Noble v. Mulgrave (Town), 2012 NSSC 248

SUPREME COURT OF NOVA SCOTIA Citation: Noble v. Mulgrave (Town) 2012 NSSC 248 Date: 20120703 Docket: Ant. No. 344305 Registry: Halifax Between: John Noble Appellant v. Town of Mulgrave and Allan MacKay Respondents Judge: The Honourable Justice Arthur J. LeBlanc Heard: November 9, 2011, in Guysborough, Nova Scotia Further Written Submissions: February 13, 2012 Decision: July 3, 2012 Counsel: Mr. John Noble, Self-Represented Appellant J. Hugh Landry, for the Town of Mulgrave, Self-Represented Respondent Allan MacKay, Self-Represented Respondent By the Court : Introduction

[ 1 ] The appellant, Mr. Noble, filed a Notice of Claim against the respondents, Mr. MacKay and the Town of Mulgrave, in which he alleged that Mr. MacKay and/or the Town "built, caused to be built or allowed to be built a road which changed the natural flow of water resulting in damage to my property." Mr.

MacKay's defence simply stated, "I disagree with this statement." The Town defended on the basis that it "has not caused a road to be built which caused damage to the Noble property." The adjudicator gave an oral decision on January 24, 2011, in which he dismissed the claim. [ 2 ] In a Notice of Appeal filed on February 17, 2011, Mr. Noble appeals on the grounds of error of law and failure to follow the requirements of natural justice.

As to the particulars of his grounds of appeal, he says: Some facts as presented were not considered or misinturped (sic)in that the new road, culvert and landscaping caused water to pool above the road and be redirect (sic) to cause damage downhill on my property as shown in evidence. Further pictures showed damages/cause (sic) and were ignored in favor of hearsay. The defendants brought evidence without prior notice and I was not allowed time to refute that evidence. [ 3 ] The adjudicator's reasons were set out in a

Summary Report of Findings dated March 22, 2011, as well as a Supplementary

Summary Report dated February 13, 2012. The Adjudicator's Findings [ 4 ] The adjudicator found that the appellant bought his property, 347 Main St., Mulgrave, on August 29, 2007. The property included a house, a shed, and a building known as "the shop," measuring 20 by 24 feet, which the previous owner, William Hemmings Jr., had used for a ceramic business. Mr. Hemmings had owned the property for 36 years, and had built the shop in 1992.

The appellant, who is in the trucking business, “ hadn't been really in ‘ the shop ’ since the property was purchased, ” the adjudicator found. [ 5 ] The appellant's property is bounded on the southwest by property belonging to the Town, and on the west by property of Mr. MacKay. These neighbouring properties are at higher elevations than the appellant's property. The Town granted Mr. MacKay an easement on August 30, 2007, running northwest from the end of the road or cul-de-sac on which the properties are located, ending at the MacKay property. The purpose of the easement was to permit Mr.

MacKay to build a road to his property from the main road. The Town property already contained a drainage ditch to carry water downhill to the main drainage line running along the main road. [ 6 ] The drainage ditch runs downhill from property above Mr. MacKay's land. When Mr.

MacKay built the road (known as Sommer's Road) over the easement, a culvert or pipe “ was placed in the drainage ditch over which the road was built to allow the water from above MacKay's property to drain under the new roadway and follow the courses of the ditch. ” The adjudicator found as a fact that “ the ditch veers to the right, or to the east of the MacKay property approximately at that point where a pole is shown in (sic) photograph at page 5, Exhibit D2, thus directing water from the lands above past the Appellant's property and away from the Appellant's ‘ shop ’ . ” [ 7 ] The shop was built on a four or five inch concrete slab, on sloping ground built up with fill and gravel by the previous owner, Mr.

Hemmings. The adjudicator referred to Mr. Hemmings's evidence as forthright, and noted that he “ had nothing to gain … and there was no evidence there was any animosity or hard feelings ” between the two men. He accepted Mr. Hemmings ’ evidence that he did not reinforce the slab (such as with reinforcement bar), and he did not adequately compact the fill, soil and gravel on which he built it. There were no gutters or eaves troughs on the shop.

The adjudicator elaborated on his findings: I found as a fact there was a very steep slope running away from the side of the "shop" building and concrete slab on which it was built. I found the very steep slope caused, the ground/gravel under the concrete slab to regularly fall away due to freezing and thawing of the ground under the slab/floor and water running off the roof that had no gutters. I also accepted Mr.

