Case Name:

Biskey v. Chatham-Kent (Municipality)

Between

Brian Paul Biskey and Rita Marie Biskey, Plaintiffs, and

The Corporation of the Municipality of Chatham-Kent, Benedykt

Kaminski, Grayna Kaminski, Peifer Realty Inc., carrying on

business as "Royal Lepage Peifer Realty" and Ghassen Najjar,

Defendants

[2011] O.J. No. 557

2011 ONSC 413

Court File No. 04-CV-003135CM

Ontario Superior Court of Justice

S. Rogin J.

Heard: February 22-26, March 1-5, 8, 16 and 19, 2010.

Judgment: January 27, 2011.

(151 paras.)

Counsel:

Matthew R. Todd and Steven D. Bezaire, for the Plaintiffs.

Raymond G. Colautti, for the Defendant, The Corporation of the Municipality of Chatham-Kent.

JUDGMENT

1 S. ROGIN J.:-- The plaintiffs, Mr. and Mrs. Biskey purchased a vacant property from the defendants, Benedykt and Grayna Kaminski. The defendant Ghassen Najjar was the real estate agent who facilitated the transaction, and he worked for the defendant, Peifer Realty Inc. carrying on business as Royal Lepage Peifer Realty. This lawsuit has been settled against these defendants. Accordingly, the only remaining defendant is the Corporation of the Municipality of Chatham-Kent.

2 The issues between the plaintiffs and Chatham-Kent are as follows:

1) Whether Chatham-Kent owed a duty of care to the plaintiffs when it issued a building permit for the property.

2) If Chatham-Kent owed a duty to the plaintiffs, what was the nature of that duty?

3) If Chatham-Kent owed a duty to the plaintiffs, did it breach its duty?

4) If Chatham-Kent breached its duty, did the plaintiffs suffer damages as a result of that breach?

5) If the plaintiffs did incur damages, did they contribute to those damages as a result of their own conduct?

Factual Overview:

3 After Mr. Biskey saw a "For Sale" sign on the property, he and Mrs. Biskey eventually bought it from the Kaminskis. The property had initially been in the Township of Raleigh which eventually became part of the Municipality of Chatham-Kent.

4 The property fronted on Dillon Road and consisted of three parts:

a) The front part upon which the plaintiffs eventually built what they hoped to be their "dream home."

b) The middle part which consisted of part of a pond. (The Gooseneck Pond)

c) The back part which consisted of a wood lot.

5 Unbeknownst to the plaintiffs when they bought the property, it had for a long time been used as a dump site both by Raleigh Township (presumably legally) and by citizens of the township (presumably without authorization). The front part had originally been a "borrow pit" which extended almost to the edge of Dillon Road. By the time the plaintiffs purchased the property the front part had been created. The dimensions of this part upon which the Biskeys' home was constructed were 212 foot frontage, along Dillon Road to a depth of approximately 150 feet on one side of the property and approximately 130 feet on the other. Behind this front part was the pond locally known as Gooseneck Pond, and then the wood lot.

6 After the transaction closed the Biskeys applied for a building permit which was granted by Chatham-Kent, with no restrictions. Mr. Biskey would be considered an owner/builder under the building permit. He and Mrs. Biskey claimed that they should have been notified by Chatham-Kent that the property had been used previously as a landfill and dump site, and that if a building permit had been issued there should have been conditions imposed on the building permit that would have alerted them to the previous use of the property. They also claim that the building permit should have addressed the previous use of the property as a dump site.

7 Chatham-Kent says it had no duty to the Biskeys, that they notified the Kaminskis of the situation, and that Chatham-Kent's obligation ended when it sold the property to Mr. and Mrs. Kaminski. It is Chatham-Kent's position that it was the Kaminskis' responsibility to inform the plaintiffs of the true state of affairs.

8 I cannot accept the position of Chatham-Kent. No person is allowed to construct a building without a permit. See Building Code Act, 1992, S.O. 1992, c. 23 s. 8(1). The chief building official of the municipality shall issue a building permit unless the proposed building contravenes applicable law (including the Building Code), the applicant is a vendor not registered under the Ontario New Home Warranties Plan Act, the application is incomplete, or the fees are unpaid (see s. 8(2)). However, a building permit may be issued in the absence of compliance with s. 8(2), if the applicant enters into a written agreement with the proper authority inter alia, to assume all risks in commencing construction and obtain all approvals. By s. 8(4) of the Act, the chief building official shall consider the potential difficulty in restoring the property to its original condition and use if appropriate approvals are not obtained. The agreement can be registered against the land, (s. 8(5)), and any building constructed must be built in accordance with the conditional permit.

9 The law with respect to the duty to inspect was summarized by the Supreme Court of Canada in Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298. No authority was cited dealing with the duty to issue a conditional building permit; however some of the principles in Ingles are instructive with respect to this related issue of whether a conditional permit should have been issued.

10 As they relate to the duty to issue a conditional building permit I take the following from Ingles v. Tutkaluk, supra,:

1) The Anns/Kamloops test [Anns. v. Merton London Borough Council, [1977] 2 All E.R. 492] should be applied to determine whether a public body owes a duty of care towards individuals. Under the first branch of the test a prima facie duty of care will be established if it can be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that carelessness on the part of the public actor would result in injury to the individual.

2) Under the second branch of the test, the court must examine the governing legislation to determine whether a private law duty should be imposed in the particular circumstances.

3) There is a duty at the operational level to use due care when performing the authorized act.

4) Once the duty is found, it is owed to all who may be injured by the negligent actions of the authority.

11 A successful negligence action requires the plaintiff to demonstrate:

1) that the defendant owed him a duty of care;

2) that the defendant's behaviour breached the duty;

3) that the plaintiff suffered damage; and

4) that the plaintiff's damages, in fact and in law, were caused by the defendant's negligence or breach of duty.

See Mustapha v. Culligan, [2008] 2 S.C.R. 114.

12 Chatham-Kent owes the duty to the plaintiffs:

1) if there is a sufficiently close relationship between them that in the reasonable contemplation of the defendant, carelessness on its part might cause damage to them; and

2) there are no considerations which ought to negative or limit the scope of the duty, the class of person to whom it is owed or the damages caused by the breach.

See Kamloops (City) v. Nelson, [1984] 2 S.C.R. 2.

13 I cannot accept that Chatham-Kent's duty ended when it sold the property to the Kaminskis and that it became solely the Kaminskis' obligations to inform the Biskeys of the true nature of the property. If that is so, the whole purpose of the Building Code Act would be frustrated. Chatham-Kent provided the Jagger Hims Limited Modified Phase One Environmental Site Assessment of the property to Mr. and Mrs. Kaminski.

14 One of the purposes of the Building Code has to be to protect purchasers of property who come along after the property has been improved by construction. A subsequent purchaser can be injured both physically and financially by an improperly constructed building. Builders, whether owner builders or commercial builders, eventually die or sell the property. The subsequent purchaser of the property is sufficiently proximate to the city that the city has a duty to notify that person of a known defect of the property. This is especially so when the city itself either created the problem or at the very least was complicit in its creation. The Jagger Hims Limited Environmental Assessment might, at the very least, have caused the Biskeys to make further inquiry before they purchased the property.

