ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-04-076-0001

45/02-ESTATE
11/03-ESTATE
13/03-ESTATE

DATE: 20150909

B E T W E E N:

THE BANK OF NOVA SCOTIA TRUST COMPANY, ESTATE TRUSTEE DURING LITIGATION OF THE ESTATE OF JOHN EDWARD THORKILDSEN

Stephen F. Waqué, for the Moving Party

Applicant

• and -

BRIAN THORKILDSEN

Robert Kerr, for the Respondent

Respondent

HEARD: August 4, 2015

D E C I S I O N

WILCOX, J.

INTRODUCTION

[1] The Bank of Nova ScotiaTrust Company, Estate Trustee during litigation of the Estate of John Edward Thorkilden, (the Moving Party) moved for an order vesting certain lands in, and reserving two easements in favor of lands owned by, Brian Thorkildsen, and for an order finding Brian Thorkildsen in contempt of the Order of Boissonneault J. dated August 24, 2009 (the Order) and imposing a penalty for that contempt.

BACKGROUND

[2] John Edward Thorkildsen and his son, Brian Thorkildsen, owned adjoining properties fronting on Georgian Bay. The family’s use of the properties did not fully respect the boundaries between the properties. After John Edward Thorkildsen died on June 29, 2002, a dispute arose among the beneficiaries of the estate, including Brian Thorkildsen.

[3] There was an Outline of Settlement dated April 25, 2007. Counsel explained that that did not, in fact, settle the matter, and further negotiations resulted in the order of August 24, 2009. That explanation helps in understanding some references in Brain Thorkildsen’s affidavit to meeting dates and to Paul Forth O.L.S. (the surveyor) producing a sketch, which will be referred to below, before the date of the Order.

[4] Pursuant to the Order, among other things, the following were to occur:

1. The Estate was to convey to Brian Thorkildsen the lands next to his house (referred to as B1).

2. The Estate was to convey to Brian Thorkildsen the easement for access to a water well on its property which serviced Brian Thorkildsen’s property (referred to as B2).

3. The Estate was to convey to Brian Thorkildsen a pedestrian right of way (referred to as B3).

[5] The conveyances were subject to a severance application which has been approved by the municipality. However, Brian Thorkildsen has not provided his counsel with the instructions necessary to register the transfers. Therefore, the conveyances required by the order remain uncompleted.

[6] Only the conveyance of the pedestrian right for accessing the waterfront from Brian Thorkildsens’ property over the Estate property, referred to as B3, remains controversial.

[7] The order further provided for the pedestrian right of way as follows:

4. and this court orders and the Estate agrees to convey to Brian Thorkildsen a right of way, for pedestrian traffic only, as shown on Schedule “B” as B3, encroaching no further than six feet to the “proposed right-of-way” on Schedule “B” attached hereto.

5. and this court orders that for greater certainty, the access referred to in paragraph 4 herein, shall not exceed the length between the 2 x’s shown on Schedule “B” attached hereto.

[8] Schedule “B” was a sketch of the 2 properties in question prepared by the surveyor and showing, among other things, another proposed right-of-way over the Estate property, apart from the pedestrian right-of-way in question, which right-of-way, counsel explained, was never implemented but which was used as a reference point in paragraph 4 of the order.

[9] The sketch was also used to locate the items identified as B1, B2 and B3, referred to above.

[10] Item B3 on the sketch is located near the waterfront. It consist of two more or less straight lines extending from Brian Thorkildsen’s property onto the Estate property where they meet at approximately a right angle, labelled “6’ pedestrian right-of-way” and 2 “x’s”, all crudely drawn on the sketch.

[11] I note that this sketch prepared by the surveyor was not a plan of survey or a reference plan. It was initially dated February 26, 2008, but subsequently revised repeatedly. Different versions are attached to various documents filed in this matter.

[12] The surveyor also prepared Plan 42R-19437 dated June 15, 2011 and deposited at the land registry on August 17, 2011. Parts 1, 2 and 3 correspond with B1, B2 and B3, respectively, of the sketch attached to the order. This Plan was later replaced by a corrected version, 42R-19817, dated December 12, 2012. The corrections are not relevant for present purposes. These plans are referred to hereinafter as “the survey”.

[13] The Affidavit of Brian Thorkildsen sworn July 11, 2015 indicates that he believed when the agreement was made on April 27, 2007 that the pedestrian right-of-way would follow an existing foot path and attached as an Exhibit a version of the sketch subsequently produced by the surveyor showing that.

[14] However, he states that that was not acceptable to the Estate’s representatives, and another sketch was produced which was not acceptable to him because it placed the right-of-way over terrain that would necessitate the building of steps.

[15] He then makes reference to his counsel’s letter of May 23, 2012 “setting out the impracticality of the right-of-way as now proposed and sets out my concerns and recollection at the previous meeting at the courthouse in Parry Sound”. (sic)

[16] In that letter to the Bank of Nova Scotia Trust Company (apparently before they had counsel) and to counsel for the other beneficiaries of the estate, Brian Thorkildsen’s counsel briefly reviewed matters with respect to the making of the order and preparations to register the transfers, noting in particular:

You will also recall that Brian made several attempts at the August 24, 2009 hearing to express his concern regarding the location of this waterfront right-of-way because of serious constraints in the terrain which would not allow easy access due to large outcropping of rocks straddling the property lines at the waterfront.

