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For discussion... interesting feature about Canadian Common Law that may be applicable elsewhere...

4.    The writer visited at the site and observed that the retaining wall, as constructed, restricts flow of run-off from several properties located to the east.  The construction of the retaining wall would cause ponding on the #1 property.

With general development, it is reasonable to assume that an improvement to a property should be undertaken in a manner that does not adversely impair the natural flow of water in a watershed.  The improvement, moreover, should not alter the flow of run-off to adversely affect other properties.

5.    This is not supported by Canadian Common Law which supports the diversion or stoppage of surface run-off; surface run-off water is treated differently than water in a watercourse.  In the event one party causes harm to another, the Drainage Act, Chapter 17 of the Revised Statutes of Ontario, however, can be used to provide relief to an aggrieved property owner.  The aggrieved landowner, generally on the higher ground, can petition the municipality under the Drainage Act to provide a remedy for a drainage problem.  The municipality can then commission an independent engineer (‘municipal engineer’) to undertake a drainage study and to provide the necessary drainage works to remedy the problem.   The municipal engineer, once retained, has an obligation to provide for a sufficient outlet to drain the watershed to its natural outlet by means he deems necessary.  It is possible that the solution arrived at by the municipal engineer would be similar to the remedy proposed by the writer.  This is not guaranteed; the solution proposed by the municipal engineer may be more involved and costly.

The full engineering costs as well as the construction costs to rectify the drainage problem, would be borne, in some distributed fashion, by those parties on the watershed under consideration.  This work would be undertaken by the municipality and costs determined by them.

6.    With natural watercourses, it is not readily possible to divert or stop the flow of water.

An argument may be made that since natural watercourses such as rivers, streams and creeks all derive the source of their water from rainfall, that the condition on the #1 property is part of a natural watercourse, albeit, intermittent.  This argument would be difficult to sustain since the surfaces, observed by the writer, lacked defined top banks and a bottom; these are essentials for a watercourse.

7.    In the writer’s opinion, the work undertaken by #2 has interfered with the natural drainage of the area and has caused flooding of the #1 property.  The disposition of this rests with others.  Although there is no obligation under Common Law for your client to correct the problem he has created, to minimize his financial exposure, he should consider a remedy of the situation rather than face the possibility of having one imposed by the municipality.

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