Court File and Parties

Court File No.: CV-24-00717040-0000
Date: 2025-04-25
Court: Superior Court of Justice - Ontario

Applicant: 1330 Gerrard Inc.
Respondent: Riverdale Immigrant Women Enterprises

Before: Edward Akazaki
Applicant Counsel: Mark A. Ross and Jacob Bershadsky
Respondent Counsel: Doug Bourassa
Heard: 2025-03-18

Reasons for Judgment

Overview

[1] The parties are neighbours owning adjacent commercial properties. 1330 Gerrard Inc. leases a basement unit to Kidnasium, a children’s gym. In the aftermath of a heavy storm, rainwater enters the basement and floods the gym through the block wall of a utility room. In addition to interference with the gym operation, the seepage could, in time, damage the wall.

[2] Next door, Riverdale operates a community-service organization. In line with its sustainability principles, it installed a green roof facility to absorb rain. A drainpipe channels excess rainwater from the roof into a rain garden. This rain garden substitutes the lateral portion of the drainpipe from the roof. City of Toronto Municipal Code § 629-20 and by-law 457-2000, s. 11(17) require such lateral portion to conduct storm water away from the building, to avoid accumulation near the building, and not to adversely affect adjacent properties.

[3] On the last point, Riverdale’s rain garden leaves no margin for avoiding Gerrard’s property because it consists of three “ponds” in a courtyard abutting the Gerrard’s west wall. Overflow from one pond drains into the next, in a northerly direction toward a back alley. The first two are reservoirs feeding semi-aquatic plants. The third is a river stone bed. The original design by landscape architect Mathis Natvik contemplated three reservoir ponds and a river stone drainage channel out to the alley. Riverdale either did not install this final stage of the system or removed it. Instead, the third pond spills rainwater back into the courtyard to supersaturate the ground next to the utility room. It also collects some of the discharge from Gerrard’s rear parking spaces instead of allowing it to flow into the alley. This condition has developed over time, as vegetation and roots in the stone bed have changed the topography so that it traps the water instead of dissipating and draining it.

[4] The arrangement flooded the neighbour’s basement twice in the last four years. A 2-year storm is enough to overwhelm the first two ponds and to flood the courtyard. Unlike a 100-year or even a 25-year storm, that is not a freak event.

[5] After the first incident, Gerrard obtained an engineering report attributing the flooding to leakage from the rain garden and recommending their relocation. It also stated that there was no immediate structural concern, but over time the water infiltration could compromise the building. Riverdale did not accept these findings and insisted on advice from its own engineer. Riverdale did not hire one. After the second flood, Gerrard brought this lawsuit.

[6] Gerrard’s application proposed that a jointly retained engineer inspect the properties to determine the cause or contributing causes of the basement leakage. Failing agreement, Gerrard asked for a court order permitting access to Riverdale’s property to conduct the inspection. It also asked for various mandatory orders to remove or relocate the rain garden and to permit excavation to perform waterproofing. Hoping to keep the litigation at bay, Riverdale then entered a procedural agreement for property inspection and removal of the rain garden if it was found to be a cause of the flooding. Riverdale did hire an engineer but dragged its heels about scheduling the inspection.

[7] Riverdale’s resistance to a reasonable fact-finding process and practical outcome continued as a pattern of broken undertakings right up to the substantive hearing.

[8] Gerrard had to request judicial assistance. Riverdale then consented to a court order implementing the agreement and steering the engineers toward a collaborative and practical outcome. Before the engineers could confer, Riverdale obtained a preliminary opinion. Gerrard contended this was an attempt to pre-empt or bias the fact-finding. If it was, it did not work. Riverdale’s engineer’s tentative opinion was that during a heavy storm the rain garden could indeed cause excess rainwater to pool in the courtyard. He also opined that the possible sources of water were the undermaintained rain garden and drainage from Gerrard’s rear parking spaces. Riverdale did not share this opinion with Gerrard or its engineer, until compelled to deliver its responding application record. In the end, the preliminary opinion was all either Gerrard or the court received from Riverdale.

[9] Gerrard’s engineer prepared a report after conferring with Riverdale’s and incorporating the latter’s input. He concluded that the likely cause of the basement flooding was excess water in the courtyard from the rain garden. The basis for this opinion included information from Riverdale’s expert, that the third pond trapped water in the courtyard and directed water toward Gerrard’s foundation wall.

