Fight Over Grading Issues Ends in Court

Bob Aaron in Legal

Whenever a new subdivision is built, the subdivider is required to enter into a development agreement with the municipality. Part of each agreement is a requirement for the developer to implement a city-approved grading plan. The plan ensures that rainwater and snowmelt flow away from the homes and into storm sewers.

The agreements are always registered on title, binding all present and future owners. Compliance with the approved drainage plan was the central issue in a court decision released last year in London, Ont.

Margaret Dankiewicz owns a home on Shepherd Ave. in London. Todd Joseph Sullivan owns the property next door to the east. The properties were developed in 1993 and 1994, and both have a hill or berm at the rear of their yards, forming a buffer and sound barrier with the railway on the other side of the properties.

Dankiewicz purchased her home in 1997 and began to develop her back yard, installing a patio, a pond, a bog garden and a gazebo. She obviously has “a green thumb,” Justice Helen Rady noted in the court decision last year.

All was well until 2007, when Dankiewicz began to experience problems with drainage in the yard. After a rainfall and spring and winter thaws, water would accumulate in her backyard, flooding the patio and causing the pond to overflow.

Blaming her neighbour for the problems, she claimed in a court action that Sullivan had altered the grade in his backyard causing water to drain from his yard into hers, where it pools. Dankiewicz alleged that Sullivan’s actions were contrary to the original subdivision drainage plan, by which water was to drain from the Dankiewicz property, across the Sullivan property, another property and then easterly into a storm sewer.

At the trial last year, an expert witness testified that when the houses were originally completed in 1995, the grading of the lots generally conformed with the subdivision grading plans approved by the city.

Another expert testified that the lot grading of the Sullivan property had been altered so that the intended west to east drainage had been reversed. Sullivan had filled in a swale which ran across both yards, and installed a shed on the easterly boundary of his property.

As a result of those changes, water from the Sullivan property drained into the Dankiewicz yard, which is not what was contemplated by the original subdivision grading plan. The testimony of a soil engineer allowed the judge to conclude that the installation of the shed in the Sullivan yard was “the most probable cause” of the flooding in his neighbour’s property.

Rady was satisfied that the flooding constituted a nuisance in law, and in June last year awarded her $5,000 in recognition of the “distress, inconvenience and interference with her enjoyment of her land.”

The judge denied the plaintiff punitive damages in the absence of evidence that the defendant acted maliciously, oppressively, or in a high-handed way, but he did allow her $4,257 for water pumps, a hose, a replacement tree, and other expenses related to the damage in her yard.

The court ruled that Dankiewicz had “a right to have her surface water continue to flow” over the Sullivan property “by virtue of the development agreement registered on title.” That agreement “sets out the obligation to maintain grading, and is binding on present and future owners.

Sullivan was ordered by the court to take whatever steps were necessary to ensure that water from the Dankiewicz property drains across his property, but to date has not done anything.

Dankiewicz told me this week that the court case cost her $70,000 for legal and expert witness fees. She was awarded $33,000 in court costs by the judge, but to date she has received nothing from Sullivan.

“The court was a nightmare for me,” Dankiewicz added.

It is difficult to disagree with the judge: “It is most regrettable that this matter was not resolved without litigation.”

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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