Canadian Underwriter

Neighbours’ spat over flooding, catch-basin access leads to $100,000 court award

July 5, 2018   by Greg Meckbach

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The owner of a property with a non-functioning catch-basin has to pay her neighbour more than $100,000 because flooding prevented the neighbour from renting apartments, the Court of Appeal for Ontario ruled last week.

Terrence and Matilda Berg own a building in Tottenham, about 20 kilometres east of the Hockley Valley Resort. Marilyn Marks, who was successfully sued by the Bergs, owns the property beside the Bergs as well as the laneway between the properties.

In the laneway owned by Marks is a catch-basin that had been installed in 1980. The catch-basin is connected to the municipal storm sewer by a lateral pipe.

In 1998, a tenant in the Bergs’ basement apartment experienced flooding after the catch-basin in Marks’ laneway was blocked. Flooding in the laneway recurred again in 2000. Over the years, Terrence Berg did maintenance work on the catch-basin, but more than 10 years ago Marks’s partner told Terrence Berg to stop the work because the catch-basin was on Marks’ property and not on the Bergs’ property.

One of the prongs had broken off the catch-basin and as a result, the lid did not fit properly.

In 2009, Marks had a concrete pad poured over her catch-basin. She was concerned the catch-basin was a hazard to pedestrians and that she could be sued.

The Bergs took Marks to court, arguing the Bergs had an “easement” over the catch-basin (meaning that the Bergs had the right to access it). Marks had argued that the Bergs did not have an easement over the catch-basin.

Ontario Superior Court of Justice judge Mary Vallee sided with Berg in a decision released in 2017. The decision was largely based on evidence from land title documents from 1980 and testimony from the lawyer who prepared those documents. Justice Vallee’s ruling was upheld on appeal, in a ruling released June 28, 2018.

Justice Vallee found the Bergs had incurred the following damages:

  • $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.

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. They added 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.”

The Bergs were awarded $100,000 in 2017 because they used Ontario’s Simplified Procedure, which applies to legal disputes involving amounts between $25,000 and $100,000. In 2018, the Bergs were awarded an additional $35,000 in costs by the Court of Appeal for Ontario because Marks lost her appeal.

The Bergs’s property includes a pizza shop and four apartments, one of which is in the basement of an addition to the main building. The other apartments are above the pizza shop, on the main floor of the addition and on the second floor of the addition.

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