BARRIE

COURT FILE NO.: 11-0169

DATE: 20140922

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Anne Evans and Michael Adam Lydan, Plaintiffs/Moving Parties

AND:

Stanislaw Snieg and Maria Snieg, Defendants/ Responding Parties

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
P. Krysiak, Counsel for the Plaintiffs/Moving Parties

M. Maltz, Counsel for the Defendants/Responding Parties

HEARD: September 19, 2014

ENDORSEMENT

[1] The plaintiffs move for an order to allow them to remediate a retaining wall on the defendants’ property. The two properties abut one another and the wall was built pursuant to a series of court orders. Under the order of December 27, 2013, the defendants owe some $91,228.69.

[2] The plaintiffs ask that the defendants pay for the remedial work. The original retaining wall required orders of this court throughout due to the refusal by the defendants to build it or to do anything else in a timely way that would stop the flow of material from their property to that of the plaintiffs. The plaintiffs have now filed a complete motion record and factum covering the history and the facts of the immediate situation. The defendant filed a motion record in response. But this is what it comes down to. The defendants have had nothing to do with the cause of the failure now - at least there is no evidence to that effect - and once they pay the full cost as ordered from the original construction, their contempt will have been purged. The present failure of the wall marks a new beginning but not one of the defendants’ doing, except as the cause of the original nuisance suit and overflow. As between them and the plaintiffs, who have simply wanted relief from the run-off of silt and other material onto their land from the defendants’ property, however, the defendants remain ultimately responsible both for what they did on their property to cause the original problem and by their continued refusal to prevent the flow of materials from the defendants’ property onto the plaintiffs’ property in a timely fashion.

[3] The defendants, through their counsel, filed affidavit material which reviewed the history from Mr. Snieg’s point of view. He blames the builder and the supervising engineer for failing to follow the plans as approved by the court and takes the position that the defendants should not be called on to pay the cost of remediation of a poorly designed wall. The plan was approved by the court and was recommended by a professional engineer who refined some parts of the approved plan to make the project feasible to be built. Mr. Snieg, having done nothing for weeks at the beginning of this process when he was given a chance to do so, only doing what was required after being found in contempt of this court’s orders, and having interfered frequently with the work and only now is in arrears since December 2013 on account of the court-ordered balance owing for the original work, wants the engineer of his choosing to work with the original project engineer to find a solution. I saw that as a helpful idea but the engineers do not agree and therefore there was some consideration given to a third properly qualified engineer to decide what is required.

[4] As the relief asked is similar to injunctive relief, the analysis that is proposed by the plaintiffs’ counsel is to use the three-pronged test in R.J.R. - MacDonald Inc. v. Canada (Att.-Gen.), 1994 117 (SCC), [1994] 1 SCR 311. I agree.

[5] I find that the right of the plaintiffs to prevent the flow of foreign and soil materials from the defendants’ property, due originally to the change in elevation of the defendants’ land due to the placement of large amounts of fill by them, is a serious issue.

[6] If the remedial work is not done urgently, the evidence shows that the plaintiffs will be irreparably harmed should the entire wall collapse.

[7] Between the plaintiffs and the defendants, there is no question that the greater prejudice will be suffered by the plaintiffs and it is only partially compensable in costs.

[8] This is not a simple matter without a history of orders and appeals to the Court of Appeal. In my endorsement of July 22, 2011, this was my finding.

23. I find the defendants in contempt of the order of May 10, 2011. They have done nothing that is effective in engineering terms to deal with either part of that order. Given the time involved and the fact that the defendants and Mr. Kuntze have had since March to provide recommendations, and at the latest since May 2, 2011, even those recommendations have not been followed, and therefore, apart from the curbing and some concrete blocks, there has been no attempt to comply with the order of May 10, 2011.

[9] That history now includes the fact that an engineer-recommended plan which was court-ordered is failing within slightly over one year from its construction. I am informed that there is a warranty covering the wall as constructed. I asked counsel to attempt to resolve the next step by considering whether an order could be achieved on consent. After a period of time and two meetings in chambers to assist counsel and to know of any progress, counsel returned to court .Each proposed somewhat different draft orders; in fact the plaintiffs’ counsel never tried to propose more than an incomplete draft. I requested that each make submissions on the draft order each proposed and requested plaintiffs’ counsel to enlighten me on what he had left out. Unfortunately during the hearing of these submissions, the plaintiffs’ counsel differed seriously with some statements by counsel for the defendants and appeared to throw up his hands. He took the curious and very late position, after I had heard much of what Mr. Maltz had to say, that I should ignore the defendants’ submissions entirely and that the defendants lacked standing before the court due to the arrears owing under the last court order. He stated that the defendants had no right to be represented before me.

