Court File and Parties

COURT FILE NO.: CV-22-2117 DATE: 20230706 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LOUIS TYLER CHANNELL and CARMELA CHANNELL Applicants – and – THE CORPORATION OF THE CITY OF VAUGHAN Respondent

Counsel: Graham F. Alloway, for the Applicants Maurice Benzaquen, for the Respondent

HEARD: April 19, 2023

Reasons for Decision

DE SA J.:

Overview

[1] The Applicants seek a declaration that the Ditch Inlet Manhole and all related infrastructure (hereinafter the “DIMH”) located on the Applicants’ property, known municipally as 25 Villagewood Court, Woodbridge, Ontario (hereinafter the “Property”), is owned by the Respondent, The Corporation of the City of Vaughan (‘the City”).

[2] According to the Applicants, the DIMH is owned by the Respondent and is a key part of the Respondent’s storm water infrastructure.

[3] The Applicants also seek a declaration that the DIMH is a public utility within the meaning of the Municipal Act, 2001.

[4] The Applicants seek that an easement be registered on title to the Applicants’ Property confirming the Respondent’s ownership of the DIMH and their right to access the DIMH.

[5] And finally, the Applicants request compensation for the expropriation of the portion of their Property where the DIMH is located and for any loss of property value caused by the DIMH and the associated easement in accordance with the Expropriations Act, R.S.O. 1990.

[6] In response, the City maintains that the DIMH is the Property of the Applicants. The City’s Legal Department entered into a Subdivision Agreement that clearly indicated that the City would not assume ownership of drainage structures on private property.

[7] The City maintains that it bears no responsibility whatsoever for the Applicants’ negligence in purchasing the Property without conducting a home inspection. Given the visibility of the structure, a proper home inspection would likely have brought the existence of the DIMH to light and made the purchaser aware of their responsibilities in relation to the structure.

[8] The City asks that the Application be dismissed with substantial indemnity costs for its frivolous and vexatious nature.

[9] Having reviewed the materials filed, I agree with the City, that the DIMH is the property of the Applicants.

[10] The application is dismissed. My reasons for decision are outlined below.

Summary of Facts

[11] The Applicants purchased their property, which is a suburban home, on June 22, 2017. The Property was purchased to be their family home. The Applicants purchased their home without conducting a home inspection and without conducting a proper visual inspection of the exterior of their property.

[12] Sometime after purchasing their home, they discovered a large permanent structure concealed in their backyard under the deck. The Applicants in their materials acknowledge that it was likely one of the previous owners of the Property that concealed the structure.

[13] Don Roughley, the Applicants’ expert, opined that the original purchaser of the home would have been provided a Site Plan denoting the drainage structure in the Applicants’ rear yard which should have been passed on to all subsequent purchasers. This Site Plan was clearly not passed on by the seller of the Property.

[14] While the structure is under the deck, the discharge pipes of the drainage structure in Mrs. Channell’s rear yard are clearly visible by exterior visual inspection. In addition, Mrs. Channell testified that she and her husband stood on her deck when it rains and that there is an odor emanating from the drainage structure and that you could hear the water running.

[15] The Applicants began investigating what the structure was by obtaining records, surveys, engineering reports, storm water management drawings, subdivision drawings and other documents from the Respondent and from the Toronto Regional Conservation Authority (hereinafter the “TRCA”). Some of the documents and records had to be obtained pursuant to a Freedom of Information Request.

[16] The Applicants ultimately discovered that the fully concealed structure was a DIMH. The structure measures 7.3 feet by 5.3 feet and includes an additional concrete border surrounding an access grate for a total surface size of 54 square feet. The structure is below grade and includes twelve four-inch-wide pipes that drain into it. The structure includes ladder steps to allow entry and access. The structure is not difficult to see when inspecting the yard of the Property.

[17] Mrs. Channell issued a Statement of Claim on February 1, 2021, suing her Real Estate Lawyer (and his Professional Corporation) involved in the purchase of her home and her Title Insurance Company for One Million Five Hundred Thousand Dollars ($1, 500,000.00) plus interest and costs.

[18] In October, 2021, the Applicants retained an engineering firm, A.M. Candaras and Associates Inc., to provide them with an opinion regarding the structure. On October 4, 2021, the Applicants received the report from A.M. Candaras (hereinafter the “Engineering Report”). The Engineering Report confirmed that the structure is a DIMH that is integral to an unregistered vast storm water management system utilized by the Respondent for the Kipling Woods Subdivision, the adjacent properties, and roads thereto including Kipling Avenue. According to the Engineering Report, the DIMH has maintenance requirements and if not properly maintained has the potential to cause flooding or other damage or liability to the Applicants’ Property as well as to neighboring properties.

[19] The Kipling Woods Subdivision Agreement (hereinafter the “Subdivision Agreement”) pertaining to the Applicants’ Property was approved by Council and signed on March 1, 1993. The Subdivision Agreement is registered on title.

[20] The Subdivision Agreement stipulates that all sewer infrastructure on private property will not be assumed by the Municipality and will become the private property of the lot owner on which it is located.