Hemmings' evidence that snow accumulated next to the building and when melting and freezing occurred it caused water to gather and run down the steep slope. (Exhibit D2, photograph #4; C1-photographs #11, and #12). [ 8 ] The adjudicator accepted Mr. Hemmings' evidence that “ a crack in the concrete slab in the shop appeared shortly after it was poured in 1992. ” He rejected the appellant's evidence that there was no crack in the floor of the shop when he bought the property.

Rather, the crack “ occurred shortly after he constructed the building, ” while “ the ground on which he built the concrete slab and building was still settling … . ”

[ 9 ] The adjudicator also found as a fact, based on Mr. Hemmings' evidence, that the ground to the east of the shop “ would wash away from the building and from under the edge of the building all the time and that a portion of the front of the building and one side of the building and the cement slab/floor was built right on the edge of the steep bank. ” Mr.

Hemmings would put gravel under the side of the building each year "after it had washed away as a result of water and snow falling from the roof onto the steep slope of the property where the ‘ shop ’ was constructed (Exhibit C1, photographs #11 and #12). ” With respect to drainage, the adjudicator made the following findings: 25) I found as a fact Mr.

Hemmings had constructed drains along the west side of the baby barn that was next to the ‘shop’ to take away any water that came from above his property and the drain ran to a catch basis [sic] and then to another drain pipe that ran to the main street of Mulgrave. I found as a fact this drainage ditch and catch basis carried away any water that drained from the lands above the Appellant's property before it reached the Appellant's "shop" building. 26) I found as a fact there was no weeping tile around the perimeter of the ‘shop’ building. 27) I accepted Mr.

Hemmings’ evidence and found as a fact the water running off the roof of the “shop” building that had no eaves troughing/gutters and the snow buildup around the building, caused the gravel to fall away from under the building (Exhibit C1-photograph #11) and that Mr. Hemmings always had a problem with gravel running away from the corner of the building that is shown in the Exhibits. [ 10 ] The appellant removed the furnace and oil tank from the shop shortly after he bought the property. As a result, there was no heat in the building. On the basis of Mr.

Hemmings's evidence, the adjudicator found that there was no mold in the building when he sold it to the appellant. The shop was not ventilated. [ 11 ] The adjudicator concluded that “ neither the drainage ditch that existed on the Town of Mulgrave's lands before the Appellant purchased his property, nor the maintenance by the Town of Mulgrave of drainage ditches caused the water in these ditches to drain onto the Appellant's lands or caused any damage to the Appellant's shop. ” He also found that Mr.

MacKay had not diverted water from his property onto the appellant's property that caused the runoff of gravel and soil or the slab-cracking and mold inside the shop. The evidence did not persuade him that the two culverts installed by Mr. MacKay's contractor on the easement had caused water to run downhill from Mr. MacKay's property (and the property above) so as to cause damage on the appellant's property. Nor was he convinced that heavy rains had caused water run down onto the appellant's property and cause damage.

Rather, he concluded that damage to “ the gravel running away from under the concrete slab/floor on the east side of the 'shop' building were caused by rain and melting snow running from the roof of the shop that had no eaves troughing/gutters; and /or due to the very steep bank/slope of the lands on the east side of the 'shop' building. ” The crack in the floor of the shop had existed before the appellant bought the property.

The adjudicator found no evidence that “ the way the road was constructed over the easement caused water to flow downhill and cause damage to the Appellant's property. ” [ 12 ] As a result of his conclusions on liability, the adjudicator dismissed the claim for damages. The Supplemental

Summary Report [ 13 ] In his Supplementary

Summary Report the adjudicator addressed several points that arose at the appeal hearing. Two letters – one from Dale Brown and one from David Crittenden – had been introduced into evidence at the hearing, without objection from the appellant, and without any request that either Mr. Brown or Mr. Crittenden be made available for cross-examination. The adjudicator explained that he had a practice of allowing such exhibits where they appear “ relevant or reliable to the proceeding. ” With respect to the possible hearsay concern he referred to the relaxed rules of evidence that govern the Small Claims Court.

He added that his practice was to tell the parties that “ weight will be assigned to that document after the introduction of all other evidence and taken into consideration all relevant factors, including where appropriate, the presence of supporting or contradictory evidence. ” [ 14 ] Mr. Brown wrote that he had “ put a driveway in at 10 Dale Avenue for Allan MacKay. ” He stated that there had been a representative of the Town present to oversee construction of the road, and that Mr. Hemmings had been present, and "any concerns he had were addressed." Mr.

