Court File and Parties
BARRIE COURT FILE NO.: CV-11-0169
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURA ANNE EVANS and MICHAEL LYDAN
Plaintiffs
– and –
STANISLAW SNIEG and MARIA SNIEG
Respondents
P. Krysiak, for the Plaintiffs
M. Maltz, for the Defendants
HEARD: November 29, 2013
REASONS FOR DECISION
Background
1The plaintiffs and defendants, neighbours whose properties are on a grade, have been locked in litigation over changes in elevation and drainage found to have been caused by the defendants placing fill on their property. There has been a succession of orders, commencing with orders aimed at having the defendants take remedial action at their own expense. This did not happen.
2Finally, as a result of a case management conference and further motion by the plaintiffs, the parties signed a very brief agreement whereby a plan for a retaining wall, referred to as the “Pearson design”, was to be implemented pursuant to court order dated August 13, 2012. The “Pearson design” is marked as Exhibit G to the defendants’ material on this motion. The work was to proceed at the defendants’ expense, Mr. Snieg having failed to obey court orders to provide remedial action himself. By orders of December 2, 2011 and November 15, 2012, the defendants paid into court monies most of which, after a more detailed plan to guide the tenders and the actual construction was drawn by the engineer, Mr. Pearson, were paid out to the company selected to carry out the work, under Mr. Pearson’s supervision and with the written consent of the defendant, Stanislaw Snieg. The retaining wall has now been completed at a cost of:
Work by Contractor
(Alcar Contracting Services)
Including HST $133,460.23
Contract Administration and Supervisory Services
(Pearson)
Including HST $ 54,828.46
Total $188,288.69
3The following payments out have been made:
To the Contractor $ 56,883.46
To the Engineer $ 20,116.55
Total $ 77,000.00
4The balance remaining to both the engineer and the contractor is $111,288.69, according to their invoices. There remains in trust $20,000. The contractor has completed the work despite the outstanding balance owed to it and to Mr. Pearson. That balance must be dealt with without delay. However, that cannot occur without due process as both contractor and engineer have exceeded their pre-work estimates and failed to return to court for approval when the Pearson design was modified or changed. The contractor estimated $95,650 and came in at $118,106.40 (not including HST). The engineer estimated his services at $26,100 (not including HST). Because of the unfortunate way in which the engineer’s fees are accounted for in his affidavit, it is very difficult to know what his actual fee was without HST. With HST, it totalled $54,828.46.
5On this motion, the plaintiffs seek the following orders:
(a) An order requiring the accountant of the Superior Court to pay $20,000 plus accrued interest from the money held to the credit of this action to HGR Graham Partners, LLP, in trust for the plaintiffs;
(b) An order directing that the defendants pay forthwith $91,288.69 to HGR Graham Partners, LLP, in trust for the plaintiffs; and
(c) An order directing costs of the defendants’ motion returnable September 18, 2012, the plaintiffs’ motion of November 15, 2012, and the plaintiffs’ motion of December 31, 2012.
I would think that, despite the wording of the Notice of Motion, the order sought in (b) should require that payment out in trust for the contractor and engineer.
The Defendants' Position
6Counsel for the defendants, Murray Maltz, submitted that the retaining wall has not been built in compliance with the order of this court. He points to Exhibit K to Mr. Snieg’s affidavit as the plan followed for the calling of tenders and for the work actually built. An engineer retained by the defendants, Ian Shaw, examined the two plans: Exhibit G (the set of plans referred to in the court orders dated August 5 and November 13, 2012) and Exhibit K (the set of plans used for the tender call and construction). Mr. Shaw’s findings consist of twelve listed “differences” that he found would impact the cost of the retaining wall. These differences include:
First, change from a Hansen Hardscape RB wall to a Risi Stone Siena Stone 333 system;
Exhibit G shows a height up to 1.65 meters; Exhibit K shows up to 1.85 meters;
Three layers of Geogrid reinforcement were installed instead of two layers;
The construction used a batter (i.e. “tilting into retained soil”) of 9.6 degrees, the first plan, 7.12 degrees;
The “as constructed” wall has a maximum surcharge load of 4.8 kPa, whereas 12 kPa is the maximum load as built;
The “as built” plans assume a minimum required design bearing pressure of soil of 150 kPa; the design plan (Exhibit G) illustrates soil-bearing pressure of 100 kPa.
7The remaining differences include a different swale grade (33% instead of 3%), top and bottom of wall elevations (228.24 m and 228.24 m instead of 229.88 and 229.9 m), lower elevation for the drainage tile, and typical pavement design is shown whereas it was not present in the so-called “Pearson design”.
8Mr. Shaw states the changes of wall system, geogrid layers and length, surcharge loading, and wall geometry are the specific items that would elevate cost, especially the Risi Stone system.
9The supervising engineer, Mr. Pearson, was also asked to examine the two sets of drawings. His opinion is in his memorandum (Exhibit N to the defendants’ motion material, not “O” as in the jurat), as follows:
As per our conversation, there are some minor differences between the drawings supplied at the August court hearing and the tender set of drawings. The court drawings were used to identify the design approach for the site. Upon agreement on the approach, we finalized the design drawings for tendering and construction. The changes between the two issues of drawing include:
The retaining wall changed from a Hansen RB wall to a Risi Stone ... wall. Upon final detail design, the wall height increased from 1.65 meters to 1.85 meters. Also the Risi Stone wall provides a greater traffic load capacity. There is nominal cost difference between these two wall types.