Despite his concerns and perhaps in spite of the fact that the various counsel in attendance did not fully understand the situation, Brian Thorkildsen signed the minutes of settlement.

[17] Counsel went on to say in the letter:

It is at this point in the process, that we appear to have come to an impasse.

My client continues to express his concerns about Part 3 on Plan 42R-19437 and maintains his earlier position that it is virtually impossible to gain access to the waterfront from his property by using the triangular shape pathway which is illustrated as Part 3 on the said Plan.

We have spoken with Paul Forth, OLS and he agrees. He has indicated to us that the proposed pedestrian access, which he surveyed and which is illustrated as Part 3 on Plan 42R-19437, is impossible to use without walking down the surface of a very large and steep bald rock and then having to scale up a steep and ragged rock outcropping on the other side.

Mr. Forth has indicated that he brought this to the attention of Scotia Bank, the Estate Trustee, but was advised that it was imperative that the right-of-way be located exactly where it was indicated in the minutes of settlement and the order with no compromise or alterations.

I also enclose a copy of Mr. Forth’s sketch, which was most recently revised on March 14th, 2011. We have hi-lited a path that Mr. Forth showed on this sketch as being, in his opinion, the more reasonable approach to the waterfront.

While I fully understand the necessity of adhering to the minutes of settlement and the order, I believe that the terms of the original agreement are not being carried out in the sense that access to the waterfront really hasn’t been given to my client if the physical properties of the proposed access make it impossible for him to utilize it in any purposeful manner.

I invite your comments in this regard and any recommendations that we might consider to rectify the situation.

I look forward to hearing from you with respect to this matter and hopeful that we can come upon a solution to better effect the original intent of the Minutes of Settlement. (sic)

[18] The sketch in questions appears to be a different version of the one attached to the order and shows both the pedestrian right-of-way as in Plan 42R-19437 Part 3 and a longer, curving one proposed by the surveyor.

[19] The version of the sketch attached to the order does not include either version of the pedestrian right-of-way, other than the one crudely drawn on, as previously noted.

[20] In a letter dated January 15, 2015 to counsel for the Moving Party, the surveyor opined that he had shown the right-of-way in question on Plan 42R-19817 based on his interpretation of the order and the sketch attached. However, he adds that, “the physical location of the proposed pedestrian right-of-way is located in front of a very steep rock ledge which would make it very impractical to walk on if not impossible to traverse”.

[21] Mr. Waqué, counsel for the moving party, wrote on August 14, 2013 to counsel for Brian Thorkildsen and for the other estate beneficiaries, respectively, advising that his firm had been retained by the Bank of Nova Scotia Trust Company to assist in the matter, and that he had looked into the matter of the pedestrian right-of-way. He opined that it made “practical sense to have the water access re-described on a new reference plan”. After outlining the cost of obtaining the new plan and re-submitting the application for the consent to sever, which he indicated that his firm would do, he requested confirmation that there was no objection to this, but got no response.

POSITIONS

[22] The moving party sought a vesting order to effect the transfers required by the order, as the estate trustee wanted to sell the property.

[23] Its counsel, Mr. Waqué, indicated that the beneficiaries of the estate other than Brian Thorkildsen were not responding but were supporting the motion, and that he was their agent for the purpose of saying so.

[24] Mr. Waqué made several points:

1. Brian Thorkildsen knew of the problematic terrain when he agreed to the Order. This appears from passages in Brian Thorkildsen’s counsel’s letter of May 23, 2012, excerpted above, in which he refers to Brian Thorkildsen expression of concern at the hearing in which the order was made, which passage Brian Thorkildsen adopts in his affidavit of July 11, 2015.

2. Brian Thorkildsen sought amendments to the Order as set out in his counsel’s letter of May 23, 2012.

3. Mr. Waqué tried in his letter of August 14, 2013 to get agreement to a re-description of the right-of-way for registration purposes, but there was no response from Brian Thorkildsen’s counsel.

4. Brian Thorkildsen’s counsel letter of May 23, 2012 does not question the technical compliance of the survey of the right-of-way with the order.

5. No one has sought to cross-examine the surveyor on his opinion expressed in his letter of January 15, 2015, included in the responding motion record, that he has properly interpreted the Order in his survey.

6. Brian Thorkildsen has had years to bring a correction application. He knew the situation. The onus was on him to raise an issue with the survey. He has failed to act.

7. Even if the Order is eroneous, the law requires it to be respected and adhered to.

8. There is a value to finality. Brian Thorkildsen has other options for dealing with access to the water once the transfers required by the Order are carried out.

