MARA ANN KULESSA v. PATRICK MICHAEL HAYES, 2017 BCPC 238

Citation: Kulessa et al v. The Owners, Strata Plan KAS2598 Date: 20170824 2017 BCPC 238 File No: 41052 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: MARA ANN KULESSA and PATRICK MICHAEL HAYES CLAIMANTS AND: THE OWNERS, STRATA PLAN KAS2598 DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Claimant: David McDougall and Lindsay Wright Counsel for the Defendant: Liam Coulter Place of Hearing: Kamloops , B.C. Dates of Hearing: May 31 and June 1, 2017 Submissions Received: June 7, 9 and 13, 2017 Date of Judgment: August 3, 2017

[ 1 ] This is a claim by the Claimants in nuisance or negligence against the Defendants for damages caused by water escaping from the Defendant’s property to the Claimants’ property. [ 2 ] The Claimants’ residence is a house situated on Raven Drive in Kamloops, British Columbia. It is situated at the end of a slope above which sits the strata corporation’s townhouse units. The Claimants’ residence was built in 2003 and the Claimants moved into the home in 2008. [ 3 ] The Defendant’s units were constructed between December 15, 2003 and April 12, 2005.

It is clear from the photographs and the testimony that the units closest to the Claimants’ residence are at a higher elevation. [ 4 ] At the time of the incidents giving rise to the claim, there was a four foot retaining wall at the rear of the Claimants’ residence. There was also a wooden fence behind the retaining wall on the boundary between the Defendant’s property and the Claimants’ property. The Defendant installed a chain link fence along the boundary between the Claimants’ property and the Defendant’s property.

This was added in 2008. [ 5 ] In 2009, the Claimants began to notice a slight rise and fall in the driveway during freeze-thaw cycles. In the following year, the Claimants noted that the main door to their garage door was sticking and that a crack had developed in the foundation. The sidewalk outside of the garage had also started to crack and, later, the rock façade on the front of the garage began to crack. [ 6 ] It was not until 2012 that the Claimants became concerned because they noted that the top of their retaining wall had started to lean into their property.

By 2014, that retaining wall was pushing into the garden shed, causing damage to it. As a result of this concern, the Claimants hired Exp. Services Inc. to investigate the cause of these problems and to propose how to rectify the issues. [ 7 ] Exp., through Jeff Hall and Steven Prime, provided a report to the Claimants. The report was not intended to be a formal report for the court but to provide insights and options to the Claimants. [ 8 ] The Defendant argued that Mr. Hall is not an engineer. The court does not require a person to have a professional designation in order to be an expert.

It is adequate that he has been accepted as an expert as has his opinion. That opinion was co-authored and supported by his colleague, an engineer. [ 9 ] The Defendant also argued that Mr. Hall’s report was not written for the purposes of litigation and therefore was not written with a mind to an expert’s obligation to the court. However, this court’s expectations are that if a report is not to be relied upon, then only a

summary need be provided before an expert testifies. The report suffices as such an expert

summary even with its technical deficiencies. Mr. Hall gave evidence at trial that supports the premise contained within that report. [ 10 ] The Defendant argued that Mr. Hall’s observations were made before the excavation of the Claimants’ property and removal of the retaining wall; did not observe any water coming from the strata property during his three investigative trips to the site; and took no soil samples or measurements of the moisture content of the soil. These are factors to be considered but do not detract from the value of the evidence Mr.

Hall could offer. [ 11 ] Exp. identified for the Claimants that the retaining wall could collapse and they needed to take remedial action. Mr. Hall observed that the concrete slab on the Claimants’ property showed signs of heaving in the winter, resulting in the cracking of the rear foundation of the garage wall. This also added stress to the rear doorway of the garage. [ 12 ] Mr. Hall also observed that the slope on the Defendant’s property adjacent to the rear of the Claimants’ property was irrigated by an underground sprinkler system. Mr.

Hall observed a shallow swale several feet into the property which could collect excess service water, but which ended where the Defendant’s property sloped into the Claimants’ side yard. Because it ended at the side yard, Mr. Hall opined that the swale probably diverted the water around the corner, but failed to deliver it to either Raven Drive or another discharge point. [ 13 ] Mr. Hall also observed that the water draining from the uphill position on the Defendant’s property drained down behind the retaining wall, eventually infiltrating under the concrete deck slabs.

This was exerting pressure on the Allan Block retaining wall in combination with water seeping underground and draining over land from the swale under the slabs of the driveway. When this froze in the winter, it caused heaving. [ 14 ] Mr. Hall noted that it was possible some of the excess water was also being leaked from irrigation lines on the Defendant’s property. In addition, he had the opportunity to look into a hole that had been dug by Mr. Hayes into the driveway area. Mr. Hall observed drainage gravel under the concrete but that the materials were soft and wet.

He said this was unusual to have such wet soil in hot weather. He denounced the Defendant’s claim that ground water was “a big issue” in the Batchelor Heights area. [ 15 ] Mr. Hall said that nothing had been done on the Defendant’s property to divert water away from the Claimants’ property. He observed that it was a fairly significant slope with a steep decline to the chain link fence. This is seen in the photographs admitted as evidence at trial. [ 16 ] It was also Mr. Hall’s opinion that a small retaining wall would not have much pressure against it unless the soil was wet, increasing the pressure.

A four foot retaining wall does not require engineering as it is generally robust enough to resist ordinary pressure. He said that it was only if the soil became consistently wet that it would exert too much pressure against the retaining wall, resulting in the damage observed by him. He saw no other reason for why the wall would tilt at the top apart from excessive moisture. [ 17 ] While the Defendants did not dispute that the damage to the retaining wall was caused by water, their expert, Steven Kraushar, opined in his report that a properly constructed wall would be able to withstand any amount of water.

[18] The Defendant’s expert has a red seal endorsement in cement masonry and 25 years’ experience in residential and commercialconstruction. He is the owner and chief executive officer of SK Form and Finish Inc., a company experienced in the construction,among other things, of retaining walls. The Claimants’ complaint about Mr. Kraushar is that he did not attend the site at any time andbased his reports upon photographs which are not identified and a report that was not tendered as a document. In other words, it isfounded upon materials not properly before the court. [19] Mr.

Kraushar concluded that the wall likely failed because it was not built within the specifications required by Document KL128270; the retaining wall was not backfilled with free draining, non-frost susceptible backfill as required by the restrictive covenant;and the wall was not constructed by a licenced engineer, although that is not a requirement.

He opined that the Big O pipe was notwrapped in filter cloth, causing it to become plugged; with adequate drainage the wall should have withstood water if it was properlyconstructed; and that the driveway apron likely failed due to structural deficiencies including failure to use proper subgrade material. [20] As noted by the Claimants, Big O pipe, drainage, rebar and filter cloth were all used in the construction of both the drivewayand the retaining wall as required. [21] The Claimants argued that Mr. Kraushar’s evidence is not supported by any attendance at the site to observe the conditions.

Hemade assumptions that the original retaining wall had not been backfilled with proper drainage or backfill that was not susceptible tofrost. The photographs in evidence, though, show that the original retaining wall had been constructed with use of big O-pipe, fabriccloth and geogrid. Mr. Hall said that a wall of this height would not typically use geogrid which is used to help stabilize a wall.

In otherwords, the original wall had been constructed beyond the expected standard. [22] In any event, the Claimants say that with no retaining wall extending along the full length of the driveway and sidewalk, therewas no protection against water flowing from the Defendant’s property into the Claimants’ property. This was compounded by theimproper landscaping of the Defendant’s swale. [23] Mr. Kraushar also opined that the driveway failed due to improper subgrade material and the absence of rebar in its originalconstruction. That is, again, not supported by the evidence. Mr.

Hall observed gravel below the concrete slabs and rebar is evident inthe photographs. [24] It is the Claimants’ position that the Defendant is responsible for the damage of the Claimants’ property for failure to properlymaintain the irrigation system; for failure to provide adequate drainage to Raven Drive by way of landscaping in swales and otherdiversions; and by over-piling the snow too close to the slope causing melt to flow down into the Claimants’ property. [25] A drainage system could have been built with any of the suggested landscaping systems given the strata’s undeveloped strip onRaven Drive.

