permissible use of a right-of-way is governed by the grant. Consideration can also be given to the circumstances existing at the time of the grant, unless the language of the grant is clear.[^52] In this case, the circumstances existing at the time of the grant are unknown, so the wording alone governs.[^53] It is indicative of the flexibility of rights‑of‑way that the owner of the lands subject to the right‑of‑way cannot object to an increase in the use of the right‑of‑way.[^54]

[131] The Dawes, their tenants, and sometimes their guests use the laneway and right-of-way to access their side door and backyard. The right‑of‑way is described in the legal description as 1 foot and 11 inches wide. In any event, no damage has been caused to the Gills' property by the use of the right‑of‑way.

[132] There is no need for an order defining the terms of use of the right‑of‑way.

The Gills

[133] The Gills did not make any specific submissions regarding this issue.

Conclusion

[134] I make no finding on this issue and this aspect of the counterclaim is dismissed.

(iii) The fence

The Dawes

[135] The fence between the properties is located exclusively on the Dawes’ property. The only evidence that any part of the fence crosses the property line is a survey indicating that 3 cm of one footing is located underground on the Gills' side of the property line. The Gills are not entitled to any relief in this regard because: (i) it is not clear which footing allegedly encroaches by 3 cm; (ii) the Gills' survey conflicts with the Dawes’ survey; and (iii) even if the fence is placed partially on the Gills' property, this placement would be in accordance with s. 3 of the Line Fences Act, R.S.O. 1990, c. L.17, which states that a fence may be constructed on the boundary between lands, which necessarily means that it can be placed partially on both properties.

[136] There is also no evidence that the location of the Dawes’ fence is preventing the Gills from erecting their own fence. The Gills can do what the Dawes did and build a fence next to the property line.

[137] Even if the Gills have proven that some part of the fence encroaches onto their property, which is denied, then the Dawes agree that they will move the allegedly encroaching footing. As a result, neither an injunction nor monetary damages are supported. Further there is no legal basis for a declaration that the Gills have the right to modify their side of the fence or a declaration that the fence is jointly owned.

The Gills

[138] The Dawes’ fence encroaches onto their property constituting a trespass, which defined as a direct and unjustifiable interference with possession of another’s property. It includes entering on to land in the possession of another, or … erecting some material object upon such lands without the legal right to do so.[^55] Trespass does not require proof of damage to be actionable. The interference with the Gills' property arising from the encroaching fence is preventing them from erecting a fence of their own and maximizing the use of their backyard.[^56]

[139] Where there is an interference with the property rights of a landowner through trespass, injunctive relief to remedy the trespass is strongly favoured and almost presumed.[^57] Where injunctive relief is not justified, it may instead be appropriate to award damages.[^58] An appropriate and equitable remedy in this case could also be a declaration that the Gills have the right to modify the side of the fence that faces their property accordingly.[^59]

Conclusion

[140] I make no order regarding the fence. At most, it is a 3 cm encroachment of an underground footing. An injunction, declaration or damages are not appropriate. The Gills can also erect a fence on the property line. The claim regarding the fence is trivial and the counterclaim regarding the fence is dismissed.

(iv) The outdoor television

The Dawes

[141] The Dawes consulted with audio-video technicians and sound engineers to reduce the noise from the television and incorporated their suggestions. The outdoor television has only been used occasionally after dark per season. When Mr. Gill raised a concern about the light from the television, Mr. Dawes took steps to reduce the disruption.

The Gills

[142] The Gills did not make any specific submissions regarding the outdoor television.

Conclusion

[143] I make no finding on this issue and this aspect of the counterclaim is dismissed.

(v) The security camera

The Dawes

[144] For safety and security reasons, the Dawes installed a security camera in their backyard. It only captures their property, does not capture audio, and videos are deleted automatically after 10 days. Other than one incident when a Bell employee knocked the camera offline and directed it towards the Gills' property, there is no evidence that the camera has captured video or audio of the Gills' property.

The Gills

[145] The Gills did not make any specific submissions regarding the security camera.

Conclusion

[146] I make no finding on this issue and this aspect of the counterclaim is dismissed.

(vi) The peace bond and the claim for malicious prosecution

The Dawes

[147] The Gills must establish the following four elements to prove a claim for malicious prosecution:

(i) the prosecution was initiated by the defendant;

(ii) the prosecution was terminated in the plaintiff’s favour;

(iii) there was an absence of reasonable and probable cause to commence the prosecution; and

(iv) the defendant’s conduct in setting the criminal process in motion was fueled by malice.[^60]

[148] The Gills agree with this test.

