2024 ONSC 799, 2024 ONSC 799

CITATION : Nota v. Schofield, 2024 ONSC 799 DIVISIONAL COURT FILE NO.: 692/22 DATE: 20240208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT McWatt ACJ, Stewart and O’Brien JJ.

B E T W E E N: ) ) LUIGI NOTA and ROSA NOTA Plaintiffs/Appellants - and - MARK SCHOFIELD and ROSE SCHOFIELD Defendants/Respondents ) ) ) ) ) ) ) ) ))) Marshall Reinhart , for the Plaintiffs/Appellants Syed Abid Hussain , for the Defendants/Respondents ) ) ) HEARD: August 8, 2023 stewart J. reasons for DECISION Nature of the Appeal [ 1 ] The Appellants, Luigi and Rosa Nota (“the Notas”), appeal the decision of Pollak, J., dated November 14, 2022, which dismissed their claim for compensation for damage to their property allegedly caused by the Respondents, Mark and Rose Schofield (“the Schofields”). [ 2 ] The Schofields submit that the appeal is without merit and should be dismissed.

Background Facts [ 3 ] The Notas have resided in their house on William Street in Toronto since 2000. In 2016, the Schofields moved into the house next door to the Notas. [ 4 ] Between the two houses is a walkway that is approximately 4.5 feet wide. When the Schofields first moved into their house, they enjoyed unimpeded access to this shared walkway.

[ 5 ] In the spring of 2018, a lattice owned by the Notas along the property line between the two houses was damaged. This caused friction between the Notas and the Schofields. [ 6 ] In August of 2019, the Notas erected an iron gate that blocked the previously shared walkway and eliminated access by the Schofields to the side of their house required to check utility meters to perform wall, window and foundation maintenance, and to remove snow. [ 7 ] At the side of the Schofield’s house is an external pipe leading from their sump pump to permit the occasional discharge of water.

This pipe was present when the Schofields purchased the house. [ 8 ] In 2019, the Notas commenced an action against the Schofields that claimed (among other things) that damages had resulted to their property from the discharge of water from the sump pump pipe. In particular, the Notas claimed that discharge of water from the pipe had caused an “indentation” in their front lawn and cracks in the concrete in the area. [ 9 ] The Notas initially claimed the sum of $2,500,000 as compensation for the damages and other causes of action in their claim.

On the eve of the trial before Pollak J., the Notas withdrew their claims of trespass and for demarcation of the property fence. As a result, they reduced the amount claimed by them for damages caused by discharge from the pipe to $5,700. Decision of the Trial Judge [ 10 ] The trial was held over five days in April and June 2022. [ 11 ] In order to succeed, the Notas were required to prove on a balance of probabilities that their property had been caused physical damage by the discharge of water from the Schofield’s sump pump pipe and that such damage had occurred after they had moved into the house next door.

After having heard and considered the evidence adduced by the parties, the trial judge concluded that the Notas had failed to establish that either any perceived indentation in their lawn or any cracking of nearby concrete had been caused by the occasional discharge of water from the Schofields’ pipe. [ 12 ] Both parties adduced photos into evidence. The Schofields submitted a photo from “Google Earth” that showed that, prior to the Schofields moving in, the lawn “indentation” had been present on the Notas’ property. This description was also provided by the evidence of Rose Schofield.

Conversely, the trial judge considered that the photographs provided by the Notas were very poor and she was not persuaded by them that they revealed any damage or that they proved that damage, if any, had been caused since the Schofields moved in next door. [ 13 ] The trial judge found that, based on what was before her, there were several other possible causes of the small indentation in the lawn.

Similarly, she found that there were factors other than sump pump pipe discharge that could have caused the concrete cracks. [ 14 ] Accordingly, the trial judge found as follows (at paras. 22-25): [22] The Plaintiffs rely on very poor photographs uploaded to caselines.

Having seen these photos entered into evidence and relied on by the Plaintiffs, I am not persuaded on a balance of probabilities that the alleged damage was caused by water discharging from the Defendants sump pump. [23] I accept that there are many possible causes of the small indentation in the lawn of the Notas, such as the flooding in the neighbourhood, the water coming from the downspout of the Plaintiff's home and the natural lay of the land or the movement of underground water. [24] I do not find that the Plaintiffs have met their burden of proving the required causation of damage by the Defendants discharge of water from their sump pump. [25] As well, I find that such also applies equally to the claims for the concrete cracks.

The Defendants testified that the concrete cracks could also be caused by many different factors including: if water leaves the concrete (Plastic Shrinkage), or if the mix is not proper, due to expansion which occurs due to extreme heat, the settling of concrete, premature drying, etc.

I accept this submission. [ 15 ] The trial judge further found that the doctrine of volenti non fit injuria applied because the Notas had blocked off the area containing the pipe by installing a gate, thus preventing the Schofields from gaining access to it to remedy any problem. [ 16 ] Further, the trial judge found that any possible damages caused by discharge from the pipe would be offset by the fact that the Notas did not mitigate such damages by bringing them to the attention of the Schofields before April 2018 and they had failed to provide access to the pipe for maintenance.

