SUPERIOR COURT OF JUSTICE - ONTARIO

**COURT FILE NO.:**05-000073
TRIAL HEARD: JUNE18, 19, 20, 21, 25, 26, 27, 28, 29, 2012
DATE: SEPTEMBER 30, 2013

RE: ROBERT MONETTE and GINGER MONETTE, Plaintiffs

• and –

MARTIN TEBO and DONNA TEBO and BRUCE SELLERS, Defendants

• and –

MARTIN TEBO and DONNA TEBO, Plaintiffs to Counterclaim

• and –

ROBERT MONETTE, GINGER MONETTE, JOHN PETER ROXON and JULIE ELAINE MARGARET ROXON, Defendants to Counterclaim

BEFORE: JUSTICE ABRAMS

COUNSEL:
KURT PEARSON, for the Plaintiffs/Defendants to Counterclaim, Robert Monette and Ginger Monette

JOHN RYDER-BURBIDGE for the Defendants/ Plaintiffs to Counterclaim, Martin Tebo and Donna Tebo

LUCIENNE MacLAUCHLAN, (Former) Solicitor for the Plaintiffs/Defendants to Counterclaim, Robert Monette and Ginger Monette

JOHN GRANGE, for the Defendants to Counterclaim, John Peter Roxon and Julie Elaine Margaret Roxon

COSTS DECISION

ABRAMS, J:

Background

[1] This trial took place over the course of nine days in June, 2012.

[2] The Monette’s original Action was dismissed in large part by Byers, J. on October 21, 2005. Accordingly, the trial related to the Tebo’s Counter-Claim.

[3] Although the Tebos advanced ten separate claims in support of their theory of a campaign of harassment perpetuated by the Monettes against them, the evidence at trial focused substantially on the issue of flooding.

[4] Notwithstanding that the Tebos agreed that there had always been an accumulation of surface water on their property in the undeveloped, low area, they contended that the construction of a private golf course on the Monette’s property exacerbated the flooding.

[5] That being said, Mr. and Mrs. Tebo did not agree in evidence as between themselves on this fundamental point. Mr. Tebo referenced flooding that occurred in or about September, 2004, following Hurricane Francis as the worst flooding event that they had experience prior to the dumping of fill on the Monette’s property. As Mr. Tebo testified: “Before the dumping of fill we had no problem with flooding, what we see here is some ponding. It took a hurricane passing through over two days … this is all we have for water”, in referencing photographs taken by Mrs. Tebo on September 9, 2004.

[6] Mrs. Tebo’s evidence was remarkably different. To summarize Mrs. Tebo’s evidence on this point, she said that:

[i] During Francis, flooding in the undeveloped, low area, extended from the Tebo road to the Monette road;

[ii] During Francis, the water rose to the level of the Tebo road;

[iii] During Francis, the flooding covered more land stretching from the north to the south, as opposed to now when water is more concentrated in the area of the east/west drainage ditch;

[iv] During Francis, the water was so high that she could not see the bottoms of the trees;

[v] During Francis, the grass in the undeveloped, low area, was completely covered; and

[vi] With reference to the photographs put into evidence, Mrs. Tebo stated unequivocally that flooding in the post-golf course development period has never been as extensive as during Francis.

[7] The Court preferred Mrs. Tebo’s evidence over Mr. Tebo’s given that Mrs. Tebo made observations and took photographs immediately following Hurricane Francis, while Mr. Tebo did not. Rather, Mr. Tebo did not venture outside.

[8] The Court accepted that the preponderance of evidence clearly shows that the effects of flooding in the undeveloped, low area of the Tebo property has not been exacerbated by the development of the golf course.

[9] Rather, the Court found that the seasonal flooding on the Tebo property has been mitigated by the additional fill imported to the Monette property, which acts as a sponge.

[10] Notably, the Tebos initiated the use of experts. The Tebo’s expert, Mr. Josselyn opined that the flooding had been made worse on the Tebo property, but he could not say by how much. Unfortuately, Mr. Josselyn’s opinion was based, at least in part, on Mr. Tebo’s subjective assessment, and as such was subject to the same frailties as Mr. Tebo’s evidence. The Court wondered whether Mr. Josselyn’s opinion would have changed had he been fully informed regarding the extent of the flooding during Francis as articulated by Mrs. Tebo in her evidence.

[11] In the result, the Court found that water ponding on the Tebo property had not been exacerbated by the development of the golf course. Thus, the Tebos failed to prove liability.

[12] In any event, the Court assessed damages in respect of the flooding claim as $0.00. The Court found that, at most, the Tebos complained of the loss of their walking trails in the undeveloped, low area, for unspecified periods of time. However, the Tebos could still have accessed the full length of their property from north to south along their road, or alternatively, on land that was not affected by seasonal flooding.

[13] In the alternative, the Court went on to address the recommendations made by Mr. Josselyn with respect to mitigation, having found no exacerbation of flooding as alleged. The Court found that the gap in the berm, as described by Mr. Josselyn, could have been remedied for the sum of $10,000.00 all inclusive, as opposed to the $25,000.00 figure assigned by Mr. Josselyn, which admittedly was mere speculation.