The Defendant could also have piled its snow in areas less likely to cause downhill flow into the Claimants’ property. TheDefendant itself was having groundwater issues and ought to have been well alerted to the necessity for properly diverting water. [26] Ms. Mackie, one of the owners who was also the strata president part of the time, testified that the snow piles melted onto thedriveway of the strata property and not downhill.

However, she conceded on cross examination that the snow must have also melteddown towards the Claimants’ property. [27] The Defendant also denied there was any problem with the irrigation system. Its landscaping contractor, Tyler Digeiso properlymaintained the system with considerable diligence. However, there are sprinkler heads immediately behind the original retaining walladjacent to the Claimants’ property. Mr. Hall observed broken sprinklers, or what he believed to be broken sprinklers.

While heconceded that several of the sprinklers or sprinkler heads were damaged in the repairs, he was able to identify two other sprinklersestablished below ground level. This was not a result of the repairs. One of those sprinklers was obstructed by the concrete from thefence post installed in 2008. The other was below the surface of the lawn and was inoperable. Mr. Digeiso gave no thought to theimpact this might have on the Claimants’ property. Mr.

Digeiso also did not disagree that a sprinkler in the weedy base of the bluff areamay have been ponding its water rather than oscillating onto the strata property. [28] At the cost of $56,356.13, the Claimants managed to reconstruct the retaining wall extending out to Raven Drive including useof original fence materials and retaining blocks. Part of the process was to allow diversion of the water over the landscaping. Theexpenses were not challenged by the Defendant. THE LAW [29] The Claimant has pleaded both nuisance or, in the alternative, negligence.

Nuisance [30] Nuisance requires substantial interference with an occupier’s use and enjoyment of the land which is unreasonable in thecircumstances. The interference must be both substantial and unreasonable. The definition of substantial is something that is more thantrivial and more than a slight annoyance or trifling interference. [31] The consideration of “unreasonable” involves a consideration of the interference suffered by the Claimant. The question iswhether the interference is unreasonable, not whether the Defendant’s conduct was reasonable.

It is irrelevant whether the interferenceresulted from intentional, negligent or innocent conduct. [32] The parties provided a number of authorities to this effect: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, 2013 S.C.C. 13; Suzuki v. Munroe, 2009 BCSC 1403 , 2009 B.C.S.C. 1403 and Medema v. McCreight, 2016 BCPC205 , 2016 B.C.P.C. 205. [33] Water escaping from an adjoining property and causing physical damage is unreasonable interference: Royal Anne Hotel Co.Ltd. v. Village of Ashcroft (1979), (BC CA), 95 D.L.R. (3d) 756 (B.C.C.A.) and Medema v. McCreight, 2016 BCPC

205 , 2016 B.C.P.C. 205. [34] The Defendant argues that the Claimants have failed to prove nuisance in that it is not proved on the balance of probabilitiesthat the water flowing onto the property originated from the Defendant’s property. Counsel argued that evidence at trial discloses otherpotential sources of damage such as water emanating from the Claimants’ property, ground water, rain events and snow events. It wasalso suggested that water may have flowed down from the bluff behind the house.

The bluff was not investigated by either theClaimants or Defendant and this is merely speculation. [35] To succeed in nuisance, the Claimants must have clear evidence of the nuisance caused by the Defendant: Wayen Diners Ltd. v.Hong Yick Tong Ltd., (BC SC), [1987] B.C.J. No. 223 (B.C.S.C.) and Suzuki v. Munroe, 2009 BCSC 1403 ,[2009] B.C.J. No. 2019, 2009 B.C.S.C. 1403. [36] The Defendant argued that there is no evidence of water flowing from the melting snow and no evidence of water escapingfrom the sprinkler heads. Mr.