15 The contributory negligence, if any, of the Biskeys is not a factor in deciding whether the city owes them a duty, unless they totally absent themselves from the building permit process. They did not. They participated in the building permit process. Any negligence on their part in continuing to build can only be considered once a duty is found owed to them by the city and a breach of that duty is found resulting in damages suffered by them. The city it may be said, has a duty to protect people from themselves. (See Ingles v. Tutkaluk.)

16 Raleigh Township created or was complicit in the problems on the Biskey property. Raleigh Township's successor Chatham-Kent is fixed with the knowledge that the property had been used as a dump site and a landfill.

17 The building permit which was ultimately issued was for a single family dwelling. I therefore infer that the property permitted residential use. There is a house next door. It must have been in the contemplation of Chatham-Kent when it placed the property on the market that an eventual purchaser of the property might want to build and live on it. That makes any purchaser of the property a person sufficiently proximate to the municipality to create a duty on the municipality to warn that person of any problems with the property.

18 The potential for harm could easily have been mitigated by the city registering something on the title of the property or by inserting conditions for soil gas abatement into the building permit. They did neither. They left that task to the Kaminskis. I conclude that Chatham-Kent had a duty to the Biskeys and any subsequent purchaser of the Gooseneck property to notify them of its true condition.

Did They Breach the Duty?

19 It is clear from the evidence of Edsel Dick, James Case and Michael Flannigan that the Biskey property was used as a dump site by Raleigh Township the predecessor of the defendant Chatham-Kent. Mr. Dick testified in effect, that his excavating company cleaned up the old Dover scrap yard which was in the City of Chatham. He excavated dirt contaminated by oil to a depth of two to four feet from the Dover yard and took it to the Dillon Road site (which I find to be the Biskey property). This occurred in approximately 1976 and 1977 and his work at the Dover scrap yard was occasionally supervised or at least observed by Raleigh Township officials. As well, Mr. Dick saw township officials at the Biskey property observing him dump the Dover scrap yard debris there.

20 In a similar vein James Case also testified. Mr. Case presently works for the Chatham-Kent road department, but had a similar position with Raleigh Township. He is also a volunteer firefighter. He was familiar with the Gooseneck Pond and the subject property.

21 When he was working for Raleigh Township starting in 1986, he observed automobiles, paint cans, asphalt and household goods being dumped into the pond and on the property. Raleigh Township would clean the neighbouring ditches and fill in the pond and dump on the property.

22 In 1998 he attended at the property as a firefighter to put out a fire that was burning in a mound. The firefighters had to employ a backhoe to dig the burning garbage out of the ground to disperse it and then extinguish it.

23 Michael Flannigan was also a volunteer firefighter for Chatham-Kent and Raleigh Township. He also fought the fire at the property in 1998. He was the deputy chief at the fire hall near the Biskey property. He remembers the Gooseneck Pond extending to approximately 40 feet from Dillon Road. I infer from this evidence, that approximately 100 feet of the pond was filled in with debris to the knowledge of Raleigh Township. Chatham-Kent has to be fixed with this knowledge.

24 In addition to all of the above, there was extensive newspaper publicity about the fire.

25 As early as 1980 the minutes of the Raleigh Township Council mentioned dumping at the Gooseneck Pond. Throughout the 1980's these minutes are replete with references such as:

1) March 19, 1984: "M.O.E. investigation."

2) August 6, 1985: "A real problem in the area."

3) March 17, 1986:

"... contaminated material dumped ... in pond owned by township." No witnesses investigation for cost for fencing."

4) April 7, 1986:

"Newton Petroleum's letter in response ... to unauthorized dumping."

5) Nov. 21, 1991:

"Township enters agreement with Beaulieu for placement of broken concrete at the site starting at the north limit of the pond."

6) Dec. 4, 1995:

"Contract with Koomans demolition contractor for 100 loads of concrete to be dumped at the site."

7) August 6, 1996:

"Local residents concerns that garbage in pond could contaminate their drinking water."

8) June 16, 1997:

"Hauling of material was halted due to M.O.E. orders and results of material have been obtained indicating that the material must be hauled from the pond to a landfill site."

26 The township attempted at times to stop the dumping. It is unclear whether they were entirely successful, but the fact remains that the wood lot at the back of the property and the pond were used as a dump site with the result that approximately 100 feet at the front of the pond was filled in. This is the area on which the Biskeys ultimately constructed their home.

27 On May 10, 2000, Chatham-Kent declared the Dillon Road property to be surplus. Presumably because of the concerns documented in the previous minutes of the Raleigh Township council meetings, and in anticipation of the sale of the surplus property,

Chatham-Kent commissioned a Modified Phase I Environmental Site Assessment of the property. The purpose of this assessment was:

"... to document existing site conditions and to evaluate the potential for environmental concern at the site as a result of historical and current operations in addition to surrounding land use."

28 The site assessment was performed by Jagger Hims Limited, which produced a report. The Jagger Hims Report was given to Chatham-Kent on November 15, 2000. The conclusions in the executive summary of the report were:

"Laboratory chemical results indicate acceptable site conditions for parkland and residential use having potable ground water resources."

29 This report was provided to the Kaminskis, the purchasers of the property from Chatham-Kent. I find as a fact that Mr. and Mrs. Biskey (for reasons which will be detailed later) did not know of the existence of this report until after they had purchased the property.

30 The report itself does not assist Chatham-Kent on the issue of whether or not they breached their duty to the Biskeys to inform them of the true nature and past history of the property. Chatham-Kent did not follow up on this report. This report raises more questions than it answers. These are questions that the municipality should have asked. The conclusions in the report relevant to whether Chatham-Kent breached its duty are:

1) "Available data reveal that the site has been undeveloped and infrequently used ... as a borrow pit. The potential for environmental concern relates to historical waste disposal, uncontrolled dumping, the presence of fill material of unknown composition and origin, and surrounding land use."

2) "One surface water grab sample was collected from Gooseneck pond and boreholes were advanced to investigate fill material and native clayey soil quality across the site. Laboratory chemical results indicate acceptable site conditions for parkland and residential use having potable ground water resources."

31 The body of the report contains the following information:

1) Fill material underlines portions of the site and ranges in depth of at least 1.2 metres below grade. The fill generally consists of construction debris including concrete fragments. It is compacted with no evidence of hydrocarbon staining. Subsurface obstructions suggest that fill material may occur to greater depths.

2) Paragraph 310 and the records review indicated that the property had been used as a historical waste disposal location prior to flooding with two additional dumps in proximity.

3) Fill material near the front portion of the site from various township projects including bridge repair and ditch cleaning operations. (This location is the focus of the report and where the house was ultimately built.)

4) ... there were concerns regarding portions of the adjoining property to the south owing to activities associated with wrecking yard operations.

5) A suspect soil mound was identified.

6) Portions of the site contain evidence of fill material of unknown origin or composition.

7) Fill material underlines portions of the site and ranges in depth to at least 1.2 metres below grade ... but may occur to greater depths.

