Ontario Superior Court of Justice

Court File No.: CV-11-0169

Date: 20131227

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

HOWDEN J.:

[1] I directed both counsel to forward to me a factum and/or an affidavit. In the case of the plaintiffs’ engineer, Mr. Pearson, I have his supplementary affidavit. I also have Mr. Maltz’s factum and Mr. Snieg’s affidavit. This direction on my part was precipitated by correspondence from both sides regarding the content of my interim decision of December 9, 2013. That and any subsequent correspondence is being returned to counsel, unread; no leave was granted for such letters and, directed to a judge with the decision under reserve, they are unprofessional, unethical and incompetent.

[2] I am satisfied by Mr. Pearson’s affidavits including the final one in which he made clear the very small impact on costs made by the refinements to the original design plan.

[3] The original estimated costs of contractor and engineer were as I stated:

For contractor $95,650.00

For engineer $26,100.00

With HST they became:

For contractor $108,084.50

For engineer $ 29,493.00

Total estimated costs $137,577.50

I accept that the work estimates were not known to the court or to Mr. Snieg, when he agreed to the “Pearson” design.

[4] I am satisfied that in ordering the design plan to be “implemented” by order of November 13, 2012, the court (as then constituted) contemplated that the design phase would possibly require an “as built” plan to include the required detail for building. The order of November 13, 2012 did not state that the wall must be built in strict conformity with the Pearson design: it orders that: “implementation of the Pearson design may commence.”

The endorsement of that date makes it quite clear that the “as built” changes were known to the court and the order of November 13, 2012 was made to commence building with that evidence before it. The words “in accordance with the Pearson design” are wide enough to include the requirements added in the “as built” plan. The endorsement accompanying the November 13, 2012 order makes it quite clear that, though the defendant raised objections to the changes in the “as built” plan, the court summed these up as,

The defendant sees this as carte blanche

The dilemma is difficult.

My only question...was how to produce the money for the work before the work is done and not contribute to overspending. That the defendant must pay for that work is an issue long ago decided.

[5] The court’s only direction at that time, knowing of the “as built” plan as a requirement for building purposes of the “Pearson design”, was that litigation and construction costs must be segregated. While I still maintain that it was foolish for the plaintiffs not to return this matter to court when the estimated cost over-run became obvious, the fact that that did not occur is not fatal because the reason for the increased cost is now known: the soil conditions on site, there being no prior “costly soil investigation”; and to a lesser degree, Mr. Snieg’s provocations and interference on site.

[6] The only outstanding matter arising from the prior orders is para. 3 of the order of November 13, 2012:

THIS COURT DIRECTS an assessment of costs wherein the Plaintiffs will document the segregation between construction and litigation costs and account for the effect of previous cost Orders.

Contrary to the statements in Mr. Pearson’s affidavit, para. 9(a) and (b), nowhere in the orders referred to do they state what Mr. Pearson says. Paragraph 5(d) of the November 13, 2012 endorsement does not exist. The only para. 5(d) mentioned is what was sought by the plaintiffs’ motion. It was not granted. The same is true of the reference to the December 31, 2012 endorsement. No leave was expressly granted to “move for the shortfall found at an omnibus hearing”. The order simply grants an adjournment on the terms that $20,000 be paid out on account of the engineer’s implementation cost. The order again refers to the “omnibus hearing” ordered in the November 13, 2012 for an accounting where the precise amount owed can be tested and determined. That has now occurred. The plaintiffs have demonstrated that the construction cost estimates were exceeded for the reasons given by Mr. Pearson. They have been kept segregated from the court costs, as was ordered. I have read the engineer Mr. Shaw’s critiques of Mr. Pearson’s report on the requirements to the original “Pearson” design. It raises questions but does not really contradict Mr. Pearson’s conclusion that more detailed and costly soil investigation would have provided a more realistic basis for estimating cost. Also, this is not the typical job addressed by Mr. Shaw. This was a court-ordered construction to alleviate the effects on the plaintiffs’ land of unilateral changes made to Mr. and Mrs. Snieg’s property and to purge a contempt order against Mr. Snieg. It is now complete despite much interference resiling from his original consent by Mr. Snieg, as well as the detailed court arguments raised ably on his behalf.

[7] For the reasons given, order to go as requested by the plaintiffs in paragraphs (a) and (b) of the Notice of Motion, except that payment under (b) shall be to HGR Graham Partners in trust for the contractor and engineer who built the wall.

[8] If not agreed, counsel can make written submissions on costs addressed to me, the plaintiffs’ counsel within 15 days and the defendants’ counsel in 15 days following receipt.

HOWDEN J.

Released: December 27, 2013