March 18, 2019 by Greg Meckbach
A commercial property owner who was sued for $100,000 by neighbours over water damage is unable to appeal to the Supreme Court of Canada.
The top court announced March 14 it is denying Marilyn Marks leave to appeal a Court of Appeal for Ontario ruling last year.
Marks’s property is in the community of Tottenham northwest of Toronto. She owns a laneway which her neighbours have been using for access to their commercial building, which includes a pizza shop and apartments.
Those neighbours – Terrence and Matilda Berg – sued Marks and won.
The dispute was over an easement (or a legal right of use) that the Bergs had Marks’ laneway. In Berg v. Marks, released in 2017, Justice Mary Vallee of the Ontario Superior Court of Justice ruled that the Bergs are allowed to maintain the existing drainage infrastructure. That infrastructure includes a catch-basin and a drainage pipe located under the surface of the laneway.
The Bergs were deemed to have sustained more than $211,000 in damages (mostly from loss of rental income) and were awarded $100,000, which is the maximum damage award permissible under Ontario’s simplified rules for lawsuits.
Justice Vallee’s decision was upheld by the Court of Appeal for Ontario in 2018. Marks applied in July, 2018 for leave to appeal to the Supreme Court of Canada, which announced this past Thursday it will not hear her appeal. The Supreme Court of Canada does not issue reasons for denying leave to appeal.
Marks has to pay the Bergs’ legal fees for both her appeal in Ontario and her application to the Supreme Court of Canada.
The Bergs said the area at the back of their Tottenham building was “constantly flooded” over the years and that water was going into the basement of their property.
Until 2006, Terrence Berg had been maintaining a catch-basin in the laneway owned by Marks so that water could properly drain from the laneway. That catch-basin was meant to allow water to drain along a lateral pipe and then out to the municipal storm sewer.
Court records indicate that in 2006, Marks’ partner stopped Berg from maintaining the catch-basin. 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.
Justice Vallee ruled in 2017 that Marks caused a nuisance to her neighbours, who are entitled to have the laneway and the parking lot drain to the catch-basin.
Marks disputed the extent of the easement that the Bergs had to her laneway.
On appealing Justice Vallee’s ruling, Marks argued that lawyer James Feehely should not have been allowed to testify. Feehely has had an office beside Marks’ property since 1975 and prepared the legal documents creating the easement more than 30 years ago. At the time the municipal government was the Village of Tottenham, but is now the larger Town of New Tecumseth.
Feehely’s name did not appear on one list of potential witnesses provided by the plaintiffs. But that was not a miscarriage of justice, Judge Sarah Pepall of the Court of Appeal for Ontario wrote.
Without Feehely’s testimony, the court could still have concluded that the Bergs had a right to maintain an “operational driveway easement that is unimpeded by significant pools of water.”