[149] Ms. Dawes testified that, after the commencement of this action, there were several incidents in which Ms. Gill made her feel uncomfortable and intimidated. An attempt to intimidate her on May 22, 2017 was captured on a security camera. Police officers attended at the Dawes’ house and suggested that Ms. Dawes seek a peace bond which suggestion she followed. If she had been told that the peace bond could have resulted in a criminal record for Ms. Gill, Ms. Dawes does not think she would have pursued a peace bond. Her goal was to create a situation where she and Ms. Gill could “keep the peace”.

[150] The parties attempted a mediation, but due to scheduling issues, the parties were unable to find a suitable date. Then, for reasons unknown to Ms. Dawes, the peace bond was withdrawn by the Crown and the merits were never adjudicated. Despite this, both Ms. Dawes and Ms. Gill had indicated their willingness to proceed with mediation. Ms. Dawes submitted correspondence showing her good faith efforts to schedule a mediation. The mediators decided to make no further efforts to schedule a mediation.

[151] The Gills submit that an inference of malice may be drawn from the surrounding circumstances and the absence of reasonable and probable cause, considered objectively.

[152] The objective standard suggested by the Gills is incorrect. The law is not that a private individual who commences a prosecution must have reasonable and probable cause on an objective basis and, if none is present, malice may be inferred. If this were the case, malice would be inferred where a private individual has a good faith belief that reasonable and probable cause exists. Such conduct is, by definition, not malicious. The standard for determining reasonable and probable cause to seek a peace bond is subjective.[^61]

[153] This was confirmed in Chaudhry v. Khan, wherein the court stated that, “importantly, where the ‘prosecutor’ in issue is a private person and not a public prosecutor, this element of the test may be established on the basis of a subjective belief alone, regardless of the actual facts, on the part of the private prosecutor.”[^62]

[154] There is no evidence that Ms. Dawes initiated the peace bond application for any malicious purpose or in an attempt to intimidate the Gills into an unfavourable resolution of this civil lawsuit. The fact that Ms. Dawes knew that civil litigation was ongoing, or that she mentioned it in a statement as context for the situation with Ms. Gill, or that she hoped the peace bond process would resolve one of the issues between the Dawes and Gills, does not establish malice. There is no evidence that the purpose of the peace bond application was anything but a good faith response to Ms. Gill’s actions. The claim for malicious prosecution is not made out.

The Gills

[155] The peace bond was a frivolous and baseless exercise and was a collateral attack on the civil proceeding and an attempt to intimidate the Gills by escalating a neighbour dispute into a criminal prosecution.

[156] Ms. Dawes is the “prosecutor” for the purposes of this analysis, as she initiated the peace bond process. The withdrawal of charges terminated proceedings in favour of the Gills.[^63] Malice, is traditionally set at a high threshold when the allegations of malicious prosecution are made as against the Crown. The same high threshold does not apply where the action is against a private individual, and an inference of malice may be drawn from the surrounding circumstances and the absence of reasonable and probable cause, considered objectively.[^64] The claim for malicious prosecution is made out.

Conclusion

[157] The claim for malicious prosecution is not made out. There is no evidence of malice, which I accept is based on a subjective standard. This aspect of the counterclaim is dismissed.

(vii) The tort of abuse of process

The Dawes

[158] The Gills must establish the following four elements to prove a claim for abuse of process:

(i) the plaintiff is or was the subject of a lawsuit initiated by the defendant;

(ii) the defendant’s predominant purpose in initiating the lawsuit was to further some improper purpose collateral to or outside the ambit of the legal process;

(iii) the defendant performed a definite act or threat in furtherance of that improper purpose; and

(iv) the plaintiff was caused to suffer some special damages or loss unique to him or her.[^65]

[159] Again, the Gills agree with this test.

[160] There is no evidence that the peace bond process was part of an attempt to gain leverage in this civil proceeding, or that it was used for any improper purpose. In addition, the Gills have not proven any damages (special damages or loss unique to Ms. Gill). The tort of abuse of process is not made out.

