Court File and Parties

COURT FILE NO.: CV-23-0205 DATE: 2024/03/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER CAICEDO Applicant

– and –

KIMBERLY ANN O’NEIL Respondent

Counsel: Andrew Paterson, for the Applicant Clinton H. Culic, for the Respondent

HEARD: October 19, 2023

Reasons for Judgment

Williams J.

Overview

[1] In his notice of application, the applicant seeks a declaration that a retaining wall is located on the property line between his property and that of the respondent and an order “that the Respondent is partially responsible for repairs to the retaining wall”.

The factual context

[2] The applicant and the respondent own adjacent properties in Kingston. The applicant owns 15 Guy Street. The respondent lives immediately to the east at 11 Guy Street. The home at 15 Guy is at a higher elevation than the home at 11 Guy. A partially collapsed retaining wall runs along or close to the line between the two properties.

[3] The applicant purchased 15 Guy in May 2021. The respondent has owned 11 Guy since October 2003.

[4] In her affidavit, the respondent said the retaining wall was built by the then-owner of 15 Guy in 1974 to build up the property so that a house could be constructed. This evidence is inadmissible. It is hearsay and the respondent failed to disclose its source, contrary to r. 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The respondent attached as an exhibit to her affidavit a photograph of what appears to be a piece of cement with “1974” chiseled into it. The respondent did not describe what was depicted in the photograph or provide any information about where or when it was taken. I can draw no inferences from the photograph.

[5] In her affidavit, the respondent said a portion of the retaining wall collapsed about seven years before the applicant purchased 15 Guy. This would have been around 2014. I accept this evidence, as the respondent was living at 11 Guy at the relevant time and would have had direct knowledge of the wall’s collapse.

[6] The applicant ordered a survey for his property in March 2023. The parties interpret the survey differently. The applicant says the retaining wall runs along the line between his property and that of the respondent. The respondent says the retaining wall is on the west side, the applicant’s side, of the property line.

[7] In its report, the surveyor divided the retaining wall into six sections. Referring to these sections, it found the following: at section A, “the centerline of the concrete block wall is approximately on the [property] line”; at section B, “[the applicant’s] concrete driveway is 0.16 west of the line”; at section C, the “driveway is 0.30 west of the line”; at section D, the base of the retaining wall is “0.05 west of the line”; at section E, the retaining “wall is 0.05 east of the line”; and at section F, “the concrete block shed [its back wall being a continuous part of the retaining wall] is 0.20 west of the line.”

[8] The respondent reported the state of the retaining wall to the City of Kingston, which issued an Order to Remedy Unsafe Building to the applicant on June 9, 2023.

[9] On June 12, 2023, the City of Kingston denied a request from the applicant for a fence viewing under the Line Fences Act, R.S.O. 1990, c. L.17, on the basis that the structure was a retaining wall and not a line fence governed by the Act.

[10] The applicant has received two quotes for the reconstruction of the retaining wall, one for $316,400, the other for $337,782.

The applicant’s position

[11] The applicant argues that where a retaining wall runs along the line between two properties, the property owners should be equally responsible for the cost of construction and repair of the wall. The applicant argues that this principle has been upheld in several court decisions and cites three cases.

[12] The applicant also submits that this is an appropriate case for the court to make an equitable ruling that the applicant and the respondent are jointly responsible for the cost of removal and demolition of the existing retaining wall and the construction of a new wall. The applicant argues that the retaining wall benefits both properties. He submits that substantial damage could result if the wall is not replaced.

The respondent’s position

[13] The respondent argues that the applicant is solely responsible for reconstructing the retaining wall. The respondent argues the wall is located on the applicant’s property and benefits his property only.

[14] The respondent also argues the semi-collapsed state of the wall would have been evident when the applicant purchased 15 Guy in 2021. She says the applicant must have negotiated a favourable purchase price because of the state of the wall, noting that he bought the property for $231,000 and subsequently registered a $530,000 mortgage against it.

Analysis

The cases relied upon by the applicant

[15] The applicant relies upon three cases to support his argument that the respondent should pay for half of the removal and replacement of the retaining wall. These cases do not assist him.