[25] The respondent, Brian Thorkildsen, sought to have the motion dismissed. He also wished to have the location of the pedestrian right-of-way changed, disputing that he agreed to it being located where the survey places it over difficult terrain. He acknowledges that the problem was apparent by the time of his counsel’s letter May 23, 2012, and admits that he should have taken positive steps to vary it. He complained that, following Mr. Waqué’s letter of August 14, 2013 proposing a solution, the first notice of the moving party’s intention to rely on the survey was in Waqué’s letter of March 9, 2015 to Brian Thorkildsen’s counsel. Now that the moving party’s position is known, he asked for sixty days to move to clarify the Order.

ANALYSIS

[26] It appears that Brian Thorkildsen entered into an improvident deal when the terms of the Order were negotiated. He knew the situation and the terrain, participated in the negotiations and consented to the settlement. Subsequently, he has been unable to negotiate an improvement, despite the objectively apparent good sense that that would make. That the others involved are insisting on imposing their preferred location of the right-of-way, without any explanation that has come to the court’s attention, is to their discredit. The settlement involved crudely drawn markings on a sketch that showed neither the topography nor choices of surveyed routes, creating a risk of misunderstanding. He has known since May, 2012, if not earlier, where the survey placed the right-of-way. He did not take issue with the surveyor’s interpretation of the Order in locating the right-of-way (although his counsel did in arguing the motion) and took no steps to try to challenge the Order on the basis that it did not accurately set out the agreement. Only now is that suggested.

[27] At this point, the Order is nearly 6 years old. This issue is no longer whether the right-of-way is optimized for Brian Thorkildsen. It is whether the Order should be implemented. I find that it should. Therefore there shall be an order in the terms of the draft vesting order that is Schedule “A” to the notice of motion.

CONTEMPT

[28] That leaves the issue of contempt to be addressed.

[29] The ground for the moving party’s motion for an order declaring Brian Thorkildsen to be in contempt of the Order is that, after counsel for the moving party advised Brian Thorkildsen’s lawyer that approvals for severance had been obtained and the parties could proceed to effect the transfers pursuant to the Order, Brian Thorkildsen’s lawyer responded that he had not obtained instructions from Brian Thorkildsen and could not register the transfer. This allegedly frustrated the process of the court, caused a nuisance, prevented finalizing the estate, and brought the administration of justice into disrepute.

[30] Counsel for the moving party indicated that he had no mandate from his client to seek a penalty for contempt. Rather, it was the duty of counsel to see that the order was enforced and an appropriate penalty imposed.

[31] The law of civil contempt was reviewed and summarized by the Ontario Court of Appeal in G.(N.) c. Services aux enfants & adults de Prescott-Russell, (2006) 2006 81792 (ON CA), 82 O.R. (3rd) 686, in which the following points appear:

1. Civil contempt requires non-compliance with judgments, orders, or other court proceedings.

2. Notwithstanding the civil nature of the contempt, contempt of court is quasi-criminal.

3. The onus of proof is the criminal standard of beyond reasonable doubt.

4. The burden of proof is on the party alleging contempt.

5. The criteria which apply to a finding of guilt of contempt of court are:

a. The order which has not been complied with must clearly and unequivocally set forth what must be done or not done,

b. The party who disobeys the order must have done so in a deliberate and voluntary manner; and

c. The evidence must establish contempt beyond a reasonable doubt. Any doubt must be resolved in favor of the person alleged to have violated the order.

[32] In Clinton v. Clinton, 2015 ONSC 4256 the court noted that, “(O)ften, although not always, a trial is necessary to establish the alleged beyond a reasonable doubt”.

[33] I am not persuaded that the Order was clear and unequivocal. The choices of possible routes for the right-of-way were not on the version of the sketch that was appended to the Order. Nor was there a topographical map used. So, I am not persuaded that a clear choice was made. The route ordered was drawn roughly and in free hand on it. The surveyor has opined that his survey is an accurate representation of that. However, it appears from comparing the sketch and the survey that there is some difference between them in where they place the right-of-way. Certainly, if the matter had been left to the court to decide on the evidence that I have seen, it would be very surprising if the court chose the route being insisted upon by the estate and the other beneficiaries.

[34] Nor am I persuaded that Brian Thorkildsen deliberately disobeyed the order. He clearly wanted a better route that the others were insisting upon. Despite the long history of the matter, Mr. Waqué’s letter to Brian Thorkildsen’s counsel seeking an executed acknowledgement and direction to allow registration of the transfers was not done until March 9, 2015. There is a suggestion that only then did it become clear that the moving party would be insisting on registering the right-of-way as surveyed. The available information on point is only that Brian Thorkildsen’s lawyer said on April 9, 2015 that Brian Thorkildsen did not give him instructions to complete the registration. The motion documents to find Brian Thorkildsen in contempt were served only on July 8, 2015. That Brian Thorkildsen had not signed by the date the motion was heard, but instead argued for relief other than what the moving party sought, does not rise to the level of contempt in the circumstances, in my view.

[35] I do not find beyond a reasonable doubt Brian Thorkildsen to be in contempt of the Order.

COSTS

[36] The parties have 30 days to make written submissions as to costs, limited to 3 double spaced pages each plus bills of costs, if costs are sought.

Justice James A. S. Wilcox

Released: September 9, 2015