BARRIE COURT FILE NO.: 11-0169

DATE: 20120413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Anne Evans and Michael Lydan, Plaintiffs

AND:

Stanislaw Snieg and Maria Snieg, Defendants

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
P. Krysiak, Counsel for the Plaintiffs

J. Malmazada, Counsel for the Defendants

HEARD: October 4, November 23, and December 2, 2011 and cost ruling December 16, 2011, April 10 and 13, 2012

ENDORSEMENT

Procedure

[ 1 ] This matter returned before me on three occasions all involving the effort to have the Defendant comply with the May 10, 2011 order of Howden J. Thereafter the Defendant appealed Howden J.’s contempt finding of July 22, 2011, my October 4 th 2011 order finding contempt and my December 2, 2011 order. In brief Appeal Book Endorsement reasons, all three appeals were dismissed on March 12, 2012, the day of the hearing.

[ 2 ] The matter returned on an open motions list April 10, 2012. While vetting the list I rejected the Defendant’s preliminary concern that the matter ought to be heard by Howden J. who has stated clearly that he is not seized.

[ 3 ] The Plaintiffs in his motion sought an order finding the Defendants in contempt of the order of the Hon. Justice Eberhard dated December 2, 2011; an order of imprisonment of the Defendants until such time as the terms of the December 2, 2011 order are fulfilled, or in the alternative, an order of imprisonment of the Defendants if there contempt is not purged within seven days from the date of this order; an order permitting the Plaintiffs to engage a contractor to carry out the work stipulated by the December 2, 2011 order and a judgment against the Defendants for the amount paid by the Plaintiffs for this work, if the Defendants failed to purge their contempt despite their imprisonment; an order striking the Defendants’ defence in this action, or in the alternative, an order that the Defendants’ defence in this action be struck if the Defendants failed to pay the costs following within 10 days from the date of this order and fail to purge the contempt within seven days from the date of this order; costs of this motion on a substantial indemnity basis; and such further and other relief as may be just.

[ 4 ] The Defendants also filed a motion record. The Defendants claimed an order that this matter be adjourned and place before the Hon. Justice Howden, or in the alternative, an order that this matter be transferred to the court of the Drainage Referee, or in the alternative, an order setting aside the order of the Hon. Justice Howden dated July 22, 2011, or in the alternative, an order varying the order of the Hon. Justice Howden dated July 22, 2011; an order setting aside the current work prohibition against the Defendants; costs of this motion on a substantial indemnity basis; and such further and other relief as may be just.

[ 5 ] The previous orders of Howden J. and Eberhard J. already found the Defendants in contempt. Whether or not there is a further finding of contempt as a result of the current motion, the issue of punishment for contempt must be addressed. Because the motion and cross-motion arose on a regular list day where the time limitation is generally one hour, it was immediately apparent that some triage must be done. This was especially so in light of the right of the contemnor to an oral hearing.

[ 6 ] Although we commenced this hearing immediately after the morning break, the evidentiary portion took most of the day. With my leave over the protest of the Plaintiffs, Mr. Snieg adopted, as evidence on the contempt hearing, his affidavit prepared for the purposes of his own motion. As well, he gave oral testimony and was cross examined.

[ 7 ] We were able to complete the Plaintiff's argument on the contempt issues on April 10 and I adjourned that issue to April 13, 2012. In doing so I had no optimism that the other issues could be addressed on this adjournment date since I created that space in the context of other assignments.

Evidence

[ 8 ] The Defendants’ evidence is not new. Its substance is familiar from the material that was before me on December 2, 2011. However on that day I declined to consider that evidence since it proposed a different solution to the nuisance problem then ordered by Howden J. on May 10, 2011. Stating that I did not sit in appeal Justice Howden, I set out in both my October and December orders further directions for the completion of the work as ordered. These directions were given as an opportunity for the Defendants to purge their already found contempt. On December 2, 2011 I and gave alternate directions as follows:

(i) the Defendant shall have until January 3, 2012 to complete the work in accordance with the design reviewed by contractor Fruchi who has indicated he can do the work; or

(ii) pay into court $57,000 to this action to be paid out to either Plaintiff or Defendant for completion of the ordered work (by order or agreement).

[ 9 ] The Defendants have done neither.

[ 10 ] The May 10, 2011 order of Howden J. which allowed some flexibility as to method was firmed up in the July 22, 2011 order which clarified “that, as part of carrying out the May 10 th order and (i) above, the Defendants shall carry out the recommendations of Peter Smith, P. Eng. as soon as possible and no later than 30 days from this date.” This necessitated a design. Jeff McCuaig of Pearson-McCuaig Engineering Ltd. (PME) provided the design.

