Endorsement on Costs

BARRIE COURT FILE NO.: 11-0169
DATE: 20120518
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: By written submissions

ENDORSEMENT ON COSTS

[ 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 ] On April 10 and 13, 2012 I heard argument on sanctions for contempt and permitted oral testimony by the contemnor.

[ 3 ] I ordered the contemnor incarcerated and gave further directions.

[ 4 ] I permitted that:

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.

[ 5 ] The Plaintiff seeks substantial indemnity costs of $15,499.93 and provides ample case law as to the appropriateness of that scale in a contempt situation: Leo Sakata Electronics (Canada) Ltd. v. McIntyre [1996] O.J. No. 1437 ; Industrial Hardwood Products (1996) Ltd. v. International Wood & Allied Works of Canada, Local 2693 [2000] O.J. No. 3510 ; Evans v. Snieg [2011] O.J. No. 4038 (Howden J.) .

[ 6 ] I agree that substantial indemnity is the proper scale. I am fixing costs not assessing them.

[ 7 ] My misgiving in granting the costs claimed is that I am the only one in this litigation exercising any moderation. I remind counsel of my words of rebuke in this costs context because this continued atmosphere of full out warfare and refusal to listen to one another continues. I am loathe to reward the approach of Plaintiff’s counsel insofar as it resists discussing other wisdom. So I remind everyone:

…. The court can be of no service whatever unless its orders are complied with.

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.)

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.

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.

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.

[ 8 ] I directed an opportunity for the parties’ experts to discuss their wisdom with judicial supervision. I hope both parties will approach that opportunity with open minds.

[ 9 ] However, that having been said, I read with dismay the submissions of the contemnor’s counsel that the Plaintiffs should have no costs because they were not successful and that the “Defendants were successful in convincing the Court that ‘there is an arguable debate as to the best remedy for the nuisance problem’ and that Mr. Snieg may be correct with respect to the best remedy for the nuisance problem. A debate is not a court order. The Plaintiff has a court order. The characterization that my ruling suggests Mr. Snieg may be correct is nothing more than a continuation of the false premise upon which the contemnor has allowed himself to conduct fruitless litigation. The characterization is foolish in the face of my order that incarcerated Mr. Snieg for his contempt. It is patently inconsistent with my comment that:

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.

[ 10 ] The opportunity to have the engineering experts meet to discuss their wisdom with judicial assistance and without counsel interference is my way of encouraging people to a better approach than litigation but the results that the litigation has produced are the orders of the court. Only the most cynical of parties would refuse a discussion of wise remedy or turn that opportunity on its head to promote more litigation.

[ 11 ] I fix costs at a substantial indemnity rate, with slight moderation because I am fixing not assessing, at $15,000 all in.

EBERHARD J.

Released: May 18, 2012