32 Chatham-Kent had the Jagger Hims report in November 2000, well before the Biskeys purchased the property on November 29, 2002. Chatham-Kent provided the report to the Kaminskis when they sold the property to them in January 2002. Chatham-Kent clearly relied on the conclusion in the report that residential use of the property was acceptable. Presumably, therefore, they did not commission the Phase II Environmental Site Assessment. This is especially so once they sold the property to the Kaminskis.

33 However, the issue does not end there. The Kaminskis made two offers to purchase the property from Chatham-Kent. The first one contained a condition that the Jagger Hims report be provided. They were given the report. The second accepted offer did not contain the condition. I infer that the Kaminskis were content to buy the property after they had seen the report. There was no evidence of the use intended for the property by the Kaminskis.

34 The issue arising from the Jagger Hims report from the perspective of this lawsuit is not whether a residence could be built - it could be built. The real question is at what cost to the person building the house.

35 The Jagger Hims report raised significant issues which should have been addressed by Chatham-Kent. These are:

1) The depth of the fill and composition of the fill.

2) The possible contamination of the site.

36 It is one thing to conclude that the property is suitable for residential use. It is quite another thing to say that if the cost of construction of the residence is prohibitive because of Chatham-Kent's own actions, that a prospective purchaser can or will build. Mr. Holling, who was the building inspector, and Chatham-Kent had to know that in order to construct a proper foundation and footings for the house, that the property had to be excavated to a depth of at least six to nine feet. Holling and Chatham-Kent had to know that there was a possibility that there were combustible gases on the site because of its prior use as a landfill. They had to know that any person who wished to build would incur extra costs to address these issues.

37 Holling later told Mr. Biskey when he complained or enquired about the problems that it was "buyer beware."

38 It appears that when the Biskeys applied for their building permit that Chatham-Kent's council told Holling to do "due diligence" to confirm that there was no garbage on site. Holling commissioned the Golder report that raised many more red flags because it confirmed the presence of garbage, organic materials, and fill which were "unacceptable as a suitable founding medium for the support of conventional building foundations."

39 Holling had considerable experience as a building inspector. I find that he should have at least suspected these problems from reading the Jagger Hims report if he didn't actually know that those problems existed.

40 The Golder report was dated April 16, 2004. It was received by Mr. Lacina of the Chatham-Kent Building Department on April 21, 2004. The stated purpose of the Golder report was "... a geotechnical investigation carried out for the proposed single family house to be constructed at the above site."

41 The Golder report contained the following statements:

1) "The subsurface soil conditions ... generally consisted of some 6.0 to 9.5 feet of fill materials and about 0.7 to 3.5 feet of firm to very soft organic silty clay overlying firm to very soft grey silty clay."

2) "The fill materials ... generally comprised of silty clay intermixed with organic materials and contained some asphalt, concrete and other building debris. "

3) "The geo-environmental (chemical) aspects including the consequences of possible surface and/or subsurface contamination resulting from previous activities or uses of the site and/or resulting from the introduction on to the site of material from offsite sources are outside the terms of reference of this report and have not been investigated or addressed."

4) "... considerable quantities of fill and organic materials underline the ... site. The variable nature and condition of the fill materials and organics soils makes these materials unacceptable as a suitable founding medium for the support of conventional building foundations."

5) "The use of conventional foundations is therefore not recommended."

6) "Additional drilling work will be required before site specific deep foundation recommendations can be provided. For the reasons described above, this foundation type has not been considered in detail in this report."

7) "In regards to a possible swimming pool: depending on the pool depth ... the pool is expected to encounter various soil types at the anticipated founding grade(s). If the complete removal of the fill and organic soil is not carried out, some post construction settlement ... should be expected. ... It is therefore recommended that all fill material be removed and replaced with granular fill material ..."

8) "... combustible gases were measured in the boreholes. Even if all fill and organic materials are removed from below the plan area of the building, there still remains a possibility that considerable gas could enter the completed house through unsealed openings. ... As a precautionary measure therefore it is recommended that the building be provided with at least the minimum requirements for soil gas control ... and that any control works be reviewed by specialists in the field."

9) "Due to the variable subsurface conditions present at the site, the construction of utilities and their connection to the house and/or pool may be problematic. Details of utility connections should be reviewed by this office."

10) "It is considered critical that this office review the final design drawings ... to ensure ... they are consistent with the recommendations contained within this report."

42 With respect to the last comment, no plans were ever submitted by the Biskeys to Golder Associates. To be sure, the Golder report had been withheld by the municipality from the plaintiffs once the litigation was commenced.

43 Mr. Lacina of Chatham-Kent agreed that he told Mr. Biskey that the report would not be released to him unless the Biskeys discontinued this litigation. Mr. Biskey was forced to obtain the report by filing a Freedom of Information request. Mr. Biskey testified that had the report been available before he closed his transaction, he would have asked for advice from the lawyer who acted for him on the purchase of the property.

44 The issue, therefore, is not as narrow as proposed by counsel for Chatham-Kent. The issue is not that a dwelling could be built on the property. It clearly could be built. It is at what cost to the Biskeys the dwelling could be built and whether or not the property would have remained their "dream property" if they had known the true condition of the land they bought before they closed.

45 In that regard there is a credibility issue between Mr. Biskey who says he did not receive the Jagger Hims report until after closing, and Mr. Najjar the real estate agent for the Kaminskis who testified that he provided the report to Mr. Biskey.

46 I resolve that credibility issue totally in favour of Mr. Biskey. Biskey said he did not receive the report until at least November of 2003. I accept his evidence that if he had received it before closing he would have given it to Mr. Mathany, his real estate lawyer, as he would have given the Golder report and asked for further legal advice. There were no conditions placed into the offer to purchase with respect to the suitability of the site for residential purposes.

47 At some point Mr. Biskey came into possession of the appraisal report commissioned by Chatham-Kent before they sold the property to the Kaminskis. That report said nothing about any environmental concerns.

48 In addition, Ms. Antunis worked in the building department for Chatham-Kent. On April 16, 2003 Mr. Biskey came to her with respect to a building permit for a shed. The application was dated April 16, 2003 and contained a photocopy of a site plan which came from the Jagger Hims report. The proposed shed was drawn onto this site plan. However, Ms. Antunis did not know how the site plan became part of the application and did not recall Mr. Biskey giving it to her despite her claims to have a good memory. She further conceded that this sketch may have come from Chatham-Kent itself. Mr. Biskey testified that after being asked to amplify his original sketch, he asked other people in the building department for assistance and received the photocopy of the site plan (not the actual Jagger Hims report) from people in the building department. This evidence is consistent with Ms. Antunis' evidence and I find that Mr. Biskey did not have a copy of the Jagger Hims report prior to closing in November 2002.

49 With respect to the evidence of Mr. and Mrs. Najjar, where it conflicts with that of Mr. Biskey, I accept the evidence of Mr. Biskey. Both Mr. and Mrs. Najjar testified that before closing they gave him a copy of the Jagger Hims report at their office. Biskey absolutely denies this. Mr. Najjar's testimony was not internally consistent. At one time he said he did not call Mr. Biskey on either October 28 or 29th. When confronted with cell phone records, he conceded he might have done so.

50 Biskey had testified that he originally saw a For Sale sign on the property with Mr Najjar as the agent. Najjar denied his name was on the sign and that he had placed it on the property. He then indicated that if it was his sign someone else must have placed it on the property or perhaps he had given the Kaminskis a sign. It does not accord with common sense, that a real estate agent would place a sign on a property, without his own name on that sign. This is especially so when he was the listing agent.