[14] In summary, there is no question that the quantum of available damages was well within the Small Claims Court limits, even on a 100% liability basis.

Position of the Parties

[15] The Monettes rely on the formal Offer to Settle found behind Tab E of their Costs Submissions brief, dated November 22, 2011. Without going into the details of the offer, the Monettes clearly beat their offer.

[16] In the circumstances, the Monettes advance two positions:

[i] 100% substantial indemnity inclusive of fees, disbursements and GST/HST, equaling $295,311.90.

[ii] Partial indemnity (60%) to November 22, 2011 and substantially indemnity (100%) after November 22, 2011 for fees, disbursements and GST/HST, equaling $269,025.59.

[17] The Monettes contend that at its core, this was a case about a few dozen golf balls allegedly going over a lot line, a couple of dozen alleged “trespasses” by their dogs and an allegation about increased flooding of the Tebo property attributed to the Monette’s conduct in constructing a six hole private golf course. However, this simple case became a protracted legal battle and a complex proceeding because of the intransigence of the Tebos.

[18] The Monettes contend that they were prepared to walk away from the whole proceeding, given the dismissal of the majority of their original Action by the Order of Justice Byers on October 21, 2005. By correspondence, dated September 18, 2008, the previous counsel for the Monettes formally abandoned the remaining Cause of Action, being their claim that the Tebos were liable in damages for trespass.

[19] The Monettes assert, however, that the Tebos insisted on prosecuting the counter-claim. After September, 2008, the Monettes were forced to submit to protracted and expensive litigation. Again, the Tebos initiated the use of experts. The Monettes were forced to hire their own responding experts. The involvement of experts certainly increased the complexity and highlighted the importance of the issues to the respective parties.

[20] The Tebos contend that the matter could have been resolved much earlier had the Monettes agreed to the parties jointly retaining an engineer to get an independent engineering opinion on how to identify and resolve the flooding problem. The Court finds this assertion to be highly speculative. Based on the evidence at trial, there was little the Monettes could do to satisfy the Tebos in terms of the alleged flooding. Moreover, the Monettes were faced with a “moving target”, so to speak, in their efforts to satisfy the Tebos, specifically Mr. Tebo. To use one example, Mr. Monette was ordered by the Quinte Conservation Association (QCA) to make certain modifications with respect to the east/west drainage ditch. The alterations as Order resulted in the water failing to reach the level of the opening in the culvert at the west end of the Monette’s road. Moreover, not only did the QCA Order Mr. Monette to make these alterations, the Tebos (specifically Mr. Tebo) insisted on it. In a video tape put into evidence by Mr. Tebo, Mr. Tebo can be heard yelling out to Mr. Monette: “Put a culvert under the road Bob so you don’t flood us”. When the culvert did not work, Mr. Tebo contended in cross-examination that the culvert increased the flooding on the Tebo property. However, in re-examination, Mr. Tebo changed his evidence yet again: “I heard myself say that … the culvert had no effect on the flooding”. As the Court found, the best that could be said of Mr. Tebo was that he was confused in giving his evidence. At the other end of the spectrum, Mr. Tebo’s evidence was tailored to support his vacillating positions throughout the trial. In the result, the Court found that Mr. Tebos evidence was incredible in its totality.

[21] For the Tebos to now suggest that the matter could have been resolved by the joint retention of an engineer, well before the trial and before either side hired an engineer, is without evidentiary foundation. Based on the shifting positions taken by Mr. Tebo throughout the trial, the matter would only have resolved on terms that were entirely in the Tebo’s favour, whatever that might have been at any given time.

[22] The unwarranted attacks by the Tebos against the Monettes persist today, as is apparent from the third full paragraph on page two of the Costs Submissions of the Tebos. In reviewing the paragraph that begins “The evidence at trial showed that the Monettes persisted …”, the Court questions whether the Tebos reviewed and considered the findings of fact prior to preparing their Cost Submissions. Based on a plain reading of this paragraph, the Tebos seem intent on re-litigating the very issues that have been determined by this Court.

[23] The Court agrees that this simple case, falling within the monetary jurisdiction of the Small Claims Court, became a protracted legal battle and a complex proceeding because of the intransigence of the Tebos. The Monettes sold their home in 2008, yet the litigation dragged on. The Tebos would have done well to accept the Monettes’ Offer to Settle of November 22, 2011. They rejected the Offer and pushed the matter on to trial. The Tebos initiated the use of expert witnesses. The substance of their expert’s opinion was based on Mr. Tebo’s subjective views, which did not accord with Mrs. Tebo’s evidence on certain critical points. The Court accepted Mrs. Tebo’s evidence in rejecting Mr. Tebo’s. The Monettes were ultimately successful in defending the Counter-Claim and beating their formal offer to settle.

[24] The Court accepts that the offer articulated above complies with Rule 49 of the Rules of Civil Procedure. In exercising its discretion, the Court awards costs in accordance with the Monette’s number two position, total fees and disbursements equaling $269,025.59, inclusive of GST/HST as applicable.

ABRAMS, J.

DATE: SEPTEMBER 30, 2013