[ 11 ] The McCuaig design was not prepared until after my October 4 th , 2011 order. By that time the Defendants had already been found in contempt by Howden J. on July 22, 2011 and the continuing non-compliance resulted in my further finding of contempt on October 4 th 2011. This timing is significant because the Defendants now assert that the PME drawing goes beyond the Smith plan such that refusal to execute that design is not non-compliance with the Smith plan that Howden J. ordered. The timing demonstrates that Mr. Snieg’s refusal predates his dispute of the PME design.

[ 12 ] Mr. Snieg testifies that he understood the order; that he knew what he was supposed to do; but he declined to do the work as ordered because he had obtained expert opinions that the work would result in even more nuisance to the Plaintiffs property.

[ 13 ] Mr. Snieg anticipates further trouble if the PME design work was done and some nuisance occurred. He tried to obtain a “guarantee" from the McCuaig who prepared the PME design in accordance with the engineering recommendations accepted and ordered by Justice Howden. He interprets silence in the face of a demand for such guarantee from McCuaig, or Smith, as an admission that they too believe the design is flawed.

[ 14 ] The reply material filed by the Plaintiffs includes an affidavit from Mr. McCuaig setting out his explanations to the concerns expressed to him at a site meeting with Mssrs. Kuntze, Massara and Snieg on April 4, 2012. He further explained that “our design was a representation of the Court Order based on the recommendations of Peter Smith. I stated that we would not deviate from the directions of the Court Order.”

[ 15 ] The Defendants file the affidavit of contractor Giuseppe Massara who disagrees with the McCuaig design and suggests a cheaper “common tool used by contractors in these exact types of situations.”

[ 16 ] The Defendants put forward the November 18, 2011 opinion of Mr. John Kuntze that the McCuaig design goes far beyond the Smith plan ordered by Howden J.; John Kuntze writes:

The McCuaig drawing appears to attempt to recreate the opinion of Peter Gerald Smith P.Eng. in his February 18, 2011 affidavit. This text based opinion was prepared based on a visual examination of the property only, with no detailed measurement of distance or elevation in formulating the opinion. As outlined below, it is my opinion that the recommendations on the McCuaig drawing go beyond the limits of what was identified in the Smith affidavit.

[ 17 ] It is noted that Howden J. preferred the evidence of Smith over that of Mr. Kuntze about whom he wrote “In addition, Mr. Kuntze’s answers on cross-examination have effectively injured his credibility and the credibility of his report and his comments on the Smith recommendations. He has not been forthright in his assessment of the problem, and his comments on the law failed to take into account that the problems for the Plaintiffs began with the changes in elevation and boundary slope by the Defendants, as Mr. Evans uncontroverted evidence indicates.”

[ 18 ] Mr. Snieg asserts that the McCuaig design creates new nuisance problems with the municipality and neighbours down the street. He has initiated a petition to have the drainage referee assess plans and there is an appointment on April 21 for the Referee to look at the property.

[ 19 ] Moreover, as he has repeatedly asserted, Mr. Snieg did not wish to lose his driveway or the area where he planned to build a barn which he testifies are both necessary for him to carry on his farming operation. He testifies, and provides opinion from architect Stanley Sota, that both the driveway and a barn are made impossible by the design arising from the Smith recommendations and PME design.

[ 20 ] Mr. Snieg repeatedly requested opportunity to make a statement to the court during his examination in chief by his own counsel. I reassured him that he would have opportunity to do so over and above the questions and answers his counsel was using to present evidence in an organized fashion. Given this opportunity, Mr. Snieg reasserted his view that following the McCuaig design would create more problems as “everyone was telling him”. He also stated: Everyone telling me in reports that the plan is wrong. If I have to do it or go to jail, I prefer to go to jail. He further used the opportunity to proclaim that this is all the fault of Mrs. Evans and that all the neighbours say she complains continually about everything. He also stated, “My place is the nicest. Everyone is jealous.” He also stated he would “Take my chances when everyone telling me …” This diatribe was helpful in understanding Mr. Snieg’s non-compliance, I say without irony.

[ 21 ] Speaking logically, there are two separate problems: There is an arguable debate as to the best remedy for the nuisance problem. There is also Mr. Snieg’s problem with the administration of justice. Even if he is correct on the best remedy for the nuisance problem, Mr. Snieg cannot avoid the reality that the court has made an order as to how the nuisance problem must be addressed. There is a fundamental issue, important to society as a whole, whether a litigant can be permitted choose not to obey a court order that he thinks may do more harm than good.