The Gills

[161] Ms. Dawes initiated the peace bond proceedings when she knew civil litigation was ongoing. She wanted to participate in the mediation of the peace bond in order to discuss the civil claim, which satisfied the second part of the test. Nearly half of Ms. Dawes’ second written statement consists of allegations and complaints about the Gills that are alleged in the civil proceeding, which is further evidence of the collateral purpose of the peace bond application. The main incident between the parties was recorded on a security camera and demonstrates that no physical contact occurred. Rather it demonstrates a brief and awkward encounter between Ms. Dawes and Ms. Gill, during which Ms. Gill was holding her daughter. The proceedings caused damage to Ms. Gill, who incurred legal fees and was forced to miss work. She experienced stress, her performance at work suffered, and her future employment could be compromised due to background checks that could be performed. The tort of abuse of process is made out.

Conclusion

[162] As per my findings with the claim of malicious prosecution, there was no evidence of malice nor improper intention from Mrs. Dawes. The claim for abuse of process is not made out on these facts. This aspect of the counterclaim is dismissed. If it was made out, the legal fees would be recoverable.

(viii) Punitive damages

The Dawes

[163] Punitive damages are not appropriate in this case as they are awarded only for “high‑handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”.[^66] The test is not met on these facts.

The Gills

[164] This is an appropriate case to award punitive damages. Pursuit of the peace bond was high‑handed, malicious, and a departure to a marked degree from ordinary standards of decent behaviour between neighbours. Peace bond applications are a tactic that is employed commonly in neighbour disputes.[^67] It is something that needlessly escalates an already tense situation between parties living in close proximity to one another. Such proceedings are an improper use of an overburdened criminal justice system. The court should reprimand and discourage this sort of high-handed conduct by awarding punitive damages accordingly.[^68]

Conclusion

[165] This is not a case that warrants punitive damages. There was no high‑handed, malicious, arbitrary, nor highly reprehensible misconduct. This aspect of the counterclaim is dismissed.

RELIEF SOUGHT:

[166] The Dawes request that this court grant the following:

(a) damages in the amount of $83,608.64, consisting of:

(i) damages in the amount of $68,608.64 for nuisance and negligence; and

(ii) damages in the amount of $15,000 for inconvenience, loss of amenities, and interference with the enjoyment of land on the basis of the doctrine of nuisance.

(b) a permanent and mandatory order and injunction requiring the Gills to eliminate the run‑off (i.e. water from the southwest downspout, backyard and front yard of 11 Armadale);

(c) the dismissal of the Gills' counterclaim, and the following declarations:

(i) the Dawes have not trespassed onto 13 Armadale;

(ii) the Dawes have not “abused” their right to use the right‑of‑way or otherwise acted unlawfully in their use of the right‑of‑way;

(iii) the fence demarcating the boundary between 11 Armadale and 13 Armadale is located entirely on 11 Armadale and need not be relocated or altered in any way;

(iv) the Dawes have not committed a tort in relation to the outdoor television and security camera; and

(v) the Dawes have not committed the torts of malicious prosecution or abuse of process.

[167] The Gills request that this court grant the following:

(a) an order dismissing the Dawes’ claim;

(b) damages in the amount of:

(i) $10,000 for harassment, intimidation, invasion of privacy, and/or nuisance;

(ii) $20,817.76 for malicious prosecution and/or abuse of process, consisting of:

(a) $5,817.76 for legal fees incurred in defending the peace bond application;

(b) $10,000.00 in general damages; and

(c) $5,000.00 in punitive damages.

(c) A declaration that Dawes’ fence trespasses onto the Gills' property and:

(i) a permanent and mandatory injunction requiring that it be removed;

(ii) in the alternative, damages for trespass in the amount of $5,000;

(iii) in the further alternative, a declaration that the fence is jointly-owned and the Gills may make any use of the side of the fence facing their property.

CONCLUSION

[168] The Dawes’ claim is dismissed. The Gills' counterclaim is also dismissed.

[169] I have not found liability on the part of anyone for anything. If I had found the Gills to be liable, I would have awarded $17,967.00 for the waterproofing, subject to 50% contributory negligence. If I had found Ms. Dawes to be liable for the peace bond application, I would have awarded Ms. Gills’ legal fees of $5,817.56 for representation in that application.

[170] It is very unfortunate that these neighbours could not have found some way to work this out. Sadly, both sides have incurred significant legal costs and an even more significant amount of stress.

