BARRIE COURT FILE NO.: 11-0169
DATE: 20121115
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LAURA ANNE EVANS and MICHAEL ADAM LYDAN, Plaintiffs
AND:
STANISLAW SNIEG and MARIA SNIEG, Defendants
BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD
COUNSEL:
P. Krysiak, Counsel, for the Plaintiffs
P. Mitchell, Counsel, for the Defendants
HEARD: November 13, 2012
ENDORSEMENT
[ 1 ] On an open - limited to one hour of argument - motions list, with 53 motions pending, I heard this matter with some considerable pessimism that it could be adequately argued in 60 minutes based on my substantial prior contact with the file. The Defendant appeared with new counsel.
[ 2 ] On the list were three motions:
(a) Firstly, the Defendant’s September 11, 2012 motion to set aside or vary previous orders based on a letter from the drainage engineer that apparently differed from the court ordered solution to the dispute. This motion administratively impeded payment out of money in court to the Plaintiff;
(b) secondly the Plaintiff’s September 18, 2012 motion to dismiss same, costs against the Defendant’s lawyer and an order prohibiting further motions by Defendant;
(c) and thirdly, the Plaintiff’s November 6, 2012 motion to motion to pay out the $57,000 in court, for an order directing payment of a further $64,750 to Plaintiff counsel in trust and costs.
[ 3 ] New counsel for the Defendant expressly abandoned the motion to set aside or vary but argued that the Plaintiff’s motions be adjourned to permit examinations and production of documentation relating to the tendering process that gave rise to increased costs. In familiar outrage he submitted that the design was clearly flawed and the cost clearly exorbitant. He was under the misapprehension that there had been only temporary orders made in this case and that trial was forthcoming. He was unaware of the long ago trial of an issue before Howden J. and my repeated cautions during subsequent proceedings before me that I am not an engineer so as to conclude engineering was flawed or unnecessarily expensive and had no jurisdiction to rethink the judgment of Howden J.
[ 4 ] What I had done in the summer of 2012 after significant litigation, and the jailing of the Defendant for contempt, was give the opportunity for the parties under the judicial supervision of MacKinnon J. to discuss whether their respective engineers, after the developments over more than a year of litigation, might have a collaborative solution that the parties could agree to follow in lieu of the design ordered by Howden J. after trial of an issue. Initially they did not agree. That would have left them bound by the Howden J. design. On August 8, 2012 I made it clear to the Defendant that the ordered design would prevail unless he agreed to the new proposal designed by Pearson, one of the two engineers who had met with MacKinnon J. The Defendant always had trouble with any view but his own so not surprisingly he railed against the choice of the old ordered design (PME) and the new proposal. However he did agree to it.
[ 5 ] My endorsement on August 8 is sparse and can take meaning only when read with the Plaintiff’s motion that was before me that day. The motion claimed:
(a) An Order permitting the Plaintiffs to engage an engineer and a contractor to carry put the PME design, and permitting the Plaintiffs to use the funds paid into court by the Defendants to pay these parties for this work;
(b) An Order directing that any funds remaining after payment to the parties for carrying out the PME design shall be returned to the Defendants;
(c) An Order directing that if the funds paid into court by the Defendants are insufficient to cover the cost of carrying out the PME design, that the Defendants pay the parties any outstanding fees for this work;
(d) An Order directing that the Defendants and anyone acting under their direction or control shall not interfere with the implementation of the PME design;
[ 6 ] In this context my handwritten endorsement read:
I have not been persuaded that I have jurisdiction to do anything except implement the order of the court (PME design) or accept a variation based on agreement.
Faced with this, the Plaintiff has not resiled from the design presented in settlement discussions (Pearson) and the Defendant has reluctantly agreed. The agreement will have the effect of altering the specific design originally ordered but leave in place the obligation to comply with the order varied.
I direct:
Plaintiff to present an agreement for signature by August 10, Defendant to return it signed (in accordance with his agreement through counsel today) by August 13 and a copy to be on my desk by judicial secretary by August 15 th .
The Plaintiff may arrange for work to commence but must give 48 hours notice (to counsel if after August 22 or by personal service on Defendant)
Cost submissions from Plaintiff by August 31, from Defendant by September 14 and Reply by September 21.
This addresses a) b) & d) of the motion. If c) is necessary notice must be given and, absent agreement an order obtained as to amounts.
Of the Defendant’s motion I find the particular contempt relating to the December 2, 2011 order has been purged by payment into court. Other finding of contempt must await the finalizing of the remedial work.
[ 7 ] The endorsement, by its terms, addresses (a) the payment out of money in court to pay for the work; (b) return of funds after the work, and (d) non interference with the work.
[ 8 ] I therefore explicitly order that the work may now commence on 48 hours notice and the Defendant may not interfere. For use to pay for the work only, the $57.000 paid into court is to be paid out to the Plaintiff, subject to reimbursement for overage which the evidence now suggests is unlikely.
[ 9 ] The Defendant has complaints about the tendering process, changes to the Pearson design agreed to and now produces a contractor whom he says can accomplish the designed work for $55,000 while the Plaintiff’s evidence now suggests $121,750 is required.
[ 10 ] I am told that there were discussions when the Pearson design was proposed that should bind the Plaintiff as to the tender process. The Defendant did attend one of the two site meetings and, seeing several contractors gathered, thought that tender was proceeding adequately but only one contractor actually bid. In the face of the litigation few would be interested and now it is said that there must be money in hand before even the one contractor will start.
[ 11 ] The Defendant sees this as “carte blanche”.
[ 12 ] The dilemma is difficult.
[ 13 ] My only question, asked of both counsel, was how to produce money for the work, before the work is done and not contribute to overspending. That the Defendant must pay for the work is an issue long ago decided.
[ 14 ] I find construction cost and litigation cost by the contractor and engineer Pearson need to be segregated. I direct an assessment of costs wherein the Plaintiff will document that segregation and also account for the effect of previous cost orders on the costs that should now be ordered. I do not propose to require prepayment of amounts properly characterized as litigation costs.
[ 15 ] I order the Defendant to pay $40,000 into court to the credit of the work in accordance with the Pearson design. I chose that figure greater than the Defendant thinks is warranted but less than the Plaintiff now proposes. To access that money the Plaintiff must document actual design implementation expenses. This will promote clarity, transparency and thrift knowing that waste or overreaching may be exposed upon the court’s review of the actual costs. It keeps paragraph b) supra in play as any excess will be returned to the Defendant subject only to costs as assessed.
[ 16 ] I require the Defendant to seek leave before bringing any further motion. The issue of accounting as contemplated by b) and c) of the August 8, 2012 endorsement will be grounds for leave to be granted. The Plaintiff is not similarly bound but it is my hope that past experience will guide conduct in relation to orders of the court. Compliance is expected.
EBERHARD J.
Date: November 15, 2012