COURT FILE NO.: CV-18-603250

DATE: 20190205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HUAQIONG ZHOU and SHENGYUN ZHOU Plaintiffs

– and –

MANUEL REBELO DE MELO and MARIA FATIMA DE MELO Defendant

Tina K. Lee, for the Plaintiffs

No one appearing for the Defendants

HEARD: February 1, 2019

M. D. FAIETA J.

REASONS FOR DECISION

INTRODUCTION

[1] The Plaintiffs own a townhouse that shares a common wall and foundation with a townhouse owned by the Defendants. In this action the Plaintiffs claim that demolition and construction activities at the Defendant’s townhouse have damaged their townhouse. The Plaintiffs claim includes a claim for damages in the amount of $70,000 for breach of duty of care, nuisance and/or negligence. The Defendants have not defended this action and have been noted in default.

[2] The Plaintiffs bring this motion for default judgment.

ANALYSIS

[3] Rule 19 governs default proceedings. The following provisions are of particular relevance:

• Rule 19.02(1) of the Rules of Civil Procedure provides that a defendant who has been noted in default, is deemed to admit the truth of all allegations of fact made in the statement of claim;
• Rule 19.05(1) states that where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.
• Rule 19.05(2) states that a motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages.
• Rule 19.05(3) states that the judge hearing a motion for default judgment may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.
• Rule 19.06 states that a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted.

[4] Where a claim for unliquidated damages proceeds by way of a motion for judgment, facts going to liability are deemed to be true however the facts going to damages must be proven: Umlauf v. Umlauf, 2001 CanLII 24068 (ON CA), [2001] O.J. No. 1054 (C.A.), para. 8. In such cases, the plaintiff must adduce evidence to prove the measure or value of damages that it has sustained: Family Trust Corp. v. Harrison, [1986] O.J. No. 2555, para. 10.

Deemed Admissions

[5] The facts in the Statement of Claim that go to liability that are deemed to be true as as follows:

• The parties own adjoining residential townhouses or row houses. They are adjoined by a common wall and common roof from the foundation vertically and continuously to the common roof;
• In or around the end of 2016 or beginning of 2017, the Defendants commenced demolition and construction work on their townhouse without proper permit (the Unauthorized Work)
• The Defendant Manuel Rebelo De Melo advised the Plaintiffs, who own the adjoining townhouse, in or around April 2017 that he obtained proper permit for all of his demolition work, which representation the Plaintiffs subsequently learned to be fraudulent, wrongful or negligent;
• The Unauthorized Work resulted, and is continuing to result, in damage to the Plaintiffs’ property;
• On or about October or November, 2017 the City performed an inspection of the Defendant’s property and confirmed that the Unauthorized Work was performed without a proper permit. The City further confirmed the Loss resulting to the Plaintiff’s property;
• Following the inspections, in or around December 2017, the Plaintiffs requested the Defendants to immediately repair the Loss by a licensed and qualified contractor and for monetary compensation for the Plaintiffs’ Loss.
• The Plaintiffs’ Loss includes structural damage to the roof framing, chimney, foundation and common wall; water penetration and water damage; mold growth.
• The Plaintiffs’ have refused and/or failed to repair or remediate any of the Loss and are continuing the Unauthorized Work;
• As a result of the Defendants’ actions and conduct, including the Unauthorized Work, the Plaintiffs have suffered harm, injury, damages, loss and expense;
• The Defendants’ in their actions and conduct amount to a beach of duty of care, negligence and nuisance;
• The Defendants in their actions and conduct have caused, and are continuing to cause, significant damages to the Plaintiffs, for which the Defendants are liable;

Liability

[6] I am unaware of any independent tort of breach of duty of care. I now turn to assess whether the Plaintiffs have established a claim in negligence or nuisance.

Negligence

[7] A successful action in negligence requires that the plaintiff demonstrate:

(1) That the defendant owed the plaintiff a duty of care;

(2) That the defendant’s behavior breached the standard of care;

(3) That the plaintiff sustained damages;

(4) That the damages were caused, in fact and law, by the defendant’s breach;

(5) The damages are not too remote in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] S.C.J. No. 27

[8] The claim alleges that the Defendants owed a duty of care to the Plaintiffs to not perform work that would cause harm and injury to the Plaintiffs, that the Defendants’ breached that duty of care, and that such breach caused damage to the Plaintiffs for which the Defendants are liable. The deemed admissions show that the Defendants’ townhouse shares a common wall, foundation and roof with the Plaintiff’s townhouse. As such, they owed a duty of care to ensure that their demolition and construction activities did not cause damage to the Plaintiffs’ property. Damages to the Plaintiff’s property resulted from such activities and were foreseeable. The fact that such activities were not taken in accordance with a building permit establishes that the Defendants breached the standard of care expected of a property owner.

