Canadian Underwriter

Lawsuit over flooding, catch-basin access could reach Supreme Court

February 11, 2019   by Greg Meckbach

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A property owner who was sued for more than $100,000 over laneway flooding is hoping to appeal to the Supreme Court of Canada.

Marilyn Marks owns commercial property in the community of Tottenham, Ont., about 40 kilometres north of Toronto International Airport. A catch-basin in the laneway owned by Marks was blocked. Her neighbours, Terrence and Matilda Berg, “experienced flooding” to their commercial property, Justice Sarah Pepall of the Court of Appeal for Ontario wrote in Berg v. Marks, released June 28, 2018.

The Bergs sued Marks and won after a trial in 2017. They were awarded damages for loss of rental income, the cost to repair their basement and the cost of reinstating a catch-basin. The Bergs’ property included a pizza shop and residential apartments.

The ruling by the Ontario Superior Court of Justice, released July 26, 2017, was upheld in 2018 by the Court of Appeal for Ontario.

Marks has applied for leave to appeal, the  Supreme Court of Canada announced Feb. 8, 2019. It is now up to a panel of three Supreme Court of Canada judges (Michael Moldaver, Andromache Karakatsanis and Suzanne Côté) to decide whether or not Canada’s highest court will hear an appeal from Marks. Normally the court rules within less than two months on applications for leave to appeal.

In 2006, Berg was prevented by Marks’ partner from trying to repair parts of the catch-basin, Justice Pepall noted. Before 2006, Berg had been doing maintenance on that catch-basin for several years so that water could properly drain from the laneway. The catch-basin was meant to allow water to drain  along a lateral pipe and then out to the municipal storm sewer.

In 2010, Marks’ partner poured a concrete pad over the catch basin, making it inoperable. Marks argued this was done because the catch basin posed a tripping hazard, exposing her to liability.

The Bergs’ property includes a pizza shop and four apartments, one of which is in the basement.

The dispute that brought them to court was over whether the Bergs had an “easement,” meaning some rights of access, to the catch-basin in the alley owned by Marks. The court sided with the Bergs, ruling they did have an easement. Marks argued the Bergs did not have an easement.

The total damage award would have been more than $210,000, but was in fact $100,000, the maximum that can be awarded under Ontario’s Simplified Procedure for lawsuits. Specifically, trial judge Mary Vallee found the damages were $169,745 in loss of rental income, $30,984.60 for the cost to repair the basement apartment and $10,762 for the cost to reinstate the catch-basin.

Justice Vallee ruled that the Bergs had a right of way mainly due to testimony from local lawyer James Feehely, who prepared legal documents more than 30 years ago. Feehely testified that in 1988, a numbered company owned the laneway and transferred that laneway to the Village of Tottenham. The municipality then transferred the laneway back to the numbered company but in doing so reserved a “right of way in, over and upon” the laneway for both the village and the neighbouring property owners.

The Village of Tottenham has since been amalgamated into the Town of New Tecumseth.

Feehely should not have been allowed to testify, Marks argued, when she appealed the original 2017 trial decision. Feehely’s name did not appear on one list of potential witnesses provided by the plaintiffs. Therefore, the plaintiffs failed to comply with rule 76.03 of Ontario’s Rules of Civil Procedures, the Court of Appeal for Ontario noted.

Despite this, it was not a miscarriage of justice for the trial judge to let Feehely testify, the Court of Appeal for Ontario ruled. For one, Feehely was Marks’ own lawyer when she purchased her property, Judge Pepall noted, adding the defendants did tell Marks two weeks before the trial that they would be calling Feehely as a witness.

The Bergs told the court the area at the back of their building is “constantly flooded,” that the community of Tottenham “experiences major storms three or four times a year” and that, during each storm, water flows into the basement. The Bergs say there is black mold growing in the drywall and the entire apartment needs to be repaired, “but there is no point in doing any work until the drainage issue is resolved.”

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