CITATION: Ferriera et al. v. Marcos et al., 2015 ONSC 2445
COURT FILE NO.: CV-11-435525
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARLOS FERRIERA and SANDRA ALMEIDA Plaintiffs
– and –
MANUEL ANTONIO MARCOS and MARIANA MARCOS Defendants
Fernando Teixeira, for the Plaintiffs-Responding Party
Patrick Summers, for the Defendants-Moving Party
HEARD: April 10, 2015
DOW, j
reasons
[1] The moving parties, the defendants Manuel and Mariana Marcos, seek to enforce a settlement reached between the parties dated March 4, 2013 which involves having a survey registered at the Land Registry Office setting out and determining the boundary between the properties known municipally as 292 and 294 St. Clarens Avenue, Toronto. The respondents, plaintiffs, Carlos Ferriera and Sandra Almeida, also seek to enforce the settlement but oppose the motion on the basis the surveyor hired, Phillip Hofmann, of I.M. Pastushak Limited failed to complete the determination of the new boundary. Ferriera also seeks to have the parties hire another independent licenced Ontario land surveyor to determine the boundary line and have it registered as a reference plan (or “R-plan”) on the title of each property. Ferriera is also seeking an order that Marcos not encroach on the wooden fence separating the rear yards at 292 and 294 St. Clarens Avenue.
Background
[2] This unfortunate dispute which is not the only litigation between the parties can be summarized as follows:
(a) Mr. Ferriera and his spouse, Sandra Almeida purchased 292 St. Clarens Avenue, which is the southern half of a semidetached home joined with 294 St. Clarens Avenue in 2006. They make extensive renovations modernizing the home and adding a two-storey extension at the rear before moving in sometime in 2007. They then proceed with rear yard landscaping which included removing an “old rusty, chain-link fence” with a “6 foot, 2x4 pressure-treated wooden fence” (paragraph 7 of the decision of Justice C. J. Brown in Ferriera v. Marcos, 2014 ONSC 1536 – Exhibit 4 to the affidavit of Carlos Ferriera sworn April 2, 2015). From photographs, the fence is finished only on the 292 St. Clarens side;
(b) Manuel Marcos and his spouse actually live at 301 St. Clarens Avenue but own, rent and maintain 294 St. Clarens Avenue. Both 292 and 294 St. Clarens have a garage at the rear of their respective properties accessed by a rear laneway;
(c) As part of obtaining the necessary permits to construct the new fence, Ferriera obtains approval from Marcos so long as it was placed “in the same location as the chain-link fence” (paragraph 8 of the decision of Justice C. J. Brown). The chain-link fence was removed in 2010 and the wooden fence was constructed in 2011.
(d) The relationship between the parties deteriorated with threats and gestures resulting in police involvement, criminal charges, peace bonds, withdrawal of charges and a civil action for malicious prosecution that proceeded to trial in October, 2013 (Ferriera v. Marcos, 2014 ONSC 1536). Justice C. J. Brown awarded damages of $44,712.40 in favour of Ferriera to be paid by Marcos;
(e) This action was commenced September 21, 2011 by Ferriera claiming damages for encroachment, trespass to property and a declaration the boundary line between the properties be in accordance with a survey completed September 9, 2006 by Skandarajah Surveying Ltd. as well as injunctive relief from movement or damage to the wooden fence (paragraph one of the Statement of Claim – Exhibit A to the affidavit of Kevin Marcos sworn December 23, 2014);
(f) The action is defended including a counterclaim for damages on the same basis and declaring the boundary line be in accordance with a survey prepared by H. Piller Corporation Ltd. in July, 2010 as amended June 21, 2011 as well as removal of the wooden fence from on the Marcos’ property (paragraph 23 of the Statement of Defence and Counterclaim – Exhibit B to the affidavit of Kevin Marcos);
(g) The matter was on standby to proceed to trial March 5, 2013 (Exhibit A affidavit of Jenny Naumovski sworn April 6, 2015 – letter dated March 2, 2013 from Teixeira Law Firm);
(h) The Settlement Agreement dated March 4, 2013 executed by the parties provided the parties agreed to be bound by a new boundary line created for the backyard area of each property and that it be done by a “licenced surveyor” (never previously retained by the parties);
(i) Paragraph 4 of the Settlement Agreement stated “the new boundary shall utilize as reference point the prior surveys prepared and/or relied upon by the parties and the wooden fence located in the backyard area”;
(j) The survey containing the new boundary line was to be created in an R-plan and registered on the title of each property at the Land Registry Office with the cost of the survey being shared equally and the wooden fence remaining “in its current location and not be relocated”;
(k) A list of surveyors was prepared and narrowed down to a short list of two with counsel for Marcos advising counsel for Ferriera to select one by email dated June 12. Counsel for Ferriera wrote back June 13 that Marcos hire his chosen surveyor by June 17 (Exhibit F to the affidavit of Kevin Marcos);
(l) Phillip Hoffman, O.L.S. provides a quote in a letter June 17 to Marcos containing an estimate of $4,650 which contains the (incorrect) statement “It is understood that the board fence currently separating the properties located in the backyard is the agreed upon new boundary line as stated in paragraph two of the Settlement Agreement”. This letter is not shown to Ferriera or his counsel, with counsel for Ferriera acknowledging in submissions a level of trust between he and counsel for Marcos such that the letter was neither demanded nor forwarded. The request for one half of the retainer or $2,325 was completed with a letter/email from counsel for Marcos June 20, 2013 suggesting dates had been requested from the surveyor for a meeting with the “parties, counsel & the surveyor at the property”;
(m) With the funds paid by Ferriera confirmed by email June 25, Hoffman proceeds to inspect the property and review the documentation without meeting the parties and renders a draft report dated July 10, 2013.