Drawings revised to include test pit data and location.
Pavement design added to areas of driveway reinstatement.
The limit of excavation and additional design notes were shown to clarify area of construction.
The design changes between the August court date issue and tender issue drawings are not significant and do not alter the conceptual design approach.
10The defendants brought no counter motion of their own. They ask simply that the motion by the plaintiffs be dismissed. Mr. Maltz stated that strict compliance with court orders is required and as this has not happened here, and what in his view is a different plan was used for the wall as built, he submits that Mr. Snieg should not have to pay anything more. He has paid $97,000 to-date towards the wall construction. While he requested an order requiring a total payment by the defendants in line with an estimate Mr. Snieg says he obtained of $57,000 and corresponding refund, the lack of any counter motion does not permit such an order to be made, as that request is simply not before me.
The Plaintiffs' Position
11Mr. Krysiak relies on Mr. Pearson’s opinion that the “as built” drawings simply provided necessary detail for the actual building of the wall to fill in what was the description or conceptual plan referred to in the operative court order of November 13, 2012. Mr. Pearson explained the reason for the substantial increase in his fee from that estimated. His summary of activities on a weekly basis during the job is in Exhibit F to the plaintiffs’ material. He concluded that the change of wall system had only a nominal or insignificant impact on cost (Exhibit N, on defendants’ motion).
12In his report summary, he states:
There has been a significant increase in required inspection and contract administration time on this file this spring and summer due to the complexity of construction, including:
Poor soil conditions beneath proposed wall location. There was silty/clay material located below the underside of retaining wall which was saturated. This material had to be removed and reinforced with two-inch crusher run wrapped in filter cloth in order to stabilize the area below the retaining wall.
Increase ground water from Snieg property, due to wet conditions and poor backfill material, required review of dewatering and coordination of Terra Probe for increased inspections.
Increased inspection works due to legal threats by Mr. Snieg.
13Mr. Snieg’s part in the above summary is said to have included attendances at the site to question the contractors personnel and suggesting he would report them to the court (May 27-31), further questioning of contractor’s personnel and giving directions, arguing about his right to be on site (June 10-14), locking the gates to prevent further work (July 22-31), and denial of access on August 9, with a threat of laying trespass charges. These occurrences happened despite Mr. Snieg’s undertaking at the start that he consented to work proceeding.
14Other unexplained problems that developed during the construction included removal of skids to a fire pit across the road where they were burned; and a foreign substance being found in the gas line, resulting in the excavator refusing to work. The person responsible for these occurrences is not identified.
Analysis
15The costs estimated by the contractor and by the engineer are set out in Mr. Snieg’s affidavit on this motion. There is no contradiction of these figures by the plaintiffs’ material. Estimated cost:
Contractor $ 95,650
Engineer $ 26,100
Total $121,750
Mr. Snieg has paid to-date $97,000 on this account. The retaining wall was work ordered by this court based on figures and estimates given by both the engineer and the contractor. Both before work carried on pursuant to the altered plan and when it was clear that the estimates would be exceeded, motions should have been made to the court for approval of the altered plan and the increased costs before they were incurred. The importance of further motions for approval of continuing with the work in excess of the estimated cost and according to a somewhat different plan is pointed out by the fact that Mr. Snieg was required to sign a consent and the order of August 8, 2012 reads, in para. 1:
The plaintiffs to present an agreement for signature by August 10, the defendants to return it signed (in accordance with his agreements through counsel today) by August 13, and a copy to be on my desk by judicial secretary by August 15.
16The consent signed by Mr. Snieg reads that he consents “to the Pearson design in accordance with the order of The Hon. Justice Eberhard, dated August 8, 2012”. This consent was given knowing of the estimates of the contractor and the engineer, totalling $121,750. When the cost went above this amount and a somewhat different plan was being used, those were the times for this matter to have come back before this court so that Mr. Snieg would have the right to make submissions because a different plan was being used from the one that he had expressly consented to. I might add that the drafting of the consent was in the hands of the solicitors for the plaintiffs and why they limited the consent to the Pearson design where they knew, or should have known, that “as built” plans would have to come forward is most unfortunate.
Disposition
17I will reserve my decision until I receive the following material: an affidavit from Gary Pearson, setting out the impact on the estimated cost by following the plans used during construction rather than the “Pearson design”, in particular, the impact that the changes of the wall system, of surcharge loading and of wall geometry referred to by Mr. Shaw. In Mr. Pearson’s previous report he referred only to “a nominal cost difference between the two wall types, but it contained no comment on the impact on costs of the other factors I have just referred to which were in Mr. Shaw’s opinion. In his affidavit, there must be hard figures based on costs in 2012. I require this affidavit to be filed within one week hereof. The defendants may have a further week to file a responding affidavit from a professional engineer. Strict adherence by the parties and their counsel is required to this direction, and no delay in fulfilling it. I will then deliver the remainder of my decision after I have received this affidavit or following the passage of one week in the absence of filing.
HOWDEN J.
Released: December 9, 2013