[9] I find that the deemed admissions provide a sufficient basis to find that the Defendants are liable in negligence.

Nuisance

[10] To support a claim in private nuisance the interference with the owner's use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, para. 18.

[11] Liability attaches to anyone who either creates or causes a nuisance. It also attaches to a person, such as a landowner, who expressly authorizes the nuisance or where the nuisance is certain to result from the purposes for which the property is used: Smith v. Scott, [1972] 3 All E.R. 645.

[12] In my view the deemed admissions are sufficient to find that the Defendants are liable in private nuisance. The damage caused to the plaintiffs’ townhouse, particularly the structural damage, was a substantial and an unreasonable interference with the plaintiffs’ use and enjoyment of their property. Given that the deemed admission that the Defendants commenced, I am satisfied that the Defendants are liable in private nuisance on the basis that they have either created, cause or authorized the activities giving rise to the interference of the Plaintiff’s use of their property.

Damages

[13] The affidavit of the Plaintiff, Shengyun Zhou, states:

• The plaintiffs do not reside at their property; it is rented to residential tenants;
• By the summer of 2017, damage to their property caused by the Defendants’ demolition and construction activities began impacting their tenants;
• On September 15, 2017 the Plaintiffs submitted a claim to their property insurer who arranged for a restoration company to inspect and assess the damages to their property;
• A report dated September 26, 2017 was prepared by Daniel Peleg, Project Manager, FirstOnSite following his inspection of the Plaintiff’s property. It states:

“Damage to dwelling due to demolition of next door unit. Structural damages observed to roof framing. Insured has a row house and the partition wall has been exposed and not tarped which allowed water penetration resulting in mold growth in the basement and HVC equipment failure. Hygenist and a structural engineer recommended in order to assess full extent of damages. Quantum of loss: $51,003.36”.

• The above figure accounts for a deductible of $2,500.00; The full amount of the damage estimate is $53,503.36. The damages described by Mr. Peleg, about 16 months ago, is comprised of the following items:
  • Emergency: Temporary tarping of roof, chimney and east elevation of home that is currently exposed due to demolition of next door townhouse: $5,847.75;
  • Repair: Mold Level II observed during the intial site visit. A Hygenist is recommended to provide scope of work. The amount reflected is budgetary only and includes Level 2 procedure to remove all contaminated finishes: $12,345.22;
  • Repair: Floor protection –self adhesive plastic film: $55.38;
  • Repair Basement Bedroom: $2,997.08;
  • Repair Basement Room: Heat, Vent & Air Conditioning: $5,716.50; Drywall replacement: $656.04;
  • Repair Main Level: Drywall, Remove and Replace, Painting, Framing, Cleaning: $1,539.12;
  • Repair Level 2 Kitchen and Landing: Remove and replace tile floor covering, ceramic tile base, etc: $1,439.57;
  • Haul debris: $194.81
  • Roof: $22,767.24;
• The Plaintiffs had a named perils insurance policy and as a result the insurer denied their claim;
• The Plaintiffs have not undertaken any repairs with the exception of repairs to their furnace ($600) and water heater tank ($400) on October 18, 2017. Total cost: $1,130 with tax. Shengyun Zhou’s affidavit states that the water heater tank had to be replaced because it was attached to a shared chimney that the Defendants demolished. There is no explanation for the repair to the furnace
• Shengyun Zhou states that the repairs have not been undertaken because he fears further damage will be caused by the Defendants and he is waiting for the Defendant to complete the re-construction of his townhouse before performing all needed repairs;
• The Plaintiffs also claim $7,435.00 for having to retained a structural engineer, OBP Consultants Inc. to inspect the damage to their property. OBP prepared a report which estimated the damages suffered at $25,500 as follows:
  • The demolition has exposed the party wall to weather. With winter fast approaching, the party wall needs to be insulated or protected from cold wather with temporary enclosure and heating: $7,500.00;
  • The foundation wall and footing of the one storey portion of the Plaintiffs’ house is exposed to weather due to excavation from the Defendants’ house. With winter fast approaching, the exposed foundation wall and footing need to be waterproofed and backfilled to prevent frost thrust to cause damage to the footing and foundation wall: $5,000;
  • The demolition and excavation of the basement of the plaintiff’s house exposed to weather and caused water, moisture and mold in the basement: $3,000;
  • The demolition caused damage to the chimney: $5,000;
  • The demolition caused damage to the wall and roofing of the property in the rear yard. Cost to repair the damage wall and roofing: $3,000;
  • The demolition caused miscellaneous interior and exterior damage to the plaintiff’s house. Cost to repair: $2,000;
• Cost of natural gas ($643.67) needed to compensate for heat loss caused by the structural damage. This amount is based on the difference in the heating costs when the periods January – May, 2017 and January – May, 2018 are compared.