51 Najjar claims to have given Biskey the Jagger Hims report but did not know when. He said his memory after eight years was not good. He made no notes.

52 He claimed that the first time he knew of environmental problems at the site was after the deal had closed and Biskey complained. However, he said he knew what was in the Jagger Hims report and it was provided to the Kaminskis before they purchased the land from Chatham-Kent. He remembered, that the Jagger Hims report was a condition of Kaminski's original offer to Chatham-Kent, but after the Kaminskis received the report, they apparently must have been satisfied and did not include production of this report in the agreement of purchase and sale that ultimately resulted in the transfer of the property to them.

53 On these contradictions, I have no hesitation in preferring the evidence of Mr. Biskey over that of Mr. Najjar on the point, and find that Mr. Biskey did not receive a copy of the Jagger Hims report until after they closed the transaction.

54 Similarly I reject the evidence of Mrs. Najjar for the following reasons. She says she gave Mr. Biskey the Jagger Hims report but did not know what day or what time. She had never read the report nor did she recognize the name Jagger Hims. Her words were almost exactly the same as those used by her husband, as was her description of Mr. Biskey's actions.

55 In addition to these reasons the evidence of both Ms. Antunis and the Najjars is inconsistent with Chatham-Kent's stated position that they were not willing to disclose the Golder report unless the Biskey's discontinued their litigation and Mr. Holling's statements as acknowledged by him that "the buyer should beware" and that "Chatham-Kent gets sued on a daily basis and Mr. Biskey should get in line."

56 Chatham-Kent recognized that there were potential problems with the Dillon Road property. They went so far as to commission the Jagger Hims report to ascertain what those problems were. They contemplated a phase II environmental assessment of the site and then commissioned the Golder report to find out whether residential housing could be constructed on the property. Chatham-Kent then disclosed the report to the Kaminskis, but refused or failed to notify the Biskeys of the potential problems and potential extra costs involved in building on the site. In fact, they frustrated the Biskeys' attempts to satisfy themselves. Chatham-Kent's failure to disclose was negligent. The plaintiffs have suffered damages as a direct result of the failure of Chatham-Kent to disclose the true state of affairs. The minimal cost of registering some type of caution against the property or a notation to the building department to disclose the two reports to potential builders, is far outweighed by the damages suffered by the Biskeys. Chatham-Kent is responsible for those damages.

DAMAGES:

The Holling "Commitment":

57 Before the analysis with respect to damages begins, I must address the plaintiffs' claim that Mr. Holling, on behalf of Chatham-Kent, undertook to pay all extra costs arising from Chatham-Kent's creation of the landfill. Mr. Biskey testified that the undertaking was to pick up all non normal building costs. He said that this occurred at a meeting with Mr. Holling where Mrs. Biskey was also present. He made notes of the meeting. His recollection and notes were that he cross-examined Mr. Holling with respect to several specific aspects, including such things as disposal of materials, water systems, trucking and labour. Holling denied making the commitment. He indicated only that Chatham-Kent would pay for the initial investigation into the soil conditions (which it did) but no more. He said he had no authority to commit to paying 100 percent of all extra costs, and that decision would have to be made by city council.

58 Mrs. Biskey testified as to her recollection of the meeting with Holling. She made no notes, but remembered it. Her recollections of Holling's commitment was that Chatham-Kent "would do everything it could to rectify the situation" but would pay extra costs with respect to the foundation.

59 While I have no doubt that Mr. and Mrs. Biskey were attempting to be truthful on this point, I cannot accept that Holling would make the commitment they claim he made. Both Mr. and Mrs. Biskey were committed to their "dream home" project. It was a stressful time for them. Mrs. Biskey's testimony is more consistent with Mr. Holling's commitment to pay for the soil investigation rather than all of the details in her husband's testimony and notes.

60 At the time no one had any idea of the ultimate costs of restoring the site. A commitment by Chatham-Kent through Holling to pay carte blanche, for every extra cost is inconsistent with its position throughout the trial of "let the buyer beware" and "stand in line" to sue us. Holling is a careful civil servant who knew the boundaries of his authority. I must accept his version of the events over that of the plaintiffs.

61 As indicated previously, the Biskeys, no doubt honestly, believed that Holling undertook to pay all costs. Their honest belief may well have emanated from what they felt Holling told them. However, that commitment would have to come from Chatham-Kent, through a resolution of council. Holling had neither the authority to make it, nor on the evidence, ever held out that he did. In fact, at a subsequent meeting in April, Holling disabused the Biskeys of the notion that Chatham-Kent would pay for everything. I find that, notwithstanding the honest belief of the plaintiffs, Holling, on behalf of Chatham-Kent, probably did not make the commitment as claimed.

62 It therefore follows that my assessment of damages in favour of the plaintiffs must be based on the fourth principle in Mustapha v. Culligan, namely that the plaintiffs' damages must be caused, in fact and in law, by the defendants' negligence and breach of duty to them, and must not be too remote.

The Excavation:

63 In order to have a proper base for the foundation it was necessary to dig down approximately nine feet to get rid of the contaminated soil and provide a proper base for the footings. (See Atkinson Davies report.) It was then necessary to install clean fill. The original estimate for digging a foundation before discovery of the contamination was $2,755.00. This estimate was from Dig-R-Wright dated December 7, 2005, and was lumped with other work done or estimated at that time. Although this bill and payment were dated November 16, 2004, I accept that the original estimate was $2,700.00. The plaintiffs paid Dig-R-Wright $32,000.00 on December 14, 2004 plus $9,446.71 (for a total of $41,446.71) which was discounted from the original estimate of $42,505.61. Accordingly, Mr. and Mrs. Biskey paid an extra $38,691.71 for the excavation and hauling away of contaminated fill. Chatham-Kent is liable for that amount.

$38,691.71

64 The clean fill including gravel for the garage and topsoil, amounted to $4,627.75, for which Chatham-Kent is also liable.

$4,627.75

65 With respect to the claim of additional foundation costs of $6,435.25, from Southwestern Construction, I can find no evidence to justify an award for damages in that amount. The original estimate dated October 6, 2004 was for $32,318.28 and included a garage floor and porch top. The invoice for the work performed was $35,897.43 dated November 15, 2004. It included extras of winter handling of $2,550.00. As well, there appears to be an added invoice for the porch top of $556.40. As well, there was a separate invoice for the garage floor in the sum of $2,300.00. In cross-examination Mr. Biskey could not relate in any way these items as emanating from the negligence of Chatham-Kent. The sum of $6,435.00 as detailed in Tab A3 of the Damages Brief is therefore not allowed.

Septic System:

66 It is not disputed that an enhanced or tertiary septic system was required for the property. The actual cost of the system installed was $14,833.40. Mr. Biskey quite properly conceded that the estimate of $4,724.05 produced (which was what an acquaintance paid for his system on a different property) was lower than the $7,500.00 he was quoted for his system. Accordingly, I find that the damages suffered for a tertiary septic system are $7,333.40.

