IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: 3290166 Nova Scotia Limited v. Troy-Built Homes Limited, 2018 NSSM 76
Claim No: SCCH 465736
BETWEEN:
3290166 Nova Scotia Limited
Claimant
-and –
Troy-Built Homes Limited
Defendant
Darren Dale Scott, Secretary, appeared for the Claimant.
John Boyle represented the Defendant.
Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.
DECISION
(1)
This is
a claim for remediation costs to drain flowing water from the parties’
respective properties. Specifically, the Claimant is seeking a portion of its
costs to construct a French drain and catch basin on its property as a result
of water flowing onto it from the adjacent property. The properties are located
along Highway 2 in Fall River.
Background
(2)
The Claimant
is a holding company owned by a brother and sister, Dr. Barbara Ann Scott, a
dentist, and Darren Scott who is the company’s secretary. It owns a property
known as [address removed] (“the Claimant’s property”). The Defendant company
is owned by Troy Landry and his wife. They own the adjacent property, Lot 5 (“the
Defendant’s property”). The Claimant is seeking $9000 consisting of the cost of
the excavation between the properties ($6500), consulting services ($850) together
with anticipated work not yet completed at the time of the hearing ($1600). He
alleges the water was rerouted there by the actions of the Defendant for which
he submits it should be liable in tort. The Claimant seeks the full amount he
attributes to this work. Alternatively, he submits he and Mr. Landry reached an
agreement to share the costs of renovations, which he submits is either $4500
or an allegedly accepted offer of $3500. On behalf of the Defendant, Mr. Boyle
submits there is no evidence the Defendant’s actions increased or enhanced the
water flow. Indeed, Mr. Landry has stated repeatedly the water on the
Claimant’s property was the result of water flowing from several sources along
the grade of the land. Further, while there were discussions about sharing the
costs of rerouting the water, the Defendant states that no agreement was ever
reached.
(3)
The
Claimant, 3290166 Nova Scotia Limited (variously referred to as “the numbered
company” or “the Claimant”) purchased the Claimant’s property in 2016. Since
then, they constructed a two storey commercial building which houses a
restaurant and Dr. Scott’s dental clinic. The Defendant, Troy-Built Homes
Limited (“Troy-Built”) owns the adjacent property. On the property near the
boundary to the Defendant’s property are two large propane tanks to service one
or both tenants of their building. It is at this point where most of the water
pools on that particular side of the Claimant’s property. It is the cause of
the pooling and liability which is at issue.
(4)
This
decision has been filed beyond the sixty days required by the Small Claims
Court Act. The particular time line has been held to be directory rather
than mandatory, as noted by the Supreme Court of Nova Scotia in Towle v.
Samad, 2013 NSSC 260.
Issues
(5)
Has the
Claimant proven liability in tort by the Defendant for the water flowing onto
the Claimant’s property?
(6)
Did the
parties enter into an enforceable agreement to share the costs of remediation?
If so, what were the terms of the agreement?
Evidence
(7)
Both
parties submitted significant evidence in this proceeding. While I have not
referenced all of the evidence in this decision, I have considered all that was
tendered and given it the appropriate weight.
(8)
Darren
Dale Scott testified that he and Troy Landry agreed their companies should
share the costs of a catch basin and French drain to address a significant flow
of water onto a portion of their respective lots. Mr. Scott tendered several
photographs into evidence showing the property after a rainfall. The photos
also show the propane tanks and other physical elements of the lots. The
photographs show a significant pool of water in front of the propane tanks.
(9) Mr. Scott alleges the parties entered into a verbal agreement on April 25, 2017 to split the costs of the work.
(10) Mr. Scott stated that Mr. Landry subsequently wanted an estimate from his company’s excavator (Mr. Landry is a home builder). Mr. Scott contacted his contractor, Earthworks, who provided an estimate to do the work. Mr. Scott provided this estimate to Mr. Landry to have his contractor attempt to match it. According to the estimates given by him and Mr. Landry, Mr. Scott stated the quotes were within $200 of each other. He followed up in discussions with Mr. Landry on May 3rd.
