



COURT OF APPEAL FOR ONTARIO

CITATION:
Monette v. Tebo, 2014 ONCA 516

DATE: 20140703

DOCKET: C56791

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Robert Monette and Ginger Monette

Respondents (Plaintiffs)

and

Martin Tebo and Donna Tebo
and Bruce Sellers

Appellants (Defendants)

AND BETWEEN

Martin Tebo and Donna Tebo

Appellants (Plaintiffs by counterclaim)

and

Robert Monette and Ginger Monette, John Peter
    Roxon and Julie Elaine Margaret Roxon

Respondents (Defendants to the counterclaim)

M. Philip Tunley, for the appellants

Kurt Robert Pearson, for the respondents

Heard: June 19, 2014

On appeal from the judgment of Justice Brian Abrams of
    the Superior Court of Justice, dated February 15, 2013.

ENDORSEMENT

[1]

The appellants appeal from a judgment dismissing their counterclaim for
    damages and an injunction. Notwithstanding the fact that the trial judge
    indicated that he would have awarded nothing for damages had he found liability,
    (which would engage s. 19 (1.1)(d) of the
Courts of Justice Act
R.S.O.
    1990, C.43) the claim for an injunction and the appeal that includes that claim
    gives this court jurisdiction to hear the appeal (s. 6(1)(b)).

[2]

The parties were neighbours on large rural properties near Napanee,
    Ontario. The Tebo property is 11 acres while the Monette property (which they
    have now sold) is 30 acres. In the counterclaim, the Tebos claimed that the
    result of the Monettes construction of a six-hole golf course on their property
    was that surface water ran from the Monette property onto the Tebo property
    causing excessive flooding and pooling of water on their property near the
    property line. They also included a claim for harassment relating to incidents
    including golf balls on their property and burial by the Monettes of their dog
    near the property line.

[3]

The appellants submit that the trial judge erred by failing to give
    effect to what counsel characterized in oral argument as the uncontested fact
    that there were 27 events of flooding on the Tebo land after the development of
    the golf course by the Monettes. They further submit that the evidence showed
    that water flowed from the Monette land to the Tebo land in two particular
    places following construction of the golf course and that the evidence was that
    the new construction created a barrier that prevented the pooled water from
    dissipating for weeks at a time.

[4]

We do not agree that the trial judge erred as alleged. The trial judge
    had to determine whether the flooding conditions on the Tebo property after
    construction of the Monette golf course were worse than before. He concluded,
    based on all the evidence, that they were not. At paragraph 213 of his amended
    reasons for judgment he found:

Accordingly, the Court finds that there has not been a material
    change with respect to the development of the golf course exacerbating flooding
    on the Tebo property as alleged.

[5]

At paragraph 214 he added:

The Court further finds that, if anything, the flooding on the
    Tebo property has been mitigated by the additional fill imported to the Monette
    property, which as Mr. Fraser [Fraser Armstrong] opined, acts as a sponge. Put
    simply, more soil equals more absorption; less soil equals less absorption.

[6]

Finally, he concluded at para. 218:

With respect to the issue of water flow, the more important
    point is this: Even if at certain times, and in certain conditions, water can
    be seen flowing from the Monette property to the Tebo property now, the level
    of flooding has never been as widely disbursed or as deep as it was during
    [Hurricane] Frances (Hurricane Frances). Put simply, on all of the evidence,
    the bowl has never again been as full as it was during Frances. Where is the
    water going? The Court is drawn to conclude, as Mr. Fraser [Armstrong] did,
    that the water is being absorbed by the additional soil imported to the Monette
    property.

[7]

This court was not taken to any expert evidence that contradicted the
    trial judges finding. Furthermore, much of the evidence given by the
    independent neighbours and former property owners substantiated the conclusion
    reached by the trial judge on the issue of comparing conditions before and
    after the golf course construction.

[8]

The appellants also argue that the trial judge should have found that
    the failure of the respondent to fully comply with the Quinte Conservation
    Authoritys requirements for construction of the golf course constituted
    evidence that the golf course was not constructed in a reasonable manner and
    was evidence of nuisance. The problem with this submission is that it does not
    assist the appellants when the trial judges finding was that there was no causal
    connection between the golf course and the alleged flooding. He was not
    satisfied that any accumulation of water on the Tebo land was exacerbated by
    the golf course or that it constituted a nuisance.

[9]

Finally, the appellants submit that the trial judge made findings of
    credibility against Mr. Tebo on a basis that constituted a misapprehension of
    certain evidence. In particular, they submit that he misapprehended Mr. and
    Mrs. Tebos evidence regarding the extent of the flooding following Hurricane
    Frances, and thought they were describing flooding on the same date when in
    fact they were talking about two different dates. However, they do not go as
    far as alleging that the trial judge was not entitled to reject Mr. Tebos
    evidence on other bases that he described. In our view, even if the trial judge
    did misapprehend the reason for the discrepancy in the descriptions of the
    flooding after Hurricane Frances, he was entitled to prefer the evidence of
    Mrs. Tebo and discount Mr. Tebos credibility on the other bases that he
    articulated.

[10]

The
    trial judge heard evidence and argument over nine days. Although his reasons
    for judgment are largely descriptive and somewhat conclusory, they explain the
    conclusions and the evidence he relied on to reach those conclusions. In our
    view, he made no reversible error and was entitled, based on the whole record,
    to reach the findings that he did.

[11]

The
    appeal is therefore dismissed, with costs in the agreed amount of $25,000,
    inclusive of disbursements and HST.

K. Feldman J.A.

David Watt J.A.

K. van Rensburg J.A.