[10] Plaintiffs’ counsel gave notice of this motion to defence counsel, I presume, as Mr. Maltz filed material and was before me on its return. Plaintiffs’ counsel voiced no objection to Mr. Maltz’s appearance before me or his motion record until Mr. Maltz’s submissions were virtually complete. I have nevertheless tried to take account of the positions of both parties while making clear that I had to recognize that the defendants are in arrears in payment of an outstanding court order validly made, the appeal from which is now dismissed, and they would have to satisfy that order. The defendants have been in arrears of payment for months, since November 2013. My purpose in attempting to seek a resolution to this matter was to attempt to take account of the problems and issues facing each while providing the remedy to which the plaintiffs are entitled without more delays caused by appeals or other motions which may cause unfortunate delays. Unfortunately, I may have made the situation worse in view of the utter rejection of my efforts by the plaintiffs’ lawyer. His impatience is partly understandable given the history here, and the exasperating attitude and actions from early in the process by the defendants, particularly Mr. Snieg. But it was not professional and it accomplished nothing but defeat an attempt at resolution of this matter.

[11] Nevertheless I will deal with the plaintiffs’ motion as asked because the plaintiffs need and deserve a remedy on the merits. But I am adding terms to it to recognize the defendants’ right to have some say in what happens on their property where the wall failure is not of their doing, but they have to pay the amount by which they are in default. Also it is a completion of what is required for them to purge their contempt. They have had ample time to deal with it. Without that payment which is owed to the contractor for the original work and the engineer, Mr. Krysiak raised the practical question whether the warranty will be responded to with the speed and diligence that is required before the worst of the fall and winter weather sets in.

[12] Mr. Maltz did try to resolve some of the issues by preparing a draft order which was complete, Mr. Krysiak in the end seemed to resent the efforts to resolve matters, failed to present a complete draft order which he had to fill in orally mostly by attacking what the defendants were proposing, then proceeded as I have mentioned above. Finally, I asked both sides to address the motion as it was brought and heard all that they had to say. At no time however did I hear either take back what they had proposed in their draft suggestions.

[13] As to the cost of the remedial work, this whole exercise was due to the defendants changing the elevation of their property and refusing or failing to provide a remedy to stop the flow of foreign and soil material from the defendants’ land onto the defendants’ land. There was always some suggestion that the soils quality and substrata presented difficulties for any retaining wall built here. More work is required to make the retaining wall effective. As between the two, it is the defendants who remain ultimately responsible.

[14] Having considered counsels’ suggested draft orders and counsel’s submissions, the following terms will be embodied in the court’s order on the motion before me. It is ordered that:

1. The plaintiffs are permitted to undertake remedial work to reinforce the retaining wall erected on the defendants’ land beside the boundary between the plaintiffs’ and the defendants’ respective properties together with any ancillary grading changes that may be required in order to effectively prevent fill, silt, earth, and water from flowing from the defendants’ property onto the plaintiffs’ property in a lasting way, relying on the builder’s warranty coverage;

2. In the event that the original contractor refuses to honour the warranty in full, within three days of notice of that position by the plaintiffs to the defendants, the plaintiffs may proceed with the work as in para. 1 of this order subject to the following terms:

(a) the plaintiffs and the defendants shall hire a mutually acceptable professional engineer to determine how to reinforce and solidify the retaining wall to prevent its collapse and enable it to act as a lasting barrier and whether any ancillary grading or other changes or works are required for the purpose articulated above in para. 1;

(b) the parties and their counsel shall have four days from notice in writing by the plaintiffs that the contractor will not honour the warranty in full, to agree in writing on the professional engineer, referred to in (a), failing which the court will appoint the professional engineer to act under para. 1;

(c) once appointed either by agreement in writing by the parties or court appointment, the cost of the engineer’s meeting with the engineers retained by the parties, his or her assessment, opinion and working drawings will be shared by both the defendants and the plaintiffs equally and paid in instalments according to stages of the work or on completion of the work within seven days of receipt of the engineer’s account;

(d) the recommendations, directions and working drawings developed under para. 2(a) shall be carried out by a contractor chosen by the plaintiffs;

3. The defendants shall forthwith, meaning within seven days of release of this order, pay to the plaintiffs’ solicitors HGR Graham Partners LLP the sum of $91,228.69 plus interest in accordance with the Courts of Justice Act owing under the court order dated December 27, 2013 to be dealt with as ordered;

4. In default of payment by the defendants as required by para. 3 of this order, the plaintiffs may proceed to undertake the remedial work to the retaining wall and any grading changes ancillary thereto without compliance with the terms set out in sub-paras. 2(a) to (d), the defendants to pay whatever cost the remedial work may require on presentation of the account or accounts from the project contractor and they shall have all right and title to any cause of action against the original contractor and supervising engineer to recover their pay-out;

5. The appeal of the order of December 27, 2013 having been dismissed, the order requiring payment of $20,000 plus interest out of court to HGR Graham Partners LLP may be carried out on the initiative of the plaintiffs or their counsel;

6. In the circumstances, there will be no order as to costs of this motion.

[15] I may be spoken to by appointment through the trial coordinator regarding the settling of this order ex parte if time is considered of the essence.

HOWDEN J.

Date: September 22, 2014