Degen v. Girard et el., 2021 ONSC 7709

COURT FILE NO.: CV-21-670212

DATE: 20211122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Renee Degen

Plaintiff

– and –

Christopher James Girard, Emanuel Maia and Quantum Spec Project Management Ltd.

Defendants

Dhirani, K., for the Plaintiff

Essig, P., for the Defendants

HEARD: November 16, 2021

SUGUNASIRI, J.:

Overview:

1Ms. Degen and Mr. Palmer are neighbours. Ms. Degen is at number 9 Palmerston Avenue; Mr. Girard is at number 11. They share a common wall. Mr. Girard is in the midst of a home renovation with Quantum Spec Project Management and Mr. Maia to add a first-floor rear addition and second and third floor addition to the existing one-storey house. To do so he demolished the existing main floor. To protect the common wall the Defendants erected a drywall partition and wrapped it with Tyvek after six months of exposure to the elements. Ms. Degen has sued the Defendants for damages arising from nuisance, trespass, negligence, intimidation, damage to property and loss of enjoyment of her property. With colder weather on the horizon she is concerned about loss of heat, the build up of moisture and mould behind the Tyvek wrap, and holes in the structure that may allow rodents and other unwanted animals to enter her home. She moves to compel the Defendants to address these issues at his own expense and within 14 days of any order.

2Based on the record before me, Ms. Degen does not meet the high threshold for a mandatory injunction because she has not demonstrated a strong prima facie case for nuisance arising from the demolition of Mr. Girard’s main floor. I dismiss her motion for the reasons that follow.

Background:

Ms. Degen’s evidence

3The dispute arises from Mr. Girard’s renovation project approved by the City of Toronto in January of this year. The City approved a first-floor rear addition and second and third floor additions to the existing one-storey house. The drawings contemplated the existing roof above the main storey to remain with the party wall untouched. Drawing A11 noted that “The adjacent building shall be protected by the Contractor from dust, dirt and debris through the erection of secure and airtight partitions, using framing, gypsum wallboard and polyethylene sheets, caulked and taped as required.” By March 9, 2021, most of the entire structure of 11 Palmerston had been demolished. The common wall on Mr. Girard’s side was covered by a drywall partition with 2x6 planking (“partition”).

4After demolition, Ms. Degen felt wind blowing through the electrical outlets in her house. She also advised Mr. Girard of other issues related to construction fencing, the removal of her chain link fence and wooden fence, and human feces on her property. On April 4, 2021 Ms. Degen told Mr. Girard that she was finding the renovation stressful, noisy and that the work was shaking her house. She also asked Mr. Girard to protect the common wall with Tyvek house wrap. At that time Mr. Girard purported to protect the common wall with tarps that ended up falling off.

5Construction stopped in or around April 22, 2021. In July of 2021 Ms. Degen again asked Mr. Girard to cover his side of the common wall and fill the holes. Mr. Girard invited Ms. Degen to advise him of any water penetration or pest entry. Photos taken by Ms. Degen shows possible holes or gaps in the partition as well as possible holes in the soffits on the remnants of the roof of 11 Palmerston. There is also a large gap in the overhang of Ms. Degen’s roof. There is no evidence that it was also created by Mr. Girard’s renovations. Ms. Degen also has photos showing rain splatter on the exposed partition wall.

6On August 27, 2021, Ms. Degen engaged counsel to write to defence counsel about her concerns about the structural integrity of the common wall. Mr. Blundell responded asking for any evidence of damage or infestation. Ms. Degen indicated that she could hear mice in the walls. In September the lawyers had discussions about the common wall and the mice. On September 11, 2021 Ms. Degen consulted a licensed contractor to identify any remedial work necessary to address her concerns. Mr. Gaborean observed the exposed partition wall from the street. Assuming that the wall had been exposed for 7 months he recommended the help of a professional engineer to give a full evaluation of the situation. In the meantime, he suggested removing the partition drywall to check for mould, remove all insulation, install vapour barrier and R value 19 bath insulation in the cavities between the studs, install plywood and typar building wrap, install rigid R5 rated insulation, waterproof cladding like aluminum siding (if exposure is longer than three months) and waterproof and re-bury the exposed foundation. This recommendation was assuming that the common wall would not be enclosed for the coming winter.

7On September 14, 2021 Mr. Blundell confirmed that Tyvek work was being done and that when asked if the workers checked for mould and put appropriate insulation, he responded “Yes.”

8A dispute then ensued about the attendance of the pest control company and what they did or did not find. The parties have different renditions of what the pest control company said. According to Mr. Blundell, the pest controllers noted that Ms. Degen had numerous entry points in her property and no mice were found associated with the common wall. The only direct evidence on the point is from Ms. Degen who indicates that no one told her that. Pest control did treat her attic for mice.