[171] If the parties cannot agree on costs, I am prepared to receive brief submissions. Counsel can agree on a plan and a timeline and let Ms. Waltenbury know the details. I estimate (subject to submissions), that the Dawes’ claim took up about 70% of the time and the Gills' counterclaim the remaining 30%. Any cost submissions may be emailed to my assistant at lorie.waltenbury@ontario.ca.

J. E. Ferguson J.

Date: September 30, 2019

COURT FILE NO.: CV-16-566169

DATE: 20190930

ONTARIO

SUPERIOR COURT OF JUSTICE

CHESTER DAWES

Plaintiff

– and –

SUKHDEEP GILL AND SONYA GILL

Defendants

AND BETWEEN:

SUKHDEEP GILL AND SONYA GILL

Plaintiffs by Counterclaim

– and –

CHESTER DAWES and EVELYN DAWES

Defendants by Counterclaim

REASONS FOR DECISION

J.E. Ferguson J.

Released: September 30, 2019

[^1]: Alfarano v. Regina, 2010 ONSC 1538, at para. 77, citing Resurfice Corp. v Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22. [^2]: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 18 [Antrim]. [^3]: CNR v. Weyerhauser, 2018 ONSC 2056, at para. 49, citing Antrim, supra note 2, at para. 19. [^4]: Antrim, supra note 2, at para. 16. [^5]: Ibid, at paras. 19, 21; Yates v. Fedirchuk, 2011 ONSC 5549, at para. 26 [Yates]. [^6]: Antrim, supra note 2, at para. 22. [^7]: Ibid, at para. 26. [^8]: Ibid, at paras. 22-23. [^9]: Ibid, at para. 26; Gallant v. Dugard, 2016 ONSC 7319, at paras. 17-26 [Gallant]. [^10]: Smith v. Inco Ltd., 2011 ONCA 628, at paras. 45-46 [Smith]; Antrim, supra note 2, at para. 50. [^11]: Smith, supra note 10, at para. 43. [^12]: Yates, supra note 5, at paras. 26, 29. [^13]: Antrim, supra note 2, at para. 37. [^14]: Antrim, supra note 2, at paras. 25, 34. [^15]: Antrim, supra note 2, at para. 34. [^16]: Antrim, supra note 2, at para. 28. [^17]: Ibid, at para. 29; Gallant, supra note 9, at para. 17. [^18]: City of Toronto, by-law, No. 930-2000, Property Standards (10 May 2000) [Municipal Code]. [^19]: Mills v. Minto Developments Inc., 2015 ONSC 4608, at paras. 38 [Minto Developments]. [^20]: Kay v. Caverson, 2011 ONSC 4528; aff'd 2013 ONCA 220. [^21]: Ibid, at para. 185. [^22]: Ibid, at para. 231. [^23]: Garratt et al. v. Orillia Power Distribution Corp., 2008 ONCA 422, at para. 37; leave to appeal refused, 32767 (November 20, 2008). [^24]: CNR, supra note 3, at para. 48, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3. See also Minto Developments, supra note 19, at para. 48. [^25]: Caverson, supra note 20, at para. 156. [^26]: Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28 [Ryan]. [^27]: Alfarano, supra note 1, at para. 69; Weenen v. Biadi, 2015 ONSC 6832 [Weenen], aff’d 2017 ONCA 533, at paras. 11, 156. [^28]: Alfarano, supra note 1, at para. 70; Keryluk v. LaMarche, 2006 CarswellOnt 8389 (S.C), at para. 21 [Keryluk]; aff’d 2008 ONCA 281. [^29]: See e.g. Alfarano, supra note 1, at para. 69; Keryluk, supra note 28, at para. 21, (where the duty and standard analysis are merged, the applicable duty of care is to comply with the Building Code); Weenen, supra note 27, at paras. 11, 153-154. [^30]: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at p. 326 [Snell]. [^31]: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8 [Clements]; Snell, ibid, at para. 26. [^32]: Clements, ibid, at paras. 9-10. [^33]: Ibid, at para. 8. [^34]: Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 24 [Hanke]. [^35]: Ibid, at para. 25. [^36]: Ibid, at para. 27. [^37]: Ibid, at para. 21. [^38]: Ibid, at para. 25. [^39]: Ibid, at para. 19. [^40]: Minto Developments, supra note 19, at paras. 