[14] The Plaintiffs ask that damages be based on the estimate prepared by Mr. Peleg rather than on the OBP estimate.

[15] The onus is on a plaintiff to prove that the defendant caused the loss that it suffered. The court must make all reasonable efforts to assess the amount of that loss on the best available evidence even though it may be difficult to quantify: Canlin Ltd. v. Thiokol Fibres Canada Ltd., 1983 CanLII 1603 (ON CA), [1983] O.J. No. 2502, para. 35 (C.A.).

[16] I find that the emergency, temporary tarping to the roof is a recoverable expense given that it would have been undertaken long ago after Mr. Peleg’s estimate was prepared. There is no evidence that the Plaintiffs incurred this cost nor that there is any continuing need for this expense.

[17] The estimated cost of replacing the plaintiff’s roof must be reduced to reflect the fact that there is no evidence that the entire roof of the Plaintiff’s townhouse required replacement as a result of the Defendants’ actions. It should also be reduced to account for betterment although there is no evidence of the age of the roof in 2016. I award $5,000.00 in respect of repairs to the roof.

[18] I dismiss the Plaintiff’s claim for additional heating costs as the Plaintiffs are obliged to mitigate such losses by undertaking the required work to address the damage caused (such as the installation of insulation for which they claim).

[19] In light of the repair costs that they have undertaken to their furnace and hot water tank, I also question the necessity for the heat, vent and air conditioning expense. I also find that it should also be reduced for betterment. As a result I reduce the $5,716.50 claim for HVAC to $1,000.00.

[20] Some of the other elements of the Peleg estimate are more speculative than others. For instance, $12,345.22 is identified for mold removal solely for budgetary purposes. I would have expected that mold removal would have been completed some time ago by the Plaintiffs especially given that they rent their property.

[21] I assess the Plaintiffs’ damages to property, inclusive of the cost of the OBP report, at $25,435.00.

[22] The Plaintiffs each claim $50,000 for punitive damages and $50,000 for aggravated damages. The Defendants’ conduct has been high-handed in the damage to the Plaintiffs’ property resulted from demolition and construction not undertaken in accordance with a building permit. I assess punitive damages at $5,000.00, in total, for both plaintiffs. Shengyun Zhou states that he has trouble sleeping because he is afraid of what might happen to his townhouse. He has received complaints from his tenants. The initation of this lawsuit has caused him stress and anxiety. There is no medical evidence to support either plaintiffs’ claim for aggravated damages and accordingly it is dismissed: Walker v. Hulse, Playfair and McGarry, 2017 ONSC 358, para. 20.

CONCLUSIONS

[23] I grant judgment in the amount of $30,435.00 to the Plaintiffs.

[24] The Plaintiffs seek their costs of this action on a partial indemnity basis in the amount of $12,680.53. I find that it fair and reasonable for the Defendants to pay the sum of $10,000.00 in costs, inclusive of disbursements and taxes, to the Plaintiffs. Such costs shall be paid within 30 days.

Mr. Justice M. D. Faieta

Released: February 5, 2019

COURT FILE NO.: CV-18-603250

DATE: 20190204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HUAQIONG ZHOU and SHENGYUN ZHOU Plaintiffs

– and –

MANUEL REBELO DE MELO and MARIA FATIMA DE MELO Defendant

REASONS FOR DECISION

Mr. Justice M. Faieta

Released: February 5, 2019