(11) On May 5th he met with Mr. Landry on his property. According to Mr. Scott, Mr. Landry indicated that he regretted agreeing to pay half the cost. He proposed an arrangement where Landry would arrange for some of the work to be done for a fee. Mr. Scott did not agree to that arrangement. Mr. Landry advised him that his contractor did not want to work near the tanks. He also suggested taking the excavation past the tank which Mr. Scott declined. According to Mr. Scott, Mr. Landry offered $3500 towards the cost of remediation. Based on that, Mr. Scott ordered the gravel needed to complete the French drain and catch basin. He did not provide a date for those discussions or a copy of the receipt for the order of gravel.
(12) Work began on the site on May 15, 2017. On May 16, Mr. Landry was asked to remove the pipes running along his property. Mr. Scott entered into evidence a photograph showing the drainage down the property line indicating where it empties at the back of his property. Mr. Landry contacted him on May 16 asking why he hired the more expensive contractor. On May 17, Mr. Scott learned that Troy had removed the lines where the digging was to have been done. Mr. Landry offered to remove other lines. Mr. Scott proposed to leave it all in place in exchange for the cost sharing. He had assumed from the outset Mr. Landry had agreed to pay towards the cost of remediation.
(13) According to Mr. Scott, he believed the Defendant was “100% responsible” for the water on his property as Mr. Landry altered the layout of his property.
(14) It is Mr. Scott's position that he and Mr. Landry made a deal to address the cost of the French drain and catch basin and he has now backed out of it. He believes the parties had an offer and acceptance. He feels the consideration for the agreement was his forbearance from suing for his water running onto the property. He estimates the total job cost to be approximately $11,440.02 plus HST based on the Earthworks invoice. He provided a breakdown of his claim, which included additional costs for drainage out back which has not yet been completed.
(15)
In
cross examination by Mr. Boyle, he believed they had an agreement on
April 25, 2017. He does not believe the water was rerouted to protect the
septic field on the property. When they met in April to discuss the trench, Mr.
Landry disputed the water was coming from his property but rather attributed it
to the flow across Highway 2. He and Mr. Landry discussed drainage at least
twice in a friendly way. He acknowledged Mr. Landry did not agree with his
suggestion that Troy-Built was fully liable for the remediation work. Mr. Scott
proposed a 50% split but wanted to get an estimate. Mr. Scott agreed to that
but suggested they decide quickly as the propane tanks risk becoming unstable due
to the water flowing underneath them. There was discussion between the parties
about where the water should run after the catch basin.
(16) Mr. Scott confirmed sending plans to Mr. Landry believing they had an agreement. On May 3rd, they began discussing possible estimates. There were various discussions about Mr. Landry moving the pipes on his property to make room for the excavation. He confirmed there was no damage to the property, only water.
(17) Mr. Scott had hired the services of Beth Casey, an engineering consultant. Her report was tendered into evidence but neither Ms. Casey nor any of the correspondents appeared to testify. Accordingly, I place little weight on this report and have not referred to it in this decision. In the report are site photographs of both properties in 2009 and 2012.
(18) Troy William Landry is the president of the Defendant. He owns 51% of the company while his wife owns 49%. He tendered into evidence a book of exhibits showing various plans depicting his property and the property of the Claimant. Mr. Landry is a previous owner of Lot 6 as well. Mr. Landry testified that the current building on the Defendant’s property uses roughly the same footprint as the one previously. He indicated there had not been any significant changes in the grading on the property. Mr. Landry testified he made no change in the runoff and he does not recall any issues with water running across the properties. He testified the only change came as a result of the construction of the commercial building next door owned by the Claimant which served to alter the grades on that property. He believes most of the water comes from the road frontage and the properties across the street.
(19) He testified that he first met Mr. Scott in early April 2017 on the properties to discuss the water. Mr. Scott told him that he (Landry) was responsible for the condition of the property and liable for its repair. Mr. Landry denied that was the case but suggested a neighbourly agreement. On May 3, Mr. Scott indicated to him he discussed excavation work with his contractor and provided him with plans. He provided an estimate of $9000 to install a trench between the properties. Mr. Landry denied making any commitment to pay or to answer any of Mr. Scott’s demands. He indicated there was no agreement to pay half the cost. Mr. Landry proposed to perform the work for a fee, namely, $6500, to construct a trench or swale at the rear of the properties. Mr. Scott told him the drainage should be on the Defendant’s property, at which point the negotiations broke off.