[10] Riverdale then delivered the preliminary report from its expert as its response to the application. In a supplemental report, Gerrard’s expert agreed with many of the findings in Riverdale’s expert report. The main concern raised was that the preliminary report may have overstated the volume of water entering the courtyard from the parking area.

[11] Riverdale stands on the tentative findings and conclusions in its sole expert report and asked the court to prefer it to those of Gerrard’s expert because Riverdale’s engineer had more hydrology experience. This position could have been more persuasive if Riverdale had instructed its expert to identify any meaningful differences between his opinion and his counterpart’s.

[12] The evidence and arguments before the court therefore raised the following issues:

1. Conclusions from the engineering inspections and Riverdale’s obligations under the consent order
2. Alternative liability – Rylands v. Fletcher
3. Remedy

[13] Because of the experts’ agreement that the rain garden feature has been a cause of the basement inundation, the procedural agreement and court order require it to be removed. Although not required to reach this conclusion, the flooding incidents amounted to escapes of a harmful substance pursuant to the rule in Rylands v. Fletcher. I will then determine whether the full extent of the remedy sought in the lawsuit is appropriate.

[14] Before I turn to my analysis of the three points, I will first detail the procedural background of the underlying fact-finding endeavour and procedural order.

Procedural Background

[15] Gerrard’s awareness of the basement leak originated in late 2021, when the previous tenant reported dampness along the wall adjacent to the pond. Gerrard’s principal approached the executive director of Riverdale to discuss the problem. The latter stated that because the City of Toronto funded the installation of the ponds, she needed an engineer’s report to consider removal of the ponds to take it to her board and to the City.

[16] In 2022, Gerrard hired Raed Al-Rawi, a civil engineer, to inspect 1330 Gerrard St. East for the cause of basement flooding. Because the location of the flooding stood next to the water ponds in Riverdale’s rear courtyard, he opined that the lack of overflow control and the excessive plant growth in the ponds caused the flooding during severe rain. There was no immediate structural concern, but he recommended treatment of the wall as soon as possible and relocation of the water ponds away from the wall to prevent the forming of a water reservoir at the edge of the wall.

[17] Gerrard sent the Al-Rawi report to Riverdale. Riverdale’s response came from its lawyer, whose letter cited the fact that the engineer had not inspected the ponds and was unfamiliar with their function. Affirming that his client was “a good neighbour,” he stated Riverdale will cooperate with further inspections and that “It behooves both of our clients to ensure that the conclusions of the engineers are informed and reliable.” He then expressed Riverdale’s intention to retain its own engineer “to conduct an informed assessment of the issue.”

[18] Gerrard considered this response unfair, because Riverdale had repeatedly stalled attempts to coordinate a site inspection date and had denied access to Al-Rawi when he did attend. The lawyer’s response turned out to be an empty promise of cooperation. Riverdale did not hire an engineer. Gerrard did not press the issue, because the tenant was not reporting any further leaking.

[19] On January 11, 2024, a new basement tenant, Kidnasium, reported flooding of soft tiles and carpeting in the children’s play area leaking from pot lights from the drop ceiling. Gerrard’s personnel attended to take photographs and videos to send to its lawyer. While taking pictures in the courtyard, Riverdale called the police to have them ejected. This event motivated Gerrard to instruct lawyers to conduct urgent negotiations with Riverdale to gain access to the exterior wall to perform waterproofing. Gerrard entered the previous and ensuing exchanges between counsel into evidence.

[20] Riverdale did not submit a responding affidavit disputing the factual narrative in the lead-up to the litigation. I need not recite the minutiae of the counsel exchanges. In general terms, Gerrard understandably sought help from its neighbour to prevent interference with Kidnasium’s operations and to prevent damage to the wall. Riverdale’s response, when it came, was aggressive and condescending. I did observe that the January 29, 2024, email from Riverdale’s counsel proposed retaining a joint engineer to assess the cause of the leak and to recommend a solution.

[21] On March 21, 2024, Gerrard sued.

