After an 8-day trial, Justice J.E. Ferguson released her reasons in Dawes v Gill, 2019 ONSC 5649 in which she dismissed all claims in a contentious neighbour dispute. Conner Harris and Sarah Spitz represented the successful defendants.
The Plaintiff sued his next-door neighbours, alleging that their home renovations had caused flooding in his basement. Suing in nuisance and negligence, the Plaintiff sought damages for the flooding and an injunction to stop the Defendants from allegedly directing more water onto his property. Liability in both causes of action ultimately turned on the question of causation. After an extensive review of the law of nuisance and negligence, Justice Ferguson applied the “but for” test in her causation analysis for both torts. She found that the Defendants acted reasonably in carrying out their home renovations. After weighing both parties experts’ opinions, Ferguson, J. held that the cause of the water infiltration in the Plaintiff’s basement was his own backyard renovation, not the Defendants’ construction. The Plaintiff had removed the impervious surfaces next to the foundation of his house where the flooding occurred and lowered the “drainage plane” in his backyard, affecting the flow of water as between the two properties. The claim in negligence also failed on the issue of whether or not the Defendants acted in accordance with the appropriate standard of care, with the Court holding that they did. Justice Ferguson went on to find that even if the Plaintiff had established that the Defendants caused his damages, they would be reduced by 50% because of his own contributory negligence.
The Plaintiff’s claims in nuisance and negligence were dismissed, as was request for an injunction. The case notably applies a “modern” approach to the law of nuisance following the Supreme Court of Canada’s decision in Antrim Truck Centre Ltd v Ontario (Transportation) and considers the utility of the defendant’s conduct in all the circumstances. It also clarifies and distinguishes the application of traditional nuisance cases respecting the flow of water and riparian rights. The full decision can be found here: