Property owners must not worsen problems faced by their neighbours.
In Donley Investments Ltd. v. Canril Corp., Canril owned a vacant commercial property at 90 George Street in Ottawa, one inch west of the Donley building. The Donley basement began flooding in February 2003, after a broken City water main flooded the Canril building. No one knows how long the City leak went undetected. The City paid Canril $1272 as compensation, in exchange for a full and final release, which Canril gave, knowing of the flooding of the Donley property. Soon afterwards, Canril demolished its building, and refused Donley requests for permission to send cameras through its water pipes.
Meanwhile, water continued to infiltrate into the Donley building, which eventually developed mould. In May 2003, the estimated cost of cleanup was $35,000, and climbing.
Judge Métivier ruled that:
- Canril was not responsible for the original pipe burst. But once they were aware that water infiltration was a continuing problem, they chose to do nothing at their own peril.
- Donley efforts to properly investigate the source of the water were impeded by Canril, which repeatedly denied permission to investigate on Canril property.
- While the source of water infiltration was never determined, it was reasonably probable that it came from the Canril building.
- Demolition of the Canril building was done improperly, causing damage to the Donley property, and allowing additional water to flow to the lower basement in the Donley building. This breached the Demolition Code.
- Canril demonstrated “a rather breath-taking lack of cooperation” with its neighbour.
The continued water infiltration was a private nuisance for which Canril was responsible. Even if the nuisance was triggered by the broken City water main, Canril was not entitled to ignore the issue, “taking the attitude that it was not their problem.” Canril argued that once holes were drilled through its basement slab, the water infiltrating the Donley basement was merely the normal flow of water following its natural course. The judge held that Canril remained responsible, because
. … an occupant of land who, by artificial means, prevents the natural absorption in that land or alters the natural drainage therefrom of water caused by melting ice or snow or of rain water naturally falling there is bound to take all reasonable means of preventing that water from collecting on the artificial surface he has created and draining from that surface onto his neighbour’s land to the injury of his neighbour.
101 The Caplan basement was left in place with debris partially filling it and despite the holes in the slab, this was a manmade interference with the natural flow of water.
Finally, Canril had a duty to protect their neighbour and to include them in the claim to the City. Their failure to do so, raised a presumption of negligence even though causation had not been confirmed.
The Court awarded $202,226 in damages, including nearly $48,000 to rebuild the basement, with pre-judgment interest from November 2003.
Donley Investments Ltd. v. Canril Corp.
2010 ONSC 4134 (Ont SCJ) – July 22 2010
(avail at http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4134/2010onsc4134.html )