[22] At the Civil Practice Court for the scheduling of the application hearing, counsel appeared before Callaghan J. and requested a case conference to assist their resolution of the dispute. Following the CPC attendance, counsel conferred and reached the following procedural agreement, which I paraphrase from counsel’s email of April 28, 2024:

1. The parties would hire separate experts, but they would attend at the properties together.
2. The purpose of the attendance would be to opine on the cause and/or causes of the leak in the basement of 1330 Gerrard and how it could be repaired.
3. If the experts determined that the ponds needed to be removed to properly assess, Riverdale would do so.
4. If the experts determined that the ponds needed to be removed to complete the repairs, or that they are a cause of the leaking, Riverdale would remove the ponds. The restoration of the ponds, if any, would be dependent on the findings of the experts as to cause.
5. The parties assumed in good faith that the experts should be able to agree. If they did not agree, the parties would have to address it either by resolution or with the help of a judge at a case conference.
6. 1330 Gerrard would grant reasonable access to Riverdale’s surveyor sometime over the next 30 days.

[23] Following this agreement, Riverdale reverted its resistance to Gerrard’s attempts to schedule the inspection. This forced Gerrard to schedule a judicial case conference. The case conference was scheduled before me on June 10, 2024.

[24] On consent, I made an order implementing counsel’s agreement and enhanced it by directing the experts to confer after the inspection in a “hot tub” session on or by July 15, 2024. The premise of this procedure was that it was the next best thing to the parties’ hiring a joint expert. The doubling of the expense could be offset by the advantage of two heads being better than one. Gerrard’s expert was a civil engineer, and Riverdale’s had expertise in hydrology and ecological systems. I fully expected the next step to be a practical result-oriented conclusion to the lawsuit. I did not expect what happened next.

[25] The parties were back before me, because Riverdale’s expert could not attend until August. In an answer to undertaking after the cross-examinations, it emerged that Riverdale had already engaged its expert in February 2024. In the original instruction email to Chris Denich, a green infrastructure engineer, Riverdale’s executive director stated:

We are looking for an engineer who can establish if the leak is coming from our rain garden which we doubt. They are a very aggressive corporate group and have been giving us a really hard time and threatening to take us to court soon hence the urgency.

[26] Gerrard’s counsel pointed to this email as an attempt to bias the expert. As I will outline below, Ron Koerth, the civil engineer retained by Gerrard, participated in the “hot tub” and reported information from Mr. Denich pointing to the rain garden as the proximate cause of the basement flooding. I therefore do not find the email had the effect of tainting Mr. Denich’s evidence. The significance of the email was that it would have made it hard for Mr. Denich to accept a joint retainer, as Riverdale’s counsel had proposed to Gerrard’s.

[27] Riverdale could not meet the July 15 deadline, because Mr. Denich was unavailable until mid-August. This fact only confirmed that Riverdale had made no effort to comply with the April agreement to co-ordinate a joint inspection. They had months to schedule a single day’s inspection. The impasse forced Gerrard to schedule a re-attendance before me on July 10. I amended my order, and the inspection took place on August 14, 2024.

[28] On October 8, 2024, Riverdale’s expert provided Riverdale his initial thoughts in advance of the hot tub meeting of the experts, which then took place on November 11, 2024. Gerrard’s expert then delivered a report on December 27, 2024. On February 10, 2025, Riverdale served a responding motion record consisting of an affidavit from its expert attaching and affirming the October 8, 2024, preliminary report. Not having seen that preliminary report until February, Gerrard had to commission a supplemental report, dated February 14, 2025. On March 3, 2025, counsel cross-examined the experts.

[29] The above history is important, because Riverdale professed from the outset to be a willing participant in a collaborative fact-finding process. At every turn, it sought to delay and undermine a process meant to resolve the conflict out of court. Mr. Denich’s preliminary opinion obviously did not have the benefit of the hot-tub session and, rightly, left his inquiry open-ended. Riverdale now relies on differences between it and Mr. Koerth’s and an attack on Mr. Koerth’s qualifications to argue that Gerrard has failed to prove that its pond system is a cause of the basement flooding. This is a variation of a straw-man fallacy, because the very source of the inconclusiveness is Mr. Denich’s intentionally provisional opinion.

[30] As I will detail below, a panoramic view of the expert reports and cross-examinations revealed something very close to a joint opinion. The fact that Mr. Denich neither agreed nor disagreed with anything Mr. Koerth said is understandable. The applicant had the burden of introducing its evidence, and the respondent that of rebuttal. In the order of presentation of expert evidence, Mr. Koerth’s evidence, very much like Gerrard’s fact evidence and entreaties to engage its neighbour in a practical resolution, went unanswered.

