QUICK HITS

• In 2016, water pooling along a property line, traced back to a neighbour’s sump pump, contained harmful bacteria like E. coli. The neighbour failed to fix it due to financial constraints and lack of insurance.
• The Ontario Superior Court of Justice case highlighted the severe consequences of neglecting property maintenance, with the plaintiff’s home collapsing due to pooling water, leading to a significant legal battle.
• The neighbour was found liable for strict liability, negligence and nuisance, resulting in the plaintiff being awarded $487,211 for home replacement costs, $18,143.53 for additional expenses, $35,577.99 in pre-judgment interest and $100,000 in legal costs.

Neighbours owe each other a duty of care to avoid causing property damage, yet common sources of damage include water flooding from sump pumps, septic systems or poorly maintained eavestroughs.

The Ontario Superior Court of Justice case Warren v. Gluppe highlights the significant consequences of failing to uphold this duty.

Contaminated water encroaching on property

In 2016 in Prince Edward County, Ontario, the plaintiff noticed water pooling along the property line, traced back to his neighbour’s sump pump. The water contained harmful bacteria like E. coli. Despite acknowledging the issue, the neighbour did not fix it, claiming financial constraints and lack of insurance.

The municipality ordered the neighbour to redirect the sump pump water away from the plaintiff’s property, but the solution failed. By the end of 2016, the pooling water caused the plaintiff’s home to collapse, making it uninhabitable.

The plaintiff sued the neighbour in December 2016. The trial took place in 2023. An engineer testified that the neighbour’s failed attempts to reroute the sump pump water caused the house to collapse. The neighbour’s septic system also violated the Ontario Building Code, contributing to the problem. As well, the plaintiff showed that the neighbour failed to properly maintain his eavestroughs, resulting in further water saturation on this property and putting the property’s foundation at risk.

Neighbour liable for several reasons

The court found the neighbour liable for three reasons:

1. Strict liability (Rylands v. Fletcher): The neighbour’s sump pump and septic system were considered non-natural uses of the land (discharge of water from the basement through faulty pipes along the property), and their failure caused damage, which had nothing to do with “the laws of nature.”

2. Negligence (Alfarano v. Regina): The neighbour did not adequately reroute the sump pump water, maintain the septic system or repair the eavestroughs, all of which posed foreseeable risks to the plaintiff’s property.

3. Nuisance (Antrim Truck Centre Ltd. v. Ontario): The neighbour’s actions substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property, leading to its collapse and contamination.

The decision

The plaintiff was awarded $487,211 for the replacement cost of his home, $18,143.53 for maintenance, repair, travel and accommodation costs, $35,577.99 in pre-judgment interest and $100,000 in legal costs.

Few things will sink the serenity you achieve during a vacation faster than coming home to find your basement flooded. I know this from experience, recently having returned from a trip to discover that a burst pipe had been furiously gushing water out into my basement for weeks. 

I live in Toronto, where water usage is metered, as it is in most large centres across Canada. With a metered system, any leak, no matter how small, can quickly drive up your water bill. Experts note that even tiny so-called “invisible leaks” can easily bleed away a significant amount of water, and a burst pipe running for just a few hours can potentially flood a home from top to bottom. You may eventually get an alert from the municipality, but by that time many in this predicament find themselves in deep water financially with the utility.

In my case, I’m looking at a probable $6,000 hit, unless I can convince the water utility to take pity on me and adjust the bill, by no means an easy task. So far, as per the City’s guidelines on these matters, the documents I’ve sent them include confirmation of my age and income, a licensed plumber’s letter, proof that my water meter is free of defects and that the leak was not in my control and even, as added validation, airline ticket receipts proving that I was out of town when the leak occurred. 

I’m hoping the next step won’t be handing over my firstborn, but it’s a crapshoot.

Advising clients when it comes to leak issues

Issues around leaks can be of particular concern to realtors with clients whose houses are sitting empty due to divorce, death, a job transfer, etc. It’s important to ensure in these situations that plumbing systems are in good repair, are being checked regularly or are shut off. The latter of course isn’t ideal for showings and open houses, but it beats having your clients get hit with a crippling water bill.

“Tell them to shut off the water and put a ‘don’t use’ note on the toilet,” advises Richard Fleming, broker/owner of Re/Max Mountain View in Calgary. “Often homeowners say they wouldn’t have thought of that.”

Or you could turn on the water when holding an open house but shut it down again when you leave. 

Homeowners can ensure that their water use isn’t creeping up due to unnoticed leaks or a continually running toilet by monitoring usage via their water bills and/or their account on the utility’s website, Fleming points out. 

In his observation, Calgary’s much-publicized water main break this past June didn’t have a noticeable impact on the city’s realtors and their clients, other than some water restrictions which he deemed only “a minor inconvenience.”

On the flip side, he recalls his “worst water leak story ever,” involving buyers who didn’t get their own home inspection but instead, against his advice, used one provided by the sellers that was a year old. Within a few months of his clients moving in, heavy rain caused their basement to flood. The neighbours informed them that this was a common occurrence and was, in fact, the reason the previous owners sold the house.

“My clients sued for $40,000 — the cost of a proper repair — and won. But it took five years,” says Fleming. “Never use a pre-existing home inspection … and don’t list with clients who refuse to disclose these issues to potential buyers.” 

Advice from the Canadian Institute of Plumbing and Heating

Tips from the Canadian Institute of Plumbing and Heating on how to troubleshoot begin with the obvious: keep an eye out for drips. “This is a hot topic,” says the organization’s CEO, Satinder Chera, explaining that a hefty percentage of insurance claims stem from water damage. “The problem can be costly, not to mention that if left untreated, water damage can develop into a mould issue with real health risks.” 

In his experience, the most common source of water leaks tends to be burst faucets, toilets or appliance supply lines. 

“When vacationing, the best way to prevent potential water leaks is to shut off your incoming water service valve, which is typically right by your water meter,” says Chera. “If you do that, make sure to also turn off your water heater.”

There are numerous products available to help with detecting and managing potential leaks, he continues, including automated shutoff valves.

Insurance claims: The big message is ‘maintain your property’

If your client winds up having to make an insurance claim, be aware that only certain types of water damage are covered under a standard policy, explains Rob de Pruis, a national director with the Insurance Bureau of Canada. For instance, sudden and unexpected plumbing leaks are covered. But sewer backup and flooding from heavy rain aren’t — for those, you generally need optional coverage. 

“If a supply line under a sink has been leaking for years and bursts, that’s not covered,” adds de Pruis. Normal wear-and-tear isn’t insurable, so the big message is “maintain your property,” he emphasizes. 

An insurance claim may also be denied if the owners didn’t have anyone checking on the home regularly in their absence. Depending on the insurer, in these cases, the homeowner is expected to have someone stop by the property at least once or twice a week. 

My basement is unfinished and well-drained, so in my situation, the damage is manageable and didn’t call for an insurance claim. Getting an adjustment to the water bill from the City for uncontrollable consumption is something else altogether (especially right now when the utility is dealing with a much bigger issue, having just discovered that a huge number of Toronto’s water meter transmission units have failed, wreaking havoc with billings). 

But there’s hope for me. For starters, to be considered for a bill adjustment, water usage during the period in question has to be at least three times the home’s usual daily average. No issue there; it was 40 times my norm.

It also seems that the water utility is more likely to cut you slack in these matters if — how shall I put it — your age has reached the “vintage” stage and your income is such that you’re unlikely to have a wallet full of platinum credit cards. I meet those criteria, relatively speaking, which isn’t something I ever thought I’d find particularly helpful. But if it is in this case, so be it.

Fingers crossed.