$7,333.40

Disposal of Contaminated Soil:

67 Mr. Holling advised Mr. Biskey to dispose of the contaminated soil excavated from the foundation elsewhere on his property. This suggestion was quite properly dismissed by Mr. Biskey. It was suggested in cross-examination that Biskey separate the concrete, rebar and other inert material. This suggestion was also rejected by Biskey, as he would have had to hire a bulldozer and he would not be able to do it himself. Biskey's position was not unreasonable. It cost $57,780.00 to remove the contaminated soil to the landfill. No alternative was put forth by Chatham-Kent. I find that Chatham-Kent is liable for the costs of hauling away the contaminated soil in the sum of $57,780.00.

$57,780.00

68 In addition to the above amount, the plaintiffs' neighbour had allowed him to temporarily store excavated material on his property. It cost the Biskeys $11,342.00 to remove this debris from the neighbour's property, and it is also allowed.

$11,342.00

69 The Biskeys also paid the neighbour $200.00 per year for five years to store the debris previously mentioned. This is not unreasonable and Chatham-Kent is liable for the sum of $1,000.00.

$1,000.00

Kitchen and Bath Cost Difference:

70 The plaintiffs claim a difference of $4,931.95 for an increase in costs for kitchen and bath cabinets between September 22, 2003 (their first estimate) and April 9, 2005 (the second estimate and actual amount paid). I infer from Mr. Biskey's evidence, although he didn't actually state it, that because construction was delayed the prices of these materials increased. There were differences in the materials in the two invoices but at least the difference in the material for the children's bath was explained by Mr. Biskey as being cheaper in the second invoice. This is to the benefit of Chatham-Kent. With respect to the kitchen material I accept his explanation that the classic maple, maple and hard rock maple finishes were all pressboard, and if there is a difference in price it is negligible. The delay in construction had to have been caused by the discovery of the landfill upon which the house was built. The damage is not too remote, and is recoverable from Chatham-Kent. I allow the sum of $4,931.95 as the damages.

$4,931.95

71 The plaintiffs calculated their damages for increased cost of flooring on the same basis as the cabinet cost difference. It appears that they paid Sacwal $9,061.78, on June 20, 2005, and according to the Sacwal Flooring Centre, if they had purchased the same material in 2003 they would only have paid $8,075.00. The plaintiffs therefore suffered $986.78 in extra costs for which Chatham-Kent is responsible.

$986.78

Additional Building Material Costs:

72 I accept Mr. Biskey's evidence that he had a verbal contract with McGregor to build a 2400 square foot residence for $100.00 per square foot. This would have cost the plaintiffs $240,000.00 to construct the home. However the verbal contract is devoid of any other detail other than 2400 square feet at $100.00 per square foot.

73 In cross-examination Mr. Biskey conceded that the $100.00 per square foot was for everything including fixtures and cabinets and although previously he "had felt" that he would be given allowances for same. He also said that his agreement with Mr. McGregor was that Biskey would do the painting and plumbing. He claims that because of the delay, McGregor was unable to assist him and he had to become his own general contractor. He therefore calculates his damages on the basis that he actually paid out $261,508.48, from which he deducted the $240,000.00 he would have paid McGregor. This makes his claim on this head of damage $21,508.48.

74 The evidence with respect to this head of damage is sparse and inadequate. According to the summary in Tab A10 of Exhibit 4 (the Damages Brief) there are items which have already been accounted for. There are items relating to plumbing costs which were the responsibility of the Biskeys, not McGregor, and there are items which relate to the costs of the litigation which are not recoverable.

75 Mr. Biskey was asked very few questions in chief about these damages, other than how he arrived at his final figure. Accordingly he was not cross-examined extensively, and rightly so.

76 Some of his answers were based on assumptions he made which were not proved, such as recovering allowances from the builder. The builder was not called to give evidence. Accordingly, I can give no weight to that evidence. Some of the items were items he would have had to pay for in any event, and are not recoverable as attributable to any breach of the duty owed to him by Chatham-Kent.

77 The contract with McGregor was for $240,000.00 with Mr. Biskey doing all the painting and his own plumbing. For example the plaintiffs claim the following:

1) Alvin McWilliams: Drywall & Taping $5,900.00. This is disallowed as it should be part of the job done by McGregor.

2) Angileri Rona Windsor: Paid for trusses. This is also disallowed as the materials paid for would have been part of the original responsibility of McGregor. Accordingly the sum of $80,186.93 is also disallowed.

78 The total of these two items exceeds the excess costs Mr. Biskey claims to have incurred. Therefore I allow no damages as listed in tab A10 of the plaintiffs' Damages Brief.

79 However, as conceded by counsel for Chatham-Kent, the Biskeys paid an extra $6,435.25 for the additional foundation costs, and this is allowed.

$6,435.25

Extra Legal and Interest Costs:

80 Similarly in Tab B-1 of the Damages Brief, the plaintiffs claim extra legal fees in the form of more mortgage advances. Mr. Biskey said he had to convert his conventional mortgage to a building mortgage which necessitated extra fees for each advance. I am not prepared to accept these damages as they are too remote. In fact, some of the extra charges were attributable to problems with the mortgage company, not Chatham-Kent. The Biskeys needed mortgage financing to construct their home. I am not prepared to find that they could have financed the project from savings and the sale of their Parkwood Avenue home. Accordingly, the claim under Tab B-1 for extra professional fees for Mr. Mathany in the sum of $1,629.22 is not allowed.

81 Similarly the claim for extra interest expense on the personal line of credit is also not allowed as being too remote.

Atkinson Davies Report:

82 The claim for professional services of Atkinson Davies Consulting in the sum of $2,452.18 is allowed. As Chatham-Kent refused to share its information with the plaintiffs, the Biskeys were forced to obtain their own information. The invoice for "supervision of excavation and backfilling with engineered fill" is reasonable and recoverable. Chatham-Kent is responsible for $2,452.98.

$2,452.98

Municipal Water Service:

83 The plaintiffs claim for the installation of a municipal water service. They had originally sought the cooperation of their neighbours to have municipal water brought to their lot. They needed a certain percentage of their neighbours to join them in requesting this service. They were unable to enlist the cooperation of sufficient people to obtain municipal water, and were forced to install a well. Subsequently the water initiative was approved, and they now have municipal water. They therefore have suffered no damage. Even if they had suffered damage, it was not the fault of the municipality. The claim for municipal water services is not allowed.

Loss of Income from Apartment:

84 The Biskeys claim a loss of income of $12,540.00 from an apartment they owned. This apartment was vacant and apparently rented for $660.00 per month. The claim is for the loss of the rental income from December of 2003 until they moved into their new home in approximately July of 2005, a total of 19 months.

85 However the plaintiffs moved into their home in May of 2005. They did not sell their existing home on Parkwood Avenue until June 1, 2004. In e-mails between Mr. Biskey and the purchaser of the Parkwood home, Mr. Biskey indicated he had offers to rent the apartment for $650.00 per month.

86 The building permit was not ready until November of 2004. While part of the delay was attributed to Chatham-Kent refusing to divulge to the plaintiffs the contents of the Golder report, Mr. and Mrs. Biskey made a conscious decision to hold the apartment as an emergency home for themselves from December of 2003 to June 2004. They cannot hold Chatham-Kent responsible for this decision.

