2020 ONSC 514

BRAMPTON COURT FILE NO.: CV-18-3527

TORONTO COURT FILE NO.: CV-09-383329

DATE: 20200124

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Carolyn Liddy

Plaintiff

Glenroy K. Bastien, for the Plaintiff

-and-

City of Vaughan, Anna Mauro, Bill Robinson and Michael Ridgwell

Defendants

Andrew Heal and F. Philip Carpenter, for the Defendants City of Vaughan, Bill Robinson and Michael Ridgwell

Emilio Bisceglia and Fernando Souza for the Defendant Anna Mauro

HEARD: January 29, 30, 31, February 1, 2, 5, 6, 7, 8, 9, 12, 14, 15, 16, 20, November 19, 20, 21,22, 23, 26, 27, 28, 29, 30, 2018, June 10 and 12, 2019

REASONS FOR JUDGMENT

Tzimas J.

INTRODUCTION

[1] The Plaintiff, Carolyn Liddy (“Ms. Liddy”), commenced an action on July 20, 2009 against The Corporation of the City of Vaughan (“City of Vaughan”), certain City of Vaughan employees (collectively, the “Vaughan Defendants”) and her neighbour, Anna Mauro (“Ms. Mauro”). The claim against Ms. Mauro was for a mandatory injunction and punitive damages in the sum of $50,000. No general damages were claimed against Ms. Mauro until 2017, six months prior to the commencement of the trial, when Ms. Liddy amended her claim to add a claim for general damages against Ms. Mauro in the sum of $500,000.

[2] The claims against the City of Vaughan and the Vaughan Defendants were framed in negligence, nuisance and the tort of public misfeasance. Ms. Liddy agreed to the dismissal of these claims well into the trial, leaving only her claim against Ms. Mauro for this court’s determination.

[3] Ms. Liddy’s property is located at 36 Humberview Drive, and Ms. Mauro’s property is located at 26 Humberview Drive. Both properties are in the City of Vaughan. The overriding thrust to Ms. Liddy’s claims against all of the defendants was to challenge any and all development and construction activities on the Mauro property as illegal and contrary to various by-laws and regulations. Eventually, as Ms. Liddy abandoned her claims, one by one, the only one left for my determination concerned the allegation that the various water problems on Ms. Liddy’s property were caused by Ms. Mauro’s activities on her own property, causing very substantial damages.

[4] For the reasons that follow, I have concluded that the water problems as described by Ms. Liddy are not being caused by Ms. Mauro. Very briefly, I find that the water flow and drainage on Ms. Mauro’s side of the common property is consistent with the original lot grading anticipated by the Subdivision Agreement. For the most part, the water on the Mauro property drains away from the common property line either in the direction of the Mauros’ own pool or is collected into their underground system. The water that travels to the common property line, travels as it should to the common swale located on the property line.

[5] The reason for Ms. Liddy’s water problems rests with her own activities on her property and specifically the flattening out of the common swale at two critical points adjacent to the common property line, and the modified sloping at critical points on her property. The flattened swale at critical parts means that water coming from the Mauros, as it should, cannot be contained in the swale but crosses into Ms. Liddy’s property. The poor sloping means that the water from Ms. Liddy’s property cannot travel to the common swale but instead pools and accumulates on the Liddy property and travels down in the direction of the Liddy pool.

[6] Having regard for all of the evidence before the court, although I found the evidence of the Defendants most thorough, compelling and convincing, I find it essential to note right from the outset that my overriding findings, as I just summarized them, are supported entirely by the numerous admissions made by Ms. Liddy’s own expert and her landscaper witnesses. In other words, I could have decided this case on the basis of those admissions; the defence experts corroborated and expanded on the totality of the evidence presented by Ms. Liddy.

[7] Very significantly, the expert who testified for Ms. Liddy agreed that the swale on Ms. Liddy’s side was non-existent. He also agreed that the sloping on Ms. Liddy’s property was contrary to the original grading requirements. Ms. Liddy’s landscapers corroborated the expert’s evidence when they admitted to flattening the swale and they confirmed that their addition of topsoil, mulch and sod created a mound that impeded the water flow intended by the original lot grading. They also admitted that they undertook these activities without regard for any grading, and dramatically, without any appreciation for the need to consider any grading requirements.

[8] In light of the evidence, Ms. Liddy failed to satisfy her burden as the Plaintiff to prove her claims in negligence, nuisance and trespass. She also failed to substantiate her claim for any damages. Accordingly, Ms. Liddy’s claim is dismissed in its entirety. My in-depth review of the evidence before the court, my findings of fact and my legal analysis follows below.

AGREED BACKGROUND FACTS

[9] The overriding legal issue for my determination comes down to whether Ms. Mauro and her husband, Mr. Gino Mauro (collectively “the Mauros”), have been engaging in activities that are causing water problems and damages to Ms. Liddy’s backyard. Ms. Liddy blames the water problems on a series of activities by the Mauros, including the construction of a retaining wall at the rear of their property, the addition of cement stairs right by their home, the construction of a swimming pool and a number of additional structures, and an obstructed swale, or alternatively, the elimination of the swale. The Mauros deny doing anything wrong or doing anything to cause the water problems. Instead, they submit that Ms. Liddy’s own activities on her property have been causing the water problems for which she complains.

[10] A review of the history of the Mauros’ various activities and Ms. Liddy’s various complaints is essential to understanding the history related to the grading of the two properties and the respective activities on the two properties that have brought the parties to court. The following facts are not in dispute.

[11] On or about April 3, 1990, the City of Vaughan entered into a subdivision agreement with the Woodbridge Highlands Corporation, defined therein as the “Owner”, with the City of Vaughan defined as the “Town”. That subdivision agreement is registered on title to the properties municipally known as 26 and 36 Humberview Drive, Vaughan, Ontario (respectively, the “Mauro Property” and the “Liddy Property”) as Instrument No. LT666026 (“Subdivision Agreement”).

[12] The Subdivision Agreement prescribed certain lot grading criteria in s. 8, including the following in s. 8.7(b):

If the grading of the lot has been completed and a certificate issued pursuant to Paragraph 20.1(c) and if the grading of such lot has been satisfactorily inspected by the Town’s Building Department and if the services on which the lot fronts have been assumed then, subject to the provisions of Paragraph (c), the Owner is no longer responsible for the grading of such lot. If the owner of a lot adversely alters its grade, the Owner or the Town is not responsible for the grading of such lot and if the alteration adversely affects an adjacent lot then the owner of the latter lot may enforce the provisions of this agreement which require every owner to maintain his/her lot in accordance with the approved Lot Grading Plans.

[13] On or about April 18, 1997, Marshal Macklin Monaghan issued a grading certificate in accordance with paragraph 20.1(c) of the Subdivision Agreement for the Mauro Property. It certified that the Mauro Property was in compliance with the approved grading and site plans under Schedule “B” of the Subdivision Agreement.

[14] In August 1999, the Mauros applied to the City of Vaughan to purchase approximately 730 square feet of zoned open space conservation land, more particularly described as a portion of Block 1, Plan 65M-2812 (the “Subject Land”). The Subject Land abutted the Mauro Property at the rear end. Although it was owned by the City of Vaughan, it was subject to development control by the Toronto and Region Conservation Authority (“TRCA”).

[15] The City of Vaughan circulated the Mauros’ application to purchase the Subject Land to its various departments as well as to the TRCA for review and comment. There was no dispute that the City of Vaughan had the legal authority to sell the land without the consent of the TRCA.

[16] On or about October 10, 2000, the Committee of the Whole of the City of Vaughan recommended a by-law be enacted to allow for the sale of the Subject Land to the Mauros. Subsequently, By-Law 412-2000 was enacted which declared the Subject Land surplus and provided for the sale of the Subject Land to the Mauros.

[17] On December 18, 2000, the City of Vaughan transferred title of the Subject Land to the Mauros under Instrument No. LT1564307 registered at the York Region Land Registry Office. The purchase price of the Subject Land was $2,937.76, plus applicable taxes, and a $500 administration fee.

[18] Sometime after December 18, 2000, the Mauros placed fill and constructed a retaining wall on the newly acquired land. The stairs located along the north-side yard of the Mauro Property were identified by some witnesses as one of the problems contributing to the water problems. It is therefore relevant to note that these stairs were installed either around the time the Mauros originally built their house, or around the time that they had the retaining wall constructed. In any event, the stairs were always anticipated and approved in the original house drawings for the Mauros’ house.

[19] The Mauros constructed the retaining wall without first obtaining the appropriate permits from the TRCA or a building permit from the City of Vaughan. In July 2001, the Mauros retained KCL Contracting & Engineering Limited (“KCL”) to inspect the retaining wall. KCL certified that the retaining wall was constructed in accordance with sound engineering principles and in accordance with all applicable codes.

[20] On or about July 12, 2001, Ms. Liddy and her husband, Mark Liddy, threatened to sue the City of Vaughan for damages related to, inter alia, the Mauros’ construction of the retaining wall.

[21] On or about August 2, 2001, the City of Vaughan advised the Mauros that the Subject Land they purchased fell under the jurisdiction of the TRCA and that they had to obtain TRCA approval or permits for any construction work on that land.

[22] Ultimately, the TRCA determined that since the retaining wall had already been constructed, it would be treated as an “unresolved violation”. The TRCA also concluded that removing the wall would be more disruptive than keeping it. In its letter of September 10, 2001, the TRCA advised that its Executive Committee authorized some additional works to construct a patio within the Mauros’ rear yard under a permit issued on or about September 7, 2001.

[23] On or about March 28, 2003, the TRCA advised the Mauros and the City of Vaughan that the TRCA had closed its file with respect to the retaining wall violation because it presented no health or safety concerns. In light of these developments, in 2003, the City of Vaughan issued a building permit for the Mauros’ retaining wall.

[24] On or about July 5, 2007, the Mauros applied for and received TRCA permission to construct a swimming pool in their yard. Ms. Liddy had already constructed her own pool on her property in 1999.

[25] Ms. Liddy cross-examined a number of witnesses on the City of Vaughan’s lack of regulations concerning the construction of pools. Ultimately, there was no dispute that the City of Vaughan does not regulate the construction of private residential pools. Neither the Ontario Building Code, O. Reg. 332/12, nor any associated building standards by-law has any regulations related to such constructions.

[26] The only regulation that touches on the construction of swimming pools is contained in the City of Vaughan’s Fence By-Law No. 80-90 as amended by By-Law No. 203-2006 (“Fence By-Law”). The Fence By-Law requires a citizen wishing to excavate or build a swimming pool to apply for a permit. The Fence By-Law also requires such an application to include plans showing the location of the swimming pool in relation to lot lines, details of the pool enclosure, and any other details that the Chief Building Official may require.

[27] On July 6, 2007, the Mauros applied for a pool enclosure permit and submitted the plans under the Fence By-Law. The City of Vaughan required the Mauros to enter into a standard form “pool agreement” and post $2,000.00 in security for remediation of City of Vaughan property, such as the road allowance, in the event that the pool construction caused damage to city property.

[28] Gino Mauro and the City of Vaughan entered into a pool agreement on July 11, 2007. On July 12, 2007, after review by Zoning Plans Examiner Michael Ridgwell and Lot Grading Coordinator Otello Santini, the City of Vaughan issued the pool enclosure under Permit No. 07-4179.

[29] The Mauros had to access their property from the rear in order to construct their pool. For that, the Mauros had to obtain from the City of Vaughan: a) a road occupancy permit; and b) an agreement with the City of Vaughan’s Community Services or Parks Department pertaining to the Mauros’ intended use of the open space conservation land, including any necessary indemnities to repair damage to conservation land at the rear.

[30] The activities in the Mauros’ backyard, the coming and going of trucks through the conservation lands, the delivery of earth, and all activities related to the excavation and construction of the pool caused Ms. Liddy considerable distress. She contacted the City of Vaughan to complain. Ms. Liddy spoke with William (“Bill”) Robinson (“Mr. Robinson”), who was employed by the City of Vaughan in the Engineering and Public Works Department (“Engineering Department”) either as a Director of that Department or as the Commissioner of Engineering.

[31] Mr. Robinson investigated Ms. Liddy’s concern and determined that while the Mauros had obtained the necessary road occupancy permit, the Mauros had not applied for the appropriate access agreement with the Community Services or Parks Departments for use of open space conservation land. As a result of Mr. Robinson’s investigation, the Mauros were advised that they were required to contact the City of Vaughan’s Community Services Department to apply for the appropriate agreement with the City of Vaughan before the pool construction crew could cross the conservations lands.

[32] In response, on August 14, 2007, the Mauros applied for and entered into the applicable agreement (“Access and Remediation Agreement”) with the City of Vaughan to allow for the construction crew to access their property by crossing through the open space conservation land. The Mauros posted $5,000.00 as remediation security to remedy any damage to the open space land that might be caused by the construction activities.

[33] In addition to building the pool in 2007, in or around the spring and summer of 2008, the Mauros decided to build certain additional structures in their backyard, specifically a shed, two accessory structures and a privacy wall (the “Backyard Structures”).

[34] On April 15, 2008, Mr. Ridgwell, the Zoning Plans Examiner in the Buildings Standards Department of the City of Vaughan, wrote to the Mauros to advise them that their structures were not in compliance with the height/set-back requirements of the zoning by-law. He asked them to either revise their plans or seek a minor variance. On April 28, 2008, the Mauros revised their plans and submitted new, revised drawings in compliance with the zoning by-law requirements. On April 29, 2008, the City of Vaughan issued Building Permit No. 08-1536 for the Backyard Structures.

[35] The Mauros proceeded with the construction of the Backyard Structures in May-June 2008. On June 27, 2008, the City of Vaughan issued an Order to Comply for separate works related to construction of footings and foundations below an existing concrete deck, which required a building permit. The Order to Comply specified that the Mauros were required to obtain the required building permit.

[36] On August 11, 2008, the Mauros applied for Building Permit No. 08-1536(R1) in respect of the footings and foundations under the existing concrete deck, a spiral staircase, and a revision to one of the Backyard Structures, reducing the roof and making it smaller. The City of Vaughan issued Building Permit No. 08-1536(R1) on September 3, 2008.

[37] In addition, in or around August 2008, the Mauros applied to the Committee of Adjustment of the City of Vaughan (the “Committee”) to have the non-compliant Backyard Structures deemed minor variances. Mr. Ridgwell provided the Committee with technical information regarding what variances were required to make the Backyard Structures compliant. This information was provided to the Committee for its determination on whether to approve the Mauros’ minor variance application.

[38] Mr. Ridgwell did not provide the Committee with an opinion as to whether the Mauros’ minor variance application should or should not be approved. On September 11, 2008, the Committee circulated notice of the Mauros’ minor variance application.

[39] The initial notice circulated by the Committee erroneously listed the Mauros’ Property as only being zoned as residential. The Mauros’ Property was actually zoned both as residential and, in minor part, as open space conservation land following the Mauros’ purchase of the Subject Land in December 2000. Even though the administrative error was irrelevant to the Committee’s considerations of the Mauros’ minor variance application, the City of Vaughan identified and corrected the administrative error.

[40] In the fall of 2008, there were a number of Committee meetings on the subject of the Mauros’ minor variance application. The Mauros, Ms. Liddy, and sometimes Ms. Liddy’s legal counsel Eric Gillespie (“Mr. Gillespie”) attended those meetings.

[41] On November 13, 2008, the Committee ruled that the Backyard Structures were minor variances and therefore allowable. In allowing the Mauros’ minor variance application, the Committee noted that the Backyard Structures were desirable for the appropriate development and use of the land and that this was in keeping with the general intent and purpose of the official plan. The TRCA also had no objection to the minor variance application as they had previously issued permits in respect of the Backyard Structures.

[42] On or about December 1, 2008, Ms. Liddy appealed the Committee’s decision allowing the Mauros’ minor variance application to the Ontario Municipal Board (“OMB”). Ms. Liddy was represented on that appeal by Mr. Gillespie. Prior to the hearing of the OMB appeal in April 2009, Ms. Liddy also filed a Notice of Application to Divisional Court for judicial review of the Committee’s decision. She also applied for a stay of the OMB hearing pending the outcome of her judicial review application.

[43] Ms. Liddy’s application to stay the OMB appeal was denied and the OMB appeal hearing took place on April 1 and 2, 2009. At the hearing of the OMB appeal, the Liddys and the Mauros settled the matters in dispute. Additionally, following the OMB appeal and the settlement between the Liddys and the Mauros, on or about May 25, 2009, Ms. Liddy filed a Notice of Abandonment and abandoned her application for judicial review of the Committee’s decision.

[44] Ms. Liddy commenced a civil action for negligence against Mr. Gillespie after she abandoned her application for judicial review of the Committee’s decision.

HISTORY OF THE LEGAL PROCEEDINGS

[45] On July 20, 2009, Ms. Liddy commenced her action against the City of Vaughan, its employees Bill Robinson and Michael Ridgwell, and Anna Mauro.

[46] The relief sought against Ms. Mauro was for punitive damages of $50,000 and "a mandatory order requiring the defendant, Anna Mauro, to remove Structures (defined below) from the back-yard of their [sic] property or, in the alternative, to take such appropriate steps to stop the nuisances (as described below)." No general damages were claimed against Ms. Mauro.

[47] From March 24, 2011 to January 14, 2018, there were a total of 32 endorsements and orders by Masters Haberman and McAfee, and Justices Hood, Archibald, Akhtar and Wilson. The orders and endorsements touched on the adequacy of the parties’ affidavit of documents, particulars, discovery attendances, answers and refusals to undertakings, multiple amendments to the original claim, listing for trial, striking off the trial list, re-listing for trial, disputes over the filing of expert reports, and even contempt proceedings.