Brown indicated that “ Everybody there agreed on the way the road was to be constructed. The ditch in

question (page five picture), was already there, a culvert was placed in it and graveled (sic) over. The recent pictures looks like somenew drainage channels have been dug (last of Mr. Noble's pictures) and all the ditches look deeper.” The adjudicator wrote that Mr.Brown's letter had helped to confirm “the existence of the ditch referred to in Exhibit D2, page 5 and Exhibit C5 photographs #2 and 3….” [15] Mr. Crittenden wrote that he was “a life long resident of Mulgrave. The ditch in question (page five picture) had been therelong before Mr. MacKay purchased 10 Dale Avenue.

Also the 4" pipe that enters that ditch (page four of Mr. Nobles pictures) I havenever seen water coming out of it.” The adjudicator found that Mr. Crittenden's letter, “along with other evidence before the Court, leadme to conclude the ditch referred to in Exhibit #D2 photograph # 5, had been in existence long before the defendant, Allan MacKay,purchased his property.” [16] The adjudicator also commented on his practice in marking exhibits; he indicated that he asks the clerk of the court to markand log every exhibit presented by a party, following the same procedure as is used in the Supreme Court.

He had no recollection of anyphotograph or document being presented by the appellant that was not marked as an exhibit, and saw no unmarked photographs in thefile. The Notice of Appeal [17] In his Notice of Appeal, filed on February 17, 2011, the appellant indicated that he was appealing on the basis of error of lawand failure to follow the requirements of natural justice.

As noted above, he indicated that “some facts as presented were not consideredor misinturped (sic) in that the new road, culvert and landscaping cause (sic) water to pool above the road and be redirect (sic) to causedamage down hill on my property as shown in evidence, further pictures showed damages/cause and were ignored in favour of hear say(sic).

The defendants brought evidence without prior notice and I was not allowed time to refute that evidence.” Arguments [18] The standard to be applied by this court on an appeal from the Small Claims Court is set out in Brett Motors Leasing Ltd. v.Welsford (1999), (NS SC), 181 N.S.R. (2d) 76 (S.C.), where Saunders, J. (as he then was) said, at para. 14: … the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact as found by the adjudicator. I do nothave the authority to go outside the facts as found by the adjudicator and determine from the evidence my own findings of fact.

"Error oflaw" is not defined but precedent offers useful guidance as to where a superior court will intervene to redress reversible error. Exampleswould include where a statute has been misinterpreted; or when a party has been denied the benefit of statutory provisions underlegislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in the

interpretation of documents orother evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is no evidence to support theconclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects thereby producing an unjust result;or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In such instances this court has intervenedeither to overturn the decision or to impose some other remedy, such as remitting the case for further consideration. [19] The appellant submits that the adjudicator failed to consider, or misinterpreted, facts, “in that the newly constructed accessroad, culverts, drainage ditches and landscaping caused water to be focus [sic] and be pooled behind the newly constructed access road atculvert 2.

Upon exiting culvert 2 the water was further focus [sic] by fill and landscaping along the boundary between the Respondents(sic) property and expelled onto the appellant (sic) property, where no water was previously expelled.” The appellant refers to severalphotographs in a collection entered as Exhibit C1 at the hearing.

Citing Farnham on Law of Waters (1904), Vol. 3, the appellant saysthe respondents “did unreasonably, by artificial means gather water upon their property together and throw it upon the property of theirneighbour,” and that they “as upper property owners, changed the course in which the water flows over the surface of their properties,collected at the boundaries and cast it onto their neighbour . . . .” Both respondents say these photographs – at pp. 6,7, and 8 of ExhibitC1 – show nothing more than the culvert and access road constructed on their respective properties. The pictures do not show any flowof water.

The respondents also say the pictures do not show the entire ditch, and, in particular, that they do not show the ditch veer awayfrom the Noble property, as noted by the adjudicator. [20] According to the appellant, photographs placed in evidence by Mr. MacKay (identified as Exhibit D2) showing the culvert

actually date from December 2010, whereas the culvert was built on April 17, 2009. He points to other photographs (found in Exhibit C1) that he says were taken on April 16, 2009, and which do not show the “ new ditch. ” He says that even if the ditch from the culvert existed before April 17, 2009 – which he denies – the additional flow of water resulting from the new ditching above his property caused water to be “ collected and cast upon ” his property with "much greater force" than before.

