October 8, 2019 by Greg Meckbach
A Toronto homeowner who experienced basement water infiltration has lost his bid to sue the neighbours uphill from him for more than $83,000.
In 2014, Chester Dawes bought his home, between the Humber River and High Park, in what used to be the village of Swansea. Immediately east and uphill from the Dawes home was a bungalow that Sukhdeep and Sonya Gill bought in 2013.
That neighbourhood is known for a high-water table, saturated yards and basement water infiltration, Justice Jane Ferguson of the Ontario Superior Court of Justice wrote in Dawes v. Gill, a 42-page ruling released Sept. 30.
Research from the Intact Centre on Climate Adaptation – which is not involved in Dawes’ lawsuit against the Gills – indicates the average cost of a basement flood in Canada is $43,000.
In 2015, the Gills had their bungalow demolished. They replaced it with a newer, larger house – which they moved into in June, 2016. It was around that time that Dawes started having basement flooding problems. Later that year, Dawes made a series of improvements to his property.
Dawes sued the Gills because, he argued, the Gills owe him damages because of the amount of money he had to spend on improving his property.
Justice Ferguson ruled the Gills are not liable. The court rejected Dawes’ argument that the Gills’ construction of their new home violated local and provincial law. The new home on the Gill property was approved by building inspectors and none of Dawes’ evidence convinced the court that the approvals and inspections were performed inadequately.
The Sept. 30 ruling resulted from an eight-day trial held in early 2019.
The alleged damages included $31,000 that Dawes paid for driveway grading and restoration, $17,100 for waterproofing and $15,700 for installation of drainage system and restoration of laneway.
Section 629-20C(2) of the Toronto’s Municipal Code stipulates that “above-ground discharge from a downpipe or pipe shall be directed to discharge and be contained on the property in a manner that is not likely to cause damage to any adjoining property.” The Ontario Building Code says a building “shall be located and the building site graded so that water will not accumulate at or near the building and will not adversely affect any adjacent properties”.
The original bungalow on the Gills’ property did not have a downspout on the southwest corner, which is the side closest to Dawes. But the new home does and the court was told that city building inspectors said the Gills may not remove that downspout.
Construction took place on both the Gill and Dawes properties.
Dawes did some work on his property in late 2015. Dawes removed impervious surfaces – including asphalt surrounding his house – and replaced them with pervious surfaces, including gravel and clear stone, wrote Justice Ferguson. Dawes also installed a number of water management features including weeping tile tubes. He graded the backyard to slope away from the foundation of the house and installed a new retaining wall at the southwest area of his house.
Then in 2016 – after the basement infiltration problems started – Dawes carried out more work, including waterproofing his foundation and the installation of a drainage system to carry water from the area between the southern corners of his house and the Gills’ house to the front yard of his house.
Both the plaintiff and defendant retained engineers as expert witnesses.
The defendants’ expert agreed that the construction of the larger house has altered surface coverage conditions on the Gills’ property and this resulted in increases in flow rates and volumes from the property.
But the defendants disputed the plaintiff’s claim that the work on their property altered surface drainage patterns. They claim that it was the plaintiff’s work – including removal of the asphalt driveway, which had carried water to the street – that caused the alteration to the surface drainage patterns.
Justice Ferguson preferred the defendants’ expert evidence to that of the plaintiff.
The plaintiff’s expert witness confirmed on cross‑examination that without Dawes’ work, there “likely” would have been no water infiltration into Dawes’ basement because surface water would have been carried to the street down the laneway, as it had been in the past.