[48] Highlights of these pre-trial activities are as follows:

a) Examinations for discovery of the City of Vaughan employees, Michael Ridgwell, Heather Wilson, and Bill Robinson took place on July 28 and August 30, 2011. Ms. Liddy was examined on August 31, 2011, at which time she gave a number of undertakings, including one to provide her particulars as to damages in advance of trial. Until this point, the only damages that Ms. Liddy was seeking against Ms. Mauro were punitive.

b) On October 24, 2011, Ms. Liddy set the action down for trial, but thereafter the action was struck from the trial list.

c) On July 31, 2013, the action was assigned to case management with Master McAfee as the Case Management Master.

d) On July 17, 2014, the action was restored to the trial list by order of Master McAfee. Ms. Liddy was ordered to set the matter down for trial again by December 31, 2014.

e) On July 24, 2014, Ms. Liddy was examined on her answers to undertakings. By this point, she had produced the February 12, 2012 letter of Eco Lawn Care, but had otherwise refused to answer basic questions.

f) On March 3, 2015, the parties had an unsuccessful mediation.

g) On October 28, 2015, Justice D. Wilson ordered that a 20-day non-jury trial commence on April 17, 2017. She further ordered that the matter proceed to a pre-trial on February 13, 2017. The Defendants’ Rule 48 rights were preserved.

h) On or by February 3, 2017, Ms. Liddy changed counsel and retained Mr. Streisfield. Mr. Streisfield brought a motion to further amend Ms. Liddy’s Statement of Claim, to inspect the Mauro Property, and to adjourn the trial. The proposed amendments to the Statement of Claim sought to add Ms. Mauro’s husband, Gino Mauro, as a party, and sought damages of $500,000 for the first time against the Mauros.

i) On March 20, 2017, Justice D. Wilson adjourned the trial of this action from April 2017 to January 29, 2018, peremptory to Ms. Liddy. Ms. Liddy was ordered to pay costs to the Defendants on account of the adjournment.

j) On May 5, 2017, on consent, an order was made amending the Statement of Claim for a second time. Gino Mauro was not added as a party but he agreed to be examined as a non-party. The amended claim now sought $500,000 as against Ms. Mauro. For the first time, Ms. Liddy's claim provided more detailed allegations with respect to the water claims. The parties were also required to deliver expert reports by July 15, 2017.

k) The amendments changed the character of the original claim in a very substantial way. On or about May 25, 2017, Ms. Liddy served a Notice of Response to Particulars.

l) On July 17, 2017, counsel for Ms. Liddy served by e-mail the letter from Richard Majkot of Eco Lawn Care dated June 19, 2017. Mr. Majkot also signed and delivered a Rule 53 Expert's Duty Undertaking dated June 19, 2017.

m) On July 26, 2017, Gino Mauro, Ms. Liddy and a representative of the City of Vaughan were examined for discovery with respect to the amended pleadings. Gino Mauro was examined as a non-party, on consent, in accordance with the order of May 5, 2017 of Master McAfee.

n) On September 5, 2017, Ms. Liddy delivered her answers to the undertakings given from the July 26, 2017 examination. As part of her undertakings, she provided a USB key which contained numerous photographs and videos. The USB key included the photo dossier and videos that are not included in Ms. Liddy's affidavit of documents and had only partly been produced on July 13, 2017. There were quite a number of refusals. One of the answers provided was a letter from Richard Majkot dated August 31, 2017.

o) On September 19, 2017, a motion was brought by the City of Vaughan to settle the form of the order of May 16, 2017. Master McAfee delivered her reasons on September 22, 2017.

p) On October 2, 2017, Ms. Liddy brought a motion for further examinations for discovery and production issues. Master McAfee delivered her reasons on October 5, 2017. Ms. Liddy asked to question Ms. Mauro, which she had not done until that point. She also wanted to ask follow-up questions of Gino Mauro. The Mauros agreed to Ms. Liddy’s request. Ms. Liddy refused to be examined on her answers to undertakings. As a result, a motion had to be brought.

q) On November 1, 2017, Ms. Mauro brought a motion to compel answers on questions refused, and to compel Ms. Liddy to attend a further examination to answer follow-up questions to her answers.

r) On November 3, 2017, Master McAfee delivered her reasons, which included an order that Ms. Liddy attend a further examination on the answers to her undertakings. Master McAfee, however, did not require Ms. Liddy to provide Mr. Majkot’s files, given the fact that he was being proffered as an expert.

s) On December 14, 2017, for the first time, Ms. Liddy provided the damages brief, which now included invoices from Eco Lawn Care from 2008 to 2017.

t) On December 15, 2017, Ms. Liddy also served a further affidavit of documents. The affidavit of documents included hundreds of new photos and videos that had been produced as part of the answers to the undertakings. The photos and videos had been provided on or about September 14, 2017.

u) Eventually, January 8, 2018 was chosen as the date for the further examination for discovery of Ms. Liddy. After the date was chosen, Ms. Liddy’s counsel wrote that he was only available at 2:15 p.m. on that date. On Sunday, January 7, 2018 at 6:09 p.m., Ms. Liddy’s counsel sent an email with further responses to Ms. Liddy’s undertakings.

v) On January 8, 2018, Ms. Liddy attended her examination for discovery at 2:15 p.m. The examination proved to be of limited value because of the numerous interruptions and refusals by Mr. Streisfield. Eventually, Mr. Streisfield refused to allow any further questions from counsel for Ms. Mauro. Mr. Streisfield did allow Mr. Carpenter to ask further questions for the Vaughan Defendants.

[49] The trial commenced before Justice Sanfilippo on January 29, 2018. However, a mistrial was declared on February 20, 2018 when the trial judge learned that a prospective witness for the City of Vaughan was the spouse of a judge in Toronto. At the time the mistrial was declared, Ms. Liddy was still leading evidence and had not yet completed her case. She was also still pursuing her claims against the City of Vaughan and the Vaughan Defendants.

[50] In recognition of the time already spent on the trial, and following a request by the Defendants for a reconsideration of the mistrial ruling, on April 17, 2018, Sanfilippo J. ordered that subject to any order made by either the Regional Senior Justice for the region receiving the trial or the new trial judge’s discretion:

all evidence taken at trial until the date of the order for mistrial shall be transcribed and shall constitute evidence on the new trial, as will all trial exhibits and evidentiary and other rulings made to the date of the mistrial save and except for the ruling made on February 15, 2018 in relation to the document referred to as the Madjkot Documents. The trial also reserved the costs thrown away as a result of the mistrial to the new trial judge hearing the new trial.

The trial recommenced in Brampton on November 19, 2018, with new counsel for Ms. Liddy in accordance with the noted ruling.

[51] Between July 2018 and the commencement of trial, there were a number of trial management conferences with me to ensure that the parties were ready to proceed with the continuation of the trial. During this period, counsel for Mr. Robinson advised the court that Mr. Robinson was gravely ill and might not be well enough to testify at trial. The court allowed for Mr. Robinson to be examined in advance of the trial.

[52] A few days before the recommencement of the trial, Ms. Liddy asked for a further adjournment of the trial on the pretext that her new counsel required more time to prepare. The request was denied as Ms. Liddy’s latest counsel had been on the file since April 2018 and had participated in all of the trial management conferences leading up to November 19, 2018. In that period, there was no indication that counsel would not be ready for the recommencement of the trial in November.

[53] On November 23, 2018, while the trial was in progress, Ms. Liddy and the Vaughan Defendants reached a settlement whereby Ms. Liddy withdrew her claims with costs fixed at $10,000. The trial continued with respect to the water claims against Ms. Mauro. The evidence concluded on November 30, 2018. A timetable was set for the filing of written closing submissions, to be followed by oral submissions.

[54] Ms. Liddy’s counsel encountered certain difficulties with the said timetable that resulted in a substantial delay in the delivery of the closing submissions and ultimately a revision to the timetable for oral submissions. The oral submissions were finally presented to the court on June 10, 2019 over a period of two days.

[55] I will proceed to review the evidence of the parties. Given the withdrawal of Ms. Liddy’s claims against the Vaughan Defendants, I will limit my references to the evidence related to Ms. Liddy’s water claims against the Mauros.

EVIDENCE OF THE PLAINTIFF

a) Carolyn Liddy

[56] Ms. Liddy testified over a period of four and a half days, starting on January 29, 2018 and concluding on February 2, 2018. She explained that she purchased the land at 36 Humberview Drive in Woodbridge, Ontario in 1990 and built her house in 1994. At no point did the City of Vaughan notify her that there were problems with either the drainage or the grading requirements related to her lot.

[57] Ms. Liddy produced for the court photographs and diagrams to illustrate her complaints and to show the water coming across the property line from the Mauros to her property, including the damage it caused. She also put before the court her extensive correspondence with the City of Vaughan complaining about the various activities by the Mauros. She complained that these activities resulted in the change of the grading on their property and the raising of their property that therefore enabled the water from their property to cross into her backyard at various points along the property line.

[58] Ms. Liddy explained that she first observed the water flowing from the Mauro Property in September or October of 2007. She explained that the problem has continued since that time. Ms. Liddy summarized her problem with the Mauros in the following terms: “I want to stop the water and fix the damage … I want to stop the storm water that comes on to my property every time it rains more than a drizzle ... it is coming from the Mauro Property”.

[59] Ms. Liddy gave extensive testimony on how she first complained to the City of Vaughan about this issue in June or July 2007, when she saw the Mauros moving large volumes of dirt from Vaughan Mills Road across the Humber River ravine and into their backyard. In her various communications with Regional Counsellor Joyce Frustaglio, Ward Council Member Tony Carella, Ward Member Bernie Divona, the Mayor (at the time) Linda Jackson, and City of Vaughan staff such as Chief Engineer William Robinson, Leo Grellette, the Chief Building Officer, and the City of Vaughan Manager Mr. DeAngelis, Ms. Liddy raised concerns about the construction, the grading changes on the Mauro Property, and the flow of the water from their property onto hers. Ms. Liddy also complained that the Mauros should not be cutting behind the ravine, that they should not be raising their property without the proper permits, and that the construction on the Mauros’ property should not be impacting her property in a negative manner.

[60] Ms. Liddy became especially concerned as she watched her neighbours excavate for a pool and bring in substantial construction equipment, including a back hoe to dig out the pool. She produced for the court’s consideration a complete dossier of photographs that she took depicting these activities. In an e-mail communication to Mr. Robinson dated October 5, 2007, Ms. Liddy complained about water draining onto her property, damage to grass, and water problems.

[61] Mr. Robinson attended at the property in response to that e-mail, though Ms. Liddy thought that the visit did not take place until August 2008. By that time, the Mauros had completed two accessory buildings, had built a retaining wall, and had raised the grading to the property behind the Mauros’ house upwards of two meters.

[62] Regarding the specific complaints related to water flow, Ms. Liddy said that she observed water flowing onto her property from the concrete staircase located on the north side of the Mauro Property. She also complained about a strip of timber near the common property line that appeared to be preventing the flow of water from the Mauro Property. She complained that the Mauros piled dirt above the timber and that over the years, every time it rained, the water would cause the dirt to flow onto her property, through various maple trees, and into her pool, rendering the pool unusable.

[63] Ms. Liddy described how at one point she put in a timber log, which she also described as a railway tie, hoping that this would stop the water from flowing onto her property. Referring to a photograph, she explained:

“But, as you can see, they just piled all the dirt on top. There’s 8 to 10 inches of dirt that’s piled right up on top, and the grade is like raised immediately beside our property. So what happened over the years is that, as it rained, every time it rained more than a drizzle, that dirt would come onto our property, down through the maple trees here, and flow with the water right down into the pool. So this is in 2007 and 2008, when they first filled these – filled the property right to the chain-link fence. And by 2015, that dirt was all gone and everything is in our pool. … we saw yesterday of the conduit running from the top to the bottom, when we saw that white conduit, that conduit in fact is at ground level, and they put all this dirt on top on the conduit. So, as the – as the dirt eroded into our pool – or was drained and washed into our pool, now you can see the conduit again.

[64] Ms. Liddy showed the court various pictures of the chain-linked fence which she installed in 1999 which follows the original grade of the property. She contrasted that to the Mauros’ wooden fence to show how much the Mauros’ Property was above her property. She said that her property remains graded to the levels when her house was built in 1999.

[65] With respect to the Mauros’ accessory buildings, Ms. Liddy provided the court with various pictures to show their height and their overhanging roofs. Since the buildings have no eaves, when it rains, the water from those roofs would fall onto the Liddy Property, pushing all of the loose dirt into her pool. Ms. Liddy also identified a north-front corner downspout connected to the ground weeping tile and explained that it too drained onto her property.

[66] Ms. Liddy also provided the court with a number of videos that were taken between April 2017 and July 2017. These videos show water flowing from the Mauro Property onto the Liddy Property at the common property line where the concrete stairs by the Mauros’ property meet the chain-linked fence. Some of these videos depict a violent rainstorm described by other as something close to a 100 year storm. In Ms. Liddy’s view, these videos show the erosion, as well as grooves and channels, all caused by the flow of water from the Mauro Property, as that water flows down the hill and spills into Ms. Liddy’s pool. The debris depicted in the videos is the debris that Ms. Liddy says is carried by the water flow coming from the Mauro Property.

[67] Ms. Liddy testified that after a rainfall, it would take upwards of three days to clean out the pool and bring the water back to the proper chemical balance. She also said that because of the muddy conditions in her backyard, her grandchildren cannot play there and cannot swim in the pool. In short, at the time of Ms. Liddy’s testimony, she and her family had not been able to use her backyard for over eight years.

[68] With respect to her own activities in her backyard, Ms. Liddy said that she installed a pool in 1999 and completed the landscaping at that time. She said that those improvements did not cause her any damages or water problems. She also said that she never had any drainage issues on her property prior to the Mauros’ construction. After their construction, in addition to all the problems with the dirt, Ms. Liddy explained that she saw the paving stones, the pool liner, the large landscaping stones and her patio sink, all because of the water flow from the Mauros. Ms. Liddy provided the court with numerous photos to illustrate the alleged effects of the water flow.

[69] Ms. Liddy testified that she hired a landscaping company to try to maintain the side of her pool. She said that every year since 2008, the landscaper would plant sod and seeds. In addition, on the locations of the hill where the water from the Mauros was causing erosion to occur, her landscaper, Richard Majkot, would put down layers of topsoil, new sod and new seed. But with every rainfall, she would see those efforts wash away as the water coming across from the Mauros washed away the soil, the grass, and other debris into her pool.

b) Genevieve Gee

[70] Genevieve Gee is Ms. Liddy’s daughter. She grew up at 36 Humberview Drive, and at the time of her testimony, she was living there. She confirmed Ms. Liddy’s evidence and described her own experiences in the backyard. She said that they have been the only family to live at this location. When the house was built, there was no landscaping.

[71] Mrs. Gee explained that she has always been the one who was responsible for cleaning the pool. She testified that she would sunbathe and read by the pool area and swim in the pool. She recalled a day when she put a towel down on the grass only to find that the ground was wet. She said that she attributed the water to the construction that was taking place next door. She also said that her children could not play in the side yard because it was wet all the time. She said that it was unusable because it was always muddy. Her children could not play soccer, kick a ball or play rugby.

[72] Mrs. Gee referred to a number of drawings to identify the locations that she said were rendered unusable by the various water-flow channels or paths. She said that on a number of occasions, she personally observed the water flowing across from the Mauro Property into her mother’s property. She marked three major spots on the Liddy Property that she said were affected by the water coming from the Mauros. She said that depending on the size of the rain storm, there would be anything from a “gush of water” to “a little bit of water”. When shown the videos that were taken in 2017, Mrs. Gee said that what was depicted in those videos were conditions that she observed on various occasions.

[73] Mrs. Gee could not recall when she first began to notice the water coming across the property line. She said that it had become a normal part of life, something like “background noise”. She confirmed that her mother hired a landscaper to place new sod in the affected areas.

[74] With respect to the cleaning of the pool, Mrs. Gee explained that ordinarily it would take her an hour to clean and balance the chemicals in the pool. However, on those occasions when dirt washed into the pool from the water flow, it could take her upwards of three days to clean and balance the chemicals. She explained that with all the dirt and debris that goes into the pool, the only way to clean the pool is to empty the water and refill it.

c) Almaliah Nadehjah

[75] At the time of her testimony, Ms. Nadehjah was employed by Enviro Masters Lawn Care. She was hired by the company as a seasonal worker to clean gardens, fix grass and flower beds, and put mulch. Ms. Liddy hired this company in 2009 to repair the water damage in her backyard. Ms. Nadehjah is the common-law partner of the owner of Enviro Masters Lawn Care, Mr. Richard Majkot. She also admitted to being a good friend of Ms. Liddy.

[76] Ms. Nadehjah testified that the first time she worked on the property was in 2009. She explained that there were visible signs of erosion at what she described as the “top of the hill”. She said that on her first visit, she saw the chain-link fence near the pool area and understood that to be the property line. Further up, she saw the stairs on the Mauro side, an iron fence, and the continuation of the property line to the front of the houses. She recalled being told that there were some issues that required minor repair work.

[77] Ms. Nadehjah described how she placed topsoil on the Liddy side of the property in the area opposite of the Mauro stairs. Specifically, she said that she put topsoil in the eroded area and compacted it with a hand roller. When she did that, she never looked at any slope on the Mauro side of the property. She could not remember any slope where she was sloping down the topsoil on the Liddy Property toward the Mauro Property. Nor could she recall sloping the topsoil downward towards the common property line. She admitted that nobody told her to slope the topsoil one way or another. In any event, she explained that sloping was not her job. She candidly admitted that she was not an expert in grading.

[78] Ms. Nadehjah described how she witnessed the water flow on the Liddy Property for the first time in June 2010. She said that in the spring of 2010, the ground was wetter than what she had seen in the previous year. She believed that the erosion was deeper. In response, she added more topsoil on the area, and this time, she planted sod. She described her job as requiring her “just to fix the erosion and nothing else”. Once again, she admitted that nobody gave her any instructions on grading the slope on the Liddy side toward the common property line, nor did she try to create a slope in a “V” shape toward the common property line.

[79] Ms. Nadehjah explained that in 2011, the erosion on the top of the hill was still there. She described it as being even deeper than the past years. Her response was to add more topsoil and sod. She noticed a “V” shape in the ground and filled it with topsoil to level it off. Near the common property line, she added in more dirt and sod and compacted it with a roller. As in the previous years, her main concern was to make sure that the Liddy Property was level. She focused her efforts on the area of the stairs and a little bit down from where the cedars were planted.

[80] Ms. Nadehjah testified that in 2015, she stripped away the dead grass from the entire hill and replaced it with new sod. As in previous years, she did not look to create a “V”, slant or slope anywhere on the Liddy Property, especially within two feet of the property line.

