Drainage Dispute Between Neighbours
“It is very unfortunate that these neighbours could not have found someway to work this out. Sadly, both sides have incurred significant legal costs and an even more significant amount of stress”.
Those were the comments of Justice J.E. Ferguson in a dispute between neighbours in Dawes v. Gill, 2019 ONSC 5649. Things got so bad that the police were called.
The plaintiff, Dawes, sued his neighbours, the Gills, alleging that they changed the drainage patterns on their property while constructing a new house. Dawes said that water now drains onto his property and has infiltrated his basement. He sought damages and an injunction.
The Gills stated that landscape construction by Dawes on his own property caused the water infiltration. The Gills counterclaimed for nuisance, trespass, and malicious prosecution.
Following an eight day trial, Justice Ferguson dismissed both the claim and the counterclaim.
Justice Ferguson said that it was reasonable for the Gills to purchase an older house and rebuild it. They took the proper steps by retaining experts to design and rebuild the house. They obtained the required approvals from the City of Toronto.
Her Honour stated there is no requirement for all surface water from renovations of a property to be confined solely within the limits of that property. Further, there is no requirement for surface water to not flow toward an adjacent property in accordance with existing elevations and drainage patterns.
Justice Ferguson found that the surface water is directed to the existing drainage patterns, down a laneway into a well-defined channel, and into the street. To the extent the drainage patterns have been disrupted, it was due to the landscape construction by Dawes.
The Gills were not liable in nuisance or in negligence.
Had Justice Ferguson found the Gills liable, she would have awarded Dawes approximately $18,000 for waterproofing, less 50% for contributory negligence. However, as indicated, the claim was dismissed.
This case demonstrates that, whenever possible, neighbours should attempt to resolve disputes amicably and without a trial. Often, following a trial, neither neighbour will get what he or she wants.