Canadian Underwriter

How change of backyard elevation spawns liability risk

November 12, 2019   by Greg Meckbach

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A London, Ont. homeowner is in legal trouble because the water that was supposed to flow east from his neighbour’s backyard, across his property, started going the wrong way 12 years ago.

In Dankiewicz v. Sullivan, released Nov. 4, Justice Ian Leach found Todd Sullivan is in contempt of court for failing to comply with a 2011 judgement against Sullivan by Justice Helen Rady.

Sullivan was sued by Malgorata Dankiewicz, who owns the home immediately west of Sullivan’s.

“The rear of the properties are somewhat unusual because their backyards are flat behind the homes but then slope upward, where they are fenced along the top and fall away to railroad tracks below,” Justice Rady wrote in her 2011 ruling, also cited as Dankiewicz v. Sullivan.

They have been neighbours for more than 20 years. Their homes – roughly halfway between Fanshawe College and Argyle Mall – were built in the early 1990s immediately north of a Canadian Pacific Railway line that runs east and west. Between the homes’ backyards and the railway is a berm.

When the properties were originally developed, a swale (essentially a shallow wide ditch) was built at the bottom of the berm at the rear of the backyards. Water was supposed to drain both from the backyards and from the berm into the swale and then flow from west to east.

Water from the east side of Dankiewicz’s property was supposed to flow east on to Sullivan’s property. But at some point in 2007, the flow was reversed. Dankiewicz claimed there was substantial flooding and damage. Sullivan claimed Dankiewicz was the author of her own misfortunes because she had built a patio, pond, bog garden and gazebo in her yard.

Sullivan had replaced the swale in his own yard with a drainage system consisting of a trench, crushed stone, a “Big O” tiling on top of the stone and soil covering the Big O. He also built a shed.

In her 2011 ruling, Justice Rady found that it was more likely than not that something happened in 2007 causing the drainage flow to reverse.  The installation of the shed on Sullivan’s property – and a raising of the elevation around the shed – was the most probable cause, Justice Rady found.

As a result, Justice Rady ordered Sullivan to take “whatever steps are necessary” to ensure that surface water from Dankiewicz’s property drains across Sullivan’s property.

This effectively requires Sullivan to make the elevation of his property lower than that of Dankiewicz’s property along the boundary separating the two properties, Justice Leach found this year.

In 2011, Justice Rady noted the original development agreement registered on the properties’ title  stipulates the owners must maintain the original grading. So Dankiewicz therefore has a right to have her surface water continue to flow over the defendant’s property.

Justice Rady awarded Dankiewicz awarded non-pecuniary damages of $5,000 and special damages of $4,257.

Dankiewicz and Sullivan are back in court because Dankiewicz complained Sullivan had still not taken whatever steps were necessary to ensure the water drains from Sullivan’s to hers.

Justice Leach agreed in in his 35-page ruling released Nov. 4, 2019.  The court has yet to decide how this should be addressed.

Justice Leach found that surface water is accumulating in much of Dankiewicz’s backyard because it still is not being permitted to drain to the east, across Sullivan’s property, as originally intended. The current grading of Sullivan’s property generally slopes downhill to the west, wrote Justice Leach.

After the 2011 ruling, Sullivan hired a contractor to install a drainage pit near to a low point in close to the southwest corner of his house, near the property line.

But Justice Leach found the new drainage pit is not receiving very much water.

“In the prevailing circumstances, the plaintiff’s surface water, in order to flow across the defendant’s property, not only would have to flow uphill, to make its way onto the defendant’s property, but also overcome the force of surface water flowing the other way,” Justice Leach wrote.

In order to be found in contempt, the court order alleged to have been breached must state clearly and unequivocally what should and should not be done.

Sullivan argued that Justice Rady’s original 2011 ruling was obscure, overly broad, unlimited and infinite in time and space in terms of the obligation imposed on Sullivan.

Justice Leach disagreed, ruling that an order shall go declaring Sullivan in contempt.

It is now up to the court to determine how to deal with the contempt and to take into account any recent measures taken by the defendant.

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