[81] Ms. Nadehjah also said that in 2009, she put mulch around the cedar trees. In 2011, she added mulch around the maple trees. The timbers that were originally visible near the back of the fence were covered with dirt, and by 2010, they were no longer visible. She agreed that the timbers were removed in 2017 because they had rotted. Ms. Nadehjah recalled seeing them when they were removed from the ground.

[82] Commenting on a photo taken in 2014 showing a wooden fence and a garden, Ms. Nadehjah confirmed that every spring from 2011 to 2017, she would fill the entire area from the chain-link fence up to the maple trees with mulch. The purpose of the mulch was to keep the area flat.

[83] Ms. Nadehjah described how in 2017, she noticed a channel in the area of the chain-link fence. She went between the cedar trees and the last maple tree to have a look behind the wooden fence. There she saw water coming across from the Mauro Property onto the Liddy Property. Although she remained on the Liddy side of the property, she said that she could see a garden and could see a slope, but she did not know the direction of the slope. She focused on the water coming across and determined that this is what was causing the erosion. She responded by adding mulch and raking it nicely to level it out. Once again, she confirmed that she did not grade or do any sloping on the Liddy side towards the common property line. She reiterated that nobody ever instructed her to grade anything.

[84] The following exchange in cross-examination illustrates Ms. Nadehjah’s approach to addressing the erosion on the Liddy Property:

Q. … You don’t remember how you graded [the hill], whether it had a slope or not?

A. I don’t grade.

Q. You don’t recall whether there’s any slope or not?

A. I don’t Sir, recall.

Q. Okay. Nobody told you to slope it one way or another?

A. No Sir. It’s not my job.

Q. And just to clarify, Because I want to be fair to you, Ma’am, if we were looking at a distance, let’s say two feet from that fence, you never sloped it on the Liddy side of the property, a downward slope toward the middle – toward the common property line, you never did that, Ma’am?

A. Never, Sir

Q. Thank you. In 2010, I think you said that there was more – there was more grassy area than – when you went back you saw more erosion there, do you recall that?

A. More erosion, probably the spring was more wet, and the erosion was deep, so let me clarify the erosion was deep.

Q. And what you did again was the same thing, you got some more topsoil, this time I think you said you planted sod …

A. Yes.

Q. …and you planted that on the Liddy side?

A. Correct.

Q. And that …

A. And this year, I got more should I say something or – because I get more concern, I was trying to see how I can do best my job, that’s why I was looking for a rainy period, so I can go and really see how and from where and if anything can be done in 2010. But they told me that that’s my job, just to fix the erosion, and nothing else.

Q. Right. And what you did was the same thing, you put topsoil, levelled it out, same thing Ma’am in 2010?

A. Correct.

Q. Same thing in terms of as far – nobody gave you any grading instructions?

A. Nobody.

Q. And the same thing, you never within two feet of the property line on the Liddy side – Liddy side, you never sloped it on a downward V toward the Mauro property.

A. Never, Sir. How I can slope it, I have to take the soil out, I don’t understand your question. Because if I have to slope it, I have to remove the dirt not put dirt.

Q. Right. So you …

A. So, I put dirt. I didn’t took the dirt out, Sir. So I don’t understand how I can slope it.

Q. Ma’am, I [am] not suggesting you should do anything, I just want to confirm what you did or not.

A. Okay.

Q. The point is, and I’ll just clarify, because I want to be fair to you. And if you don’t understand the question Ma’am, ask me and I’ll try and rephrase it. You never tried to – If I can sort of give you a V, you know what a V looks like.

A. Yes.

Q. On the Liddy side, you never tried to slope it like a V toward the common fence line.

A. No Sir.

[85] Speaking about the water that she saw over the years of her involvement with the Liddy Property, Ms. Nadehjah described how in June 2010, she saw water entering the Liddy Property from the top corner of the Mauro Property. She then saw the water travel across the bottom of the patio and pool, just above Ms. Liddy’s swimming pool, and cause a puddle. She witnessed similar instances in 2015, 2016 and 2017. Ms. Nadehjah marked certain photos and explained that she took the various videos in 2017 showing the water channels, the flow of the water during a torrential storm, the erosion, and the puddling.

[86] In Ms. Nadehjah’s view, she concluded that the swimming pool at the bottom of Ms. Liddy’s property was sinking because of the water that was coming across the Mauro Property. She also said that the water flow carried the mulch under the maple trees and onto the Liddy Property. In her view, the ground was always muddy and unsafe to use.

d) Richard Majkot

[87] At the time of his testimony, Richard Majkot was the owner of Enviro Masters Lawn Care, a franchise that he owned for ten years, since 2000. He then renamed the company Echo Lawn Care. Prior to that, he was an executive director of a professional management association with the City of Toronto. He explained that the non-union management employees of the City of Toronto formed an association and asked him to advocate on their behalf. He held that position simultaneously with the running of his landscape business.

[88] I note that initially Ms. Liddy intended to have Mr. Majkot testify as an expert. This resulted in a number of objections. Although there were discussions among counsel about a motion to seek the inclusion of certain letters, the motion was never brought before me and the parties reached an agreement that Mr. Majkot would limit his testimony to his personal involvement with the Liddy Property.

[89] Mr. Majkot’s evidence corroborated much of Ms. Nadehjah’s evidence. He described how he first attended the Liddy Property in 2008. He tried to address the erosion that he saw on the south side of Ms. Liddy’s property, and more particularly between 36 and 26 Humberview Drive, by adding topsoil and re-seeding, but that did not take. He determined that the erosion he observed on the Liddy Property was caused by the water run-off coming from the Mauro Property.

[90] In 2010, Mr. Majkot said that he added mulch and fertilizer and put down grass seed and topsoil. He repeated that in 2013, but added sod as well. In 2014, he added sod, mulch, shrubs, topsoil and did some over-seeding in the affected areas. He also staked the trees and added topsoil and mulch. In 2015, he added sod and mulch, and replaced some shrubs, plants, and topsoil. In 2017, once again, he added grass seed, topsoil and fertilizer, and removed some rotten wood barriers. He denied that the removal of the timbers resulted from his reading of the Defendant reports that indicated that something was blocking the water flow between the two properties. Although he could not recall if he recommended planting trees to address the water flow issues, he said that he had nothing to do with the cedar trees that were planted in 2018.

[91] Mr. Majkot estimated that he charged Ms. Liddy a total of $32,000 between 2008 and 2017 for “[r]epairs to damaged lawn extra to regular program work”. He produced copies of nine invoices. He said that he had yet to be paid for that work. He also said that he actually invoiced Ms. Liddy at the end of 2017, though he had advised her of the costs over the course of the years. In response to question and concerns over the invoices, Mr. Majkot said that he prepared the invoices for two purposes: as an estimate and as a bill. He could not recall when he prepared the invoices that he produced. He said that he did not do any work on Ms. Liddy’s property after 2017 and did not know about the new cedar trees that were planted in 2018.

[92] Mr. Majkot admitted that he was neither an arborist nor an engineer. He also admitted that he was not familiar with either the AutoCAD program that software engineers or architects use for the water drip program.

e) Andrew Ip

[93] Ms. Liddy called Mr. Ip of Masongsong Associates Engineering Limited (“MAEL”) to give expert testimony on the water problem. He was admitted by the court as an expert engineer who was qualified to testify on municipal engineering, land development engineering, and development processes, including grading and storm water management and lot grading inspection.

[94] Mr. Ip prepared two expert reports which were also tendered into evidence. The reports were dated November 14 and 22, 2017. In his report, he described his task as follows:

Masongsong Associates Engineering Limited (MAEL) was retained in early 2015 by Mrs. Carolyn Liddy, the owner of 36 Humberview Drive, more particularly described as Lot 22, Plan 65M‐ 2812 in the City of Vaughan (the subject site).

Our engagement was to investigate the grading and drainage conditions between the subject site (36 Humberview ‐ Liddy Property) and the adjacent 26 Humberview Drive (Mauro Property), specifically as it relates to adjustments made to the original condition of the two properties. As part of our investigation, and in addition to the reports prepared by our firm, we have also reviewed the following documents and engineering reports:

(a) Memorandum from Fabian Papa & Partners, September 7, 2016, by Mr. Paolo Albanese, P.Eng, revised June 23, 2017.

(b) Topographic Survey, June 21, 2017, by Schaeffer Dzaldov Bennett Ltd.

(c) Topographic Survey, June 2017, by Guido Pappa Surveying.

(d) Letter Report from IBI Group, revised July 12, 2017, by Mr. John Perks, P.Eng

(e) Supplementary Affidavit of Documents, June 2017, compiled by the City of Vaughan

(f) Answers to undertakings brief dated September 25, 2017 regarding Ben Pucci July 26, 2017 examination on behalf of the City of Vaughan

(g) Second Supplementary Affidavit of Document, dated October 17, 2017, compiled by the City of Vaughan together with brief of Exhibits from the examination of Frank Suppa, on behalf of the City held October 30, 2017.

(h) Examination of Gino Mauro dated July 26, 2017 (Pages 26 – 28)

(i) Examination of Bill Robinson dated October 19, 2017 (Pages 36‐ 46)

(j) Liddy Photo and Video Dossier

(k) Colour photos from City property filed delivered under cover of letter by City lawyer dated November 1, 2017

[95] Mr. Ip confirmed his obligation to provide an independent opinion by maintaining professional objectivity and to provide impartial evidence on matters of his firm’s collective areas of expertise.

[96] At the outset of his evidence-in-chief, Mr. Ip described his bottom-line conclusion as follows:

A. Your Honour, if I could summarize, essentially it boils down to drainage from one property or – or alterations of one property is causing drainage issues to affect another property. I think the entire issue at hand can be summarized that way. Whether there’s technical arguments, legal arguments, whatever arguments, there’s a simple fact that drainage from one property is affecting another property.

[97] Mr. Ip went on to explain that he reviewed the drainage pattern of the lots to understand how the lots came to be created and review the general intent of the underlying subdivision design. With that as a base line, he could then assess whether the existing drainage conditions met or conformed with what was intended.

[98] Speaking only about the Mauro Property, Mr. Ip concluded that it was clearly obvious from his site observations that the existing grading of the Mauro Property did not conform with what was originally approved. He also concluded that the alterations to the Mauro Property caused some of the drainage problems to the Liddy Property. On his attendance on a rainy day, he testified that there were “two very specific spots where drainage was clearly being diverted, deflected, diverted from the Mauro property crossing the lot line into the Liddy property.”

[99] Mr. Ip described his observation of a swale starting at the lot line and said that it was obvious to him that it was caused by erosion. He defined a swale as a slight indentation in the ground that carries water. He described the grass being eroded and further stated that “the soil has been eroded coming from the Mauros stairs, the side of the stairs through the Liddy yard.” He went on to explain that the water intersected the lot line as it moved from the Mauro Property to the Liddy Property. Mr. Ip notated that description on the Guido Papa Survey with a red sharpie line. He said that he personally observed the indentation on the ground.

[100] Mr. Ip also spoke about a concrete curb on the Mauro Property that was not identified on the Guido Papa Survey. He marked its location, also with a red mark, and explained that the curb likely caused the water flow from the Mauro Property to deflect onto the Liddy Property. He clarified that he did not actually see the water deflecting in that manner, but said that it had to be the case as there was nowhere else for the water to go.

[101] Mr. Ip also testified that he did not see a two-foot undisturbed area between the two subject properties as municipalities require. He said that the two-foot strip should remain undisturbed to avoid problems with grading. He went on to express concern over the river rock, stone, and the concrete stairs that were in that two-foot limit on the Mauro side. Mr. Ip described how he lifted the river rock and saw that the ground was flat, packed, and impermeable. As a result of that condition, Mr. Ip explained that, “the run-off doesn’t have an opportunity to form, or run off, or be contained within a drainage system along the property line, but instead, it just simply runs of(f) by where nature finds the least resistance. And in this case, nature found the least resistance to be this swale that runs off into the Liddy property … this is not a proper drainage condition”.

[102] With respect to the stairs, Mr. Ip expressed concern that they were made out of concrete and were impermeable, thus causing the water to run off across the property line.

[103] Mr. Ip seemed to identify an area where he said that there was no swale or gully on the Mauro Property. He also identified a “localized hump” on the Guido Papa Survey that would deflect water from the Mauro Property to the Liddy Property. He explained that the elevation point on the Mauro Property was higher than the elevation point on the Liddy Property, with no intermediate point being lower than the two other points. Having regard for the fact that water will flow from the high point to the low point, he explained that without an intervening lower point, the water flowed from the Mauros’ high point across to the Liddy’s low point.

[104] As Mr. Ip discussed this particular issue, even though he was not qualified as an expert surveyor, he said that not everything he observed in his visits was depicted in the various surveys before the court.

[105] Mr. Ip identified another water intersection by the Mauros’ new structures. He described a curb, a planting bed, and a circular staircase to situate the location. In this overall area, he noted that the planting bed was graded flush with the receiving grade of the Liddy Property. He said that he did not see an intercepting swale, ditch or cut-off drainage system along the property line. He said that essentially, there was grading towards the Liddy Property, with nothing intercepting the drainage. He described it as a continuous sheeted grading area. He elaborated that there was no “cut-off swale” and no “cut-off drainage system”.

[106] Mr. Ip also spoke extensively about a curb on the side of one of the accessory buildings on the Mauro Property to indicate one more location where the water was deflecting across and onto the Liddy Property. He spent a fair bit of his testimony on this curb and said that this was a serious concern. He explained that the curb clearly blocked the drainage path that one would expect to find. He noted the chain-link fence by the curb as well as accumulated debris that was transported and trapped by the water flow. Mr. Ip recommended the removal of the curb.

[107] With respect to the accessory buildings on the Mauro Property, Mr. Ip found that they did not have any eaves. Water just sheeted off the drains and onto the Liddy’s Property.

[108] Mr. Ip was asked in chief about his opinion as to who was causing the drainage deficiency. His response is best captured in the following exchange:

Mr. Streisfield: Do you have an opinion as to who caused this drainage deficiency, or what caused this drainage deficiency?

A. I have an opinion on what is causing it and not who is causing it. The what is that there is an observable breach of drainage from one point on the Mauro side to an area on the Liddy side. So, the “what” is a flow path that originates from one property to another. Who caused it? That’s beyond my opinion.

Q. And do you have an opinion as to what is the cause of the breach that – the drainage?

A. The “what” is compounding of many factors, the lack of interceptor swale, the impervious concrete surface, the amount of flow coming off the roof and overflows. There’s some area around the corner – the front corner flowing down. The disturbance of the 600-millimetre strip. All these things combined are causing the “what”.

[109] Mr. Ip was asked to give an opinion as to how the water problems might be addressed and the associated costs. In a nutshell, his proposed solution amounted to turning back the clock and restoring the Mauro Property to its 1997 condition, prior to any of the construction. Specifically, in his report he concluded as follows:

Given the complexity of this restoration, including consideration for earthworks, hard and soft landscaping, potential relocation and reinstate of buildings, etc., together with permits and approvals, our best estimate is as follows:

1. Restore side yard to original conditions, meaning grassed swale with 2% slope toward rear of the house, matching grades as per original grading plan. This would include removal of all hard landscaping, concrete steps, etc. and reinstatement of sod in all areas. $45,000.

2. Remove retaining wall built west of lot 21, including fill placed behind wall in order to restore location to original conditions as per original grading plan. This would include removal of all hard landscaping, fencing, piping, and reinstatement of sod in all areas. Reinstatement of fence at correct grade elevation to be included. $100,000.

3. Remove and reinstate pool at approved grade elevation in accordance with original grading plan and pool permit. This would include removal of existing outbuildings, (cabana, hot tub gazebo, etc.) patio decking/stones, and hard/soft landscaping, and reinstatement of same at approved elevation. $350,000.

Approximate total cost: $495,000

[110] In cross-examination, Mr. Ip admitted that although there could be a range of solutions that could be explored, he agreed that the was not asked to develop any options and that it was only during his testimony that he said anything about options. For example, he suggested that both Ms. Liddy and Ms. Mauro could take specific measures to contain the water on their respective property without resorting to the swale. He went as far as to suggest that if each property turned to a self-contained drainage system, they might have better outcomes than a common swale, as intended by the Subdivision Agreement. Mr. Ip also explained that his retainer with Ms. Liddy was limited to identify the drainage problem and to give a suggestion on what it would take to bring the property back to its original permitted stage.

[111] During cross-examination, Mr. Ip made at least 16 very material admissions:

a. The Subdivision Agreement is silent on what activity may or may not be permitted within 600 millimetres of the property line.

b. The drainage anticipated for the properties is a split drainage such that the backyard and side yard is to drain towards the ravine.

c. The Subdivision Agreement anticipated a common swale on the property line, meaning that Mauro and Liddy had to have a common swale on the common property line. That means having a “V” at the property line with half of the “V” on the Mauro Property and the other half on the Liddy Property. It did not anticipate self-contained drainage systems for each property. Rather, the water from both properties ought to be directed towards the swale, or in other words towards the common property line.

d. With respect to the “V”, half of the “V” exists on the Mauro Property of the property line, but the other half of the “V” that ought to be on the Liddy Property does not exist. The specific admission on this very material point was as follows:

Q. The Mauro side the V’s there, it’s inclined toward the middle of the property – the property line, correct?

A. Correct.

Q. On the Liddy side, they’re supposed to have the same thing, there’s supposed to be dirt, sod, in a V shape on their side, do you agree with that, Sir?

A. That was the original intent, yes.

Q. Not the original intent, the requirement, you told us that, you testified for a few days, right?

A. Yes.

Q. Do you agree with me that if we look at this, that’s not there on the Liddy side, she does not have the V on her – her half of the V, agreed?

