



COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2017 ONCA 533

DATE: 20170626

DOCKET: C61429

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Matthew Weenen

Plaintiff (Respondent)

and

Graziano Biadi

Defendant (Appellant)

AND BETWEEN

Graziano Biadi

Plaintiff (Appellant)

and

Matthew Weenen
, Fareeda Daniel, Marie Pantalone

and Mark Arthur Weenen

Defendants by counterclaim (
Respondent
)

John Montgomery, for the appellant

Alex Cameron, for the respondent

Heard and released orally: June 22, 2017

On appeal from the judgment of Justice David Salmers of
    the Superior Court of Justice, dated November 6, 2015, with reasons reported at
    2015 ONSC 6832.

REASONS FOR DECISION

[1]

The appellant and the respondent own neighbouring rural properties.
    Shortly after buying his property, the appellant began adding fill to his
    property, in order to permit it to be used for farming. The respondent claimed
    that the appellants actions caused flooding on his land and brought this
    action for damages based on negligence, nuisance and under the strict liability
    doctrine of
Rylands v. Fletcher
[1868] UKHL 1 (H.L.), (1868) L.R. 3
    H.L. 330.

[2]

The trial judge found that, starting in 2002, the appellant dumped
    thousands of truckloads of material on his property causing severe flooding to
    the respondents land. In addition, the appellant improperly constructed a
    swale on his property that added to the amount of water flowing onto the
    respondents land. The appellant also obstructed and failed to maintain a
    culvert under his driveway, despite being advised that the culvert was blocked,
    thereby further increasing the flooding. In fact, on two occasions the
    appellant was caught on camera deliberately blocking the culvert.

[3]

The trial judge held the appellant liable to the respondent for damages
    based on negligence, nuisance and under the strict liability doctrine of
Rylands
    v. Fletcher.
In addition to making mandatory orders regarding the
    appellants property, the trial judge ordered the appellant to pay the
    respondent damages totaling $390,000.

[4]

The appellant challenges only the trial judges assessment of general
    damages ($250,000) and punitive damages ($125,000).

[5]

At the outset, we note the general proposition that a trial judges award
    of damages attracts a high level of deference. An appellate court is not
    justified in interfering unless the amount is so inordinately high that it is
    wholly erroneous.

[6]

The appellant argues that the award of general damages is so far out of
    proportion with the magnitude of the harm and with the range of awards in other
    cases as to be palpably incorrect. The focus of the appellants submission
    appears to be that the quantum of general damages is over 16 times the amount
    of compensatory damages.

[7]

This argument has no merit. We do not see any logical connection between
    the amount of a general damage award for the loss of use and enjoyment of
    property and the amount of an award arising out of property damage.

[8]

In considering the claim for general damages, the trial judge found that
    the appellants conduct had caused the respondent significant and prolonged
    harm including distress, frustration, anxiety, and loss of the reasonable use
    and enjoyment of his home for over 12 years. In the light of these unchallenged
    findings, there is no reason to interfere.

[9]

As to the punitive damage award, the appellant submits that the findings
    that informed the trial judges decision to award punitive damages were not
    supported by the evidence. The appellant further contends that, in any event,
    his conduct does not meet the test for punitive damages. Finally, even if
    warranted, the award for punitive damages is so far out of any reasonable range
    that it calls for appellate intervention.

[10]

We would not give effect to these arguments. In concluding that punitive
    damages were called for the trial judge relied on findings that established the
    conduct set out above. The extensive record of this 18-day trial supports the
    trial judges findings.  In their totality the concerns expressed about
    improper adverse references to inadmissible evidence do not, in these
    circumstances, rise to palpable and overriding error. We see no reason to
    interfere with the trial judges conclusion that the appellants conduct could
    be described as high-handed, malicious, arbitrary, and highly reprehensible
    that departs to a marked degree from the ordinary standards of decent
    behavior. We agree that in the circumstances of this case, particularly given
    the length of time that the appellant conducted himself in this fashion and his
    intransigence, an award that addresses the issue of deterrence was clearly
    warranted.

[11]

The record clearly shows the appellant to be a bully who, for over a
    decade, repeatedly took steps designed to increase the value of his property
    knowing the harm these steps were causing to the respondents property and to
    the respondent, personally. The amount of $125,000 for deterrence purposes is
    entirely reasonable.

[12]

The appeal is therefore dismissed.

[13]

The respondent is entitled to his costs of the appeal fixed in the
    amount of $50,000, including disbursements and applicable HST.

[14]

The monies currently held in court, pursuant to the order of Justice
    Doherty, is to be paid to the respondent to be applied toward any outstanding
    costs award.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