(20) Approximately one week later, he observed the Claimant’s contractor digging on the Claimant’s property. The trench ran across the front of the Claimant’s property and down the side, terminating in the backyard. He found the negotiations were not fruitful because Mr. Scott demanded more of him each time. He believes the parties could have reached a settlement but in his opinion, he does not believe they did.
(21) Under cross-examination, Mr. Landry stated there was no grading or surveys done to the property. There may well have been after construction was performed. He confirmed that in his home construction business, he advises clients to discharge water onto an adjacent property. He disagrees the water from his parking lot is pooling on Mr. Scott's property. He did not believe a deal was in place rather they were simply two neighbours hoping to work something out.
(22) Mr. Landry testified the grading of his lot was not changed. There was some grading required to change the elevation to raise his building. He stated the drainage is bad on his street. He indicated in the photographs pools of water on the shoulder of the road as proof it came from the opposite side of the highway. He agrees most of the water is in front of the tanks - from the street to the propane tank. At all points, he felt he and Mr. Scott were negotiating. He indicated the $6500 figure is not in writing but came from a phone call.
(23)
In
redirect evidence, he showed on the elevation diagram where the grading
occurred. He noted changes to the elevation when the piece was added to the
building. He could not tell where the water was coming from on the plan. The
septic field is located in the backyard.
Documentary and
Photographic Evidence
(24)
The
parties submitted documentary and photographic evidence which was useful in
understanding the topography and resulting physical structures on the land.
(25)
The
photographic exhibits submitted by Mr. Scott show water running down the line
between the Claimant’s property and the Defendant's property. It was not
necessary to admit Ms. Casey’s evidence to show that. It is obvious from the
photographs provided by Mr. Scott, water runs off the Defendant’s property onto
the Claimant’s property. Instead of a gradual slope, it is a small bank.
Findings
of Fact
(26)
The
parties’ theories on the source of the water on the boundary in front of the
tanks differ markedly. Darren Scott believes the water came from the
Defendant’s property exclusively. Troy Landry asserts the water comes from
across the street. I have found the water derives from several sources, at that
point of the property, most of it comes from the Defendant’s property.
(27) The photographs depict a significant amount of water pooling at the base of the propane tanks on the Claimant’s property. The plans in evidence depict the slope of the property running downward as one travels in a north/northwest direction along Highway 2. In other words, I find the natural grade of the property runs from the Defendant's property to the Claimant's. Furthermore, as noted by the Defendant, the natural slope of the land runs from east to west from a point of higher elevation across the highway from both properties and then takes a sharper drop past the buildings, ultimately draining into Lake Thomas.
(28)
In the Defendant's
book of exhibits, there is a plan prepared by Alderney Surveys dated June 22,
2010 showing the proposed construction of a new building and parking spaces on
the Defendant's property, all of which was eventually completed. Photograph #1
shows a small bank at the middle of the property. One would expect more water
to enter at that point. The water enters at a point where there is no barrier
by the parking spaces. The slope is gradual. Once the water reaches the point
of the barricade, the water has no place to run except along the line. In front
of the tanks on the Claimant’s property is loose gravel and dirt. There does
not appear to have been any steps taken
to address the drainage of the water before the tanks were installed. Indeed,
there is nothing that I can see in the photographs that would be designed to
stabilize the ground near the tanks. Thus, I find the water pooling increased
once the construction occurred.
(29)
I find
the property required significant drainage efforts on the part of the Claimant
in any event. The small bank on the Defendant’s property compounded the problems.
It did not cause them. There is nothing in evidence which shows the Defendant
took any action to increase or enhance the flow of water onto the Claimant’s
property.
The Law
(30)
On the
issues of liability in tort, it is sufficient to state that I have found the
Defendant did not cause the water to flow onto the Claimant’s property.
Therefore, no liability can be found in tort. However, as much of the
submissions addressed tortious liability, it is appropriate to provide comment
in any event.
Tort Law
(31) There are several torts affecting interests in land. It is important to note the Small Claims Court lacks jurisdiction to determine the location of the boundaries of litigants in a case before it. There is no dispute about the location of the boundaries. I have found conclusively the water runs off the Defendant’s lot.