A. Correct.

e. The ultimate drainage intent of the Subdivision Agreement was for the water from both properties to push off into the ravine at the back of both properties.

f. As long as the Mauros complied with that intent, there would be no problem with putting in a pool or other structures in their backyard;

g. Although the entire boundary between the Mauro Property and the Liddy Property ought to have been maintained on a three-to-one slope, Mr. Ip conceded that the three-to-one condition no longer existed on the Liddy side of the boundary even though he observed some depression in the landscaping.

h. The Mauro Property has a lot grading certification. Mr. Ip could not find a lot of grading certification for the Liddy Property.

i. The Liddy pool cuts into the three-to-one slope and its location is not in accordance with the plot plan for the Liddy Property, resulting in the altering of the plot plan.

j. With reference to the plot plan for the Liddy Property that was marked in the evidence as Exhibit 46, Mr. Ip examined the variations to the “top of the slope” references and agreed that the grading was changed in that location.

k. There was extensive landscaping that was undertaken on the Liddy Property. Mr. Ip agreed that such extensive landscaping “could affect obviously the drainage patterns”.

l. By changing the grading in a particular area of the backyard, Mr. Ip confirmed that Ms. Liddy did not comply with the 600 millimetre obligation to keep it free and clear of any obstructions. Later in the cross-examination, Mr. Ip situated the landscaping on the Liddy Property within 600 millimetres of the property line and said that landscaping would have impacted Ms. Liddy’s half of the swale.

m. Mr. Ip also admitted that Ms. Liddy put timber on her half of the “V” which was not good. He explained that the timber installation altered the swale and affected its operation. The timber was in addition to the landscaping.

n. The water on the Mauro Property drains towards the property line and that is what it is supposed to do.

o. On the Liddy Property, although the original plot plan had a slope such that the water would run onto the Mauro Property, in the current condition, there was no slope. Rather, the ground was described as being flat. At a later point in the cross-examination in his discussion of the side yard slope of Ms. Liddy’s property, Mr. Ip admitted to the following:

Q. So, just so we can – this is the Liddy side yard?

A. Correct.

Q. Correct. That according to the plot plan – according to the plot, plan, it should have been – it should have been sloped toward the Mauro property?

A. Correct.

Q. Correct, Sir?

A. Correct.

Q. The – in fact, the actual slope is the reverse, it’s flowing toward the Liddy property, correct?

A. Correct.

And later in his cross-examination, Mr. Ip agreed to the following with respect to the condition of Ms. Liddy’s property:

Q. Mr. Perks also said, “It’s also a standard to typically have side yard swales along the property lines to collect and direct storm run-off from the Lot.” You agree with that too?

A. I agree.

Q. And you’d agree, Sir, that the problem for Ms. Liddy is that she’s not allowed for the second condition, and there is no good side yard drainage to her swale, she obstructed it, that?

A. On her side, yes.

p. With respect to the use of river rock, Mr. Ip agreed that this is great material to slow down the water flow.

f) Michael Mannett

[112] Michael Mannett is a Land Use Planning Consultant. He described his activities as involving the preparation and submission of applications through the land use planning approvals process. Although he is not an engineer or an architect, his job requires him to understand engineering, architectural and urban designs, land formations, zoning by-laws and other regional, municipal and provincial regulations, as well as local official plans and secondary policies. He explained further that he could address how applications are supposed to work and can review draft plans of subdivisions and the implementation of planning documents. He agreed that although he had a degree in Environmental Studies from the University of Waterloo, he was neither an engineer nor a municipal inspector. He agreed that he does not prepare drainage reports, though he said that he may review them and provide input. Although there were substantial concerns over his qualifications and the specific topics he would be asked to address, he was ultimately qualified by the court to give evidence on the subjects of drainage, grading, and storm water observations.

[113] In his evidence, Mr. Mannett said that he was retained in February 2017 to carry out aerial photography relating to land use planning. He was then retained to review the land use planning and development framework, including the approved planning instruments and other documents related to the grading and drainage between 36 and 26 Humberview Drive. Specifically, he was asked to give an opinion on whether there was a failure to adhere to the proper planning and development processes, practices and procedures by either or both the Mauros or the City of Vaughan. He was also asked to determine whether there was a planning failure, and if so by whom, and what ought to be done. Finally, he was asked to address the specific complaint by Ms. Liddy that alterations to the grading and drainage on the Mauro Property resulted in damages to the Liddy Property and the loss of use of Ms. Liddy’s backyard.

[114] On his site visits to both properties, Mr. Mannett said he observed the site conditions, land uses, and land use activities that occurred or were occurring. He said that he observed the result of storm water drainage issues on the site and erosion on the boundary area. He attributed the erosion to the problems with the drainage.

[115] Specifically, with respect to the erosion on the Liddy Property, he situated it immediately adjacent to the Mauros’ rear yard and by certain trees. Mr. Mannett identified the specific location on certain photos. With respect to the erosion, he described an erosion pattern that consisted of rivulets or little indents in the soil, formed by the washing away of the topsoil. Although on his visits there was no active drainage running along the slope, from the location of the erosion, he concluded that there would have been water run-off in an area that flowed from the side yard and back, towards the rear and into the pool. He described that as a drainage occurrence.

[116] Mr. Mannett went on to explain that to understand what had occurred on the two properties, he reviewed the history of the development using the approval of the subdivision as a starting point. That review included the applicable planning policy and regulation documents, the official plan policies, and the zoning by-laws. Based on the combination of this paper review and his observations on the ground, Mr. Mannett said that he came to two conclusions, one relating to the Mauros’ actions and the other to the planning process. Specifically, he concluded that the Mauros failed to “properly apply for matters that required applications, and in fact, much of the Mauros’ dealing with the process was an after-the fact approval, after things were constructed, then they requested relief from not having approvals for things that required approvals”.

[117] With respect to the failures by the City of Vaughan, Mr. Mannett recognized that, “they did not enforce their own rules and regulations and provided in some cases approvals after the fact for matters which should not have been approved. And in my view, that’s a failure in the land use development and approval process.” Mr. Mannett expanded on this view at some length, but given Ms. Liddy’s withdrawal of the claims against the Vaughan Defendants, there is no need for me to summarize the evidence related to those issues.

[118] In cross-examination, Mr. Mannett admitted that although he reviewed the history of the development activities for the Mauro Property, he did not do the same for the Liddy Property. Specifically, he did not review the process and application for the construction of Ms. Liddy’s pool in 1999.

EVIDENCE OF THE CITY OF VAUGHAN

[119] The evidence given by the witnesses for the Vaughan Defendants was focused on the claims against them. Some of those witnesses touched on the subjects of grading, drainage, swales, and where applicable, their specific observations of the two properties in question and the conditions around the property line. My review of that evidence is limited to the evidence touching on Ms. Liddy’s claim against Ms. Mauro.

a) Frank Suppa

[120] Mr. Suppa was employed in the Department of Engineering as the Manager of Inspections and Grading for the City of Vaughan. He gave the court an overview of what is typically contained in Subdivision Agreements.

[121] Speaking about the Subdivision Agreement for 26 and 36 Humberview Drive, he referred to the Lot Grading Plan that was prepared by Marshall Macklin Monaghan. He explained that when they review the proposed grading, they evaluate the proposal to the City of Vaughan’s lot grading criteria. The City of Vaughan’s objective is to maintain the grade as close to nature as is possible. He went on to explain that once the subdivision is completed, the City of Vaughan will verify if the lot grading is in conformity with the original plans.

[122] In the particular case before the court, he confirmed that a lot grading certificate was issued for both the Liddy and the Mauro Properties.

[123] Mr. Suppa also explained that once the construction of the subdivision is completed, there will be services that are assumed by the City of Vaughan and others that are not. Lot grading is one of those services that is not assumed by the City of Vaughan. Instead, it is the responsibility of every individual homeowner to maintain the grade.

[124] In response to a question about what a swale is, Mr. Suppa described it as a means to convey water to an approved outlet. He said that swales can have various depths, ranging from six inches to just over a foot. He also said that swales may be as wide as one or two feet. He also explained that swales are typically located at the property line and specifically, the centre of the swale will be right on the property line. In cross-examination, Mr. Suppa said that the grade in the swale could not be too flat because that would cause the water to sit. He talked about requiring a minimum grade of two percent and a maximum of five percent relative to a flat grade.

[125] With respect to the drainage specifications of the two lots in question, Mr. Suppa confirmed that the lots exhibited split-lot drainage, meaning that part of the property drains to the front and the other part to the back. In this case, the Subdivision Agreement required the properties to be drained by the use of a common swale at the property line. He also said that homeowners should not interfere with the grade on the swale.

[126] In re-examination, Mr. Suppa agreed with the reference to a “V” shape to describe the swale, with half the swale on the Mauro Property and the other half on the Liddy Property. He also agreed that the centre of the swale and the lowest point of the swale, or the bottom tip of the “V”, would be at the common property line. He also agreed that for the common swale to operate, both neighbours would have to maintain their portion of the “V” on their side.

[127] Mr. Suppa was also asked to explain the process involved in the construction of a pool. He explained that an interested party will submit a drawing for approval. That drawing is taken from the original siting such that the owner must work with the approved subdivision grading. In his review of the Mauros’ application for a pool permit, he said that the drawings showed the grades flowing away from the pool. There was also no change to the grade. In its review of the proposed drawing, Mr. Suppa explained that:

A From a lot grading perspective, our lot grading coordinators would have got the original siting for the property, looked at this plan, and just confirmed that the pool being constructed isn’t recommending changes to grade that would affect the properties adjacent to it.

[128] Mr. Suppa went on to explain that a pool permit application has two financial components to it: a fee for the review of the permit itself and a letter of credit in the sum of $2,000 to safeguard the City of Vaughan’s right of way in case of any damage. The letter of credit attaches to the pool enclosure agreement that the applicant enters into with the City of Vaughan. That agreement includes a clause that states: “no work shall be undertaken on the lands to interfere with the existing drainage”.

[129] Once the construction of the pool is complete, the applicant will ask for an inspection. The sooner the inspection is cleared and confirmation is obtained that the City of Vaughan’s right of way was not damaged, the sooner the $2,000 pursuant to the letter of credit will be re-paid to the applicant.

[130] Mr. Suppa also explained that in advance of the inspection, the inspector will verify the information in the AMANDA system, a building standards platform that records everything in relation to a property, including any grading complaints.

[131] In the Mauros’ case, Mr. Suppa explained that Mr. Iqbal Soomro came out to do the inspection, but found a deficiency in the lot grading. A few weeks later, Mr. Soomro re-attended the property, at which point Mr. Mauro had addressed the deficiencies.

[132] Mr. Suppa was asked to comment on the permeability of the Mauros’ stairs. He agreed that when compared to areas with grass, the stairs would be less permeable. Using concrete as the example, he also agreed that this would be an impermeable surface. He was also asked if Mr. Soomro or some other City of Vaughan inspector would have turned their mind to consider whether or not the construction on the Mauro Property would have changed the permeability of the site. Mr. Suppa said that Mr. Soomro would have looked at the entire lot to assure himself assure that there were no changes to the lot that would impact on the neighbouring property.

[133] When asked if the addition of impermeable features to the backyard would increase the water run-off, Mr. Suppa said that it could. He also explained that he could not be certain that the surface to the new construction in the Mauros’ backyard was impermeable because it would depend on the material used for the deck. If the material were a permeable paver, then there would be some permeability in the surface. He agreed that it would not be more permeable than grass.

[134] Mr. Suppa confirmed that the drawing submitted for the pool enclosure agreement did not indicate the construction of any accessory structures. He also agreed that the permit approval process would be impacted if the accessory structures were not indicated on the grading site plan drawing. Having said that, Mr. Suppa also confirmed that the construction of the accessory structures would require a different permit from the City of Vaughan’s Building and Zoning Department.

b) Iqbal Soomro

[135] At the time of his testimony, Mr. Soomro was a Lot Grading Co-ordinator for the City of Vaughan. He confirmed that he swore an affidavit in this matter in January 2018 because there had been a possibility that he might not be able to testify. He also confirmed that he reported to Mr. Suppa.

[136] With respect to this case, Mr. Soomro recalled that he was asked to undertake an inspection towards the end of the year in 2008. He could not recall why he did not undertake the inspection immediately. He thought it might have been because of the weather, but in any event, he attended at the Mauro Property in April 2009. When he attended for the inspection, he saw that the swale was not defined but very clearly. He also recalled that there were some leaves and debris in the swale and he asked Mr. Mauro to clean them. He was also concerned about the retaining wall but he realized that it was only for decorative purposes.

[137] Mr. Soomro then recalled that he went back for a second inspection six or seven weeks later. By then, his concern over what he thought was a retaining wall was resolved and he confirmed that there was no need for a separate certification. With respect to the swale, he said: “I saw they had rectified the swale gently and properly between two and five percent slope that the city requirement, and they have been clean so, water can pass slowly and gradually towards the back of the home.”

[138] Mr. Soomro took the court through a series of photos from his inspection on April 14, 2009, showing the leaves and debris in the swale. He then showed photos from the second inspection when the swale was free of any debris.

[139] Mr. Soomro was also asked if he saw any obstructions or structures within two feet of the lot boundary. He said that there was no solid structure such as a retaining wall within two feet of the boundary line. He also denied seeing any erosion at the boundary line, but also said that erosion might not be immediately visible. In any event, it would engage the attention of an “erosion and sedimentation control inspector”. He also made references to the AMANDA system and said that he could not recall seeing any complaints about grading.

[140] Finally, in cross-examination, Mr. Soomro explained that had he seen any obstruction within 600 millimetres or two feet from the boundary line, such that it blocked the swale, the property would not pass inspection. In this case, the property passed inspection.

c) Nev Cangiotti

[141] At the time of his testimony, Mr. Cangiotti was a Building Inspection Supervisor for the City of Vaughan. He confirmed that in the 1990s, he attended at the two properties that are the subject of this action when the homes were built.

[142] Mr. Cangiotti reviewed for the court the standard process that is engaged for the issuance of a building permit and the specific concerns that the Building Standards Department will review before the permit is issued. He also reviewed the inspections that follow as the construction gets underway. Mr. Cangiotti identified his own initials in relation to the inspections he undertook for the subject properties. With respect to lot grading, he explained that this would have been reviewed when the initial site plans were examined.

[143] With respect to the issuance of a final occupancy certificate, Mr. Cangiotti explained that such would be issued upon written request. In addition, three conditions had to be met:

1. Curbs and sidewalks, where required, have been installed to the satisfaction of the City Engineer;

2. A final lot certification has been completed and accepted by the Consulting Engineer; and

3. Other conditions such as noise attenuation requirements, fencing, etc. have been completed.

[144] In the case of 26 and 36 Humberview Drive, Mr. Cangiotti confirmed that Marshall Macklin Monaghan inspected and completed the lot grading and building elevations and found them to be in conformity with the approved grading and site plans.

[145] Mr. Cangiotti went on to explain that a building permit will be closed off when the Building Standards Department completes all inspections of a building to its satisfaction. The building has to be complete, without any defects or deficiencies on record or on file, and no further building inspections are required.

[146] With respect to the construction of pools, a homeowner would have to obtain a pool enclosure permit. He gave extensive evidence on the differences between a building permit and a pool enclosure permit and the specific particulars concerning the latter.

[147] On the subject of the AMANDA system, he described this as a database system that tracks all building permit applications and records pertaining to construction activity, applications, the owner’s information, approval processes, fees that have been paid, orders issued by the City of Vaughan, and various complaints.

[148] Mr. Cangiotti explained that his department handled grading issues until 2005. Thereafter, there was a change within the City of Vaughan and such issues were redirected to the Engineering Department. For assumed subdivisions after 2004, a person with a grading complaint would be told that there was no department within the City of Vaughan that could investigate it because there was no regulatory clause against which to consider the complaint. The complainant would be told that their complaint was a civil matter to be pursued in the courts if they wished.

[149] Mr. Cangiotti was asked to review the Mauros’ pool enclosure permit at some length. He was also asked to review another permit for the three accessory structures at the rear of this property. He described these two documents as going hand in hand. With respect to the building permit for the accessory buildings, Mr. Cangiotti acknowledged there was a revision to the original permit as well as a compliance order, but that ultimately, the construction anticipated by the permits was “satisfactorily completed and therefore, it’s a sign-off”.

[150] With respect to lot grading requirements that might attach to the permit for the accessory buildings, Mr. Cangiotti reviewed all the relevant documents, including the “permit bag”, and concluded that the permit for these particular structures did not require a lot grading design. Otherwise, the City of Vaughan would not have issued the permit.

[151] Mr. Cangiotti drew a distinction between stairs and steps. He explained that stairs are a building feature suspended in air that allows somebody to go from one floor level to another. In contrast to stairs, steps sit on grade. Stairs would require a building permit, whereas steps would not, because they are supported by nothing other than the ground and are therefore part of the ground. He confirmed that both of these permits were signed-off at the conclusion of the two construction projects.

[152] Finally, Mr. Cangiotti explained that if a building were constructed without a permit, there would be two possible remedies. One would be to remove the structure and the other would be to obtain a building permit.

d) Jeffrey Silcox-Childs

[153] Mr. Silcox-Childs swore an affidavit that was admitted into evidence. At the time of his testimony, he was working for the City of Waterloo. He started working for the City of Vaughan in 2003 as a Landscape Architect with the Parks Department. From 2005 to 2008, he was a Horticultural Supervisor in the Parks Services Department. From 2008 to 2015, he was the Manager of Parks Services.

[154] The subject of his affidavit concerned the inspection of some remedial landscaping work done by the Mauros along the Humber River Ravine at 26 Humberview Drive. He recalled that the work to be done required some planting of shrubs, seeding and other related work that was relatively minor in scope.

[155] Ms. Liddy did not cross-examine this witness on his evidence.

e) Dan Frank

[156] This witness swore an affidavit on November 20, 2018. He was a former Lot Grading Co-ordinator at the City of Vaughan. The essence of his evidence concerned fill requirements.

[157] He explained that in 2001, a compliance order regarding fill was issued to the Mauros. In 2007, the compliance order was cancelled when it was determined that the City of Vaughan did not have the jurisdiction to issue such an order. He explained that Ms. Mauro and Ms. Liddy would not have had to comply with the City of Vaughan’s by-law regarding fill because the rear yards were regulated by the TRCA.

[158] Mr. Frank also confirmed that he personally inspected the Mauros’ rear yard in August 2007. He was satisfied that the setbacks were in accordance with all the regulations and the plans.

[159] In his affidavit, Mr. Frank also talked about his inspection at 36 Humberview Drive, saying that he had no concerns with the grading for the pool. To have made that entry, he believed that a complaint would have originated from 26 Humberview Drive. He would have attended at 26 Humberview Drive to view the pool construction taking place at 36 Humberview Drive, and he would have spoken to the owners of 26 Humberview Drive to advise them that there was nothing of significant concern. Thereafter, the complaint was closed as “not valid”.