[31] In the circumstances, it would be wholly unfair to the party whose property has already been inundated to wait years for a trial. This is a case where the parties entered a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial,” as Karakatsanis J. stated in Hryniak v. Mauldin, 2014 SCC 7, at para. 4.

[32] I will now turn to the three issues.

1. Conclusions from the Engineering Inspections and Riverdale’s Obligations under the Consent Order

[33] A reading of Mr. Denich’s report that is fairer to the author’s preliminary intent discloses that he meant only to point out to Riverdale that the rain garden is a likely cause of the neighbour’s flooding. For example, referring to the three ponds:

P3 is unlined (unlike P1 and P2, which have permanent liners) and was originally designed to allow for infiltration. The infiltration capacity of the existing system is unknown, and the proximity to the adjacent property may contribute to potential water inundation issues.

[34] This is not an opinion that the third pond’s contribution to the flooding is inconclusive. It simply included P3 to the possible causes in the way any forensic exercise entails proposing the possibilities and ruling them out. Mr. Denich did not rule P3 out, not because ruling it in was inconclusive, but rather because Riverdale never asked for a final report after the hot tub session with Mr. Koerth. On cross-examination, Mr. Denich explained how the parking area would contribute drainage first, before excess water comes from the Riverdale roof:

33. Q. All right. And if you could, just in your own words, describe what you believe the causes to be, I would appreciate that.
    A. I mean, I think we can get very detailed, but at a very high level...I'm happy to take additional questions, but there are two sources of water here that we were able to identify on site. So, the two sources being the green roof to the series of rain gardens, which we labelled "P1 to P3", being a potential source of water, and then, as well, the rear parking area at 1330 Gerrard Street as well, as providing a source of water to that rear area.

34. Q. Would it be fair to say that both of those primary sources of water are contributing to the leakage in the basement at 1330 Gerrard?
    A. They are both potential sources. … The rear parking area at 1330 Gerrard Street is asphalt, and so, that surface, not to get too technical, but that surface produces runoff at a much faster timescale. And so, it also produces runoff almost certainly for any event larger than a two-millimetre event. And so, we typically...in the industry and in literature, anything less than two millimetres, we generally consider will not create runoff, but anything above two millimetres, that parking lot area is generating runoff. And so, the same cannot be said about the green roof or the rain garden because, by design, those surfaces are designed to both retain and detain water. And so, there will be rainfall events where only the parking surface is creating or generating runoff, and there will be events were potentially both are, but the timing is not equal, nor is the flow rate or the volume.

[35] Later, Mr. Denich restated the above reasoning:

88. … You have events where only the parking lot runoff would be contributing water to that area. At other events, both could be contributing. And so, depending on the year, if you were only receiving rainfall events below the threshold, then it would only be the parking lot contributing. After the threshold, then both could be contributing. And so, the probability changes with the probability of the rainfall, in terms of what would be contributing.

[36] Mr. Denich focused on two sources of water, Riverdale’s roof and Gerrard’s parking spaces. I glean from his testimony that the parking run-off is insufficient to cause the basement flooding. This would not necessarily make the rain garden the proximate cause of the inundation of the basement, because his hydrological assessment only extended to the rain garden’s capacity and not to the ability of the courtyard to absorb water from the two sources. What made the rain garden the proximate cause is not its role as the source of the water but its function in trapping the water, consistent with the following elements of his opinion:

1. Mr. Denich’s hydrological calculations confirming the rain garden’s lack of capacity to contain rainwater during weather events greater than a 2-year storm – consistent with the two infiltrations reported in the evidence since 2021.
2. The defect in the final river stone pond, altered from the original outlet design, trapping stormwater from all three sources into the courtyard and toward Gerrard’s wall instead of draining it out to the alley.

[37] Reviewing Mr. Denich’s evidence in this light, it was hard to see much daylight between his preliminary opinion and Mr. Koerth’s. Side by side, they read as if Mr. Koerth had finished a sentence started by Mr. Denich. In the absence of a rebuttal, it would be fair to assume that Mr. Denich did not have one.

[38] I also reject Riverdale’s attack on Mr. Koerth’s expertise. Both experts were civil engineers. Mr. Denich had impressive credentials in the field of green infrastructure. Mr. Koerth is a senior forensic expert familiar with the needs of legal disputes. Their expertise was complementary.