87 In my view an appropriate amount of damage under this category is $650.00 per month from June 1, 2004 to May 1, 2005 when they occupied the Dillon property. This amounts to 11 months at $650.00 per month or $7,150.00 for which Chatham-Kent is responsible.

$7,150.00

Extra Mortgage Interest:

88 The plaintiffs have claimed for extra mortgage interest charges necessitated by the delays and having to convert from conventional funding to building financing. They have calculated that claim simply as one half of the difference between the interest rate paid on the $300,000.00 building mortgage compared to what they would have paid on their originally planned conventional mortgage of $150,000.00 to $170,000.00. This is not an appropriate calculation. Some of the extra costs incurred by the plaintiffs are not the fault of Chatham-Kent as I have already held.

89 They were reimbursed for part of their claimed losses by the bank which acknowledged mistakes made on its part. Under the circumstances, I feel this claim for extra interest is too remote, and is not allowed.

90 In addition, they claim additional interest charges on their construction loan. For the same reason this claim is disallowed.

91 They further claim $2,510.70, for extra life insurance fees charged on the larger loan. They chose to insure their loan. It was not a condition of their policy. The extra cost associated with the insurance on the loan are either not caused by the negligence of Chatham-Kent or are too remote. On either basis they are not entitled to reimbursement and that claim is not allowed.

Moving and Storage Costs:

92 The plaintiffs claim $2,822.45 in additional moving and storage costs as follows:

The first move to storage:

$1,214.45

	b)	Storage of furniture from June
		2004 to June 2005:	$1,284.00

c)	Cost to move stored furniture:	$ 324.00
		_________
	TOTAL:	$2,822.45

93 Although there was little evidence as to when the Dillon property was ready for occupancy, a reasonable inference is that construction of the home was delayed. Mr. Biskey said that Mr. McGregor, with his help, would have completed the house in approximately four months, which would have made it ready for occupancy in approximately February or March of 2004.

94 The plaintiffs sold their Parkwood property with the closing on June 4, 2004. They then moved into the apartment above Mrs. Biskey's store, ultimately moving to Dillon Road. They would have had to pay the movers if they had moved directly from Parkwood to Dillon. Accordingly Chatham-Kent is only responsible for the storage costs in the sum of $1,284.00, which sum is allowed.

$1,284.00

95 In addition to the above storage costs, they claim to have incurred additional storage costs of $4,012.50. This sum came from the rental of a trailer parked on the property which Mr. Biskey said was cheaper than the storage charges set out in the previous paragraph. I do not understand this contention. The damages in the previous paragraph for furniture storage were $100.00 per month plus GST. The cost of the rental trailer was $300.00 per month. There was no evidence that the Biskeys were required to incur two sets of storage fees. The $4,012.50 is therefore disallowed.

Realty Taxes:

96 The plaintiffs also claim reimbursement for overpayment of realty taxes which they have appealed. If successful they will be reimbursed by the City. There is no basis for finding that the negligence of Chatham-Kent caused them to overpay these realty taxes, and this claim is disallowed.

Diminution of Property Value:

97 A major part of the damages claim of the Biskeys is for the diminution of their property value by reason of the contamination and the stigma of their home being constructed on a landfill. In that regard Mr. George R. Canning, a principal in Canning Consultants Inc. testified on their behalf. He was qualified as an expert entitled to give an opinion with respect to real estate values.

98 For the defence, Mr. Ray Bower of Ray Bower Appraisal Services Inc. testified and was also qualified to give an opinion with respect to real estate appraisals and to criticize real estate appraisals. Interestingly, although I find that his qualification and experience were similar to those of Mr. Canning, Chatham-Kent did not seek to have him qualified to appraise the value of the Biskey property, either as if it had been built on a normal building site, or as it has been built on a contaminated site. Although this point will be discussed later, I would have allowed Mr. Bower, based on his qualifications and experience, to give an opinion on the value of the property if he had been asked to do so.

99 The Canning Consultants Inc. report, was dated March 23, 2006 and appraised the property as of December 7, 2005. At that time Mr. Canning valued the property at $400,000.00 if the property had not been built on a contaminated site. The property having been constructed on a landfill, not remediated, was then reassessed at a diminished value of $175,000.00.

100 In a subsequent report dated November 14, 2007 and in his testimony, Mr. Canning reduced his opinion of the residual value of the property to zero, or having a negligible value. He changed his mind after reading the Hetek report which was provided to him by the plaintiffs. The bases of his reduction in value were the possible environmental problems with the site and the remedial cost.

101 To support his figure of $400,000.00 Mr. Canning used a cost comparison approach based on his survey of four similar properties in the area which had sold at approximately the same time. Those selling prices ranged from $300,000.00 to $465,000.00. He placed the Biskey property at the higher end of this range because of its superior quality construction.

102 He then reduced the residual value to $175,000.00 because of the possible contamination and because of possible stigma attached to the property because it is constructed on a former landfill. He also reduced the value because he felt that buyers of higher end properties would probably be more sophisticated and not willing to assume the risks associated with this property, when there would be other similar properties without the same risks.

103 He ultimately reduced his residual value to zero, after reading the Hetek report with its estimates of the problems and their remedial costs.

104 Mr. Bower did not seem to take any issue with the cost comparison approach adopted by Mr. Canning with respect to his initial estimate of $400,000.00 if built on uncontaminated land.

105 He parts company with Mr. Canning on the issue of stigma saying that Canning did not take into account literature which indicates as time passes stigma decreases. He felt that Mr. Canning should have found similar situations and compared them.

106 He further criticizes Mr. Canning for taking selected quotes from the various reports which only support the plaintiffs' position and not appending those reports to his appraisal.

107 While some of Mr. Bower's criticisms on a superficial basis are attractive, I nevertheless accept Mr. Canning's original residual value of $175,000.00 and assess the Biskeys' loss on that basis as $225,000.00 for the following reasons:

1) Both Mr. Canning and Mr. Bower described this as a unique case. However Mr. Canning admitted that his appraisal method with respect to diminution was unique, but justified it on that basis. There simply was very little precedent that he had found. Mr. Bower could not say Canning was wrong, for the same reason, namely that the problem was unique.

2) Stigma exists and has been found to exist by Henderson J. in Smith v. Inco Ltd., [2010] O.J. No. 2864 paras. 264-268 and authority cited.

3) Even if Mr. Bower's criticism that stigma lessens the farther one gets away from the event is valid, this stigma is recent, the Biskeys having built their house in 2004, with damages having to be assessed at the time of trial. Further, the Hetek report and the Golder Associates report, indicate that the problem still exists.

4) Although Mr. Bower would have been qualified to give the same type of opinion as Mr. Canning, he did not offer any opinion as to the value of the property either with or without contamination.

Indeed he was not asked that opinion by counsel for Chatham-Kent. When asked by counsel for the Biskeys for his valuation he refused to give an estimate saying that he was not retained for that purpose. His retainer was only for the purpose of criticizing the Canning report.

5) While it is true that Mr. Canning did not include the Jagger Hims report or the Golder report in his appraisal, in a note to the reader he says that his $175,000.00 valuation "... means that there has been full disclosure to the buyer regarding the uncontrolled dumping of materials on the subject property."