(n) The report of Hoffman concludes from the evidence on site and the revision of the data available, the boundary ought to be that indicated in the H. Piller Corporation survey of July, 2010 as amended June 23, 2011;
(o) The Hoffman survey has the wooden fence erected by Ferriera encroaching on the Marcos’ property by .09 of a meter – 9 centimeters or, by the Court’s calculation 3.5 inches. In addition, the almost 20-foot long south wall of the Marcos’ garage encroaches on the Ferriera property by about an inch;
(p) Ferriera objects to the conclusion and a meeting does proceed between the parties and the surveyor with Hoffman rendering an explanatory note following same that his opinion remains as first indicated.
Issue – Settlement Agreement
[3] At issue is whether the Settlement Agreement contemplated whether the “new” boundary agreed to by the parties could include the boundary previously determined by H. Piller Corporation (the surveyor chosen by Marcos). If the Court accepts the position of Ferriera and concludes the answer is no, then it follows the new boundary could also not be the location determined by Skandarajah Surveying Ltd.
[4] Counsel for Ferriera submits the parties would not and did not agree to a settlement where one side could completely achieve what they were advocating with respect to the boundary.
[5] I disagree. In my view, the Settlement Agreement intended to remove the higher expense and uncertainty of the Court imposed boundary with a sensible, less expensive result where the boundary would be determined by someone with training and expertise in that field. The opportunity and risk of having the “new” boundary placed where one or the other parties’ surveyor had placed it was a likely potential outcome that could and should have been contemplated by each party.
[6] I am reinforced in this conclusion by the Court’s unwillingness to grant Ferriera’s request to enforce the settlement by having another (a fourth) surveyor do what Mr. Hoffman seems to have done but constrain that licensed, trained individual from finding the boundary line to be what two other, presumably competent surveyors, have concluded is the proper boundary.
[7] Counsel for Ferriera relies on the decision of Justice Goldstein in Ruder v. 1049077 Ontario Ltd. (c.o.b. Crown Tech Aluminum & Glass) 2014 ONSC 4389 where a wrongful dismissal settlement was set aside after it was learned the dismissed employee had done things that significantly altered the bargaining position of the parties. The legal principle was whether enforcing the settlement would create a real risk of injustice to the parties [paragraphs 6-8 of the reasons of Justice Goldstein]. In my view, having the property line confirm that Ferriera’s fence is largely on Marcos’ property (and with Ferriera having the right to keep it there) while Marcos’ garage wall encroaches onto Ferriera’s property does not create any real risk of clear injustice.
[8] It is also noted this interpretation of the Settlement Agreement is in accord with the decision of Rawlins v. Rawlins 2014 ONSC 5649 where Justice T. Maddalena at paragraph 44, in referencing the Court of Appeal authority notes where the agreement is in writing, “it is to be measured by an objective reading of the language chosen by the parties”. The wording of the Settlement Agreement does not exclude the “new” boundary from being one of the previously alleged boundaries. Had Ferriera intended same, it could and should have been stated in the agreement. To the contrary, paragraph 4 of the Settlement Agreement includes the phrase “the new boundary shall utilize as reference point the prior surveys prepared and/or relied upon by the parties and the wooden fence located in the backyard area” (my emphasis).
[9] As the motion by Marcos is successful, the survey by Mr. Hoffman – I. M. Pastushak Limited, July 10, 2013 shall be registered on title to each property.
[10] Given the photos submitted as evidence and the complaints by Ferriera that Marcos is encroaching on the fence, I would caution Mr. Marcos to ensure that any debris, wiring, nails or vegetation not spill over or through this fence. Should same occur and further proceedings result, the Court invites Mr. Ferriera to make reference to this warning.
Costs
[11] Counsel for Ferriera provided a costs outlining claiming $8,213.75. The costs outline provided by Ferriera in responding to the motion as $2,831.41, reduced to $1,845.83 on a partial indemnity basis. Counsel for Ferriera submitted that in the event Marcos was successful, his claim for costs should be reduced to $2,800. Given the materials prepared and filed (that of Marcos being considerably more detailed with 23 exhibits which reduced the necessity of responding materials being as detailed, 10 exhibits), I would fix costs in the amount of $5,000, inclusive of fees, HST and disbursements payable by the plaintiffs to the defendants, that is Carlos Ferriera and Sandra Almeida, to Manuel and Mariana Marcos forthwith.
Mr. Justice G. Dow
Released: April 24, 2015
CITATION: Ferriera et al. v. Marcos et al., 2015 ONSC 2445
COURT FILE NO.: CV-11-435525
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARLOS FERRIERA and SANDRA ALMEIDA Plaintiffs
– and –
MANUEL ANTONIO MARCOS and MARIANA MARCOS Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: April 24, 2015