Read the following to answer the questions:

Part A Donald lives in a lovely house in an old neighbourhood of Toronto, Ontario. Recently a new neighbour Rami moved into the house immediately beside Donald's. Rami's house and Donald's house share a fence line. One day Rami called on Donald. He told Donald that he planned to relandscape his backyard. In particular, Rami planned to remove a small hill located on his side of the fence line. Donald in response said, "Do whatever you want. You don't need my permission and anyway I can't see your yard. It's hidden by the fence." One morning, shortly after Rami's new landscaping was completed, Donald discovered his backyard was completely flooded. Upon speaking with an engineer he determined the flooding was caused by Rami's landscaping. It turned out the small hill Rami had flattened was built to redirect rainwater away from the yards and into the sewer system. By removing it Rami had unintentionally redirected the flow of the water from his yard into Donald's yard. Rebuilding the barrier and cleaning up the flood damage will cost over $30,000.00.

Part B Rami is just as upset as Donald. Not only is he worried about whether he will owe money to Donald, his own yard has also been flooded. Rami did not do the landscaping himself. He hired a professional landscaping company, Emma's Landscaping Inc. to complete the work. Emma, the owner of the landscaping company personally assured Rami that she had years of professional experience and guaranteed he would be fully satisfied with the result. She also stated that the reason she could be so confident is she completed all work on her own. Before starting the work Emma handed Rami a sheet of paper which read, in part

RELEASE OF LIABILITY AGREEMENT, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE PLEASE READ CAREFULLY!

In consideration of Emma's Landscaping Inc. (the Company) completing the work required and agreed upon between the homeowner and the Company the homeowner agrees:

TO WAIVE ANY AND ALL CLAIMS that he/she has or may in the future have against the Company and TO RELEASE the Company from any and all liability for any loss, damage, injury including death, or expense that the homeowner may suffer, or that the home owner's next of kin may suffer, either directly or indirectly, as a result of my use of the premises and facilities, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS' LIABILITY ACT, ON THE PART OF THE RELEASEES, AND INCLUDING THE FAILURE ON THE PART OF THE COMPANY TO SAFEGUARD OR PROTECT ME FROM THE ANY RISKS DANGERS AND HAZARDS;

TO HOLD HARMLESS AND INDEMNIFY the Company for any claims or demands resulting from any property damage or personal injury resulting from my use of the premises and facilities,

AND REMEMBER AT EMMA'S LANDSCAPING INC. WE ARE NOT SATISFIED UNTIL YOU ARE!

Answer the following questions:

A) Donald is upset and wishes to sue Rami. What type of action do you recommend? Why? Make sure to tell Donald what will need to be proven in his action.

B) Rami would like your opinion on whether he can maintain an action against anyone. Be sure to tell him who he may sue, what will need to be proven and any defences the potential defendants may have.