I do not believe that these reports needed to be disclosed in the Canning report, as he testified that he had read them, was aware of them and mentioned their conclusion in his own report.

6) With great respect to Mr. Bower's criticisms of Mr. Canning, he commits the same error. He says that Canning failed to note that the property was suitable for ... "residential land use as written in the Phase I Assessment Report."

This is the same blindness to the potential problems that Chatham-Kent was guilty of when they issued a building permit with no conditions with respect to soil and gas abatement.

108 I do not however accept Mr. Canning's opinion that the property has no value for the following reasons:

1) The Biskeys have been residing there since June of 2004 without incident.

2) Chatham-Kent issued an occupancy permit.

3) The Biskeys appear to have complied with the Ontario Building Code with respect to gas abatement.

4) Mr. Canning says that "even under extreme conditions such as contamination, there is a buyer." This is a variation on the long held proposition that a contract will be formed when there is a willing vendor and a willing purchaser. Presumably if Mr. and Mrs. Biskey sell their property they will disclose (as he testified) the true condition of their property which will be taken into account as well by the prospective purchaser. They will sell their property when they and the prospective purchaser agree on what they all consider to be the value of the property.

109 For all of the above reasons I assess the residual value of the home at $175,000.00 and the loss to the Biskeys at $225,000.00.

$225,000.00

Mr. Biskey as General Contractor:

110 As a result of the delays, the Biskeys lost their general contractor Mr. McGregor. Therefore Mr. Biskey assumed the role of general contractor and ended up doing a lot of the work himself. He had experience in home renovation and carpentry skills as he (with others) had an avocation of buying, remodelling and reselling property. He does not claim damages as a general contractor, but estimates he did 10 weeks of labour on the property which he either took off from work as a vacation or personal time. He claims 10 weeks of his yearly salary of $76,602.00 as damages less four weeks he would have assisted McGregor.

111 This is not reasonable, as it works out to $1,473.11 per week assuming a forty hour week. He would have been paying himself $36.82 per hour, when he is not a skilled tradesman.

112 He values his time at $12.00 per hour in other places in his damage brief. I therefore allow six weeks at 40 hours per week at $12.00 per hour for a total of $2,880.00.

$2,880.00

113 He further claims the following at $12.00 per hour:

a)	Plumbing	236 hours
b)	Electrical	320 hours
c)	Painting	80 hours
d)	Flooring	30 hours
e)	Faccia/soffit	40 hours
f)	Cleanup	40 hours
g)	Moving costs	24 hours
h)	General contracting	30 hours

114 He has produced no time sheets or documentation to prove the hours worked either by himself or his father. He is not skilled as a general contractor and is not entitled to a 12 percent override as claimed. While I have no reason to disbelieve his evidence on the point, he is still estimating his time. He is a very meticulous man and no doubt would have been a hands-on owner and would have supervised Mr. McGregor.

115 I disallow his claim as a general contractor in its entirety. In addition to the above, I dismiss this claim for the same reasons as I dismissed the extras over the $240,000.00 original contract price with Mr. McGregor.

Swimming Pool:

116 It is clear that a swimming pool was contemplated by the plaintiffs in the planning of their house. It is also clear from the Golder report, that a swimming pool is not feasible, considering the present condition of the property. All fill material must be removed before a swimming pool is possible. As in the digging of the foundation, the contaminated fill must be removed and disposed of, and a proper foundation for the pool must be in place.

117 The excavation of the pool is estimated to cost $20,330.00, which is comprised of:

	a)	excavation of 20 loads of fill
		and removal from site:	$ 5,000.00

truck in gravel:

$10,500.00

place and pack gravel:

$ 2,750.00

truck in fill:

750.00

as per the invoice of Dig-R-Wright Excavating dated July 15, 2005. However, whether the property is contaminated or not, it would still need to be excavated. The Golder report indicates the possibility of 6 to 8.8 feet of debris plus .7 to 3.3 feet of organic soils. There was no evidence led as to the depth of the pool. Therefore, the dig out for the pool is not allowed.

118 The other three items in that invoice are allowed as they are necessary because of the contaminated fill. Accordingly, the plaintiffs are allowed $15,330.00, as the loss on the pool.

$15,330.00

119 The contaminated fill must be disposed of. If it had not been contaminated the last three items outlined in the previous paragraph would not have been necessary. Accordingly in accordance with the BFI Canada/Ridge Landfill estimate, the plaintiffs are awarded $34,668.00 for the removal of the contaminated fill.

$34,668.00

120 I do not allow any damages for the increased cost of the pool installation between 2004 and 2006.

121 While I have said that the pool would probably have been built absent the contamination, it is speculative to say when the pool would have been built. This is not identical to the flooring and cabinetry where the difference in price was actually paid. The pool not having been installed by the time of trial, it may very well be that because of the economic depression that exists today it would ultimately end up costing the plaintiffs less than the original estimate. In addition, they will have interest on the award with respect to the pool, which will compensate for the difference in price. This part of the claim is disallowed as being too remote.

The Pole Shed:

122 For the same reasons that the increased cost for the pool was disallowed I dismiss the claim for the increased cost of the pole shed. The pole shed was never to be constructed on the part of the property that had been infilled with contaminants. Mr. Biskey and Mr. Holling discussed siting the house elsewhere on the lot, possibly behind or beside the pond, where there was native soil without fill. Even though it is clear that the road next to the pond had been created, there is no evidence that that road is built with contaminated fill. Much of the fill was inert such as concrete. Accordingly, there is no evidence that any increased costs for the pole shed, were caused by Chatham-Kent's negligence.

123 On the same analysis, if there is no evidence that the road is contaminated, there would be no necessity to truck the contaminated soil to the landfill and the cost of $54,313.20 for doing so is also not allowed.

Remediation of the Building Site:

124 The report commissioned by the plaintiffs from Hetek Solutions Inc., dated January 11, 2007, indicates low hydro carbon readings in the house that posed no hazard on that date. However Hetek found high hydro carbon readings around the house which would "... appear" to be "... the results of either garbage fill or organic content deposited on the subject building property." This is probably the result of anaerobic breakdown of garbage or organic material. These high hydro carbon readings near the house are a safety issue for the plaintiffs and their family. Hetek Solutions Inc. proposes a remediation and monitoring regime which is reasonable.

125 However, this regime contemplates testing of the water in the pond to see if the pond is impacted. The pond as it presently exists does not constitute a safety issue for the plaintiffs, simply by its existence unlike the methane gas near the house.

126 I therefore allow the sum of $48,119.00 for the installation of the ventilation system, the monitoring and the borehole analysis for one year.

$48,119.00

Remediation of the Pond:

127 The plaintiffs claim for the remediation of the pond. There are three quotes from Higgs Construction Ltd. as follows:

1) $995,000.00: to excavate the floor of the pond to a depth of one metre of sediment, trucking to the landfill and topsoil and grass seed restoration.

2) $311,500.00: as above to a depth of .3 metres of sediment.

3) $81,000.00: option #2 without removing the debris but leaving it on site.