[39] Mr. Denich’s cross-examination evidence confirmed the experts’ concurrence that the water ingress to the basement need not have occurred, if water in the courtyard had been allowed to drain away or evaporate. Whatever the source of the water, the cause of the basement flooding has been excessive pooling in Riverdale’s courtyard due to the configuration of the rain garden and the absence of a viable drainage path. Both as a source of the water and as a cause of the flooding of Gerrard’s basement, there is no material difference between the experts’ conclusions that the rain garden is the cause. Further to the June 10, 2024, consent order, and the previous agreement between the parties, the conditions have been met for requiring Riverdale’s removal of the rain garden.

2. Alternative Liability – Rylands v. Fletcher

[40] Gerrard characterized the case as paradigmatic of the rule in Rylands v. Fletcher, [1868] UKHL 1, (1868) LR 3 HL 330. Rylands built a reservoir on his land. When it burst and flooded the neighbouring mine, run by Fletcher, the neighbour sued. The House of Lords established a rule of strict liability for damage caused by the escape of something brought onto one’s land by a non-natural or special use of the land. Courts and academics have struggled to explain whether it is a strict liability rule applied to specific situations in the tort of nuisance, or whether it is a separate tort: Smith v. Inco Limited, 2011 ONCA 628, at paras. 68-98.

[41] The analogy between Rylands’ reservoir and Riverdale’s ponds may appear obvious. As counsel for Riverdale pointed out, the ponds themselves do not hold much water and are designed to spill into the next stage. There was also no leak. The origin of Gerrard’s complaint is the spillage from the system being overloaded. However, the pond system as it currently exists traps a large quantity of water after the final stage. The flooded courtyard is the analogue to Rylands’ reservoir.

[42] There are instances where liability could be found in nuisance but not under the rule in Rylands. In Tock v. St. John's Metropolitan Area Board, [1989] 2 SCR 1181, the flooding of the plaintiff’s land caused by a storm sewer blockage did not allow a claim to be founded in Rylands because the sewer was not a special or non-natural use, but a similar claim would have been allowable in nuisance between private individuals. This reasoning simply means that the strict liability rule is reserved for non-natural or hazardous uses. Municipal infrastructure does not qualify as a non-natural use, because it is constructed for the public benefit.

[43] In Smith, at paras. 97-98, the Court of Appeal described the issue in this way:

[97] The emphasis in Tock, at para. 13, on a “user inappropriate to the place” and, at para. 10, to “changing patterns of existence” demonstrate that the distinction between natural and non-natural use cannot be made exclusively by reference to the origin of the substance in issue. To decide whether a use is a non-natural one, the court must have regard to the place where the use is made, the time when the use is made and the manner of the use.

[98] … Like the reasonable user inquiry in cases involving amenity nuisance, the non-natural user inquiry seeks to distinguish between those uses of property that the community as a whole should accept and tolerate and those uses where the burden associated with accidental and unintended consequences of the use should fall on the user. The nature and degree of the risk inherent in the use is obviously an important feature of this inquiry, but as Tock demonstrates, it is not the entire inquiry.

[44] The non-natural user inquiry therefore limits the application of strict liability under the rule in Rylands. Courts should refrain from imposing strict liability for unintended consequences of otherwise acceptable uses and requires the complainant to plead and prove the elements of nominate torts such as negligence or nuisance.

[45] Riverdale argued that rain gardens are not unusual and that it does not divert the water from outside the property: “it is purely rainfall that would otherwise fall on the courtyard or roof.” It also submits that the additional water from the parking area is not its responsibility. This argument relies too heavily on the origin of the water, a point the Court of Appeal in Smith held did not end the inquiry. The expert evidence established that the rain garden directs water toward Gerrard’s wall by trapping the water from the three sources (the two identified by Mr. Denich, as well as the rain onto the courtyard including the rain garden). In its current state, the pond system not only fails to fulfil its purpose as an ecological drainage of water from the roof. It also operates as an unintended reservoir of storm water. When it collects more water than it can absorb or drain, the water escapes into the neighbour’s basement.

[46] Had Riverdale installed a courtyard hot tub that sprung a leak, there would be no argument that Riverdale would have to repair or replace it and pay for Gerrard’s damaged wall. A landscaping feature that allows water to collect more than the ordinary absorption and percolation of rainwater is no different from an artificial pool. As stated in Smith, at para. 96, the concept of natural use has been abandoned in favour of “ordinary.” What constitutes natural or ordinary in this instance must be defined by the two municipal by-laws cited at the outset. The City’s By-Law No. 457-2000 required building owners to disconnect down-pipes from the municipal sanitary sewer. Its provisions were harmonized with the Municipal Code § 629-20 requirement to avoid discharge to adjoining property and to maintain down-pipes in good repair and “water-tight.”