(32)
Mr.
Boyle has submitted for this court's consideration a decision of Adjudicator
David R. Parker, QC in Green v. Dunphy, 2016 NSSM 5. In that case,
Adjudicator Parker considered the liability of a Defendant who installed a
culvert in which the water could not run through fast enough. Flooding resulted
to the Claimant. He considered four separate categories of tort: trespass,
nuisance, strict liability also known as the Rule in Rylands v. Fletcher
and negligence.
(33)
There have
been no allegations of negligence or evidence to suggest negligence on the part
of the Defendant.
Trespass
(34) In order to find trespass, a court must find there to have been unlawful entry onto the property. The Nova Scotia Court of Appeal had occasion to consider the definition of trespass. Cromwell, J.A. (as he then was) cited the following work from J.S. Williams, Limitation of Actions in Canada (2nd, 1980), where the learned author states at p. 62:
“The act of intentionally or negligently
entering or remaining on, or directly causing physical matter to come into
contact with land in the possession of another is a trespass... In such actions
the accrual of the cause of action occurs when the act of trespass is
committed. Each distinct act of trespass is viewed as giving rise to a fresh
cause of action. Practically each day marks the accrual of a fresh cause of
action. A succession of such acts may amount to what is called a ‘continuing
trespass’.”
(35)
It is
clear, the Defendant did not enter upon the Claimants property. Water flowed
from its property. Like Adjudicator Parker, I find it a stretch to suggest he
caused the water to flow there. I have already found that to be the case. The
proper form of tort would be either strict liability or nuisance.
Rule in Rylands v
Fletcher
(36)
Adjudicator
Parker described the law pertaining to strict liability as follows:
Rylands v Fletcher imposes strict liability on someone who brings something out
of the ordinary onto his land or does something that is a non-natural use of
land resulting in damage to the Claimant. The Defendant does something that
changes patterns of use on his land and as a result something happens that
result in damage.
(37)
He then
refers to several cases dealing with the rule and states the following at
paragraph 35 of his decision:
Justice Harris of the Ontario
Superior Court of Justice in discussing the rule of Rylands and Fletcher and at
para 26 and 27 stated: [26] “Strict liability may also be found where
there is interference with the natural course of a stream. In Greenock
Corp. v. Caledonian R. Co. Lord Finlay L.C. said: ‘It is the duty of any
one who interferes with the course of a stream to see that the works which he
substitutes for the channel provided by nature are adequate to carry off the
water brought down even by extraordinary rainfall, and if damage results from
the deficiency of the substitute which he has provided for the natural channel
he will be liable. Such was taken to be the law in Smith v. Ontario and
Minnesota Power Co. Ltd. and Kelley v. Canadian Northern
Railway Co. [27] Similarly, in Steele v.
Lofranco, Le Bel J. at paragraph 5 aptly summarized the relevant
principles: ‘ If by raising the level of his lands the Defendant interfered
with a natural watercourse to the injury of the plaintiffs, he is liable, but
if such waters were mere surface waters not flowing in a defined channel, he
owed the plaintiffs no obligation to receive the drainage and is not liable
unless he was negligent or created a nuisance (remaining citations omitted)
(38)
In this
case, the structure of the Defendants property allows water to flow onto the Claimants
property. The Claimant purchased the property in January 2016 and, according to
the evidence of Mr. Scott, the Claimant constructed a building on the property.
It is clear from the photographs no action was taken by the Claimant to reroute
water away until 2017.
(39) In reviewing all of the evidence, I find the layout of the Defendant’s property caused the water from its property to flow more freely onto the Claimant’s property. However, I do not find the source of all the water that has pooled at the base of the water tanks to have been caused by the actions of the Defendant. I accept the submissions of Mr. Boyle and the evidence of Mr. Landry that the topography of the surrounding area is such that water would run through the property in any event. In other words, the Claimant was required to take action regardless.
(40)
Applying
the case law cited by Adjudicator Parker, I find the waters are surface water
and not a natural watercourse. Accordingly, to use the words of Lebel J., in Steele
v. Lafranco (supra), the Defendant “owed the (Claimant) no obligation to
receive the drainage and is not liable unless he was negligent or created a
nuisance.” As noted above, this is not an appropriate case for negligence. The
next question to be determined is if nuisance applies.