Digeiso’s evidence was that the only evidence of any irrigation issues was two dirty sprinkler heads whichappeared to be operable. Even if the sprinkler heads were broken, it was more likely caused by the Claimants when they were replacingthe retaining wall. [37] The Defendant submits that the wall was built with insufficient drainage and was therefore below industry standards, somethingfor which the Defendant should not be found liable. I do not accept that the retaining wall was defective in its construction.

All of theevidence is to the contrary. [38] There is evidence that some pooling of water was caused by a sprinkler head not properly maintained by the Defendant. However, I am not satisfied on the balance of probabilities that this caused all of the damage to the Claimants’ property. Nor am Isatisfied that the Claimants have proved the two sprinkler heads identified were broken and caused leaking into the Claimants’ propertyto the full extent of the damages.

Both may have caused some ponding and some flow onto the Claimants’ property but there is noevidence that this flow alone could have caused the saturation and resulting damage. [39] However, I am satisfied that the Defendant piled snow to an unreasonable height on the edge of its property where the meltingsnow inevitably flowed downhill into the Claimants’ property. It flowed into the Claimants’ property causing damage because theDefendant did not properly landscape its property to ensure water escaping downhill flowed through proper drainage or onto RavenDrive.

In conjunction with the seasonal ponding and wetting from the otherwise likely smaller irrigation issues, this led to damages tothe Claimants’ property that were more than a slight annoyance or trifling interference. [40] I reject the suggestion that the water more likely flowed from the bluff. There is no evidence of this before me at all. I amsatisfied that the Claimants have proved their claim in nuisance on the balance of probabilities. Negligence [41] Negligence requires that the Claimants prove the Defendant owed them a duty of care which was breached by the Defendantand that breach resulted in damage.

Neighbours owe each other a duty of care to take reasonable steps to avoid or “to alleviateforeseeable risks”, including with respect to the flow of water from one property to another: Medema v. McCreight, 2016 BCPC 205, 2016 B.C.P.C. 205; Kinaschuk v. Day, [1986] B.C.J. No. 959, 1986 Carswell BC 2651; Mineault v. Kamloops (City), 2017BCSC 316 , 2017 B.C.S.C. 316. [42] This includes water flowing from a leaking irrigation system if the Claimants establish that the Defendant failed to properlymaintain and inspect the irrigation system: Mineault v.

Kamloops (City), 2017 BCSC 316 , 2017 B.C.S.C. 316. [43] The duty of care does not extend to the removal of all dangers. The test is one of reasonableness: Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201 as referred to in Agar v. Weber, 2014 BCCA 297 , 2014 B.C.C.A. 297. [44] What is reasonable is informed by the gravity of the harm, the cost to prevent harm and the likely occurrence of that foreseeableharm: Mineault v. Kamloops, supra. [45] To be reasonably foreseeable, there must a real risk of harm and not just possibility of it: Mustpaha v.

Culligan Canada Ltd.,2008 SCC 27 , 2008 S.C.C. 27. [46] I am satisfied that the Claimants have proved on a balance of probabilities that the Defendant owed them a duty of care toensure that the water flowing from their property both from the irrigation system and, particularly, from the piled snow did not flow fromthe Defendant property onto the Claimants’ property.

I am satisfied that the Defendant breached that duty of care in a number of ways: itfailed to ensure that its irrigation system was installed such that the sprinkler heads were not trapped beneath the surface or were in anyway impeded by direction of the flow of the sprinkler head or surrounding vegetation; it failed to landscape its property in such a waythat swales or other irrigation measures diverted water flowing off the Defendant property into proper drainage; and it failed to ensurethat snow was not piled to a height and extent that its melt would flow down the Defendant’s property and into the Claimants’ property. [47] I am satisfied that the evidence on the whole supports a claim in either nuisance or negligence.

However, I need only make thefinding that the Claimants are successful in their claim in negligence and award damages to them. Originally, the Claimants had beenprepared to share the cost of the correction of the landscaping. The claim over $25,000 was abandoned. I allow judgment in the sum of$25,000. Unless the parties have exchanged formal offers in accordance with the Small Claim Rules, the Claimants shall have theirreasonable costs to be assessed by the Registrar. The Honourable Judge S.D. Frame Provincial Court of British Columbia