[47] By substituting the standard pipe with a system that is the opposite of “water-tight,” it put its neighbour’s property at risk of flooding. Riverdale has not even performed the repairs and alterations to the rain garden that its own Mr. Denich recommended as a means of mitigating the risk of further flooding incidents. I fail to see how this is different than someone who keeps filling a hot tub or swimming pool, knowing it is damaged and percolating into the neighbour’s cellar.

[48] The underlying public policy behind the rule in Rylands is not to create a special legal theory, but to protect property owners from the consequences of their neighbours altering basic and ordinary building features with knowledge of the additional risk. Perhaps Riverdale could be excused for the 2021 leak, because neither side knew there was a risk. Riverdale’s board should then have taken steps to ensure that its water feature was not the cause of floods next door. That is what neighbours should expect from each other. Its conduct, even in instructing its engineer, amounted to wilful blindness to its role in the risk and interference with Gerrard’s property. The non-natural use and escape requirements of Rylands, as stated in Smith, at para. 82, were necessary to impose strict liability for unintended events. Here, the event had already occurred once, and the conditions remained for the recurrence in 2024. Based on Mr. Denich’s hydrological analysis, probability dictates that another event should occur before the end of 2026.

3. Remedy

[49] Apart from the removal of the rain garden, the procedural agreement did not provide a clear remedy for the repair or waterproofing of Gerrard’s basement wall. Because Riverdale has resisted any subsurface inspection of the wall, the condition of the wall is unknown. Riverdale has asserted the fact that excavation could endanger geothermal infrastructure installed beneath the courtyard. A further inconclusive and extreme outcome would be to direct a trial of liability for damage to the basement.

[50] The remedy must be determined by the facts as known at the time of the hearing. The experts have made the identical recommendation, but neither has identified structural damage.

[51] Mr. Koerth’s opinion regarding waterproofing the basement wall was as follows:

we recommended that the below grade portion of the 1330 foundation wall be waterproofed, which would prevent any water from 1326 from entering the basement of 1330.

[52] In response to Gerrard’s counsel’s question about waterproofing the wall, Mr. Denich stated during his cross-examination:

Interior or exterior waterproofing could be used. That is outside my area of expertise, but I suspect that any barrier would be beneficial, as would an exterior barrier. So, again, anything that would prevent that water from entering into the ground or entering into the building.

[53] The record therefore does not establish whether there has been any structural damage to Gerrard’s property beyond the efflorescence viewed on the inside of the wall. Efflorescence can be a sign of structural compromise: Alie v. Bertrand & Frere Construction Co. Ltd., at para. 7. Or it could be nothing serious. Of course waterproofing could be beneficial, but it could also serve no practical purpose if it is not required.

[54] The record reveals only two episodes of basement flooding. From this, and from the causal mechanism identified by the engineers, I must conclude that either the wall has retained its capacity to repel water during normal rain and snow melts or that such ordinary conditions do not pose a risk to the wall. The entire arc of the dispute and the summary procedure adopted by the applicant followed a “wait and see” approach to the problem. It would be out of proportion to the nature of the issue, both in cost and in disruption, to order excavation of Riverdale’s courtyard for the purpose of waterproofing its subsurface exterior at this time. If removal of the ponds and proper landscaping eliminates the basement flooding, nothing more interventionist is required.

[55] The court therefore orders the replacement of the rain garden with a conventional lateral drainpipe exiting the rear of the courtyard. This order does not preclude Riverdale from later reinstalling a rain garden away from the neighbouring wall that conforms to the City of Toronto by-laws to drain water away from its building and the courtyard. However, common sense would expect it to be more forthcoming and consult its neighbour before taking such a measure and risk a return to court.

[56] If a formal judgment is required, I direct counsel to confer on the mandatory wording. If they cannot settle on a draft wording, they may contact my judicial assistant to settle it.

Costs

[57] I also encourage the parties to settle the costs of the proceeding. If the parties cannot settle the costs, counsel for the applicant may contact my judicial assistant to establish a schedule for exchange of bills of costs and submissions.

Edward Akazaki
Date: April 25, 2025