[21] More specifically, section 18.4 of the Subdivision Agreement provides that “Rear Lot Catch Basins and Catch Basin Leads on Lots in the Plan” are not services assumed by the City. (Section 18.4 of the Subdivision Agreement, Schedule L).

[22] According to the City, “Rear Lot Catch Basin” is an umbrella term used for any structure within a property that deals with storm water drainage.

[23] The City issued a by-law stating that it will not assume any storm drainage structures on private property, regardless of the tributary area, and regardless if the structure services multiple lots and/or public/private drainage.

[24] The drainage structure located on the Applicants’ Property is not unique. There are over 4,000 drainage structures in the City of Vaughan. They are all considered privately owned.

[25] On August 19, 2022, the Applicants requested a permit for the removal of the DIMH. The Applicant, Mrs. Channell, entered a discussion with Justin Au Yeung (hereinafter “Mr. Yeung”) employed as a Development Engineering Review Coordinator for the Respondent.

[26] Mr. Yeung confirmed that the DIMH located on the Applicants’ Property is an active piece of infrastructure. Mr. Yeung confirmed it is part of the Municipality’s stormwater sewage system and its removal is unfeasible.

[27] On September 12, 2022, Mr. Yeung stated that an easement should be described on the Applicants’ Property parcel registry. On January 25, 2023, Mr. Yeung advised that there appears to be a three-metre easement on the Applicants’ Property for the DIMH.

[28] As it turns out, Mr. Yeung was mistaken. While an easement may have been contemplated in the Kipling Woods Subdivision Storm Drainage Plan and Grading Plan, there is no easement registered on the Property, nor has the City accessed the DIMH since its installation.

[29] In response to various inquiries made by the Applicants regarding ownership of the DIMH and any necessary easement, the City took the following position:

In response to your question regarding why there is not an easement registered on title to your property, this is because easements are only necessary when a third party needs to access a property. The rear lot catch basin on your lands is owned by you and no other party needs access to it to maintain it, as the maintenance obligations lie with the owner of the infrastructure. A registered easement would only be necessary if another party needed to access the structure. As it is privately owned (and is to be maintained by the owner), there is no easement registered on title in connection to the rear lot catch basin.

In response to your question regarding how this structure could become a homeowner’s responsibility, this is the case because the structure was privately installed by a developer on land that it owned and was not assumed by the City. The structure was always owned by the private owners of the land on which it was constructed and has never been owned by the City. There was no point at which this structure passed from a public body to a private owner; it was built by a private owner and has, at all time since construction, been the responsibility of private owners. This is not unique circumstances. Based on the City’s records, there are more than 4,000 storm drainage structures located on private property throughout the City, 5 of which are located on Villagewood Court.

Analysis

[30] The Applicants argue that the DIMH is clearly an asset of the Municipality and is not something a private property owner could possibly be expected to maintain or assume liability. The DIMH has an access ladder to allow access to the storm water system. It collects water from a vast area and is a critical component of the storm water system.

[31] The Applicants argue that the Subdivision Agreement does not deal with, or mention, DIMHs. The by-law merely removes the Respondent’s responsibility for operation of rear lot catch basins, not DIMHs, nor the responsibility for their registration.

[32] Having reviewed the evidence filed, I am satisfied that the DIMH is a storm drainage structure which is owned by the Applicants. I am satisfied that a “rear lot catch basin” as referenced in the Subdivision Agreement contemplates and includes a DIMH.

[33] The Engineering Report makes clear that both a DICB (“Ditch Inlet Catch Basin”) and a DIMH are merely different types of catch basins which have the purpose of collecting rainwater from properties and streets and transporting it to local waterways through a system of underground piping, culverts and/or drainage ditches.

[34] The Subdivision Agreement contemplated that drainage structures located on private property would remain the responsibility of the owner of the property. Indeed, the Applicants’ own Engineering Report acknowledges that the structure on the Applicants’ property is privately owned.

[35] As noted above, the City of Vaughan also issued a by-law stating that the City will not assume any storm drainage structures on private property, regardless of the tributary area, and regardless, if the structure services multiple lots and/or public/private drainage.

[36] As explained in the Engineering Report, municipalities will often take ownership of all necessary infrastructure constructed as part of a subdivision and create legal easements to enter private property to inspect, maintain and repair the infrastructure. While many municipalities commonly retain control over structures of this nature, this Court has no jurisdiction to mandate the City to expropriate the structure or the surrounding land, or assume the responsibilities in relation to it.

[37] In my view, the Applicants would have the right to remove the structure given that the City has not retained any rights in relation to it. If removed, the City would have to make the necessary adjustments to the drainage system to ensure there is adequate drainage in the absence of the structure. Any removal, however, should be done in consultation with the City given the liability issues that could arise for both parties if flooding were to occur. These issues, however, are not before me on this application.

[38] The application is dismissed.

[39] I will receive costs submissions from the Respondent within three weeks of this decision. The Applicants have one week thereafter to respond.

Justice C.F. de Sa Released: July 6, 2023