BARRIE COURT FILE AND PARTIES

BARRIE COURT FILE NO.: 11-0169
DATE: 20120924
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: written submissions after motion August 8, 2012

ENDORSEMENT

[ 1 ] This matter returned before me on August 8, 2012 by cross motion records after a long history of previous appearances. There have been previous cost orders.

[ 2 ] As an overarching summary, there has been a final adjudication by Howden J. but significant issues in implementation which has given rise to proceedings before me in the nature of contempt.

[ 3 ] While taking a firm stance as to compliance with court orders, involving findings and punishment of the Defendant for contempt, I nevertheless saw value in creating an opportunity for sober second thought on the specifics of implementation in the hope that engineers retained by each side could find wisdom and good ideas in the insight of the other and a compromise short of exact compliance with the Howden judgement could be found. I arranged judicial ADR and there was some optimism. However, by August 8 2012 the parties could not come to agreement.

[ 4 ] That left the litigation with the Howden order as final. The Plaintiff basically sought to enforce it. The Defendant sought a more palatable compromise but did not like the Plaintiff’s new proposal. Meanwhile, one contempt as found had been purged. The purging of contempt should have ended that issue. Purging of one’s own contempt is not rewarded by costs.

[ 5 ] The only alternative was agreement. On August 8, 2012, faced with those two stark choices the Defendant chose the new proposal from the Plaintiff’s engineer. I required a signed agreement to be placed before me by August 10, 2012 all with a view to finality.

[ 6 ] The Plaintiff’s goal is simple: enforcement. But nothing in this file has been simple. The Plaintiff had to prepare to resist the Defendant’s effort to dilute the fact that there is already an order in the Plaintiff’s favour by Howden J. The Plaintiff did prepare.

[ 7 ] So, without engaging in the rhetoric that colours the submissions by both parties, I find that the Plaintiff’s effort was necessary to the circumstances and the preparations of the engineer were commensurate with the circumstances.

[ 8 ] I am not inclined to full indemnity costs. The frequent return of this issue for renewed vitriol simply doesn’t fit in the criteria triggering that stamp of approval.

[ 9 ] I fix costs in favour of the Plaintiff at $4,800.00 all in.

______________________________ EBERHARD J.

Released: September 24, 2012