Madam Justice Quinlan of the Ontario Superior Court of Justice began her Reasons for Judgment in a recent drainage case in this way: "Issues between neighbours can sometimes be unpleasant. A drainage easement over the plaintiff James Smith’s lands has resulted in acrimony and almost ten years of litigation."
Smith owns a property next to land owned by the Defendant in the case, 663556 Ontario Limited, which owns and operates a RONA store on its property. Smith argued that an inadequately maintained drainage pipe installed by 663’s predecessor in title caused damage to his property in breach of the terms of a drainage easement agreement, including cracking to concrete block retaining walls. In addition, water from RONA’S roof that continued to run off onto Smith’s property breached a court order and created a nuisance by diminishing Smith’s enjoyment of his property.
In 1976, a former owner of Smith's property granted the owner of the RONA property an easement "for the purpose of laying down and constructing a drainage pipe to accommodate run-off water from the roof of the building." Smith's land fronts on the Nottawasaga River. Pursuant to the drainage easement, 663 agreed to “save, defend, keep harmless and fully indemnify the Grantor, her heirs, executors, administrators or assigns, and her and their lands and tenements, goods, chattels and effects, from and against all loss, costs, charges, damages and expenses which the Grantor, her heirs, executors, administrators, or assigns, or any of them, may at any time or times hereafter bear, sustain, suffer or incur, by reason of the Grantee constructing the said drainage pipe over the lands of the Grantor”.
The drainage pipe in issue was in a poor state of repair. Eventually, Smith went ahead and replaced the pipe at his own expense and sought to be compensated by 663. Justice Quinlan applied the indemnity and save harmless provision in the drainage easement and ordered 663 to pay for the work carried out by Smith on the drainage pipe. However, she did not order 663 to pay for damage to a retaining wall, having found that Smith failed to prove on a balance of probabilities that the damage would not have been sustained "but for" the drain pipe issues. Another claim related to driveway damage was dismissed.
Justice Quinlan also ruled that 663 had committed a nuisance by failing to rectify the drainage situation. She found that a reasonable amount of damages was $3,000 per year for the seven years between 2004 and 2010, totalling $21,000.
Read the decision at: Smith v. 663556 Ontario Limited.