9By September 22, 2021 the relationship between both Ms. Degen and Mr. Girard, and between counsel degenerated into reciprocal threats of litigation and the withdrawal of any reasonable compromise on anything. On September 20, 24 and October 12, 2021 a structural engineer retained by Ms. Degen inspected 11 Palmerston from the street and from neighbouring lands. Mr. Talebi was unreasonably not permitted to enter Mr. Girard’s property. His preliminary report based on a sight inspection indicates that drywall and studs could absorb water without showing visible signs and propagate mould. He recommended that they expose the drywall to dry and treat the studs, if required. He reiterated Mr. Gaborean’s recommendation that all areas of possible water penetration should be adequately covered to prevent any further damage. Mr. Talebi also recommend an air quality test.¹

10Ms. Degen and Mr. Gaborean also had concern about frost heave and having adequate heating at foundation level. As a result of these and other issues, Ms. Degen states that she has suffered substantial stress and anxiety. She no longer feels safe and comfortable in her own home. She fears that failure to protect the common wall now will lead to damage to her home and her health and well being. On October 13, 2021, Ms. Degen commenced this action.

The Defendants’ evidence

11The Defendants did not tender responding evidence other than two expert reports from Mr. Lopes, a professional engineer. Unlike Mr. Gaborean and Mr. Talebi, Mr. Lopes had the benefit of inspecting the common wall and partition. After inspecting it on November 5, 2021 with 2 Toronto Building Inspectors and again on November 11, 2021, he concluded that:

a. The common wall was covered by two layers of Type X fire rated drywall and is consistent with the requirements for an interior wall;

b. The partition is a second wall constructed entirely within 11 Palmerston with 2x4 studs filled with R-14 Roxul mineral wool insulation, one layer of Type X fire rated drywall and Tyvek weather barrier;

c. There are signs of animal nuisance and rodent activity in at least two areas at 9 Palmerston;

d. He expects the building shell to be completed by the end of November/early December which he will inspect; and

e. Even if the building shell is delayed, the basement is sufficiently enclosed to retain heat and there are space heaters now in place to maintain it at 15 degrees to prevent frost heave; and

f. Frost heave is unlikely in any event due to the type of soil.

Analysis:

12The parties agree that to compel the Defendants to take all of the measures recommended by Messrs. Gaborean and Talebi (except for structural issues which no longer form part of this motion), Ms. Degen must persuade me that i) there is a strong likelihood that she will succeed in proving her claim in nuisance; ii) she will suffer irreparable harm if I do not grant the mandatory order; and iii) that the balance of convenience favours the order.² The test is conjunctive.

13Ms. Degen has not satisfied me that she has a strong prima facie case, understood as a strong likelihood, that the demolition of 11 Palmerston leaving the partition wall exposed to the elements, constitutes a nuisance. As Ms. Degen submits, a private nuisance consists of an interference with her use or enjoyment of land that is both substantial and unreasonable.³ Ms. Degen has complained of many issues arising from the construction project as a whole. For the purposes of this motion, the focus is on the alleged nuisance caused by what Ms. Degen characterizes as the ‘illegal” demolition of 11 Palmerston. Ms. Degen submits that there is a strong likelihood that the Defendants have substantially interfered with the use and enjoyment of her property by: a) exposing the common wall to the elements; b) rendering an interior wall and exterior wall without proper protection; c) allowing the “likely” growth of mould, heat loss and moisture damage; d) exposing Ms. Degen’s foundation to frost heave; and e) allowing for pests to enter through access holes created by the demolition. I do not agree.

14Based on the record before me, I prefer Mr. Lopes’ observations on these issues over those of Messrs. Gaborean and Talebi. He is the engineer with the benefit of inspecting the actual wall in question and the foundation. He is also the engineer inspecting the project alongside the City of Toronto building inspectors. While I understand Ms. Degen’s frustration of being denied access to Mr. Girard’s side to have her own engineer inspect the partition wall, she did not seek to disqualify Mr. Lopes for lack of qualification or objectivity in his report. He acknowledged his duty as an expert and there is no reason for me to doubt his impartiality. Despite some hearsay evidence which I do not rely on for my decision, I accept Mr. Lopes’ reports as described below.

a) Common wall itself not exposed to the elements

15Mr. Lopes describes the wall structure in great detail and explains that the common wall is in fact fortified with two layers of fire rated drywall. The Defendants then constructed the partition as a second wall. This means that the common wall was never exposed to the elements or was only exposed for a short period of time before the partition was erected. It is the partition that was exposed to the elements for the six months. Ms. Degen’s own timeline bears this out. She stated that the demolition occurred by March 9th and that the party, or common wall, was covered on the 11 Palmerston side by the partition. Ms. Degen has not shown a strong likelihood that the Defendants have substantially interfered with her property rights by exposing the common wall to the elements.