[160] Ms. Liddy had no questions of this witness.

f) Coreena Smith

[161] Ms. Smith was the acting Manager at the TRCA. The essence of her testimony was focused on her confirmation that there had been an outstanding violation by the Mauros, but that the file was subsequently closed. She also confirmed that there was a concern related to the construction of a retaining wall that was built without a permit from the TRCA. She also confirmed that the Mauros provided the TRCA documentation from a geotechnical engineer that indicted that the retaining wall did not pose any risk to life and property. The TRCA was content to treat this as an outstanding violation but it closed the file.

[162] Ms. Smith also confirmed that there were no issues related to the Mauros’ construction of the pool and that the Mauros obtained TRCA’s permission for the construction of the pool.

g) Michael DeAngelis

[163] Mr. DeAngelis was a former City Manager with the City of Vaughan, a position he held from 2003 until 2009 when he retired. He remained an advisor to the City Manager from September 2009 to January 2010. He recalled meeting Ms. Liddy in 2007 together with Mr. William Robinson who was the Commissioner of Engineering. The meeting concerned Ms. Liddy’s complaint over an access issue at the rear of 26 Humberview Drive.

[164] Mr. DeAngelis could not recall if Ms. Liddy was upset when they met. He recalled that she complained about her neighbour, but he had no recollection of the specifics. He also had no recollection of any complaints concerning drainage, grading or any loss of enjoyment. The only specific complaint related to the construction access behind the Mauro Property.

h) Michael Ridgwell

[165] As his evidence-in-chief, Mr. Ridgwell submitted an affidavit sworn on November 20, 2018 which was marked as Exhibit 60 at the trial. Mr. Ridgwell was one of the Vaughan Defendants who was dismissed from the litigation in February 2018.

[166] His affidavit was 201 pages. He explained that he was the Zoning Plans Examiner who reviewed the pool enclosure permit related to the Mauros’ pool. He found the pool setbacks and fence to be in compliance with all the requirements.

[167] Mr. Ridgwell reviewed in extensive detail all of the work he undertook in his review of the permit application. He explained how in his initial review, he found certain drawings to be non-compliant, especially in relation to the structures along the Liddy-Mauro Property line. The Mauros made the changes to bring their proposed structures and this complied with the zoning requirements. Mr. Ridgwell said that he was ultimately satisfied with the changes.

[168] Mr. Ridgwell also addressed the need for the Mauros to seek a minor variance from the requirements of the zoning by-law. He described the events that occurred before the Committee of Adjustments and he provided in his affidavit the details related to that experience.

[169] He explained that as the city staff person, he was tasked with reviewing the Mauros’ application to the Building Standards Committee Department – Zoning Section. He recalled attending at the Mauro Property sometime in September 2008 to take additional measurements to verify the setbacks and minor variances requested. That visit determined that the variances sought were representative of the actual site conditions.

[170] He said that at some point before the final hearing of the Mauro application, the zoning classification of the subject lands was revised and updated to reflect that part of the Mauro Property that was zoned to OS1 (Open Space Conservation) in addition to R1 (Residential).

[171] During the course of the review, the Mauros’ planner also discovered a zoning mapping error between the electronic and paper versions of the zoning maps. The ultimate conclusion was that the dividing zone line between the City of Vaughan’s OS1 and R1 zones along the rear of 26 Humberview Drive did not align exactly with the property boundary between the Mauro Property and the open space lands behind it that are owned by the City of Vaughan. This discrepancy was ultimately irrelevant to the measurement of the variances to the side-yard setbacks that the Mauros were seeking.

[172] A number of hearings followed the visit, and the final hearing took place on November 13, 2008. Mr. Ridgwell could not recall for certain, but he thought that the Committee may have invited him to discuss technical issues with respect to the zoning or mapping. In any event, the Committee approved the minor variance. Ms. Liddy appealed that decision to the OMB which ultimately approved the Mauros’ application.

[173] Mr. Ridgwell said that at all times he acted as an employee of the City of Vaughan and acted in good faith, performing his duties as requested. He expressly noted that ten years after the Committee of Adjustment rendered its decision, and nine years after Ms. Liddy commenced the lawsuit which included a claim against him personally that included a claim of intentional wrongdoing by him, Ms. Liddy consented to a dismissal order, dismiss.

[174] Counsel for the Vaughan defendants also advised the court that Mr. Ridgwell did everything he was asked to do to respond to Ms. Liddy’s claim, that he participated in discovery three times, and that as a officer of the court he felt compelled to advise the court that it had been an honour to represent Mr. Ridgewell. Ms. Liddy had no questions for Mr. Ridgwell and neither did the Mauros.

i) William Robinson

[175] Mr. Robinson was too ill to attend in court to testify. However, he did provide the court with his sworn answers to a series of questions that were asked by Ms. Liddy’s counsel in advance of the trial that recommenced in November. Through those answers, Mr. Robinson provided the court a very detailed account of all his efforts to address Ms. Liddy’s multiple communications and concerns.

j) The Balance of the City of Vaughan’s Witnesses

[176] At the conclusion of the evidence by the above-noted witnesses, the Vaughan Defendants and Ms. Liddy reached a settlement. That said, two of the remaining witnesses who were originally to be called by the City of Vaughan were assumed and called by the Mauros. Accordingly, it is only appropriate that I review the evidence of those two individuals, John Perks and Todd Coles, together with the evidence called by the Mauros.

EVIDENCE OF ANNA MAURO

a) Todd Coles (Originally to Be Called by the Vaughan Defendants)

[177] Mr. Coles was the City Clerk for the City of Vaughan at the time of his testimony. From 2007 to 2017, he was the Secretary Treasurer to the Committee of Adjustments and was directly involved in the process when the Mauros sought to obtain the minor variance. Mr. Coles described the process that the Committee of Adjustments follows generally and then specifically to the Mauro matter. In his evidence to the court, he included an affidavit sworn on November 20, 2018.

[178] In his affidavit, Mr. Coles described the history of the Committee of Adjustment Proceedings on the Mauro application. He explained that there was a lot of debate about the zoning line at the back of the Mauro Property. Ultimately, the Committee of Adjustment approved the minor variance, but only after its overall deliberations included a closed-door session to consider the submissions.

[179] That closed-door session became the source of a complaint by Ms. Liddy. In that session, Mr. Coles confirmed that Mr. Ridgwell did participate solely for the purpose of explaining the zoning of the property. Ms. Liddy’s complaint triggered an outside investigation by Amberly Gavel Ltd. That investigation did not invalidate the Committee’s decision, but a number of recommendations were made about how closed-door sessions ought to be conducted going forward. Mr. Coles went on to explain that he oversaw the implementation of those recommendations.

[180] In cross-examination, Mr. Coles confirmed that the accessory structures were already built when the Mauros sought the minor variance.

b) John Perks (Originally to be Called by the Vaughan Defendants)

[181] Mr. Perks was called to give expert evidence on grading, storm water management, and the storm water drainage issue at the property line of 26 and 36 Humberview Drive. He was also asked to consider remedies to the situation. He was qualified by the court as an expert on the subject of municipal engineering, land development engineering, and civil engineering as it relates to lot grading, storm water drainage, and lot management on the current conditions of the properties. He prepared three reports for this case dated July 12, November 14, and November 30, 2017. All three reports were tendered as evidence in this trial.

[182] Mr. Perks described his mandate as follows:

A Our mandate was to review the storm water drainage patterns of the lands in and around that common property line and determine any negative impacts or – or – yeah, impacts were resulting from the storm water drainage patterns in the area, and if there was some negative impacts observed or identified, and to come up with some remedial measures that would address those issues. As well – sorry, as well the – an estimate of sort of a ballpark cost of – of those measures.

[183] As part of his study of the problem, Mr. Perks explained that he attended at the Mauro and Liddy Properties to review the grounds for himself. He spoke to both the Mauros and Ms. Liddy to understand what it was that they were experiencing. He also took a number of photographs. He also said that he had surveyors attend to take topographic and elevation shots that he required to allow him to review the elevations and the drainage directions.

[184] Speaking of the overall grading and intent of the grading for a subdivision, he explained that at the time of the development design, a subdivision grading plan would be designed to show the overall grading and intent of the grading for the subdivision. Once a particular lot is sold to a homeowner or builder, a house is chosen for the lot and a detailed “plot plan” is prepared. That plot plan shows the location of the house on the lot as well as the detailed grading for the lot. It is then submitted to the municipality for review to ensure it is properly designed and that it generally conforms to the subdivision grading plan. Once it is deemed acceptable, the plot plan is approved and supports the issuance of a building permit.

[185] Speaking specifically about the lots for 26 and 36 Humberview Drive, Mr. Perks explained how he superimposed the plot plans developed for the two addresses on the subdivision plan to study the anticipated general drainage. He was asked about his conclusions on that review and explained the following:

Q. So when water falls in the two – in the side yards between these two properties 26 and 36 Humberview Drive, where is the water on each side of the property line designed to go?

A. It’s designed to go to the – towards the common property line and then once it reaches the common property lines to flow down that property line, again, if you’re at the high point it would, you know, to the rear of that high point, to the west of the high point it would flow along the property line to the – the western limit of the lot and into the ravine and from the – to the east of that high point, it would flow to the street along the common property line.

Q. Would – are there any other drainage design features of these lots that are important for drainage in subdivision drainage in – on these lots?

A. Not particularly. This is a very standard typical drainage pattern for a walkout style lot. You know, with side [yards] and - and even going into the lot, you know, it’s designed to – to – sort of fall – in a walkout situation, it’s designed for it to fall from the interior of the lot either to the back or to the front and also to the –the side property lines. To get, you know, it’s to get away from the house, to get it away from your backyard to a – a swale along the common property line.

[186] Mr. Perks elaborated extensively on the reasons for this conclusion. In his November 14, 2017 report, he noted that

It is good engineering practice, and a standard municipal requirement, that residential lots be made to sheet drain from the interior of the lot to the exterior, and especially away from the house. It is also a standard to typically have side yard swales along property lines to collect and direct storm runoff from the lot.

[187] Speaking of swales, Mr. Perks confirmed that a desirable swale depth is 250 millimetres, with a minimum depth of 150 millimetres (or six inches), and a maximum depth of 450 millimetres, having regard for location and safety considerations, with the center of the swale being on the property line. When asked if a depression on a survey in the range of two to three centimeters would amount to a swale, he agreed that it would be a swale but not a proper swale because it would not be deep enough to contain water. Regarding safety considerations, he explained that he was speaking of having some flexibility to allow for the settlement of the ground and other related variability.

[188] On the subject of the permeability of the ground as it relates to drainage, Mr. Perks explained:

A …. So the more impermeable a ground surface is, the more water run-off volume and – and speed, I guess you would encounter. So, it if it was a asphalt or a concrete surface the water has nowhere to go, but it can’t go down ‘cause it’s impervious and it will fall onto that surface and – and flow in the – steepest direction of the steepest slope of that surface. And if it was grass which is more permeable, it would soak into the ground if the soil permits. Now if it’s a clay subsoil then it’s not going to - that’s fairly impermeable as well so it’s not going to soak in, whereas if it’s sand it would soak away into the sand.

[189] With respect to the interplay between a catchment area, surface permeability and the conveying of storm water, Mr. Perks explained that the bigger the catchment area, the more it is exposed to the sky and to the rain, and accordingly, more water would fall into the catchment. To determine the flow rate, one would look at the intensity of the rainfall, the permeability of the soil, and the area. He defined this in terms of the formula “Q = CIA”, where “C” is the coefficient that expresses the permeability of the surface, “I” is the intensity of the rainfall, and “A” and “Q” are the flow rate.

[190] When asked specifically about his opinion on the causes or reasons that the water flows into the Liddy’s pool, Mr. Perks said the following:

A The – all the drainage that’s coming down the slope from between the two houses at 26 and 36 is as it should, it flows down the yards, it should be trapped into a side yard swale, but it – when it gets to the pool, especially in an intense rainfall, it – it escapes that side lot line, and goes around the end of a retaining wall that’s there, and discharges into the pool.

[191] Mr. Perks elaborated further on his observations and explained that at certain specific points along the side of 36 Humberview Drive, the swale was not defined. Rather, it was flat, falling away from the property line and into the interior of the yard. On the side of 26 Humberview Drive, Mr. Perks observed that instead of a slope, the shape of the ground was replaced with a retaining wall, resulting in the flattening of the side.

[192] Mr. Perks admitted that he did not visit the properties during any rainfall. However, he studied at some detailed length the videos of the rainfall that Ms. Liddy captured and submitted in her evidence. He came to the following conclusions:

A Well, the video evidence is very apparent, that there’s flow on the Liddy video. You can easily see the water running down the – down the – along the property line on the 36 Humberview Drive side, primarily. And as it hits that southeast corner of the pool, you can see it start to turn, probably primarily due to the trees and the mounding of the earth along that property line, and it’s directed into the pool. So I’ve seen that through the video evidence, and it’s corroborated by looking at the actual topographic survey, and the plan that we’ve been looking at that – that the grades there are very flat, and just tend to direct the flows that direction.

[193] In his report of November 14, 2017, Mr. Perks made the additional observations:

A It is also clear from the Liddy videos that the significant runoff is coming from between the houses on 26 and 36 Humberview Drive and that it is in fact the stormwater between the houses that is problematic – it does not appear that stormwater from the backyards westerly of the houses is causing issue.

Further, in one of the videos (IMG_2076), it is clearly evident that significant runoff is clearly originating from 36 Humberview Drive and discharging overland down the southern side of 36 Humberview Drive (See Plate 13). This supports the observation made of the roof drains in the previous points above discharging directly to grade and bypassing any intermediate receptor (e.g., stone trench, rain barrels, etc.). Again, this is not unexpected in a large storm event.

A It is evident from the Liddy Videos, as well as the topographical surveys, that while grading on portions of the 36 Humberview Drive property does direct stormwater runoff to the side yard areas (as is good practice), there is an area where the 36 Humberview Drive Property is flat and in fact drainage from the common lot line is directed into the area of 36 Humberview Drive’s swimming pool, especially in large storm events when flow depth is deeper. This is obviously problematic and not according to good engineering practice which would have stormwater contained and directed by a side yard swale to an appropriate outlet.

[194] During his testimony, Mr. Perks went into extensive detail on these observations. Speaking specifically to one of the video excerpts showing the July 17, 2017 storm event, which was played repeatedly in the courtroom, he said:

A …. Look there is a lot of water flowing down the yards here, it appears I’d say in the top of the picture, the flow of storm water coming from – from the north to – sort of going in a southerly direction towards the property line, the property line is in behind those trees on the right-hand side of the picture. So, you can see it’s heading in the correct direction at that point, then it comes down through the planting bed there, close to the property line, but, then at the bottom of the picture it comes away from the property line, and into around – you’ll see in the video, around the retaining wall and into the pool.

[195] With respect to certain mature trees in the Liddy Property, Mr. Perks said that they were certainly blocking the flow route along the property line, as did the planting beds, resulting in the water being diverted onto 36 Humberview Drive instead of continuing along the property line.

[196] Mr. Perks was asked to offer his views on how the water issue might be remedied for Ms. Liddy. For all the debris, leaves, mulch, and bark being carried by the water and into the pool, Mr. Perks said that one simple solution would be to extend the retaining wall close to Ms. Liddy’s pool and within her property, past the pool and the low point, so that the water could no longer flow from her yard into the pool. The extended retaining wall would divert the water back to the property line. He acknowledged that the ideal solution would be to remove all the trees along the property line, remove the planting bed, and create a low-point swale by the property line, instead of having it come into the yard. However, Mr. Perks recognized that that would mean losing the mature trees. It would be preferable to leave the trees and extend the retaining wall instead.

[197] With respect to remedies to be undertaken on the Mauro Property, Mr. Perks said that there were no remedies that were required. He disagreed that a restoration of the Mauro backyard to its original condition would do anything to solve the water problem on the Liddy Property because in his view, most of the water came from her own property, with much of it from the rooftop.

[198] With respect to Mr. Ip’s recommendation that the Mauros remove the pool from their property, Mr. Perks said that none of the water in Ms. Liddy’s property was coming from the Mauro Property’s pool area. He emphasized that neither the videos nor the grades showed such water movement. Instead, he explained that some of the water from the Mauros’ backyard drained into their pool and the rest drained westerly to the ravine. He noted some area drains beside the sheds to conclude that some of the water went into those drains and out of a pipe to the back.

[199] On the subject of the effects of the fill that the Mauros added in their backyard, Mr. Perks offered the following explanation:

A. They flattened out their backyard with a flat patio, there’s retaining walls along the edge of that, both at the west extremity where they’re fairly tall, and along the side – the side yard with Ms. Liddy.

Q. Now, what effect does this have on the side yard drainage towards the common property?

A. I would say it would reduce the amount of water going to the side yard, because it’s being elevated, and it’s flat – relatively flat from the north to south directions, and the slopes are more from east to west. And so, that’s the grading, and plus the curbs and the sheds and the buildings there would prevent any water coming off the patio and going towards the north, towards Ms. Liddy.

[200] With respect to the accessory buildings, which Mr. Perks described as sheds, he reiterated that their removal would have no effect because the grading around those structures was away from the sheds. He said:

A Right, the grading’s away from those sheds, so if the shed wasn’t there, I don’t think it’s – you know, you could argue that it’s blocking drainage off the patio, but the grades are away regardless, so I don’t think that would reduce or affect the flows at all. There would be some roof area potentially off the sheds that goes towards the common property line, so elimination of that, and replacing it with grass may reduce the amount of flow. But in those extreme storm events, there’s so much water coming down, the ground is saturated anyways, and it doesn’t have time to soak away, so it would just flow off regardless, so limited impact by the removal of the sheds.

[201] In a nutshell, Mr. Perks concluded that it was the flat areas on Ms. Liddy’s property that were the cause and means through which the water crossed into and flowed onto her property. The Mauro hardscape is not draining to the common property line, nor is it contributing to the water that is going to the property line and across onto Ms. Liddy’s property.

[202] Mr. Perks was cross-examined extensively by Ms. Liddy’s counsel about changes to the landscape, the grading and the effects of adding structures to the land. Mr. Perks explained that the grading could be altered as long as it did not compromise or otherwise change the grading and the drainage intent.

[203] Mr. Perks agreed that the Mauros had some stairs within the 600-millimetre space from the property line that should have been free of any obstacles. He also agreed that the rain would be directed away from the stairs towards the property line and said that this was the way it was supposed to work.