Jurisdiction [ 17 ] This Court has jurisdiction to hear the appeal pursuant to s. 19(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43 . Standard of Review [ 18 ] On an appeal of this nature, questions of fact, or of mixed fact and law where a question of law is not extricable, are reviewed on a palpable and overriding correctness standard (See: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235.) Discussion

Adequacy of Reasons [ 19 ] Although issue is taken by the Notas with the adequacy of the reasons for decision of the trial judge, I find that the reasons in this case are adequate. They reveal that the trial judge considered all of the evidence and was alive to the issues between the parties. They permit the parties to understand the factual findings of the trial judge and the legal tests that were applied to those facts to arrive at her conclusions and permit a clear understanding of why the trial judge arrived at those conclusions. They are adequate to allow for meaningful appellate review (See: R. v.

Sheppard , 2002 SCC 26 ). [ 20 ] I therefore would not give effect to this ground of appeal. Causation [ 21 ] In essence, much of what is advanced on behalf of the Notas is a challenge to findings of fact by the trial judge that resulted in the dismissal of the action. It must be remembered that in order to reverse any of these findings they must be shown to amount to palpable and overriding errors.

This standard demands strong appellate deference to the findings of a trial judge and applies to all factual findings whether based on credibility assessments, weight of competing evidence or drawing of inference from primary facts (see: Housen v. Nikolaisen , supra ). [ 22 ] As has been repeatedly emphasized by appellate courts, it is not the function of a court on appeal to retry a case or to substitute its view of the evidence for that of the trier of fact.

This, in large part, is what the Notas are asking us to do in this case. [ 23 ] In my view, all of the issues raised by the Notas are ultimately issues of fact as found by the trial judge. In order to displace the decision of the trial judge on this basis it must be shown that she committed a palpable and overriding error.

They have not succeeded in their efforts to do so. [ 24 ] The trial judge found on the evidence presented that the Notas had failed to prove the existence of a causal link between any discharge from the pipe and the damage to their property that was alleged by them. [ 25 ] The trial judge further found that it had not been proven that any physical damage to the Notas’ property by the Schofields had occurred, nor that there had been any loss of enjoyment of the property by the Notas or any real compensable damage.

No independent expert evidence was called by the Notas to address either the issue of whether damage had occurred or what had caused it. The trial judge accepted the evidence of the Schofields on these material issues of fact and found the evidence of the Notas to be at times conflicting and generally unpersuasive. [ 26 ] It is evident from the reasons of the trial judge that she viewed the alleged damage, if any, as insignificant.

Moreover, it had not been demonstrated on a balance of probabilities, as was the Notas’ onus, that any such damage had been caused by the pipe after the Schofields had moved into their house. [ 27 ] The weakness or lack of any persuasive evidence from the Notas on these issues, together with the evidence that was proffered by the Schofields which was accepted, provide an ample record upon which the trial judge could base her findings of fact as well as her conclusions as to the appropriate outcome.

No overriding and palpable error has been identified. [ 28 ] I therefore would not give effect to this ground of appeal. No Palpable and Overriding Error on Remaining Issues [ 29 ] Although there may be some basis to the argument that the trial judge incorrectly found that the location of the pipe and discharge from it were behind the gate erected by the Notas, such mistake does not rise to the level of a palpable and overriding error. It is common ground that the pipe was located in the laneway between the two houses and access to it was predominantly on property legally owned by the Notas.

The Notas had complained several times to police about alleged trespass onto their property by the Schofields, erected a locked gate as well as an unsightly boundary marker between the two houses, and sued them for damages for trespass. There is ample support for the trial judge’s conclusion that access to the pipe was impeded by the Notas. [ 30 ] In their evidence, the Notas admitted that they noticed the alleged damage in 2017 or 2018 but took no steps to address or remedy it.

It was therefore open to the trial judge to conclude that they had failed to mitigate their damages because they had impeded the ability of the Schofields to correct any problem had they been made aware that any such problem had occurred. She made no error in doing so. [ 31 ] These impugned findings, although perhaps more relevant to the issue of the quantum of damages, are nevertheless of little or no impact to the ultimate conclusion in this case.

As already noted, the trial judge found that it had not been proven by the Notas that the Schofields had done or not done anything to cause damage to the Notas’ property. On the record before the trial judge, such a conclusion was amply justified. [ 32 ] I therefore would not give effect to these grounds of appeal. Conclusion [ 33 ] For these reasons, this appeal is dismissed. Costs

[ 34 ] As agreed by the parties, costs of this appeal are fixed in the all-inclusive amount of $9,500 and shall be paid by the Notas to the Schofields. _______________________________ Stewart J. I agree _______________________________ McWatt, ACJ. I agree _______________________________ O’Brien J. Released: February 8, 2024 CITATION : Nota v. Schofield, 2024 ONSC 799 DIVISIONAL COURT FILE NO.: 692/22 DATE: 20240208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT McWatt ACJ., Stewart and O’Brien JJ. B E T W E E N: LUIGI NOTA and ROSA NOTA Plaintiffs/Appellants - and - MARK SCHOFIELD and ROSE SCHOFIELD Defendants/Respondents REASONS FOR DECISION

Stewart J. Released: February 8, 2024