[ 22 ] Of course, there is jurisprudence on that issue.

[ 23 ] In Canada (Human Rights Commission) v. Taylor 1990 26 (SCC) , [1990] 3 S.C.R. 892 the Supreme Court of Canada adopted with approval:

The duty of a person bound by an order of a court is to obey that court order while it remains in force regardless of how flawed he may consider it, or how flawed it may be. Public order demands that it be negated by due process of law, not by disobedience.

[ 24 ] This principle was restated in R. v Nash [2002] O.J. No. 1060 :

Accordingly, in effect, the Supreme Court of Canada, by saying that an order of a Court must be obeyed until it has been set aside or modified, is another example that you cannot make a collateral attack on the validity of an order in the course of a trial on general principle. And mistakes of law or erroneous beliefs in what your duties are not an excuse.

[ 25 ] Express in that principal is the protection that flawed court orders can be corrected by appeal.

[ 26 ] The Defendants have appealed the orders of Howden J. dated July 22, 2011; Eberhard J. dated October 2, 2011 and December 2, 2011.

[ 27 ] In very brief reasons the appeals were dismissed. The Court of Appeal stated:

(a) The appellant appeals from three orders. First he says there was no basis for the finding by Howden J. on July 22, 2011, that he deliberately and wilfully disregarded the May 10, 2011 order. We disagree. There was ample evidence of noncompliance to a degree that justified the finding of Howden J. This appeal is dismissed.

(b) Second he says that the order of October 4, 2011 was made following an unjust denial of his request for an adjournment. We do not agree. Eberhard J. exercised her discretion to proceed on clear evidence of the risk posed by weather. She was entitled to do so. This appeal also fails.

(c) Third he says that the order of December 2, 2011 ought not to have been made. Rather he says the contempt motion before the court that day should not have been dealt with but rather the dispute should have been transferred to the Drainage Referee. This suggestion is simply misconceived. The court had no choice but to address the contempt motion before it. We see no error in it doing so. This appeal is also dismissed.

[ 28 ] Although there is little to go on, it is apparent that the substance of the July 22 Howden order was before the court. The issue appears to have been the contempt finding, but there is no suggestion that the underlying order was flawed.

[ 29 ] The issue relating to the October 2 nd order appears to have been the refusal of the adjournment request but there is no suggestion that the finding of contempt or the underlying order were flawed.

[ 30 ] The issue relating to the December 2 nd order appears to have been about dealing with the contempt issue when the cross motion was also before me for transferring the dispute to the Drainage Referee. The response: “This suggestion is simply misconceived.” is so emphatic it leaves much to be inferred. What is known is that the cross motion was based in the volumes of “new evidence” that were before me on December 2 nd , before the Court of Appeal and before me in the present cross motion and adopted by Mr. Snieg in his testimony on the contempt hearing. In my endorsement of December 2 nd 2012 I stated:

I do not sit in appeal of Howden J. New evidence of a different, cheaper, less intrusive or better way to remedy the problem is not before me. The Defendant has appealed the orders but has not brought an application to stay enforcement. If there is fresh evidence to suggest that there is a better way to remedy the “migration” then the Court of Appeal can decide for themselves whether to hear it or not.

… I note that it is the Court of Appeal, not I, who can listen to new evidence or stay enforcement. (My emphasis added)

[ 31 ] The Court of Appeal hardly needs my permission to consider fresh evidence, but they were sitting in appeal of this very order. The Defendant knew from my endorsement that fresh evidence was a matter for an appeal. The Court of Appeal could have corrected me if I was in error on the point. They did not.

[ 32 ] I infer that the Court of Appeal found not only the transfer to the Drainage Referee but also the material on which the request was based were “simply misconceived.” If I am wrong in drawing this inference, it is nevertheless patent that the “fresh evidence” before me now (except the contractor’s opinion) was available and in issue by December and before the appeal was conceived. I am unimpressed by the submission that there wasn’t time before the expedited appeals to ready this evidence. It was already present.

[ 33 ] The principles of Res Judicata are cited in Reddy v. Oshawa Flying Club 1992 CarswellOnt 349, 11 C.P.C. (3d) 154 :

Res Judicata

7 …Res judicata operates by the application of two doctrines of estoppel developed in the case law as cause of action estoppel and issue estoppel. The doctrine of cause of action estoppel is based on the premise that, where the legal rights or liabilities of the parties have been determined in a prior action, they should not be re-litigated. Cause of action estoppel applies not only to points on which the court has pronounced but to every point which properly belonged to the subject of the litigation (67 E.R313. 3 Hare 100 (Ch.D.), at p. 381 [E.R.] ).