[204] Mr. Perks was asked to revisit the subject of swales. He explained that the swale should either be sod, or if there is a high rate of flow, one might use stone to stabilize it and avoid erosion. With respect to some leaves and debris that appeared in certain photos of the property line, Mr. Perks was asked if that might indicate water movement or drainage flow. Mr. Perks did not believe that to be the case. He doubted that the volume of water in that location would be that intense to account for the movement of the debris, having regard for a catchment area that appeared to be about four feet wide. He suggested that wind, water, or other reasons might explain the trapped leaves by the fence.

[205] Ultimately, Mr. Perks stated that he walked up and down the property line and said, “The Liddy side doesn’t have a swale, that’s the problem.” When challenged on that conclusion and asked to explain that answer in relation to the survey that showed a decrease in the numbers towards the property line suggestive of the existence of a swale, Mr. Perks had the following exchange with counsel:

A. Yes, you’re right. Like, a swale can be very defined, like you can have a flat backyard, then it can really slope down into the swale, and be very noticeable. Or, it can be less defined, so the property line would be the low point, and then you can have a gentle slope going perpendicularly away from - from the centre swale, going up into the interior of each yard. So, you know – sorry – so that would form the swale.

Q. So, it sounds to me like you’re saying there’s …

A. Yeah. So when I look at this plan, like if I look up between the houses, generally it is falling toward the common property line. So, I would say it’s not too bad there, but as you come down and go westward, you know, by the time you get to the where the first – the brick patio of the – what was it, the northwest corner of the Mauro house, again it’s still sort of coming to that. But after that, that’s when it starts to fail, especially on the Liddy side, because as you saw from the video, it starts to divert around the trees and the bed, and get directed into that pool on the – on the Liddy property. But on the Mauro property it’s – you can see from this photograph, you can see it generally sloping from the curb to the property line, so it’s sheet – it’s pushing the water towards the property line.

[206] Mr. Perks went on to say that the videos were truth-telling and captured exactly what was going on at the Mauro/Liddy property line. Although the water from the Liddy Property ran along the property line, as it should, it would fail at certain points. The water would then escape the swale because the ground at those failing spots was sloped into the lot and away from the common property line, instead of being the other way around. Stated differently, he said that there were points along the property line where the swale failed because it was one-sided on the Mauro side, but lost its bank on the Liddy side.

[207] Mr. Perks also situated the most significant failure in the swale at a point between the two concrete pads and before the brick patio. He observed that the accessory structures are situated after the failed swale area. In other words, he saw the water escaping at a point before it could get to the accessory structures. Accordingly, any water coming from the roofs of the accessory structures would be irrelevant to the water breach.

[208] Mr. Perks was asked about the eroded area on the Liddy Property. He agreed that with enough velocity to the flowing water, the water could take dirt with it and create fissures in the ground. He agreed that water had been flowing across that specific area and that generally it would be moving from right to left on the picture, or from east to west. When he reviewed the segment of the video showing this area, Mr. Perks agreed that some water was coming from the Mauro Property and some from the Liddy Property. But he reiterated that the original grading plan intended the water to move from the Mauro property towards the common property line. The video captured that intention.

[209] With respect to the river rocks in part of the swale, Mr. Perks disagreed that they would cause the water to deflect across the swale and onto the Liddy Property. Instead, he explained that engineers will often use river stone to protect against erosion. Regarding the specific point of the river rock breach, Mr. Perks repeated that the Liddy Property was too low and was not containing the water at the property line. He said:

A When – when I look at this video, I would say the Liddy property is too low and is not containing the water at the property line. The Mauros is – is directing – if you recall the plot plans that we looked at, that the water is supposed to sheet drain from the interior of the lot to the property line. And that’s what the Mauros’ water is doing here, it’s coming to the property line. The problem is – is the – the Liddys’ side is – is not directing water from or – or the grade from the interior of the lot to the property line, and that’s why the water is being diverted in here around trees, around planting beds, or whatever the case may be. It – it’s getting diverted into the lot, the – the Liddy side is not high enough to direct it and keep it at the property line.

[210] Mr. Perks rejected the suggestion that water moving from the interior of Ms. Liddy’s property towards the property line could not get there because it was blocked or overtaken by water coming the other way from the Mauro Property. He agreed that there were two paths of water that joined together and then continued down a path of least resistance, following the natural grading of the land. He disagreed that the water originating from the Mauro property intercepted the water channel originating from the Liddy property and vice versa.

[211] To illustrate his conclusion, he explained that if one were to block off the water coming from the Mauro Property, the water from the Liddy Property would follow the same route as seen on the video. Similarly, if the water from the Liddy Property were to be contained or blocked off, the water from the Mauro Property would still travel down the same path as seen on the video.

[212] Mr. Perks also reviewed the grading on the Liddy Property in the area of the erosion, and explained that the water from the Liddy Property could not find its way to the property line because that grading in that area was higher in elevation and blocked the water from reaching the property line. Having regard for the fact that water flows to the lowest location to get to the property line, it would have to travel over the high point to get to the property line.

[213] Counsel then asked Mr. Perks to consider the comparative velocity of the water streams. Mr. Perks appeared to agree that the water from the Mauros was moving at a higher velocity than the water from the Liddy Property because in Ms. Mauro’s case, the channel was shallow and the water was concentrated. In Ms. Liddy’s case, the water was fanned out and did not move as fast. He also appeared to agree that the higher velocity in water could cause erosion to the ground. However, with respect to the specific location, he could not tell if the erosion was caused by the water flow or by two grades coming together at that point and funnelling the water.

c) Gino Mauro

[214] Gino Mauro is the spouse of Anna Mauro, who is the registered owner of 26 Humberview Drive. He stated that he was the one who was engaged with the purchase of the sliver of land at the back of the house, the construction of the pool and the accessory structures, and all interactions with the City of Vaughan and the Committee of Adjustments related to those activities.

[215] Mr. Mauro confirmed that he understood that he could not impede or vary the drainage and the grading anticipated by the Subdivision Agreement. He explained that he bought the sliver of land at the back of his property because he wanted to increase the usable space in their backyard. Once he completed the purchase, he proceeded to build a retaining wall. He did not realize that he required a permit from the TRCA. Eventually he addressed the requirement. He then wanted to bring fill into his property. He contacted the City of Vaughan and the TRCA and was told that he required a road cut permit, which he obtained. He also obtained the permission of the TRCA to build the pool and produced the permit for the court’s review.

[216] Mr. Mauro reviewed the grading allowance and permission to alter it around the pool, but he said that he did not alter the drainage in the area of the property line. Mr. Mauro outlined in substantial detail the numerous inspections that were undertaken by the City of Vaughan as he proceeded with the construction of the accessory structures.

[217] Mr. Mauro said that he had not realized that Ms. Liddy was still feeling aggrieved by his purchase of the sliver of land. That purchase had no impact on Ms. Liddy’s property. He expressed his frustration that although they were not doing anything wrong, Ms. Liddy kept advancing complaints against them, one after the other. With respect to his application to the Committee of Adjustment for a minor variance, he said he had the support of all of the neighbours, with the exception of Ms. Liddy.

[218] On the subject of the swale at the property line, Mr. Mauro explained that he did everything he could to maintain it on his side of the property line. He said that he put in river rock because the grass was not growing. He also said that somebody told them that putting river rock would be better for the maintenance of the swale. The river rocks lie at a distance of 15 inches between the steps and the fence. The steps have been there since 1994 and the swale starts at those steps.

[219] Regarding the grading of his property, Mr. Mauro produced a letter dated March 12, 2009 that confirmed that his property was properly graded away from the two neighbouring properties. He agreed that he had down-spouts and explained that he set up an underground system that had the down-spouts go into the weeping tile, with the water then draining into the ravine.

[220] With respect to the water problem, Mr. Mauro said that he tried everything possible to solve it. In cross-examination, Mr. Mauro was asked if he was aware that as a result of the construction of his back patio, some of the water drained into his own pool. He acknowledged that he had some drainage issues and that there was some sinking around his own pool, but also said that he had channels that moved the water from around the property and towards the back.

[221] Mr. Mauro agreed that once he put in the accessory buildings and the pool, he eliminated the sod that existed previously. However, he explained that he matched the OMB requirements for hardscape. He said that he also had the accepted percentages for grading, both for the hardscape and the softscape. He also agreed that Mr. Soomro found debris in the swale during his inspection, but that Mr. Mauro cleaned it up and everything was fine. Mr. Mauro reiterated that the water from his property was moving into the swale and that the breaches to the swale were occurring on Ms. Liddy’s property.

d) Paolo Franco Albanese

[222] Mr. Albanese was retained by the Mauros to provide expert evidence on the subject of the water issue. He was qualified by the court to give expert evidence on municipal engineering, land development, civil engineering as it relates to lot grading, storm water management, lot drainage, and all of those items as they relate to the Ontario Building Code. His evidence included his three reports dated September 7, 2016, June 23, 2017, and November 13, 2017.

[223] Mr. Albanese explained that in subdivisions, it is common for the interior of any lot to drain to the common property line swale. Neighbours will have a “V”-shaped swale at the property line to allow for the drainage of the water.

[224] He explained that for a swale to operate properly, having regard for basic physics that water travels by gravity to the lowest elevation point, following the path of least resistance, the lowest point in the grading must be at the swale. Using a “V” as the descriptor for the swale, the lowest point of the “V” should be located on the property line to allow for the proper draining of the water to either side of the swale. Both sides of the “V” should be graded to allow the water to move to the lowest point of the swale.

[225] Mr. Albanese identified two principle problems with the terrain of the Liddy property that compromised the water drainage on that property. First, the water originating on the Liddy Property could not migrate to the common property line because many parts of the terrain were at levels that were lower than the lowest point of the swale, therefore causing the water to be trapped on that property. Second, there was no reciprocal “V” on the Liddy side of the common property line. He found instead that the swale was either flat, or in some instances lower that the lowest point of the swale, permitting the water in the swale to escape. Both these irregularities were caused by changes to the vegetation and the terrain on the Liddy Property.

[226] Mr. Albanese undertook a waterdrop assessment and confirmed that the vegetation elevations on the Liddy Property were blocking the water flow, such that the water diverted away from the common property line and onto the interior of the Liddy Property. In addition, Mr. Albanese compared his analysis to the various videos, including the video marked in the trial as Exhibit 10(g), which showed water crossing over from the Mauro Property to the Liddy Property. He concluded that the videos actually verified the AutoCAD Waterdrop Analysis. He explained that instead of the lowest point being at the common property line, it was located on the Liddy Property, and that was because of the vegetation, mulch, and topsoil.

[227] On his diagrams, Mr. Albanese showed how the vegetation on the Liddy Property, on the left side of Section AA, had an increased elevation outside of the swale of as much a 200 millimetres, or eight inches. On the left side closest to the patio, the downward slope towards the common property line was intercepted and blocked by humping caused by the vegetation, be that mulch or tree roots. Because of that higher elevation, the water cannot make its way to the swale located along the common property line.

[228] With reference to the video depicting the water breach, Mr. Albanese highlighted the location on the left side of a tree and noted that it was located at the exact drainage path or depression. Instead of following down the swale, the water spilled onto the Liddy Property. In his view, his visual conclusions were verified by his water analysis. He said specifically: “The common property line is not the lowest elevation on the lands, which it should be in order to direct drainage away from the dwellings, and this could have been caused by the vegetated landscape plantings along the property line with their raised mulch beds.”

[229] Mr. Albanese was asked to comment on Mr. Majkot’s evidence that when he worked on the hill and undertook the landscaping, Ms. Liddy never told him to slope the grading away from the house or the pool and move it to the swale that was at her property line. He responded that this would explain why the swale was no longer the lowest point between the two properties. He said that if the landscaper did not understand the intent of the drainage and was filling the swale with mulch, topsoil and other items that may be good from a vegetation perspective, but not from a drainage perspective, they could be causing the water problem.

[230] With respect to Ms. Nadehjah’s work on the property, Mr. Albanese concluded that by flattening and compacting the terrain with topsoil in certain low spots, Ms. Nadehjah filled in the “V” side of Ms. Liddy’s swale. Mr. Albanese could see that Ms. Nadehjah never sloped the terrain downward on the Liddy Property towards the property line. The flat contour lines that Mr. Albanese examined led him to conclude that the topsoil was dropped in large, wide areas in an effort to flatten the ground instead of sloping it down towards the common property line. He concluded that these efforts were very bad for the swale and inadvertently caused a negative drainage condition on Ms. Liddy’s property. As a result, the drainage was doing the opposite of what the original grading design was intended to do.

[231] Mr. Albanese took no issue with Mr. Mauros’ use of river rocks near the steps in the area of the swale. He said that sod would be an ideal material in that location, but he also acknowledged that sod typically did not grow between houses, either due to a lack of light or for other reasons. Mr. Albanese also did not believe that at about a half-meter wide, the area was wide enough to promote sod growth. He explained that from an engineering perspective, it was acceptable to use a granular material such as river rock, a washed, smooth stone, or riff-raff, that being a more angular stone typically seen on the sides of highways and in residential areas. That material would allow for drainage through the void of the stone and also protect the surface below from erosion.

[232] On the subject of the steps adjacent to the Mauro Property, Mr. Albanese said that they were deemed on-grade steps and would not require a building permit. In his examination of the steps, he concluded that they were constructed using standard and accepted construction engineering practices. In his view, when looking at the strip between the stairs and the property, he saw an area that could be used as the Mauro side of the drainage swale.

[233] Regarding the main roof downspouts to the Mauro Property, Mr. Albanese noted that they were connected to a solid pipe conveyance system with a sub-drain network that discharged to the rear ravine area of the property. He did not consider that this system contributed to the water problem because none of the roof drainage made its way to the surface or to the common property line.

[234] With respect to the accessory structures, Mr. Albanese noted that the drainage was sloped towards the Mauro Property so that the water could make its way either to the Mauro pool or into the rear yard area of that property. He demonstrated these findings on certain figures in his report of November 13, 2017.

[235] On the subject of the rainfall depicted in the video of July 7, 2017, Mr. Albanese noted that this was a very severe storm and very close to a 100-year storm event. He noted that the rainfall caused very severe problems to the infrastructure across the cities of Vaughan and Toronto that included the flooding of the Don Valley Parkway.

[236] Mr. Albanese also carried out various calculations regarding the water drainage. He concluded that the amount of surface storm water drainage directed to the common property line from the Mauro Property was very reasonable and did not contribute to any negative drainage impacts or significant run-off issues to the northerly Liddy Property.

[237] Finally, with respect to any steps that the Mauros could take to address the water problem, Mr. Albanese said that there was nothing that could be done on the Mauro Property to stop the water problems on the Liddy Property. He went as far as to say that even if the Mauros built a wall along the common property line, with six feet into the ground and six feet above the ground, it would not solve the water problem on the Liddy Property.

[238] To illustrate his point, he undertook certain water calculations. He concluded that there should be a total of 16 litres of water per second going to the property line. Three quarters of that came from the Liddy Property. The other quarter came from the Mauro Property. If a wall were constructed, the wall would keep away four litres of water per second, but there would still be about 11.5 litres of water per second flowing down Ms. Liddy’s property, washing mulch and soil into her pool instead of flowing to the approved outlet.

[239] Consistent with this analysis, Mr. Albanese conclude that the tributary drainage area for the Liddy Property was much larger than the Mauro Property and generated three times the flow of water from what the Mauro Property produced. As well, Mr. Albanese did not observe any negative impacts from water flow on the Mauro Property such as any erosion of sod or vegetated surface damage from any long-term continuous discharge.

e) Valerio Papa

[240] Valerio Papa provided evidence regarding the survey that he prepared for this matter. He was the only surveyor to testify. He was qualified as an expert in legal surveying, particularly the preparation of plans and surveys including topographical surveys. In his testimony, Mr. Papa confirmed that he prepared the June 1, 2017 survey that was entered into evidence. He also confirmed that the survey was prepared in accordance with generally accepted surveying methods. He explained that the survey depicted the physical features of the relevant portions of the properties known as 26 and 36 Humberview Drive.

POSITION OF THE PARTIES

a) Position of Carolyn Liddy

[241] Ms. Liddy submitted that she met her onus of proving on a balance of probabilities that Ms. Mauro’s negligent conduct caused the water from her property to travel across the common property line and onto Ms. Liddy’s property, causing her damages and significantly compromising the enjoyment of her property. She contended that the water run-off was either a nuisance or amounted to a trespass. In light of these submissions, Ms. Liddy said she is entitled to a restoration order and damages.

b) Position of Anna Mauro

[242] Ms. Mauro asked the court to dismiss the action in its entirety. She submitted that the water problems on Ms. Liddy’s property were caused by Ms. Liddy’s own actions. She further submitted that any water originating on the Mauro Property and moving towards the swale at the common property line is entirely consistent with the grading requirements. More specifically, the grading for both properties intended for the water to sheet-drain towards the back of their respective lots and towards the ravine. The lots were also intended to experience some side-yard drainage to a common swale running east-west.

[243] Ms. Mauro asked the court to accept the expert explanations that the reason that the water from the Mauro Property crossed into the Liddy Property was because Ms. Liddy altered her portion of the common swale by adding trees, plants, sod, mulch, and even timber, to the point that the swale could no longer function properly. She submitted that Ms. Liddy failed to act reasonably to mitigate or fix the water problem which she caused by her own destruction of her portion of the common swale. Finally, she described Ms. Liddy’s claims as exaggerated and scandalous and submits that the claims have really been a subset of Ms. Liddy’s ongoing battles with the City of Vaughan. She concluded that the Mauros and the Vaughan Defendants were all innocent bystanders who were caught in the middle of Ms. Liddy’s battles with the City of Vaughan.

LEGAL ISSUES

[244] Ms. Liddy’s claims against Ms. Mauro are framed in negligence, nuisance and trespass. She seeks general damages, punitive damages and injunctive relief. Her claims may be thought of in terms of the following questions:

1. On a balance of probabilities, “but for” the Mauros’ construction on their property, would Ms. Liddy encounter the water problems and damages she claims in her backyard?

2. Was Ms. Mauro negligent in the 2007 construction of the swimming pool and accessory buildings?

3. Is Ms. Mauro interfering with Ms. Liddy’s occupation or enjoyment of her property in a way that is substantial and unreasonable?

