ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-113912-00
DATE: 20170716

BETWEEN:

The Regional Municipality of York
Plaintiff

– and –

Gaetano DiBlasi and Vito DiBlasi
Defendants

Douglas O. Smith and Aimee F. Collier, for the Plaintiff

Maurice J. Neirinck, for the Defendant/Responding Party

HEARD: January 5, 2015

REASONS

edwards j.:

Overview

[1] The plaintiff seeks an order declaring that the defendant, Gaetano DiBlasi (hereinafter “Gaetano”), is in contempt of the Order of Gilmore J. dated May 28, 2014 and July 29, 2014.

[2] The plaintiff, in its motion before Gilmore J., sought injunctive relief that would require Gaetano to remove a berm located on his property, municipally described as 1166–1360 Bloomington Road in York Region (Gaetano’s property).

[3] Gaetano’s property runs along Bloomington Road for approximately 3,000 feet west of Leslie Street towards Bayview Avenue. In an area of his property where there had never been a berm, Gaetano constructed a berm in August 2012 which when constructed was approximately 3.5 metres in height and 157 metres in length. It was alleged by the plaintiff that the construction of the berm blocked the normal drainage of water through Gaetano’s property, thereby causing flooding or pooling of water in the north ditch with a depth of water said to be between two and three feet at times.

[4] Having heard the evidence of the parties, Gilmore J. ordered (“the Order”) that the defendants were to remove the berm entirely by July 31, 2014, which date was later extended to August 31, 2014. If the berm was not removed in its entirety, the Order provided that the plaintiff could remove the berm at the defendant’s cost.

[5] The issue before me on this motion seeking an order in the nature of a finding of contempt is whether or not the berm has been removed “in its entirety”. The plaintiff says it has not been removed in its entirety. Gaetano says that is has.

The Facts

[6] One of the fundamental facts before Gilmore J. was that there never had been any flooding in the north ditch between October of 1982 and August of 2012. Since the construction of the berm by Gaetano there had been significant pooling of water in the north ditch. It was also factually found that on a number of occasions the plaintiff had alleviated the flooding by pumping out water from the ditch.

[7] Fundamental to the ultimate result before Gilmore J. was a rejection of the evidence of Gaetano and a finding that where his evidence conflicted with that of the plaintiff, she preferred the evidence of the plaintiff. It is also noteworthy at paragraph 85 that Gilmore J. rejected part of Gaetano’s argument as “disingenuous” and went on to state:

It appears he does not like to be told what to do when it comes to his property. He applied for permission to construct the berm only after he had already constructed it. In 2007 he submitted a permit for placement of fill only after he had received a Notice of Violation from the LSRCA. Mr. DiBlasi appears to like to act first and seek required permission later.

[8] In granting the injunctive relief that she did, Gilmore J. made a number of interim findings of fact which included:

(a) that prior to the construction of the berm water drained from the ditches and culvert C19 into a water course on Gaetano’s property;

(b) that the berm was preventing the flow of water to the wetland located on Gaetano’s property;

(c) that the berm had caused flooding in the north ditch;

(d) that the flooding in the north ditch would harm the pavement structure of Bloomington Road; and

(e) that the ponding of the water in the ditches was creating a public nuisance.

[9] Gaetano was given until the end of August 2014 to remove the berm. Beginning on August 22, 2014, work commenced in and around the berm and ceased on August 28, 2014. The plaintiff maintains that the work undertaken by Gaetano between August 22, 2014 and August 28, 2014 to remove the berm did not comply with the Order of Gilmore J., in that the berm was not removed in its entirety as required by the Order. The plaintiff argues that a portion of the berm, approximately one to two metres high and one hundred and fifty-seven metres long, remains on Gaetano’s property.

[10] As part of the evidence filed by the plaintiff in support of its motion seeking to find Gaetano in contempt, was the affidavit of Edmond Miecznikowski who is a Survey Crew Chief with the Roads Branch of the plaintiff. Mr. Miecznikowski deposes to the fact that he attended at the Gaetano property on October 3, 2014 for the purposes of carrying out “total station surveying”. In his affidavit, Mr. Miecznikowski deposes that Gaetano refused to allow him to place any stakes or take elevation measurements on the south portion of the berm, adjacent to the north drainage ditch, during his October 3, 2014 site visit.

[11] Also filed in support of the plaintiff’s motion seeking an order finding Gaetano in contempt, was the affidavit of Glen Cross who is a Construction Administrator with the Capital Planning and Delivery Branch of the plaintiff. In his affidavit, Mr. Cross also refers to the site visit of October 3, 2014 referred to in the affidavit of Mr. Miecznikowski, and the refusal on the part of Gaetano to allow Mr. Miecznikowski to place any stakes or take any elevation measurements on the south portion of the berm adjacent to the north drainage ditch. Mr. Cross also provides evidence with respect to the pumping efforts of the plaintiff to pump water out of the north drainage ditch, even after the work done by Gaetano in late August, which Gaetano says was fully effective in removing the berm. In point of fact, the evidence of Mr. Cross points to the fact that the north drainage ditch had been pumped between September 2, 2014 and October 7, 2014 on 14 separate occasions.

[12] In addition to the pumping that took place between September 2, 2014 and October 7, 2014, Mr. Cross refers in his affidavit of December 4, 2014 to a rainfall that occurred on November 24, 2014 that resulted in a significant accumulation of water in the north drainage ditch on Friday November 28, 2014. Photographs taken by Mr. Cross amply depict the extent of that accumulation of water.

Analysis

[13] In order for there to be a finding of civil contempt of court a three part test must be satisfied, specifically:

(a) that the order that was breached must state clearly and unequivocally what should and should not be done;

(b) that the party who disobeys the order must do so deliberately and wilfully; and

(c) that the evidence must show the contempt beyond a reasonable doubt.

