Property owners must not worsen problems faced by their
In Donley Investments Ltd. v. Canril
Corp., Canril owned a vacant commercial property at 90
George Street in Ottawa, one inch west of the Donley building. The
Donley basement began flooding in February 2003, after a broken
City water main flooded the Canril building. No one knows how long
the City leak went undetected. The City paid Canril $1272 as
compensation, in exchange for a full and final release, which
Canril gave, knowing of the flooding of the Donley property. Soon
afterwards, Canril demolished its building, and refused Donley
requests for permission to send cameras through its water
Meanwhile, water continued to infiltrate into the Donley
building, which eventually developed mould. In May 2003, the
estimated cost of cleanup was $35,000, and climbing.
Judge Métivier ruled that:
Canril was not responsible for the original pipe burst. But
once they were aware that water infiltration was a continuing
problem, they chose to do nothing at their own peril.
Donley efforts to properly investigate the source of the water
were impeded by Canril, which repeatedly denied permission to
investigate on Canril property.
While the source of water infiltration was never determined, it
was reasonably probable that it came from the Canril building.
Demolition of the Canril building was done improperly, causing
damage to the Donley property, and allowing additional water to
flow to the lower basement in the Donley building. This breached
the Demolition Code.
Canril demonstrated "a rather breath-taking lack of
cooperation" with its neighbour.
The continued water infiltration was a private nuisance for
which Canril was responsible. Even if the nuisance was triggered by
the broken City water main, Canril was not entitled to ignore the
issue, "taking the attitude that it was not their
problem." Canril argued that once holes were drilled
through its basement slab, the water infiltrating the Donley
basement was merely the normal flow of water following its natural
course. The judge held that Canril remained responsible,
. ... an occupant of land who, by artificial means, prevents the
natural absorption in that land or alters the natural drainage
therefrom of water caused by melting ice or snow or of rain water
naturally falling there is bound to take all reasonable means of
preventing that water from collecting on the artificial surface he
has created and draining from that surface onto his neighbour's
land to the injury of his neighbour.
101 The Caplan basement was left in place with debris partially
filling it and despite the holes in the slab, this was a manmade
interference with the natural flow of water.
Finally, Canril had a duty to protect their neighbour and to
include them in the claim to the City. Their failure to do so,
raised a presumption of negligence even though causation had not
The Court awarded $202,226 in damages, including nearly $48,000
to rebuild the basement, with pre-judgment interest from November
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