4. Has Ms. Liddy contributed to the water problems in her backyard?

5. Has Ms. Liddy mitigated her damages?

6. Is Ms. Liddy entitled to equitable relief?

7. Is Ms. Liddy’s claim against Ms. Mauro statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B?

8. Does Ms. Liddy’s claim against Ms. Mauro amount to an abuse of process?

ANALYSIS

[245] To answer these legal questions, I will first review the evidence before the court to make my various findings of fact. Those findings will permit me to answer each of the legal questions just outlined in the preceding paragraph. But before I take that step I will begin with my credibility assessment of the various witnesses.

Credibility and Reliability Assessments

[246] As much as this litigation has followed a tortured path and contained numerous claims, given Ms. Liddy’s withdrawal of all her claims against the Vaughan Defendants, my assessment of the various witnesses’ credibility and reliability shall be made with reference only to the water claim against Ms. Mauro. To the extent that I make any reference to the overall claim, I will only do so to situate the water claim in the full context of Ms. Liddy’s complaints. I have no intention of making any findings concerning the validity of the claims that were dismissed. To the extent that I make any comment, it is not to be interpreted to offer any validation whatsoever.

a) Carolyn Liddy

[247] Beginning with the Plaintiff, Ms. Liddy testified over the course of four and a half days. In my review of her testimony, I could see that her concerns with the water on her property caused her much distress and frustration. At the same time, I cannot ignore the fact that when I consider the water claim against the full context of the claims before the court when the trial first began, it was but a small subset of a host of complaints and claims that Ms. Liddy pursued against the Vaughan Defendants and the Mauros. Ms. Liddy took issue with the Mauros’ purchase of the sliver of land. She questioned the construction of the retaining wall following the purchase. Then she took issue with all of the construction activities that the Mauros began in 2007. The original claim against Ms. Mauro was for punitive damages of $50,000 and a mandatory injunction. The earliest that the water run-off claim took any substantial shape in the pleadings was with the amendment to the Statement of Claim in 2017 when Ms. Liddy added a claim for general damages in the sum of $500,000. In the course of the trial, she then gradually abandoned most of her claims against Ms. Mauro and all of the claims against the Vaughan Defendants.

[248] Against such a context, Ms. Liddy’s determination and persistence to find fault with anything the Mauros did on their property put into question the magnitude, if not the existence, of the water claim as well as her overall credibility. More seriously, her fixation on the Mauros’ activities as the cause for her own water woes clouded her ability to appreciate the effects of the uneven grading and the failing swale on her own property. It also compromised her overall ability to judge and evaluate the possibility that there could be other explanations for the water problems in her backyard. In short, Ms. Liddy’s pronounced denial and refusal to acknowledge even some difficulties on her property was both striking and suspect. It also became evident that her efforts to mitigate the alleged problems were limited and undertaken by individuals who lacked the requisite expertise to respond appropriately.

b) Genevieve Gee

[249] Ms. Gee testified in a matter of fact manner. Her evidence was clear and credible. Her contribution to this litigation was limited to her observations and use of the backyard, which I discuss below.

c) Gino Mauro

[250] Mr. Mauro testified in a forthright manner over the various challenges they encountered with Ms. Liddy’s complaints. He did not try to conceal the various challenges they encountered with the purchase of the sliver of land, the building and maintenance of the retaining wall, and the construction of the pool and the accessory structures.

[251] I was not impressed by the number of difficulties that Mr. Mauro encountered as he undertook his various home improvement projects. Particularly with reference to the construction of the retaining wall and accessory structures, it struck me that Mr. Mauro’s missteps and apparent unawareness of his obligations were rather curious and unusually frequent. He seemed to act first and seek forgiveness later. I can see how such behaviour could become a source of annoyance for others.

[252] That said, for my purposes, I am also unable to ignore the fact that somewhat ironically, Ms. Liddy’s incessant complaints triggered so many inspections by the City of Vaughan that by the time the Mauros completed the construction of their pool and accessory structures, there wasn’t anything left to inspect or to challenge. Mr. Mauro responded to the various inspections with diligence and patience. Ultimately, he obtained all of the requisite clearance certificates and approvals for his projects.

[253] Finally, Mr. Mauro’s credibility was enhanced very significantly by his continued willingness to address the specific issue of the swale, the river rocks and any possible solutions that might resolve Ms. Liddy’s complaints once and for all.

d) City of Vaughan Witnesses

[254] The City of Vaughan representatives and witnesses were all knowledgeable in their areas of expertise. They testified in a forthright and confident manner and enabled the court to understand all the various aspects of the Mauros’ activities. They were also thorough in explaining the process by which the various complaints by Ms. Liddy were managed and addressed.

e) Almaliah Nadehjah and Richard Majkot

[255] Ms. Nadehjah and Mr. Majkot were both candid in their responses, even if their admissions were all but fatal to Ms. Liddy’s case. They each described their involvement with the Liddy Property in a forthright manner. I have no doubt that they both were hoping to be helpful to Ms. Liddy, even if they did not demonstrate any awareness of just how much their activities would have altered the grading and drainage to Ms. Liddy’s detriment. This was especially true of Ms. Nadehjah who very candidly admitted to not having any appreciation of the grading requirements. If anything, their admissions demonstrated just how much they were out of their depth of knowledge when it came to caring for Ms. Liddy’s property.

f) Andrew Ip, John Perks, Paolo Albanese and Michael Mannett

[256] The experts were knowledgeable in their respective areas of expertise and satisfied their duty to the court. As among the experts, and specifically as among Mr. Ip, Mr. Albanese, and Mr. Perks, the differences in their evidence and conclusions were the result of the different terms of reference they were asked to address, rather than differences in their knowledge, credibility and reliability.

[257] With respect to Mr. Ip, I will begin by nothing that in my detailed review of his testimony, what became painfully obvious was that initially, he tried to avoid any admissions that might compromise Ms. Liddy’s claim. Fairly early in his cross-examination, Mr. Ip had to decide whether or not he would risk his professional obligations to the court in favour of Ms. Liddy’s claim. He initially tried to differentiate between his study of the “what” from a study of the “why” or the “who” as a way of avoiding answers that went directly to causation. He even tried to offer some ideas about remedial measures even though he was specifically not asked by Ms. Liddy to proffer such an opinion.

[258] Eventually, Mr. Ip’s willingness to make over 16 very significant admissions reflected his professionalism and his thorough appreciation of his obligations to the court, even if that meant that many of his admissions undermined Ms. Liddy’s views on the cause of the water problem.

[259] Turning to Messrs. Perks and Albanese, even with my recognition of the differences in the experts’ respective terms of reference, Mr. Albanese’s evidence was the most thorough and persuasive on the cause of the water problems. The coincidence between the videos showing the water-flows across the two properties and Mr. Albanese’s cross-section diagrams of the lot grading contained in his reports and which he referenced extensively in his oral testimony to illustrate his various observations and findings, verified the reliability of Mr. Albanese’s analysis and conclusions. That said, as will become evident below, the combination of Mr. Ip’s admissions and Ms. Nadehjah’s and Mr. Majkot’s evidence offered the court a complete answer to the cause of the water problems on Ms. Liddy’s property.

[260] With respect to Mr. Mannett’s evidence, his testimony was relevant to the claims against the City of Vaughan and not very helpful on the subject of drainage.

[261] As a final note on the credibility and reliability of the Defendants’ experts, I categorically reject the Plaintiff’s contention that Mr. Perks, and to a lesser extent Mr. Albanese, compromised their impartiality and acted as advocates for the Defendants. Their evidence was robust and supported by the corresponding studies. Most significantly, Mr. Perks and Mr. Albanese both withstood cross-examination and did not have any reason to recoil from their opinions. They were measured in their assessments and were prepared to discuss and engage with the questions that were put to them by Ms. Liddy and by the court. Ultimately, they were able to put any reservations or challenges in the appropriate context. Nothing in their evidence or in their approach to the questions that were put to them suggested any attempt to minimize the Mauros’ conduct and exaggerate Ms. Liddy’s conduct.

Findings of Fact

[262] With the benefit of my credibility findings, I turn to make my findings of fact, which will then enable me to answer the legal questions engaged by Ms. Liddy’s claim.

[263] To begin with, all parties agreed that the grading intent for the Mauro and the Liddy Properties was for the water to drain to the common property line. The implication of that acknowledgment is that both property owners must work together to ensure the proper operation of the swale at the common property line. Mr. Ip, Mr. Perks, and Mr. Albanese, as well as a number of the Vaughan Defendants all agreed with this characterization of the grading intent for these two properties and all properties in that subdivision.

[264] The same witnesses referred to a “V” to describe the swale that each neighbour has to maintain. They all agreed that each neighbour had to maintain their side of the “V”, with the lowest point of the grade situated at the bottom tip of the “V” and right on the property line.

[265] In my review of the videos, photographs, survey maps showing the grades at various points on the two properties, and grading cross-section diagrams prepared by Mr. Albanese, I find at least two clear breaches and possibly a third breach to the swale on the side of Ms. Liddy’s property. First, when water from the Mauro Property flows into the swale, as it should, instead of continuing to flow down the swale channel, the water spills out of the swale and continues onto the Liddy Property. Second, that flow joins up with the water coming from various sources on the Liddy Property and cumulatively, the water spills into Ms. Liddy’s pool.

[266] In short, there was no dispute that water escapes from the swale and onto the Liddy Property. To use Mr. Ip’s language, the “what”, being the water run-off was not in dispute. Everyone who testified and who reviewed the videos showing rainfall agreed that they saw the water escaping the swale. The real question is why the water that is originating at least in part from the Mauro Property is escaping the swale.

[267] On my review, at the two critical points where the swale fails, the grading evidence reveals that the grading on Ms. Liddy’s side of the “V” is lower than what the lowest “V” tip-point ought to be. As a result, the water escapes from the swale and travels onto Ms. Liddy’s property. If the swale were not flattened out in those two critical points, the water in the swale would not be escaping, but would continue to flow out to the ravine, as anticipated by the grading requirements for the property.

[268] The problem is compounded by the fact that the grading at certain critical locations on Ms. Liddy’s property is significantly higher than what it ought to be and what was originally anticipated by the grading designs. This means that water coming off Ms. Liddy’s property from various sources, which should be travelling diagonally towards the swale, fails to do so because it cannot get to the swale. Instead, it pools and eventually travels down the Liddy Property. The original grading intent has been compromised. As a result, at the point where the first swale breach occurs, the water escaping from the swale merges with the water from the Liddy Property and travels down in the direction of Ms. Liddy’s swimming pool. In contrast, the water from the Mauro Property is able to make its way to the swale, as it is supposed to.

[269] Mr. Ip’s admissions with respect to his confirmation that the “V” is non-existent on Ms. Liddy’s side of the property and that Ms. Liddy’s property was flat instead of being slopped towards the common property line in and of themselves would be sufficient to support my noted findings of fact and to put an end to Ms. Liddy’s claim. Mr. Ip was Ms. Liddy’s expert. Ms. Liddy had the onus to prove her claim. Mr. Ip’s admissions compromised those claims in a very material way.

[270] That said, having regard for the trajectory of this claim and all of the evidence that was put before the court even after Mr. Ip’s testimony, it is necessary to address the evidence in its totality. Reviewing all of the evidence underscores the coincidence of views and explanations across all who testified, specifically their agreement that the “V” on Ms. Liddy’s property was either non-existent or severely compromised, preventing the water on her property from travelling to the common property line.

[271] Even though Mr. Ip’s retainer was limited to identifying the “what” but not the “why”, Ms. Nadehjah’s testimony gave a substantial insight into the “why”. Through her testimony, Ms. Nadehjah verified that she created a mound when she added sod and mulch to the ground without regard for any grading requirements. Her admission to “flattening out” certain areas on the Liddy Property coincided with the location of the flattened parts on Ms. Liddy’s side of the “V”. This was also shown both in the various videos and recordings in Mr. Albanese’s waterdrop flow path studies and in particular, figures 4, 5, 6, and 7 contained in his report of November 13, 2017. While my intention is not to blame Ms. Nadehjah for Ms. Liddy’s water problems, her description of her activities on the Liddy Property provided the court with the answer to “why” it was that Ms. Liddy was having water problems on her property.

[272] An element of the “what” that was highly overstated and unsupported by any credible evidence concerned the quantity of the water coming across from the Mauros to the Liddy property. The evidence before the court suggested that the water flow was not nearly enough to cause any damage to the Liddy Property. To begin with, having regard for the fact that Ms. Liddy had the onus to prove that the water coming across from the Mauros was causing her to suffer damages, neither Ms. Liddy nor her witnesses led any evidence on that issue. Her evidence was largely limited to the videos from a couple of rainfalls in July of 2017. However, those videos did not identify the potential sources of the water flow. They were focused on the water flow itself. This flaw in the scope of the evidence was consistent with Ms. Liddy’s focus on the “what” as opposed to the “why”.

[273] Mrs. Gee said that the water ranged from a “gush of water” to “a little bit of water”. She also described as something similar to background noise. I infer from that evidence that the water issue was not a very big deal and did not impede the family’s activities in the backyard. The “gush of water” would be consistent with the July 2017 depictions of the extraordinary water storm. The little bit of water would be consistent with the inference that very little water would flow in moderate rainfalls.

[274] Against these shortcomings in the Plaintiff’s evidence, Mr. Albanese’s evidence, which I accept, suggested that the water coming from the Mauro Property would have had a minimal impact on the Liddy Property as compared to the water coming from the Liddy Property itself. I accept his water volume discharge analysis, which led him to conclude that the water discharge from the Mauro Property was approximately four litres per second, as compared to the 11.5 litres per second from the Liddy Property. This evidence further supports my finding that during a regular rainfall, very little, if any water would come across the common property line from the Mauro Property to the Liddy Property.

[275] I also accept Mr. Albanese’s further conclusion that the water from the Mauro Property going into the swale represented only ten percent of the swale’s total capacity thereby eliminating the suggestion that the water run-off from the Mauro property was the result of an overflow of water that ought to have been draining differently. It also reinforced the unanimous view that the swale failed in two material spots because the “V” was non-existent on Ms. Liddy’s property.

[276] The only other observation I would make is that the video of July 7, 2017 recorded a very severe rainfall. Even with that severity, the water coming across the common property line was not very intense at all. The inference to be drawn is that in instances of regular rainfall, there is little, if not any water coming across the common property line at the swale breach points.

[277] Such an inference is also supported by the evidence, which I accept, that the ground and hardscape surfaces in and around the Mauro pool and accessory structures are graded to direct the water away from the common property line, with some of the water falling into the Mauros’ own pool and some water being collected in the underground drainage network. In other words, on the evidence before the court, there is very little water from the Mauro Property that even travels to the common property line. In a heavy rainstorm, it would be reasonable that there might be more water than usual that travels to the swale as was seen in the videos. However, in instances of a regular rainfall, there was no evidence of any substantial water quantities crossing over from the Mauro Property to the Liddy Property.

[278] I am obliged to note that given the historical trajectory of Ms. Liddy’s claims, Ms. Liddy would have had plenty of time to put before the court a fuller evidentiary record of rainfalls over an extended period of time, but she did not do so. While the videos that were produced were compelling, they represented isolated moments in time under extreme weather phenomena. Their reliability is therefore substantially limited. On their own, they offer very little to support Ms. Liddy’s claim. When I combine this finding with my credibility concerns related to Ms. Liddy’s overall claim at the very least, I am left with the question of whether this case was ever about water damages or whether the few videos from 2017 became the only hook that was left from a claim that Ms. Liddy otherwise gradually abandoned.

[279] Given these findings of fact, I turn to address the various legal questions engaged by Ms. Liddy’s claim.

Issue 1: On a balance of probabilities, “but for” the Mauros’ construction on their property, would Ms. Liddy encounter the water problems and the damages she claims in her backyard?

[280] The short answer is no. This question engages the issue of causation. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, McLachlin C.J. described the law of causation as follows:

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. 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. That is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[281] In an earlier decision of the Supreme Court of Canada, Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 21, McLachlin C.J. held that the burden rested with the plaintiff to prove that “but for” the negligent act or omission by a defendant, the injury would not have occurred. She went on to explain that there had to be a “substantial connection between the injury and the defendant’s conduct” before the court could order compensation for negligent conduct: Resurfice Corp., at para. 23. This would ensure “that a defendant will not be held liable for the plaintiff’s injuries where they ‘may well be due to factors unconnected to the defendant and not the fault of anyone’”: Resurfice Corp., at para. 23; see also Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311; Kay v. Caverson, 2011 ONSC 4528, aff’d 2013 ONCA 200. In other words, the plaintiff must establish on a balance of probabilities that the injury would not have occurred “but for” the defendant’s negligence.

[282] On the facts before me, Ms. Liddy failed to meet that burden of proof. As I explained in my findings of fact, her own expert admitted that the slope in the grading on her property directed the water from her own property in the wrong direction. He also admitted that the “V” to the swale on Ms. Liddy’s property was non-existent. Even if I were to reject the evidence by the various other witnesses who testified on the issue of the cause for the water run-off, which to be clear I am not doing, Mr. Ip’s evidence combined with Ms. Nadehjah’s and Mr. Majkot’s evidence made it impossible for Ms. Liddy to satisfy the burden of proof. In the face of those admissions, and combined with the evidence of Mr. Perks and Mr. Albanese, there was nothing in the evidence before me to allow me to conclude on a balance of probabilities that the water problems on Ms. Liddy’s property were caused by the Mauros’ conduct.

[283] On the related submission by counsel that the changes to the Mauro Property significantly increased the water run-off towards the Liddy Property, such that the amount of water entering the swale increased significantly and caused the water to overflow onto the Liddy Property, that argument was simply unsupported by the evidence before me. Instead, I accept the evidence that most of the water falling onto the Mauro Property and in particular on the hardscape in and around the pool and the accessory buildings, drains away from the common property line and towards the Mauros’ own pool and the back of their property. As much as Ms. Liddy’s counsel tried to argue otherwise, there was no reliable evidence to support that contention.

[284] I also accept the evidence from the various witnesses called by the Vaughan Defendants that the Mauros passed all the inspections for the construction they undertook and satisfied all of the grading requirements. Since they did not change the grading intent for their property, they could not be the cause of Ms. Liddy’s water problems.

[285] The only evidence before the court of water coming across from the Mauro Property onto the Liddy Property were the videos of two very severe and dramatic rainfalls in 2017. There was no evidence that water consistently crossed over from one property to the other.