b) Common remained an interior wall

16The evidence is clear that the partition was built as a second wall on Mr. Girard’s side. I accept that in that sense the common wall remained interior in that it was protected by a second wall. This is distinguishable from Pantev v Dominelli⁴ where the demolition permanently transformed an interior wall to an exterior wall abutting a new parking lot. I also accept Mr. Lopes’ evidence that the partition wall has proper protection for the double-drywalled common wall with the R14 insulation, another layer of fire rated drywall and Tyvek. At the moment Ms. Degen has three layers of drywall, 2x4 studs, wool insulation and Tyvek between her and the outside. Mr. Lopes and the City inspectors looked at this partition and deemed it satisfactory to protect the common wall from the elements and to support the new structure. There is no basis to second guess their assessment. Ms. Degen has not shown a strong likelihood that the Defendants have substantially interfered with her property rights by making an interior wall an unprotected exterior one.

c) Mould, water damage and heat loss is merely theoretical

17Mr. Lopes also examined the Partition for evidence of mould or water damage and found no evidence of either. I accept Ms. Degen’s submission that Mr. Lopes conducted this inspection after the Tyvek was erected; in other words, he did not inspect the partition nor the common wall before the Tyvek was attached. However, there is no reason to doubt Mr. Blundell, a lawyer, when he confirmed that someone had checked for mould and moisture before attaching the Tyvek. Ms. Degen did not provide me with that email chain. I only have her evidence that when asked if this was done, Mr. Blundell simply said “Yes”. The fact that he did not provide the name of the person who did the check does not weaken his answer. By this time the parties were already in an antagonistic relationship and there may have been a multitude of reasons driving Mr. Blundell’s failure to provide the information. I am not willing to conclude that his simple “Yes” was anything other than confirmation that to his knowledge, someone did check.

18Even if I am incorrect in this assessment and assumption, or Mr. Blundell is incorrect in his understanding, there is no evidence on the likelihood of mould developing behind the Tyvek after 6 months of exposure from March to September. Mr. Gaborean’s general statement as a contractor that mould could develop in that time is too general and speculative. Ms. Degen’s unsubstantiated fear that mould may be there is not enough to meet her burden.

19I take a similar approach to the issue of heat. At the time of his second report Mr. Lopes confirmed that the basement was adequately enclosed to trap the heat and that he expected 11 Palmerston to be enclosed within four weeks. Ms. Degen took issue with this timeline because Mr. Lopes did not indicate the source of this information. Mr. Lopes could have been cross-examined on this point but was not. As the engineer tasked with inspecting the work, I accept that he has knowledge of the construction timeline as the engineer of record for the project. Further, Mr. Lopes indicated that even if the enclosing was delayed, there were space heaters in place to keep the temperature at 15 degrees; a temperature that Mr. Gaborean agreed was the appropriate minimum. There is no evidence that Ms. Degen has experienced heat loss or is likely to experience it with the heaters in place. Ms. Degen has not shown a strong likelihood that the Defendants have substantially interfered with her property rights by allowing mould and water damage to the common wall and causing heat loss.

d) No evidence of exposure to frost heave

20Given Mr. Lopes’ report on the state of Mr. Girard basement and the ability to maintain it at 15 degrees, Ms. Degen has not shown a strong likelihood that Mr. Girard has substantially interfered with her property rights by exposing her home to frost heave. I also accept Mr. Lopes’ statement that frost heave is less likely given the nature of the soil in the area.

e) No evidence of pests caused by demolition

21Finally, I am not satisfied that any issues with mice is likely caused by the demolition. Even without Mr. Lopes’ observations, Ms. Degen’s photos show a large gap on her side where vermin could have entered before she put a metal plate over it. There is simply insufficient evidence on this point. Ms. Degen has not shown a strong likelihood that Mr. Girard has substantially interfered with her property rights by making her home vulnerable to pests.

Conclusion:

22In sum, Ms. Degen has not demonstrated a strong prima facie case that the demolition at 11 Palmerston and its impact on the common wall between 9 and 11 Palmerston constitutes a nuisance. I need not discuss irreparable harm nor balance of convenience. As difficult and uncooperative as Mr. Girard has been, I must dismiss Ms. Degen’s motion.

Costs:

23The parties exchanged costs outlines and made submissions at the hearing. There is no reason to deviate from the rule that the successful party is entitled to its partial indemnity costs. Given the relative cost amounts reflected in the outlines, the Defendants costs are well within the reasonable expectations of the Plaintiff. Ms. Degen shall pay the Defendants all inclusive costs of $12,077.93 payable within 30 days of today’s date.

Footnotes

1. 1I note that the engineer also opined on structural issues which are no longer the subject of this motion.
2. 2R.v Canadian Broadcasting Corp., 2018 SCC 5 at paras. 13-18; RJR-Macdonald Inc. v Canada (Attorney General), 1 SCR 311 at para. 43. Rule 40.01 of the Rules of Civil Procedure, RRO 1990 Reg 194 and section 101 of the Courts of Justice Act, RSO 1990 c.C43.
3. 3Antrim Truck Centre Ltd. v Ontario (Ministry of Transportation), 2013 SCC 13 at paras 18-19.
4. 4Pantev v Dominelli, [1996] OJ No 4559 (GenDiv) at para. 29.