ONTARIO

SUPERIOR COURT OF JUSTICE

DURHAM COURT FILE NO.: 54442/08A
DATE: 20120706

B E T W E E N:

BARBARA NOWICK

Barbara Nowick, on her own behalf

Plaintiff

• and -

KEVIN SHEA Defendant

Gillian Eckler, for the Defendant

• and -

HENLEY CONTRACTING LTD., WARD LANDSCAPING SERVICES LIMITED and THE CORPORATION OF THE CITY OF OSHAWA Third Parties

Andra Maxwell-Baker, for the Third Party, The Corporation of the City of Oshawa
Ian Epstein, for Gillian Eckler

HEARD: June 27, 2012

REASONS FOR DECISION

LAUWERS J.

1The context for this case was set out in my oral Reasons for Decision, issued November 3, 2008.

2The plaintiff, Barbara Nowick, lives at 975 Wyldewood Drive in the City of Oshawa. The defendant, Kevin Shea is the owner and occupier of 983 Wyldewood Drive, which is located adjacent to the north side of the plaintiff’s property. Ms. Nowick is experiencing water problems with her property, the most obvious manifestation of which is a sinkhole in her driveway. She believes that the current problems are a result of modifications undertaken by Mr. Shea, with respect to his property, in particular the installation of a shed and some other ground works in his backyard, including a retaining wall.

3On November 3, 2008, I dismissed Mr. Nowick’s motion for an interlocutory injunction and suggested that a case management judge be appointed.

4Justice McEwen was eventually appointed and issued a trial management endorsement on August 4, 2011, found at [2011] O.J. No. 3643, 2011 ONSC 4697, in which he set a timetable for this case to reach trial by November 2012 sitting.

5The parties have not met the timetable, and it now realistically appears that this matter will not be ready for trial until Spring 2013.

Amendments to the Statement of Claim

6Justice McEwen’s endorsement obliged Ms. Nowick to proceed with her motion for leave to amend the statement of claim by August 31, 2011. I heard the motion.

7In general terms, approval of the amended statement of claim was not opposed by the defendant or the third party. The defendant opposed two paragraphs in the amended statement of claim on the basis that they were personal attacks on the defendant, and were scandalous, frivolous, or vexatious. As Epstein J. said in George v. Harris [2000] O.J. No. 1762 at para. 20 :

The next step is to consider the meaning of "scandalous", "frivolous" or "vexatious". There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.

8I will not repeat Ms. Nowick’s allegations but will observe they fall well within Epstein J’s description. I therefore do not approve Ms. Nowick’s proposed amendments to paragraphs 15 and 16.

9Ms. Nowick proposed amendments that would delete nuisance as a cause of action. She is a self-represented litigant and it appeared to me that doing so would be unwise. After some discussion with her, two changes to her proposed amendments were required. (I have not touched the text otherwise.) The first is to alter proposed paragraph 1(c) to reinstate the words “nuisance and” so that the paragraph will provide: “Damages against Kevin Shea and for nuisance and negligence in the amount $250,000.”

10The second change to Ms. Nowick’s proposed amendment is to leave in the whole of paragraph 12, re-numbered as paragraph 18, as follows:

The Plaintiff states that the Defendant trespassed on her property during the course of the landscaping excavation and this constitutes an actionable trespass. The Plaintiff further states that the Defendant drainage changes landscaping activity resulting in water run-off and ground water flow constitutes an actionable nuisance.

11The amended statement of claim is approved with these changes. Ms. Nowick will submit an Amended Statement of Claim consistent with these reasons to the Trial Office to be issued, no later than July 16, 2012.

The Motion to Strike the Third Party Claim

12In his endorsement of August 4, 2011, McEwen J. noted that Ms. Nowick abandoned her motion to strike the third party claims. She renewed that motion before me.

13The third party claim was issued on March 12, 2010 and amended on March 19, 2010. It joins Henley Contracting Ltd., Ward Landscape Services Ltd., and The Corporation of the City of Oshawa. These third parties have defended and the City of Oshawa has cross-claimed against the other third parties.

14Ms. Nowick argues that the third party claim should be struck because under Rule 25.11 of the Rules of Civil Procedure, it would prejudice or delay the fair trial of the action. She referred me to no authority on the application of Rule 25.11 to third party actions. Ms. Nowick also relies on Rule 29.02(1.2) which provides that if a third party claim is issued late, the plaintiff’s consent or leave of the court is required, “which the court shall grant unless the plaintiff would be prejudiced thereby”.

15Ms. Nowick argues that the third party claim radically reconfigures the case because it invokes the Drainage Act in two places, alleging that, among other elements of negligence, third parties Ward and Henley failed to comply with the Drainage Act, R.S.O. 1990 c.D. 17, as amended, and further, that the City of Oshawa did the same. As troubled as Ms. Nowick was by the introduction of the Drainage Act and its different regulatory structure, it seems to me that the gravamen of the third party claim is not really related to the Drainage Act but to other elements of negligence. There is some doubt as to whether the Drainage Act has any application on these facts, and I would put down its mention to boilerplate pleading. In my view, Ms. Nowick need not fear the Drainage Act.