8 The Ontario Court of Appeal in Upper v. Upper, 1932 111 (ON CA) , [1933] O.R. 1. [1933] 1 D.L.R. 244. At p.7 [O.R.] cited Henderson, supra, with approval and quoted the following proposition from that judgment:

Where a given matter becomes the subject of litigation in and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward … only because they have, from negligence, inadvertence, or even accident. Omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the trial.

12 With respect to issue estoppel, this arm of the res judicata principle is based on the same theory of avoiding a multiplicity of proceedings but focuses on particular issues resolved in the earlier litigation. The application of issue estoppel precludes the re-litigation of issues which have been decided in a prior proceeding whether or not the claims and defences were the same as in the current proceeding. The doctrine of issue estoppel will be applied if the same issues are involved in the prior and current litigation, such issues were determined in the prior litigation and the decision in that litigation was final.

13 Issue estoppel has been succinctly defined in Angle v. Minister of Revenue (1974), 1974 168 (SCC) , 47 D.L.R. (3d) 544 . At p.555, Dickson J. states:

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No.2), [1967] 1 A.C. 853 at p.935 defined the requirements of issue estoppel as:

(i) that the same question has been decided;

(ii) that the judicial decision which is said to create the estoppel was final; and,

(iii) that the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies.

The question out of which the estoppel is said to arise must have been "fundamental to the decision arrived at" in the earlier proceedings.

See also Minott v. O’Shanter Development Co., 1999 3686 (ON CA) , [1999] O.J. No. 5 (OCA).

[ 34 ] I find that estoppel applies in this case not only to points on which the Court of Appeal has pronounced but to every point which properly belonged to the subject of the litigation taken before it. Mr. Snieg has been asserting that the Smith plan was wrong before Howden J. ordered it implemented, after it was ordered but before there was a design created to implement it, and since a design was created. As improbable as it is that the Court of Appeal was not aware that he disputed the correctness of the Smith plan by presenting voluminous opinions to that effect in his appeal material, certainly the correctness of the plan could have been litigated in that forum

[ 35 ] My endorsement cued the Defendant to litigate it in that forum.

[ 36 ] My endorsement cued the Court of Appeal to anticipate a request for fresh evidence, the only purpose of which was to dispute the correctness of the Smith plan.

[ 37 ] I allowed the Defendant to testify on all his reasons for disputing the Smith plan, despite the spectre of a multiplicity of proceedings, because it could bear on his state of mind leading to his non-compliance with the Howden order. His testimony provides a complete record not only on whether his contempt of the court order has been purged or should be excused, but also his grounds for wanting a different procedure and solution to the nuisance problem which is at the base of this litigation.

[ 38 ] After all is said and done, Mr. Snieg just doesn’t like what Howden J. decided. He thinks he knows better. In his own words, he is prepared to take his chances and he prefers jail to doing the work as ordered.

Discussion and Orders

[ 39 ] This court has plenty of experience with neighbour disputes. It is among the range of differences between people where passions run high. People really care about their homes, their autonomy in the living space, their peace in the environment they have carve out for themselves, their dreams and plans.

[ 40 ] The dispute itself destroys that peace, those dreams and plans, and not only for the people directly involved: the whole neighbourhood is disturbed. Factions can form. Blame is debated. Everybody wonders if they are next.

[ 41 ] The court is presented with neighbour disputes that may have no solution that satisfies everyone. Someone is necessarily disappointed. Seldom is there a right answer on these things.

[ 42 ] But there has to be an answer. The only service a court can be in these neighbour disputes is to make a decision. Then, the neighbours must abide by the decision. There is clarity and the argument can stop, albeit with one of the neighbours entirely unsatisfied.

[ 43 ] It is the only way it can work. The court can be of no service whatever unless its orders are complied with.

[ 44 ] The best advocacy in such disputes arises even before the matter comes to court where counsel can assist the court in providing that service. The best advocacy invokes the perspective and wisdom of professionals experienced with the ravages of litigation, organized and equipped not only to advance their clients’ position in a calm and measured way, but also to seek out and imagine a realistic, peace-building solution. (This is a rebuke.)

[ 45 ] I return to my observation made earlier: Speaking logically, there are two separate problems: There is an arguable debate as to the best remedy for the nuisance problem. There is also Mr. Snieg’s problem with the administration of justice. Even if he is correct on the best remedy for the nuisance problem, Mr. Snieg cannot avoid the reality that the court has made an order as to how the nuisance problem must be addressed. There is a fundamental issue, important to society as a whole, whether a litigant can be permitted choose not to obey a court order that he thinks may do more harm than good.