(See Prescott-Russell Services for Children and Adults v. N.G et al., 2006 81792 (ON CA), 2006 82 O.R. (3d) 686, Ontario Court of Appeal at paragraphs 26 to 27)

[14] It is argued by counsel for Gaetano that the Order of Gilmore J. is ambiguous because it does not define the length, breadth or height of the berm and, as such, Gaetano could not know what it was that he had to remove. It is argued on the basis of the first part of the test for civil contempt that Gaetano, in order to be found in contempt, must clearly understand what it was that he had to do in order to comply with the Order of Gilmore J. (See Bell ExpressVu Ltd. Partnership v. Torroni, 2009 ONCA 85 at paragraph 22)

[15] The same type of argument was made by the appellant in Boily v. Carleton Condominium Corp. No. 145, 2014 ONCA 574, [2014] O.J. No. 3625, where the motions court judge had ordered that the appellant “reinstate the courtyard as it existed after the repairs to the garage”. The appellant argued that this language was unclear and ambiguous. This argument was found to have no merit and was disposed of as follows at paragraph 59:

I find no merit in this ground of appeal. In my view, by submitting that the 2011 Endorsement is unclear, the Appellants are attempting to do what Lauwers J. refused to allow the contemnor to do in Sweda Farms, quoting from Beaudouin J.A. in Zhang c. Chau, 2003 75292 (QC CA), 229 D.L.R. (4th) 298 (Q.C.A.) at para. 32 – to “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.”

[16] I am not satisfied that the Order of Gilmore J., as it relates to the “removal of the berm in its entirety”, is in any way ambiguous. It was entirely within the knowledge of Gaetano as to the state of his property prior to the construction of the berm. What is particularly telling is that no evidence was filed before me by Gaetano that establishes the instructions, if any, that he gave to the individuals who undertook the removal of the berm in late August 2014. There is no evidence with respect to the site elevations that were given to the construction crew. No engineering plan and no grading plan, nor any work or site plan was put into evidence by Gaetano to show the height, width and length of the berm as it existed prior to its removal, and what the construction crew was to do in terms of the site and grading plan once the work was completed. The absence of this evidence, in my view, is particularly telling against Gaetano.

[17] As well, I take note of the fact that when employees of the plaintiff attended at Gaetano’s property on October 3, 2014, Gaetano refused to allow the plaintiffs survey crew chief to place any stakes or take any site elevation measurements on the south portion of the berm adjacent to the north drainage ditch. The refusal on the part of Gaetano to allow such simplistic measurements to be undertaken, in my view, can only point against Gaetano’s evidence that the berm was removed in its entirety. If he had nothing to hide, rhetorically I ask the question why not let the plaintiff surveyor confirm this.

[18] The onus of proof in establishing civil contempt is on the moving party, i.e. on the plaintiff. The onus of proof requires the plaintiff to establish beyond a reasonable doubt that Gaetano deliberately and willfully disobeyed a lawful court order found to be clear and unambiguous.

[19] The purpose of the Order of Gilmore J. in requiring Gaetano to remove the berm was to alleviate the flooding that had occurred in the north ditch since the creation of the berm. If Gaetano in fact had removed the berm as he deposes to in his affidavit, then the flooding that was occurring as a result of the existence of the berm should have stopped. The evidence of Mr. Cross, with respect to the number of occasions when flooding has required pumping in the north ditch, raises real doubt that the berm has in fact been removed as Gaetano says it has been.

[20] Gaetano says that he has removed the berm and the evidence is clear that some part of the berm has been removed. The plaintiff maintains that there still remains a significant portion of the berm yet to be removed.

[21] While I am satisfied that there has not been compliance with the Order of Gilmore J., and that there still remains a portion of the berm yet to be removed to comply with the Order of Gilmore J., at this stage I am not satisfied that the plaintiff has met the onus of establishing that the actions of Gaetano amount to a wilful and deliberate disobeying of the Order. There has been some attempt at compliance.

[22] In coming to the conclusion that the evidence falls short of establishing a wilful and deliberate breach of the Order, I am very mindful of the fact that a portion of the berm still remains on Gaetano’s property and must be removed in order to alleviate the flooding that is ongoing. I am also equally mindful of the fact that Gaetano appears to be the type of person who, adopting the language of Gilmore J., “appears not to like to be told what to do when it comes to his property”. This statement is reinforced by his actions on October 3, 2014, when he refused permission to the plaintiff’s representatives to undertake what would appear to be relatively simple tasks in terms of the survey of the berm.

[23] Acting on the authority of Rule 60.11(5) and the endorsement of the actions taken by the motions judge in Boiley, I am ordering that Gaetano provide unfettered access to his property for representatives of the plaintiff to undertake the necessary survey and establish the appropriate site elevations to allow for compliance with the Order of Gilmore J. in the removal of the berm in its entirety. Gaetano is to allow such unfettered access to occur upon 48 hours’ notice within 10 days from the date of receipt of these reasons. Gaetano is to be provided with a copy of the survey and necessary details to provide him with the necessary information to then comply with the Order of Gilmore J. Upon receipt of the survey and particulars, Gaetano has then 30 days to comply with the Order of Gilmore J.

[24] If the parties are unable to agree on the form of my Order I may be spoken to. Arrangements can be made through my assistant for the purposes of a conference call. If the parties are unable to agree upon the costs the motion, written submissions limited to five pages in length may be submitted by the parties, to be received no later than 10 days after the receipt of these reasons.

Justice M.L. Edwards

Released: July 16, 2015