16In any event, at the time that that the third party claim was being pursued, Ms. Nowick was represented by a law firm, Devry, Smith & Frank LLP, and particularly by Cory Schneider. An exchange of emails, filed with the court as evidence, plainly shows that Mr. Schneider consented to the issuance of the third party claim. In short, I find that there has been compliance with Rule 29.02(1.2); even if Mr. Schneider had not consented as counsel for Ms. Nowick, I would have had no hesitation in consenting since the case can only be justly determined if all the facts and the necessary parties are in the courtroom.

The Motion for Costs Against Ms. Eckler Personally

17In her notion of motion, Ms. Nowick sought “a court order requiring Gillian B. Eckler to personally pay the plaintiff her costs in the proceeding from the period from March 2008 – to date, inclusive,” on the basis that:

The Plaintiff states that Gillian Eckler brought the third party proceeding to circumvent Kevin Shea’s duties under the Planning Act and has acted in a conflict to the issues and has been pursuing a self-interest claim and knowingly mislead the court in the process to pursue inspections of the Plaintiff’s Property in attempts to influence the course of justice.

18Ms. Nowick did not pursue this relief before me, but Ian Epstein appeared for Ms. Eckler. He noted that on June 15, 2012, he served an offer to settle on Ms. Nowick which stated:

From our review of your motion record, it appears to us that it is procedurally deficient and, in any event, it is without foundation on its merits. We have been instructed to advise you that if your motion is not withdrawn by Friday, June 22, 2012 at 5:00 p.m., our costs of attending the motion on June 27, 2012 will be sought against you on a substantial indemnity basis. This offer to settle the motion is being made pursuant to the Rules of Civil Procedure.

19Ms. Nowick did not withdraw the motion by the stipulated time. She asserts that she was unable to get legal advice on what to do. She sent a letter to Ms. Eckler dated June 22, 2012, in which she said “I will not be held responsible for any costs that you may incur for your attendance before Justice Lauwers on June 27th and especially any costs relating to Mr. Epstein”. Ms. Nowick did not pursue this relief, but she asserts that the allegations are true.

20Mr. Epstein filed a costs outline seeking costs all inclusive of $4,000, with a discounted substantial indemnity rate of $315.00. He asserts that these allegations against Ms. Eckler personally were very serious and there was not a shred of evidence filed by the plaintiff to support them. I agree. This is reprehensible, and in view of the offer to settle I see no reason not to grant Ms. Eckler relief on a substantial indemnity basis in the amount of $4,000.00 as sought. This amount must be paid within 30 days of the date of this decision.

Cost of the Motion

21The plaintiff was substantially successful on her motion to amend the statement of claim, but it was not seriously opposed by the defendant, except for a couple of paragraphs. Ms. Nowick was, however, unsuccessful on the real issue before me of having the third party claim struck. Ms. Nowick argues that there ought to be no costs awarded. In my view the defendant was the successful party and in accordance with the ordinary rules is entitled to costs.

22Ms. Eckler filed a bill of costs seeking partial indemnity costs in the amount of $3,000.00. This has her hourly rate set at $205.00 per hour but has also built in a substantial discount from the calculated cost of $3,587.50. In my view, Ms. Eckler’s bill of costs is quite reasonable and I therefore grant partial indemnity costs against Ms. Nowick in the amount of $3,000.00 all inclusive, also payable within 30 days of the date of this decision.

The Case Management Schedule

23It is necessary for me to re-frame the remaining steps in litigation.

Remaining steps to be completed

By which party

Date to be completed by

Affidavit of documents

Plaintiff

July 31, 2012

Examinations for discovery to be scheduled

All parties

July 31, 2012

Examinations for discovery to be completed

All parties

December 31, 2012

Motions relating to undertakings and refusals

All parties

January 25, 2013

Expert reports to be exchanged

All parties

December 15, 2012

Pre-trial for March 2013 to be arranged

All parties

December 15, 2012

Date by which action must be set down for trial

January 10, 2013

24The pre-trial conference should be scheduled before me by the trial co-ordinator for one day and should involve parties, counsel, and their experts.

25In his endorsement of August 4, 2011, McEwen J. reserved the costs of the September 21, 2010 motion. The parties agreed that McEwen J. should determine the costs following the receipt of written submissions from the parties. The parties will have two weeks from the date of this decision to send written submissions to McEwen J. in Toronto and an additional two weeks for reply submissions. The submissions to McEwen J. will be limited to five pages each.

26The parties will bring no other motions in this action without prior written permission from me as a trial management judge. It is time for the parties to turn their minds to getting ready for trial.

27Order accordingly.

Justice P.D. Lauwers