128 There is a complete lack of evidence as to the condition of the pond. In addition, none of these quotes addresses the fact that the plaintiffs only own approximately one-third of the pond, and no quote discusses whether the clean up applies to the part of the pond owned by them, or the whole pond, part of which is owned by the next door neighbours.

129 All of the quotations appear to presume that the whole pond is contaminated, either by debris deposited in it or the water being contaminated.

130 The only evidence adduced was that there was rebar and concrete among other things in the pond near the shore. No one ever went to the centre of the pond to see if there was debris deposited, and I have my doubts that there would be debris in the centre of the pond.

131 One must assume from the history of dumping, that Raleigh Township started backfilling the pond from Dillon Road back towards the bush. Mr. Biskey never inspected the pond before purchasing the land. He only noticed the debris once the water level in the pond went down either as a result of him watering the grass, or allowing the fire department to train on his property, or by evaporation. The Jagger Hims report indicates:

"In summary, the table indicates that hydro carbon chemicals, general chemistry parameters, and select metal concentration satisfied the guideline criteria for parkland and residential land use having potable ground water resources. Thus surface water quality is acceptable for the chemicals tested. Only molybdenum slightly exceeded the P.W.Q.D. although this excedance is attributed to background water quality as a result of runoff from the surrounding native clayey soil."

132 There is no evidence before me of pollution in the pond down to the sediment. The pond need not be dredged; the sediment not removed. The only evidence is that there is some debris in the pond which, because of the dumping history, must be restricted to the edges, required to fill in the pond and create the area upon which the house is built. It is therefore difficult to assess the damage, although I must attempt to do so. I estimate the debris to exist in approximately five percent of the pond, being close to the edges and assign a nominal amount of $5,000.00 for its cleanup.

$5,000.00

Clean Up of the Tree Line and Bush Lot:

133 It is clear from the aerial photographs taken in the 1970's that the side of the pond extended to the tree line. The later aerial photos show that the laneway to the bush was created at a later time. I infer therefore that the laneway was infilled presumably with the same type of materials that created the front lot on which the house has been contracted. However, there is no evidence of that. The creation of the laneway gave the township and the illegal depositors access to the back bush.

134 While I accept that some of the debris was discovered in December of 2006 when the backhoe dug it up, I cannot accept that nothing was visible before that time, given the extent of debris and the fire in approximately 1998. Mr. Biskey said that he did not go into the bush before making the offers to purchase the property. He acknowledged in the agreement of purchase and sale the opportunity to inspect. Given his evidence that this property was to "build their dream house," I doubt what he would have been able to see had he inspected the back lot, would have dissuaded them from buying. This is especially so as they always intended to build at the front of the property where the true nature was not apparent. Accordingly, I dismiss the plaintiffs' claim for remediation of the bush lot.

135 The same does not hold true for the tree line. I accept Mr. Biskey's evidence that the debris was not noticeable until he cut back the foliage. The prior owners, the Kaminskis, had improved the shorelines of the pond, both behind the house and along the laneway to the bush. There is nothing in the laneway to alert Mr. Biskey of its true nature. Even if he had walked the laneway he would not have been able to detect the debris anymore than he was able to detect it at the front of the lot. It was all hidden. The plaintiffs are therefore awarded the sum of $11,130.00 to clear up the tree line.

$11,130.00

Contributory Negligence of the Plaintiffs:

136 Chatham-Kent argues that any award to the Biskeys must be reduced by their own negligence in continuing to build or even starting to build once they found the contamination. Aside from my finding that they are not entitled to the remediation costs of the bush lot, I reject that submission.

137 Mr. Biskey said that he would not have built if he had known that the whole property was contaminated. Although the Jagger Hims report was not given to him, even if it had been it would not have alerted him to the true state of affairs. It was commissioned by Chatham-Kent " ... in consideration of a sale or lease of the site," and concluded that the site was " ... acceptable for parkland and residential use. It also indicated that "no further action was required except for debris removal." Chatham-Kent removed no debris and, in effect, absolved itself of this responsibility by passing on that duty to the Kaminskis.

138 Mr. Holling himself erroneously assumed that the wood lot had virgin soil. No one from Chatham-Kent took any steps to inspect or analyze the wood lot as Mr. Holling felt that the wood lot contained undisturbed soil. I criticized Mr. Biskey for not inspecting the wood lot. The same criticism can be made of Chatham-Kent, which only needed to look at the minutes of its own (that is Raleigh Township's minutes) council meetings to discover the true state of affairs. Holling felt that there was no fill beside the pond.

139 Holling told the Biskeys that Chatham-Kent would pay for determining the extra cost occasioned by the contamination. Aside from the extra costs for digging the foundation, no others were identified by Chatham-Kent to the Biskeys.

140 Chatham-Kent withheld the Golder report from the Biskeys. The purpose of this report was "... to determine the subsurface soil and ground water conditions on the property ... for a proposed single family house to be constructed." This report identified some of the problems associated with the land. Holling then suggested that the Biskeys build near the rear of the property where he thought the land was uncontaminated. He was mistaken on this point as that part of the land also was contaminated with garbage. Biskey rejected his suggestion.

141 Biskey had also been given the appraisal and listing agreement when Chatham-Kent sold the property to the Kaminskis. There is nothing in that appraisal to alert the plaintiffs to the contamination on their property. The appraisal also indicates that residential use of the front part of the property can be achieved notwithstanding non-compliance with minimum set back requirements. This appraisal states that unless otherwise noted (and there were no notations) there are no known or apparent conditions which would make the property more or less valuable. It also states that "no significant information has been withheld from the report." This is not accurate, as Chatham-Kent had to have known of the history of the property from the Raleigh Township and its own minutes.

142 Mr. Biskey himself wrote to the Ministry of the Environment, which indicated that there was nothing wrong with the property.

143 While I acknowledge that the judgment of Mr. and Mrs. Biskey (especially that of Mr. Biskey) could be criticized because of their desire to build their "dream home," I accept his evidence that if he resold the house to the Kaminskis for the original price they would have nevertheless lost money. They had already sold their old house. They tried unsuccessfully to buy it back. They and their two children were living in an apartment. They did not know the true extent of the contamination, or that the contaminated soil would have to be removed. He only knew of the extra excavation cost in the range of $30,000.00 to $40,000.00.

144 Chatham-Kent had issued a building permit without restrictions or conditions. When they finally made the decision to continue to build, only about $30,000.00 to $40,000.00 of extra costs were apparent to them.

145 While other people may have backed out, I cannot fault Mr. and Mrs. Biskey for persevering at that time. Accordingly, aside from the bush lot, any claim for contributory negligence on the part of the Biskeys is dismissed.

146 I, therefore, assess the damages of the plaintiffs at $486,142.82. That amount must be reduced by the $100,000.00 that they received from the real estate company or the Najjars or the Kaminskis. This was the amount paid to them which resulted in either the dismissal of the action against the other defendants or the discontinuance.

147 Judgment will therefore issue for $386,142.82 against Chatham-Kent.

148 Costs may be addressed in written submissions by the plaintiffs within 30 days.

149 Response by the defendant Chatham-Kent within 30 days of receipt of the plaintiffs' submissions.

150 Reply by the plaintiffs within 14 days of receipt of the responding submissions.

151 Judgment accordingly.

S. ROGIN J.

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