[ 46 ] Still, in a neighbour dispute I recognize that I should exercise a certain restraint. These are not fraudsters or thugs. These are neighbours of otherwise good standing in the community. I must consider the societal impact not only of permitting a litigant to choose not to obey a court order but also that harsh sanction may crystallize neighbourhood opinion into irreparable feuding. It is therefore my intention to impose a severe but not crushing penalty so as to give Mr. Snieg the dignity of compliance.

[ 47 ] This includes a short period of incarceration. I conclude this is necessary because the other methods for encouraging compliance have been resisted. Once Mr. Snieg knows that the question is not whether the best plan to remedy the nuisance problem has been imposed but that he must obey the order of the court whether he disagrees with it or not, he will have the opportunity to comply.

[ 48 ] The nuisance problem has to be addressed. However, there is a lot of history now that demonstrates the continuing impediments to completion. As Mr. Snieg did not like the solution arising from the Howden order, in December I provided an alternative. He could proceed with the design and contractor then available, or pay into court the estimated cost. He says he didn't pay money in because he doesn’t have such money. The Defendants have property. If there is a judgment against the Defendants in future for this work, the Defendants’ property will be at risk for enforcement purposes, so Mr. Snieg should have the dignity of coming up with the money or arranging financing.

[ 49 ] Further, there are numerous unpaid costs awards. In argument, counsel proposed coming up with a payment schedule. The Defendant should be given opportunity for the dignity of doing so. Lest the Plaintiff refuse a reasonable payment schedule, the court should have the mandate to assess reasonableness.

[ 50 ] So, the penalty for contempt as crystallized on April 10, 2012 when argument began on this contempt hearing, is as follows:

(a) Warrant of committal to issue for Stanislaw Snieg to be executed forthwith and he is to remain incarcerated until release on the sooner of Monday April 30, 2012 or proof of compliance with (b) hereafter:

(b) Payment into court of $57,000 as ordered December 2, 2011 (see paragraph 8, supra);

(c) Upon release the Defendants shall within 15 days to present Plaintiffs’ counsel with a proposed payment schedule for costs ordered and thereby owing as of April 10, 2012;

[ 51 ] If after 15 days of release the Defendant has not complied with paragraphs (b) and (c), the Plaintiff may file motion material seeking judgment for the right to enter upon the Defendants’ lands to execute the PME design and for the cost of executing the remedy emanating from the PME design without further notice to the Defendants.

[ 52 ] If the Plaintiff is seeking further penalty for contempt, notice must be served (on Defendants’ counsel since this is a continuing hearing) and a special appointment obtained through the Trial Co-ordinator for a motion lasting more than one hour.

[ 53 ] If the parties are unable to agree on the payment schedule for costs they may move before Eberhard J., on notice, to fix a payment schedule.

[ 54 ] If the Defendant has complied with (b) and (c) and there is an agreement or order for a payment schedule, then either party may move, within 15 days of such compliance, for a case management meeting, to be attended by an engineer for the Plaintiff and an engineer for the Defendant, presided over by a judge and attended by counsel to monitor, for the engineers to discuss whether an alternative remedy for the nuisance can be agreed, based on the combined expertise of the engineers.

[ 55 ] In advance of such meeting the parties may exchange any design they wish discussed and counsel may provide questions for the experts to consider.

[ 56 ] Counsel will not be invited to participate at the meeting other than to monitor and all discussion will remain privileged.

[ 57 ] Counsel can agree to have me preside but only on the understanding that I will remain seized of the adjudication of matters arising on this case until the contempt is fully purged. Otherwise a neutral judge will be scheduled to assist the engineers in their discussion but not to adjudicate on the plans discussed. Such presiding judge will not be expected to read anything more than a two page summary, from each side, of the nuisance problem (not the contempt problem) to focus the discussion on solutions. (Paragraph 54 -58 also to be provided.)

[ 58 ] Following the case management meeting, either party may move for a final order for the method, timing and cost of the implementation of the PME design or such other design as may result by agreement from the case management meeting.

[ 59 ] Parties may address costs issue for the April 2012 hearing by written submissions not to exceed 2 pages. Plaintiff to serve Defendant within 10 days, Defendant to respond within 10 days thereafter and any reply within 5 days thereafter. All to be delivered within 30 days to the judicial secretary.

EBERHARD J.

Released: April 13, 2012