[16] In Lo v. Ho, 2010 ONSC 1979, the plaintiffs sued their neighbours after the neighbours’ retaining wall collapsed onto the plaintiffs’ lower-elevation property, damaging a fence and a garden. The defendants’ insurer settled with the plaintiffs and pursued a third party claim against the contractor who built the wall. The contractor was found to be partially liable to the defendants.

[17] In Desjardins v. Blick, the plaintiffs sued the defendants for removing soil from underneath the plaintiffs’ garage and along the property line. The plaintiffs sought damages for the cost of repairing the garage and installing a retaining wall. The plaintiffs were successful. The decision turned on the defendants’ intentional conduct in undermining the plaintiffs’ right to lateral support.

[18] In Tang v. Ge, 2021 BCCRT 404, a Small Claims decision of British Columbia’s Civil Resolution Tribunal, the applicants sued their neighbour for refusing to pay for half the cost of a new retaining wall installed between their properties. The applicants were successful. The defendant was found to have repudiated an oral contract.

[19] In none of these cases did the court or tribunal conclude that where a retaining wall runs along the line between two properties, the property owners are equally responsible for the costs of constructing and repairing the wall.

The applicant’s request for equitable relief

[20] The applicant argues that it would be appropriate for the court to make an equitable ruling that the respondent is equally responsible for the removal and demolition of the old retaining wall and the construction of a new wall.

[21] The applicant did not point to a particular equitable remedy or doctrine that might apply.

[22] The applicant’s argument appears to be that the retaining wall benefits both his property and that of the respondent, because if the wall is not reconstructed, both his property and that of the respondent could be damaged. The applicant argued that he was being proactive by coming to court before this happened.

[23] As I understand the applicant’s argument, it is that if the retaining wall is not reconstructed, his property (which I presume would include soil and vegetation on his side of the property line and possibly also the driveway and the house) may slide down onto the respondent’s property, and the respondent should help pay for the reconstruction of the wall to prevent that from happening. The applicant does not suggest that the respondent would benefit from the reconstruction of the retaining wall in any way other than to prevent damage to her property that would be caused by the collapse of the applicant’s property onto hers.

[24] I do not accept the applicant’s argument that the respondent would benefit from the reconstruction of the retaining wall. A property owner has a right to be free from danger posed by a neighbour’s collapsing property, and being secure from such danger is not properly characterized as a benefit: Oddguys Holdings Ltd. v. S.C.Y. Chow Enterprises Co., 2010 BCCA 176, 5 B.C.L.R. (5th) 229. In these circumstances, there is no foundation for the equitable order the applicant has requested.

Conclusion

[25] The applicant purchased the property at 15 Guy long after the retaining wall had started to collapse. There is no agreement between the applicant and the respondent in respect of the retaining wall. The cases the applicant relies on in support of his position that the respondent should be required to contribute to the cost of reconstructing the wall do not assist him. The wall does not benefit the respondent other than to protect her property from damage that might be caused by the applicant’s property. Equitable relief is not available in the circumstances.

[26] For these reasons, the applicant has not satisfied me that there is any legal basis for his request that the respondent be ordered to contribute to the cost of reconstructing the retaining wall.

[27] I decline to make the declaration requested by the applicant that the retaining wall was on the line between his property and that of the respondent. The applicant’s survey did not support such a declaration and in fact suggested that most of the wall was on the applicant’s side of the line. Even if I had been satisfied that the wall was on the property line, it would have had no bearing on my decision.

[28] For these reasons, the application is dismissed.

Costs

[29] The applicant’s counsel said the applicant’s partial indemnity costs for the application were approximately $9,000, all-inclusive.

[30] The respondent’s counsel said that, if successful, the respondent would seek costs of $12,500.

[31] I have considered the factors listed under Rule 57.01(1) of the Rules of Civil Procedure. In my view, this application was without foundation. The respondent was successful. She is entitled to costs on a partial indemnity basis. In this case, the amount the applicant would have sought if successful seems to me to be a fair and reasonable amount for the applicant to pay.

[32] The applicant shall pay the respondent partial indemnity costs in the amount of $9,000, inclusive of disbursements and HST.

Williams J.

Released: March 5, 2024