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Before entering into litigation with a neighbour over a property dispute, it is vitally important to consider the chances for success, and what may be at stake if you lose. While property damage can no doubt be costly, litigation might be even more so, as was demonstrated by a recent decision of the Ontario Superior Court.

Neighbours Both Undergo Construction; One Suffers Water Damage

The parties involved owned homes on adjoining properties in Toronto, with the defendant’s property being uphill from the plaintiff’s land. Both parties undertook large construction projects on their respective homes. The plaintiff completed significant landscape construction which included the removal of hard surfaces in the backyard; the removal of concrete and asphalt surfaces in the laneway, the addition of a downspout to the second story balcony; and the installation of water management features, including installing a soak‑away pit, installing weeping tile tubes to drain water away from the foundation of the home to the soak-away pit; grading the backyard to slope away from the foundation of the house, and installing a new retaining wall.

The defendants, meanwhile, tore the existing house down on their property and had a new one constructed. The main changes to their property as a result of the new construction were:

  • a new garage was erected with a downspout directed toward the plaintiffs’ backyard;
  • a downspout was installed at the southwest corner of the house;
  • the grading, completed in May of 2016, was raised, resulting in an increased slope towards the plaintiffs’ house;
  • an underground pipe was installed, connecting to and draining water from the northeast and southeast corner downspouts of the house. Therefore, approximately half of the roof of the defendants’ house drains to the southwest downspout and toward the southeast corner of the plaintiffs’ house, and the other half of the roof of the defendants’ house drains to the front yard pipe and toward the plaintiffs’ driveway.

The plaintiffs began to notice water infiltrating their basement the same month that the defendants moved into their new home. After completing remedial work to stop the water from entering the basement, the plaintiff brought an action against the defendants for over $83,000 in damages including rent abatement for the basement tenant, remedial work to stop the leaking and additional costs associated with the damage to the basement. The defendants argued that they were at most 25% contributorily negligent for the damages to their neighbours’ property.

Expert Evidence on Both Sides

Each side retained an expert to plead their case, with the plaintiffs’ witness claiming that the damage would not have occurred but for the change in direction of the water flow from the defendants’ property. The defendants’ expert, on the other hand, claimed that even though there was increased water directed at the plaintiffs’ yard, the damage would not have occurred had the plaintiff’s not removed the hard surfaces in their yard when they completed the landscape construction.

Ultimately, the court found that the defendant’s expert evidence was preferable, concluding that:

I have not found liability on the part of anyone for anything…It is very unfortunate that these neighbours could not have found some way to work this out. Sadly, both sides have incurred significant legal costs and an even more significant amount of stress.

The Takeaway for Potential Litigants

Litigation is expensive, particularly when expert evidence is necessary, as was the case here. In addition to that, litigation can be extremely time-consuming. While it is important to seek remedies when one has been wronged in some way, it is equally important to ensure that an attempt is made to resolve issues in the most efficient way possible for everyone involved. The risks of doing otherwise may not be worth it in the end. Particularly when dealing with neighbours, finding an amicable and cost-effective resolution should always be the primary goal, with litigation being a last resort. An experienced lawyer can facilitate negotiations or a settlement that can help the parties to reach a resolution before stepping into a courtroom.

At Baker & Company in Toronto, we take the time to meet with you and understand your unique needs in order to guide you through your real estate matter, whether commercial or residential.  We rely on our broad base of experience and expertise to provide exceptional legal advice and risk management in a variety of real estate disputes, or through litigation if necessary. Call us at 416-777-0100 or contact us online for a consultation.

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Toronto, Ontario, Canada
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Phone: 416-777-0100
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