[286] In addition, the comparative water discharge rates for the two properties as measured by Mr. Albanese, as well as his further conclusion that the water from the Mauro Property represented ten percent of the swale’s capacity further undermined the contention that the Mauros’ alterations to their property contributed materially to the increase in the water flow towards the Liddy Property. The reality is that there was no credible or reliable evidence to support such a finding. Pictures of the two properties in their original conditions, before either of the parties added pools to their respective properties, did little to satisfy the requisite burden of proof.

[287] Finally, and most significantly, in the face of the unanimous conclusion of the experts that “but for” the poor sloping and the flattened swale on the Liddy Property, the water coming from the Mauro Property would remain in the swale and would not spill across onto the Liddy Property, there is simply no foundation to Ms. Liddy’s submissions on causation. However else the water problems on the Liddy Property might be explained, the Mauros are not causing those problems.

Issue 2: Was Ms. Mauro negligent in the 2007 construction of the swimming pool and accessory buildings?

[288] This question engages the fundamental elements of negligence, which require a duty of care, a breach of the standard of care, causation, and ensuing damages. Negligent conduct by a plaintiff will be considered, as will the plaintiff’s obligation to mitigate any damages alleged to be caused by the defendant: Bruce Feldthusen et al., Canadian Tort Law, 11th ed. (Toronto: LexisNexis, 2018), Chapter 5.

[289] Nothing in the Mauros’ conduct allows me to conclude on a balance of probabilities that their conduct was negligent and breached the requisite standard of care when they built their pool and the accessory structures. There was evidence that Mr. Mauro initiated some of the construction activities without all of the proper authorizations from the outset. But ultimately, he complied with all of the inspection requirements, obtained all the required clearance certificates, and went through a full minor variance application process to obtain the authorizations needed to complete the accessory structures.

[290] For the reasons already stated above and rather ironically, Ms. Liddy’s continuous complaints to the City of Vaughan about the Mauros’ every action on their property put them under such a microscope that even when they tried to take what might be described as shortcuts for their construction activities, they were stopped and inspected repeatedly before they could make any further move.

[291] Characteristic of the detailed level of inspection was Mr. Soomro’s initial refusal to sign off on the lot grading and the condition of the swale in April 2009 due to some leaves and debris that he noted in the swale. Mr. Mauro removed the leaves and debris and Mr. Soomro signed off on the swale and the lot grading. Based on all the evidence before me, I very much doubt that the City of Vaughan inspectors would have been nearly as fastidious were it not for Ms. Liddy’s constant complaints. But more to the point, the Mauros had no opportunity to breach their standard of care, and therefore cannot be said to have been negligent.

[292] I therefore find that Ms. Mauro was not negligent in the 2007 construction of the swimming pool and accessory buildings.

Issue 3: Is Ms. Mauro interfering with Ms. Liddy’s occupation or enjoyment of her property in a way that is substantial and unreasonable?

[293] This question engages the legal elements of nuisance and trespass. The law of nuisance, as distinct from the law of negligence, concerns an interference with the plaintiff’s occupation and enjoyment of land that is both substantial and unreasonable.

[294] The legal distinctions between a nuisance and a trespass were outlined in Kay at paras. 181-184. At para. 181 of Kay, the trial judge noted the following excerpt from R.F.V. Heuston, Salmond on the Law of Torts, 12th ed. (1957):

In all such cases, in order to be actionable as trespass, the injury must be direct, within the meaning of the distinction between direct and consequential injuries.

It is a trespass, and therefore actionable per se, directly to place material objects upon another’s land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequently results in the entry of such objects. To throw stones upon the one’s neighbour’s premise is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.

[295] In CNR v. Weyerhaeuser, 2018 ONSC 2056, the court referred to and relied on Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594 to define nuisance as an interference with the claimant’s occupation or enjoyment of land that is both substantial and unreasonable: para. 49. The court explained that a substantial interference is one that is non-trivial, amounting to more than a slight annoyance or trifling interference: CNR, at para. 49. Such an approach allows for the screening out of weak claims. If a claim makes it through that threshold, the next question to determine is whether or not the claim is unreasonable to justify compensation: CNR, at para. 49.

[296] With respect to a defendant’s conduct, the court in Antrim, at para. 29 wrote:

The nature of the defendant’s conduct is not, however, an irrelevant consideration. Where the conduct is either malicious or careless, that will be a significant factor in the reasonableness analysis: see, e.g., Linden and Feldthusen, at pp. 590-91; Fleming, at s. 21.110; Murphy and Witting, at p. 439. Moreover, where the defendant can establish that his or her conduct was reasonable, that can be a relevant consideration, particularly in cases where a claim is brought against a public authority. A finding of reasonable conduct will not, however, necessarily preclude a finding of liability. The editors of Fleming’s The Law of Torts put this point well at s. 21.120:

. . . unreasonableness in nuisance relates primarily to the character and extent of the harm caused rather than that threatened. . . . [T]he “duty” not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict. At the same time, evidence that the defendant has taken all possible precaution to avoid harm is not immaterial, because it has a bearing on whether he subjected the plaintiff to an unreasonable interference, and is decisive in those cases where the offensive activity is carried on under statutory authority. . . . [I]n nuisance it is up to the defendant to exculpate himself, once a prima facie infringement has been established, for example, by proving that his own use was “natural” and not unreasonable. [Emphasis added.]

[297] As in Kay, the water run-off claims asserted by Ms. Liddy against Ms. Mauro do not fall into the category of trespass to property. There was no evidence whatsoever to suggest that the Mauros placed water directly on the Liddy Property. I agree with Ms. Mauro’s submission that any water flowing from their property onto the Liddy Property is the result of rain, gravity, and the original grading intent for the properties to drain to a swale at the common property line.

[298] That said, the complaint by Ms. Liddy related to the Mauros’ construction activities that had the effect of directing water falling on their property in the direction of the Liddy Property. Ms. Liddy’s articulation of the problem is suggestive of a nuisance of both an injury and actual damages. Whether the water run-off is the result of intentional, negligent or non-faulty conduct is of no consequence, as long as the harm can be categorized as a nuisance: Feldthusen et al., at p. 559.

[299] To succeed in her claim of a private nuisance, Ms. Liddy would have to establish on a balance of probabilities:

• That water accumulates on her property to the extent that it unreasonably interferes with the use and enjoyment of her property;

• That such accumulation and interference of the water resulted from an unreasonable use by the Mauros’ of their own property, namely their addition of the pool and the accessory structures;

• That Ms. Liddy has sustained damages as a result; and

• The extent of the damages.

[300] Given my findings of fact outlined above, Ms. Liddy failed to establish these elements. There can be little doubt that Ms. Liddy experienced certain water problems on her property, at least on two occasions, as evidenced by her videos. However, the evidence before the court failed to establish on a balance of probabilities that the water problems have been caused by the Mauros’ construction of their pool and accessory structures.

[301] As in my analysis of the alleged negligence claim, the construction of the pool and accessory structures were not unreasonable activities. In all of their activities, even if the Mauros may have initially missed some steps, they obtained all the required permissions and approvals for their construction activities, including an application for a minor variance with all the litigation that followed. The reality is that as a result of Ms. Liddy’s hyper-vigilance and complaints to the City of Vaughan, the construction activities that the Mauros started in the spring of 2007 did not receive final approval until two years later in April or May of 2009 when Mr. Soomro signed off on the lot grading certificate. In such circumstances, there was no scope for any unreasonableness by the Mauros.

[302] Insofar as causation is concerned, my findings noted above apply to this analysis as well. Simply put, having regard for my overriding findings, I find that Ms. Liddy failed to establish on a balance of probabilities that the Mauros, through their activities on their property, have caused her to suffer any water damages.

[303] Finally, even if at least some of the water flow could be attributed to the Mauros, on the evidence before the court, Ms. Liddy failed to establish that the trickles of water across the property line interfered with the use and enjoyment of her property. Although the court heard from Mrs. Gee about her inability to use Ms. Liddy’s backyard, and was also shown the videos of the sweeping of dirt and mulch into Ms. Liddy’s pool, that evidence was insufficient for Ms. Liddy to establish that the water from the Mauros caused a substantial interference with her use of the property. If anything, on the evidence of both Ms. Liddy and her witnesses, the court heard about the celebration of Mrs. Gee’s wedding in the backyard, as well as numerous instances when the pool and the backyard was used.

[304] I would also add that having regard for the severity of the July 2017 rainstorm that included hail, it would not be surprising to have debris fall into the pool as a result of that particular storm. The effects of that storm however would be a far cry from what would ordinarily occur in a modest rainfall. Absent specific evidence that dirt and mulch were regularly caught in the water flow, I can only conclude that the video examples, represented a rare phenomenon. Insofar as some of the video clips were from one or two other regular rainfalls they served to corroborate my inferences that regular rainfalls did not produce more than trickles of water with no visible runaway debris. In any event, there was no credible or reliable evidence that the water coming from the Mauros was causing any interference. As I already noted, Ms. Liddy had all the time to produce evidence of more than just two rainfalls from 2017 but she chose not to do so. That failure in evidence cannot be visited on the Mauros.

[305] Consistent with the above inference, Ms. Liddy’s actual evidence concerning her damages was underwhelming at best. The claim of $500,000 in general damages was not based on any evidence. Mr. Ip admitted to putting forward a figure of $495,000, but that figure was to bring the properties back to their original grades. Mr. Ip admitted in cross-examination that he was not retained to consider solutions or remedies, short of tearing everything out. The invoices from Mr. Majkot were highly suspect and appeared to have been manufactured for the purposes of the trial. Even if the invoices were legitimate, I would have trouble accepting them as damages when it is clear that the activities of Ms. Nadehjah and Mr. Majkot contributed very materially to the poor sloping and the flattened swale.

[306] I therefore find that Ms. Mauro has not interfered with Ms. Liddy’s occupation or enjoyment of her property in a way that is substantial and unreasonable.

Issue 4: Has Ms. Liddy contributed to the water problems in her backyard?

[307] For the reasons and findings already addressed above, Ms. Liddy has contributed very substantially to the alleged water problems.

[308] The only evidence before the court supports the finding that Ms. Liddy’s landscapers either caused or exacerbated serious problems with the water drainage on the Liddy Property. At no point did Ms. Nadehjah, Mr. Majkot or anyone else turn their minds to the questions of the appropriate grading requirements or the condition of the swale. As I already stated, “but for” Ms. Liddy’s inattention to the poor sloping and the flattened swale, she would not be having the water problems she claims to have. It is not a matter of her contributing to the water problem. It is a matter of her and her landscapers causing the water problem.

[309] Ms. Liddy’s counsel highlighted for the court the landscapers’ observations that the water flowing from the Mauro Property saturated Ms. Liddy’s backyard, causing the rock landscaping to sink, the pool apron to sink, muddy conditions, damage to the side of the deck, and prevented the grass from growing in certain areas. However, I find those submissions uninformed, unreliable and unconvincing for the simple reason that these individuals were not experts in any way. Worse than that, their reactions to the questions that were put to them about grading suggested a complete lack of awareness over the significance of such a requirement. Counsel attempted to put a charitable spin on their evidence by suggesting that Ms. Nadehjah eyeballed the problem and did the best that she could. With respect, if it were as easy as eyeballing the problem, engineers would not require surveys, water drop studies, and other methodologies to undertake the various topographical and grading requirements for a property.

[310] More significantly, I had difficulty understanding how counsel could ask the court to find that the Mauros’ eventual by-the-book conduct could amount to negligent conduct or nuisance while the landscapers’ uninformed speculations and their eye-balling of the challenge at hand could meet their duty of care and their obligations to respond to Ms. Liddy’s request that they address her water problems. I would go further to add that I found it quite astonishing that Mr. Ip, who did strike me as a knowledgeable professional would be given a very limited retainer and would be precluded from investigating the “why” or the “who” when it came to understanding the causes for Ms. Liddy’s water problems and possibly proposing some remedies for serious consideration.

[311] While I am not entirely sure of what to make of these contradictions in Ms. Liddy’s choices, there can be no doubt that Ms. Liddy had the onus, and therefore the obligation to persuade the court that the only cause to her water problem was the Mauros’ activities. Regrettably, she did not satisfy that obligation. The reality is that nothing impeded her from retaining an expert to address and indeed eliminate the suggestions that she was the cause of the problems in her own backyard. Having failed to do so, there is no basis to conclude on a balance of probabilities that the Mauros were the cause of anything.

Issue 5: Has Ms. Liddy mitigated her damages?

[312] There was no evidence that Ms. Liddy took any reasonable steps to demonstrate a bona fide effort to mitigate her damages, such as repairing her side of the swale or repairing the sloping in the grading of her property. If Ms. Liddy still believes that the activities of her landscapers amounted to mitigation efforts, the resulting compromises to the grading and the flattening out of the swale ought to cause her to re-evaluate that belief. I find as a fact that the activities of the landscapers have been one of the principal causes for the noted shortcomings and do not constitute mitigation of damages.

Issue 6: Is Ms. Liddy entitled to equitable relief?

[313] There is no legal foundation to Ms. Liddy’s request for injunctive relief or for a mandatory restoration order.

[314] Having concluded that there is no merit to Ms. Liddy’s claims in negligence, nuisance, or trespass against Ms. Mauro, there is no legal foundation to the claim for injunctive relief. However, having heard arguments on the issue from both sides, I feel compelled to address this particular prayer for relief.

[315] I do agree with the Ms. Mauro’s submission that in any event, equitable relief would only be available where damages were not an adequate remedy. There was no evidence before the court to support Ms. Liddy’s argument that a remediation order was the only appropriate award. The only support that Ms. Liddy offered for this submission was that in many cases, the cost of restoration could exceed the value of the property being restored. In such cases, an award based on diminution of value may not adequately fund the clean-up.

[316] That argument presented the court with the following difficulties. Leaving aside my finding that Ms. Liddy is not entitled to any damages by virtue of my rejection of her claims in negligence, nuisance and trespass, Ms. Liddy led no evidence to support the proposition that a restoration order would be the only solution to the alleged water problem or that a damages award would exceed the value of the property being restored. Mr. Ip proposed restoration to the original conditions as an option, but that opinion was completely undermined by his admission that he was not retained to explore any solutions to the alleged problem. Parenthetically, it was also quite curious that Mr. Ip equated restoration with the tearing down of everything the Mauros constructed, but not of anything done by Ms. Liddy.

[317] In the absence of any credible or reliable evidence on damages by Ms. Liddy, the solutions proposed by both Mr. Perks and Mr. Albanese stood in stark contrast to the drastic tear-down solution proposed by Mr. Ip. More significantly, they suggested that a solution lay in some modest costs to re-slope and reinstate the failing parts of the swale. In particular, Mr. Albanese’s proposal spoke of a minor re-grading of the Liddy Property on the basis of a remedial site-grading plan. Quite remarkably, Mr. Albanese anticipated the re-grading to involve the use of sod and topsoil much like what Ms. Liddy’s landscapers attempted, but with the key difference being that any remediation be guided and based on a remedial site-grading plan, that would restore the grading intent to Ms. Liddy’s property.

[318] What Mr. Albanese’s plan also revealed was a solution that was very compelling, reasonable, and proportionate to his assessment of the magnitude of the water problem. Although he did not suggest a cost for his proposal, having regard for what the landscapers charged for their past work to the property, it is possible to infer that those costs, together with the costs for the preparation of a remedial site-grading plan and any engineering supervision for its implementation would remain quite modest and surely a fraction of the parties’ litigation costs. Such a quantum would also serve to allay any concerns by Ms. Liddy that the remediation costs would exceed the value of the property.

[319] The inferences above lead me to conclude that had Mr. Mauro been found liable, there would be no need for any kind of an injunction or mandatory order. I therefore find that Ms. Liddy is not entitled to equitable relief.

Issue 7: Is Ms. Liddy’s claim against Ms. Mauro statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B?

[320] Having concluded that Ms. Liddy’s claims against the Mauros have failed, I do not find it necessary to address the issue of limitations. Given the very brief and confusing submissions by both parties regarding the continuing tort in nuisance, but also the very tortured history of the claim, I see no benefit in trying to untangle or pronounce on this issue.

Issue 8: Does Ms. Liddy’s claim against Ms. Mauro amount to an abuse of process?

[321] As noted above, Ms. Liddy challenged everything the Mauros did on their property whether or not it had a direct impact on her. Insofar as Ms. Liddy abandoned all of her claims with the exception of the water run-off allegations, it is very difficult to pronounce on whether this issue in and of itself amounted to an attempt to re-litigate the issues before the Committee and the OMB, as suggested by Ms. Mauro’s counsel. To make such a pronouncement would require me to undertake a very substantial and complete review of those processes. Given my dismissal of the claims, such a review would be unnecessary and disproportionately laborious. However, I do recognize that the issue may have some relevance to the anticipated costs submissions.

CONCLUSION

[322] For all of the reasons discussed, and in light of my findings and legal conclusions, Ms. Liddy’s claim is dismissed in its entirety.

COSTS

[323] This leaves the issue of costs. Unless the parties can come to some agreement, I will require written submissions, to be followed, possibly, by oral submissions. The written submissions are to be limited to ten pages, double-spaced, exclusive of a detailed Bill of Costs and any offers to settle. Excel sheets or other helpful tables will also be accepted as additional aids to the ten-page submissions to capture what costs have already been paid and what costs were reserved to the trial judge for consideration.

[324] Counsel are asked to consult with each other and to propose by February 10, 2020 a joint timetable for their respective written submissions. I will make a decision on whether to hear oral submissions after I receive and review the parties’ respective written submissions.

[325] I will also add my very real concern that having regard for what a remedial proposal could cost, the trajectory of the litigation, and the costs incurred, there is likely to be a very real challenge with the proportionality of the costs relative to the outcome. While I do not mean to pre-judge any outcome on costs, if the parties would find a settlement conference specifically on costs useful, I would be willing to explore its scheduling with one of my colleagues.

[326] Finally, I recognize that this has been a most arduous experience for everyone involved. All counsel and all witnesses worked very hard to do what they could to present their respective positions. The counsel before me were professional and showed remarkable patience over the various chapters in this litigation. The witnesses as well did what they could with their respective tasks at hand. For everybody’s sake, it is my hope that this litigation will now come to an end.

Tzimas J.

Released: January 24, 2020