Nuisance
I have had the opportunity to consider
the law of nuisance in the case of Norton v. Brightwood Golf & Country
Club Ltd., 2012 NSSM 55, where I summarized the law of nuisance:
“The
principle of what constitutes nuisance is set out by the County Court in
O’Regan v. Bresson (1977), 23 N.S.R. (2d) 587 (Co. Ct.) where private
nuisance is defined as follows:
“10 Turning then to the law respecting private nuisance, the following excerpt from Street, ‘The Law of Torts’ (5th Ed.), p. 215, was quoted with approval by Jones, J. in Smith v. Richardson (1977), 23 N.S.R. (2d) 407:
‘A person, then, may be said to have committed the tort of Private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.’
Some further insight into the extent of the interference with the plaintiff’s enjoyment of his property before a private nuisance can be found to exist, and the lawful limits of that interference can be gleaned from the following quotation from Clerk and Lindsell on Torts (supra) at pp. 784 and 785:
‘In nuisance of the third kind, ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves’, there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time. place, extent or the manner of performance.’”
The foregoing statement of Judge MacLellan (as he then was) accurately describes the issue in this case. The operation of a golf course is legal and desirable as an activity performed by the Defendant. However, in order to establish that the golf course has substantially interfered with the use and enjoyment of Ms. Norton’s land, it is necessary to find an unreasonable interference with her enjoyment of the property. As noted by Justice MacLellan, it is a matter of degree. It is also worth noting the following from that case:
“The fact that the plaintiff has come to the nuisance does not prevent him (or her) from recovering damages.”
(41)
Small
Claims Court cases are not binding. However, in this case, the caselaw cited in
support of the law of nuisance does bind this Court.
(42)
Unlike
the case before Adjudicator Parker, this is private nuisance rather than a
public one. As noted by the case law cited above, the question is not whether
there is interference with one’s property but whether it is unreasonable. I
find the addition of surface water directed toward one's property may be
nuisance provided the result is significant. In my opinion, there is no
evidence the amount of water was affected. Indeed, given that it is all surface
water running downhill, I find it highly unlikely that it was. As a result of
the bank and the barrier along the property line, the water has one way to
travel. There is no evidence before me that the actions of the Defendant caused
any of this to happen or that there was an increase in the amount of water.
(43)
I do
not find liability in nuisance.
Breach of Contract
(44) I turn to whether an agreement between the parties was ever reached. In considering all of the evidence, I find there was a discussion about shared costs for drainage.
(45)
In order
to find a settlement agreement existed, one turns to the principles governing
the formation of a contract. All of the usual elements must be present
including an offer, acceptance, certainty of terms and the intention to be
contractually bound.
(46)
I find
the parties met several times commencing on April 25, 2017. There were various
discussions and proposals. There was clearly no deal in place as late as May 5,
as the parties were still discussing estimates and the possibility (or not) of
Mr. Landry’s contractor doing part of the work for a fee. On May 17, the
following exchange took place:
“Troy: I thought we
had a deal and it wasn't good enough for you. I came up with a solution that
would've cut your cost in half. Now you went ahead with your guy what is the
number you want me to cover?
Darren: your guy was not willing to do the work by propane tank. Plus he did
poor work on your pipes (backwards and not properly buried) so we were not
comfortable with that option. Plus I thought when he left angry you were
“done”. Hadn't heard back so we move forward before propane tanks tipped over.
My partners feel that you should pay 100% since it’s our land and your
water....”
(47)
Mr.
Scott testified that Mr. Landry proposed to pay $3500. However, Mr. Landry’s
response in that context is not consistent with that agreement. If they had an
arrangement for the Defendant to pay $3500, it would be of no consequence to
Mr. Landry how much the Claimant expended on the work. Something else was
contemplated.
(48)
I agree
with Mr. Boyle’s characterization of the discussions. They were negotiations. I
find there was never an agreement as it lacked certainty of terms.
Summary
(49) Having found no basis for liability on the part of the Defendant, in either tort or contract, the claim of 3290166 Nova Scotia Limited is dismissed with each party bearing their own costs.
Dated at Halifax, NS,
on February 5, 2018;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Claimant
(s)
Copy: Defendant(s)