48-61. [^41]: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at §3.14, p. 97, citing Robins v. National Trust Co., 1927 CanLII 469 (UK JCPC), [1927] A.C, 515; 2 D.L.R. 97 (P.C.) [The Law of Evidence]. [^42]: Rhesa Shipping Co SA v. Edmunds, [1985] 2 All E.R. 712 (H.L.), at p. 718 [Rhesa]. [^43]: See Dehart v. Lind, 2004 CanLII 4788 (S.C.), at para. 15; Eli Lily and Co v. Nu-Pharm Inc, 1996 CanLII 4073 (FCA), [1997] 1 FC 3 (FCA); Lawrence v. Royal Canadian Mounted Police, (1996) 1996 CanLII 3888 (FC), 123 FTR 185 (F.C), at para. 32. [^44]: The Law of Evidence at §3.14, p. 97, citing Rhesa, supra note 42 at p. 718; Minto Developments, supra note 19, at para. 48. [^45]: Alfarano, supra note 1, at para. 113. [^46]: Keryluk, supra note 28, at paras. 33-34. [^47]: Laughren v. LaChance, (1988) 1988 CanLII 4538 (ON SC), 65 O.R. (2d) 354 (Dist. Ct.), at para. 25 [Laughren]; Sharpe v. London (City), 2003 CarswellOnt 6468 (S.C.), at para. 86 [Sharpe], partially reversed (2005) 2005 CanLII 4190 (ON CA), 194 O.A.C. 301 (C.A.); Keryluk, supra note 28, at para. 36; Weenen, supra note 27, at para. 176. [^48]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 14, at para. 16. [^49]: Flaro v. Roffey, 1993 CarswellOnt 2819 (Gen. Div.), at paras. 83-86; Keryluk, supra note 28, at para. 40; Laughren, supra note 47, at para. 25; Sharpe, supra note 47, at paras. 87-88. [^50]: Saleman v. Hill, 2004 CarswellOnt 2089 (S.C.), at para. 36 [Saleman]; Dyke v. Metropolitan Condominium Corp. No 972, 2013 ONSC 556 [Dyke]. [^51]: Saleman, ibid, at para. 44. [^52]: Almel Inc. v. Halton Condominium Corp. No. 77, (1997) 1997 CanLII 14498 (ON CA), 98 O.A.C. 72 (C.A.) , at para. 3 [Almel]; Berg v. Marks, 2017 ONSC 4520, at para. 8. [^53]: West High Development Ltd v. Veeraraghaven, 2011 ONSC 1177, at paras. 85-86 [West High]. [^54]: Almel, supra note 52, at paras. 3, 8; West High, ibid, at paras. 120-123; Gordon v. Regan, (1985) 1985 CanLII 2230 (ON SC), 49 O.R. (2d) 521 (H.C.J.), at para. 26. [^55]: Bellini Custom Cabinetry Limited v. Delight Textiles Limited and 301094 Ontario Limited, 2005 CanLII 30314, at paras. 95-98 [Bellini, SCJ], aff’d Bellini Custom Cabinets v. Delight Textiles Limited, 2007 ONCA 413 [Bellini, CA], leave to appeal to S.C.C. refused, 32193 (December 6, 2007). [^56]: Bellini, CA, ibid, at paras. 28-30. [^57]: Robert J. Sharpe, Injunctions and Specific Performance, (Toronto, ON: Thomson Reuters Canada, 2016), at 4.590. [^58]: Bellini, SCJ, supra note 55, at para. 136 [^59]: Line Fences Act, R.S.O 1990, c. L.17, s. 8. [^60]: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 51, at para. 3 [Kvello]; Ferreira v. Marcos, 2014 ONSC 1536, at para. 50, citing Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at para. 42. [^61]: Kvello, ibid, at paras. 63 and 72. [^62]: Chaudhry v. Khan, 2015 ONSC 1847, at para. 30. [^63]: Savino v Shelestowski, 2013 ONSC 4394, at paras. 28-29. [^64]: Pate v. Galway-Cavendish & Harvey (Township), 2011 ONCA 329, at paras. 37-39. [^65]: Magno v. Lariviere, 2014 ONSC 705, at para. 24. [^66]: 1526806 Ontario Inc. v. Ellisdon Corporation, 2018 ONSC 4064, at para. 34. [^67]: MacDonald v. Genereux-Partridge, 2016 CanLII 37549 (S.C.), at para. 2. [^68]: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595; Ruston v. Keddco MFG. (2011) Ltd., 2019 ONCA 125, at paras. 15-19.