Despite the evidence that the ditch was dug on April 17, 2009, he says, the adjudicator held that it existed before that date. None of the photographs in Exhibit CI that the appellant refers to appear to be taken from the same position as those at p. 6 of Exhibit D2. [ 21 ] In large part, Mr. Noble's submission on the comparison of photographs amounts to a request that the appeal court reweigh the evidence and set aside the adjudicator's findings of fact. This is not within the court's powers on an appeal under s. 32(1) of the Small Claims Court Act .

The adjudicator was required to assess the photographic evidence in conjunction with all the other evidence admitted at the hearing. In the absence of a comprehensive record, and with no error of law apparent, it is not for the appeal court to re-examine the photographs and set aside his factual findings. Similarly, the appellant asserts that Mr. Hemmings' evidence should not have been accepted by the adjudicator, apparently because it conflicted with the appellant's own evidence on certain points, and he questions Mr. Hemmings's motivation for giving evidence.

This amounts to a request to set aside the adjudicator's findings of credibility, which is not within this court's power. [ 22 ] A more serious concern arises from the adjudicator's admission of the two letters – one from Dale Brown and one from David Crittenden – which were admitted without objection from the appellant, and without any request that either Mr. Brown or Mr. Crittenden be made available for cross-examination. The adjudicator explained in his Supplementary

Summary Report that his practice is to admit such exhibits where they appear “ relevant or reliable to the proceeding. ” With respect to the possible hearsay concern he referred to the relaxed rules of evidence that govern the Small Claims Court. He added that his practice was to tell the parties that "weight will be assigned to that document after the introduction of all other evidence and taken into consideration all relevant factors, including where appropriate, the presence of supporting or contradictory evidence." [ 23 ] The appellant argues that the adjudicator should not have accepted the statement of Mr.

Crittenden, which he argues was hearsay. That may be the case, but the Small Claims Court has a good deal of flexibility to admit “ any document or other thing" into evidence, “ whether or not given or proven under oath or affirmation or admissible as evidence in a court … . ” It was within the adjudicator's discretion to admit such a document. What is of more concern is that there is no indication of how this evidence factored into the original decision-making process, and no indication that the appellant was advised of his right to seek cross-examination, although it might result in an adjournment.

An adjudicator has a duty to assist an unrepresented party in a situation where a legal or procedural issue of which the unrepresented party may be unaware will have relevance to the determination on the merits: Earthcraft v. Clayton , 2002 NSSC 259 , at paras. 15 – 28. The admission of these two letters – which the adjudicator took into account in weighing the evidence, according to the Supplementary

Summary Report – was an issue that should have led the adjudicator, at the very least, to draw the appellant's attention to the question of hearsay evidence and the lack of cross-examination. I am satisfied that the adjudicator had a duty to make clear to the appellant that he could object to the admission of the letters on the grounds that they were hearsay, and that if they were admitted, they would be considered along with all the other evidence.

There is no indication that this was done; the adjudicator indicates only that the appellant did not object, and did not request an opportunity to cross-examine the declarants. I am satisfied that this omission constitutes a denial of natural justice. [ 24 ] The appellant also alleges that "during sworn testimony of a Respondent witness" a photograph was presented (presumably by the appellant) "to counter testimony by that sworn witness, ” and that this photograph (which he says was discussed by the parties, the witness and the adjudicator) was not accepted into evidence, with no reason given.

I interpret this as an assertion of denial of natural justice. The adjudicator indicated in his second

summary report that he had “ no recollection of the Appellant presenting any photograph at the hearing that was not marked as an Exhibit or of the Appellant not being allowed to enter a document, including photographs, as an exhibit. I have reviewed the file … and I can not find any photographs that were not marked as Exhibits. ” [ 25 ] I am not prepared to conclude that the adjudicator failed or declined to mark as an exhibit the photograph allegedly submitted by Mr. Noble at the hearing.

Nor am I prepared to agree that such photograph in question was in any way withdrawn or removed from the list of exhibits in these proceedings. [ 26 ] Accordingly, having found that there was a denial of natural justice, I am allowing the appeal and setting aside the decision of the adjudicator. I order a new hearing before a different adjudicator. [ 27 ] There will be no order as to costs.

LeBlanc, J.