Court File and Parties

Court File No.: CV14-239 Date: 2017/01/20 Ontario Superior Court of Justice

Between: Yves Brazeau and Sylvie Brazeau, Plaintiffs And: Julie MacDonald, Defendant

Before: Charbonneau, M.Z.

Counsel: Emilie Leblanc Lacasse, for the Plaintiffs Julie MacDonald, Defendant, self-represented

Heard: October 14, November 29 and December 1, 2016

Reasons for Judgment

[1] The defendant brought a motion for an order enforcing the “mediation contract” (Minutes of Settlement), damages, judgment pursuant to Rule 21.01 of the Rules of Civil Procedure and costs.

[2] The plaintiffs brought a cross-motion for an order dismissing the defendant’s motion, a declaration that the Minutes of Settlement are valid and enforceable and in full force and effect, enforcing the Minutes of Settlement or in the alternative granting judgment dismissing the action and counterclaim without costs in accordance with the Minutes of Settlement and costs.

[3] When the motions came for hearing on October 14, 2016, both parties agreed that the action and the counterclaim had been settled by the Minutes of Settlement and that the plaintiffs were entitled to judgment dismissing the action and counterclaim without costs if the plaintiffs had fulfilled their obligation under the terms of the minutes. I found it was impossible to determine this issue on the paper record before the Court and therefore directed the trial of the following issue: did the plaintiffs complete the work they undertook when they signed the Minutes of Settlement?

[4] A trial of that issue was held on November 29th, and December 1, 2016.

Background Facts

[5] On March 31, 2014, the plaintiffs commenced an action against the defendant claiming the following:

1. The Plaintiffs claim from the Defendant: (a) A declaration and determination that the Plaintiffs are the absolute owners of those lands and premises municipally known as 2046 Patricia Street, in the City of Clarence-Rockland, Province of Ontario (being PIN 69064-0892 LT); (b) A declaration and determination that the Defendant does not have a right, titled or interest whatsoever in respect of any portion of the Plaintiffs’ property, by adverse possession or otherwise; (c) A mandatory Order requiring the Defendant in removing all encroachments and fences (as defined below) encroaching on the Plaintiffs’ land and to restore the landscape to its original grade and condition, and replacement of the topsoil and sod, at the Defendant’s expense; (d) An interim, and then a permanent injunction forbidding the Defendant, agents, servants or invitees or any other deriving their right or entitlement from: (i) entering onto or effecting work on the Plaintiffs’ land municipally located at 2046 Patricia Street, in the City of Clarence-Rockland, Province of Ontario, except for the purposes of repairing or restoring damage done to the property as ordered by this Court; and, (ii) obstructing in any manner whatsoever, the Plaintiffs or any occupants or invitees of the Plaintiffs’ property, from accessing any portion of the Plaintiff’s’ property. (e) General damages now estimated at $40,000.00, the particulars of which will be provided prior to the trial of this action, for: (i) Encroachment onto the Plaintiffs’ property; (ii) Encroachment of the Defendant’s wooden fence on the plaintiff’s’ property; (iii) Destruction of the Plaintiffs’ land; (iv) Alteration of the landscape; (v) Removal of soil; and, (vi) Trespass. (f) Aggravated and punitive damages in the amount of $20,000.00 for knowingly engaging in a violation of the Plaintiffs’ rights despite repeated warnings from the Plaintiffs to avoid such violations, abuse of goodwill extended, and callous disregard for the norms of behavior expected between neighbours; (g) prejudgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; (h) postjudgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; (i) the costs of this proceeding, plus all applicable taxes, including the Plaintiffs’ costs of identification of the problem, professional assistance and costs to correct together and those detailed above, in the amount not yet completed and totalled, details of which will be provided prior to trial; (j) Other such costs of this action in such proportion at such scale as the Court deems fit and appropriate; and, (k) Such further and other Relief as to this Honourable Court may seem just.

[6] The Plaintiffs alleged that the defendant’s fence encroached on their land and had to be removed.

[7] On May 5, 2014, the defendant delivered a counterclaim alleging that the plaintiffs had caused damaged to her wooded fence and her land and claimed damages in the amount of $10,000.00. She also alleged that she was entitled to a possessory title by adverse possession if the fence encroached on the plaintiffs’ land.

[8] On March 24, 2016, the parties signed Minutes of Settlement agreeing that the action and the counterclaim would be dismissed on a without costs basis provided certain conditions were met.

[9] The obligations of the plaintiffs were described as follows in paragraphs 1, 4, 5, 6 and 8 of the minutes:

1. The Brazeau will remove Ms. MacDonald’s fence and the parties agree that a new fence will be erected precisely on the property line, south/west boundary of the Brazeau’s property;
2. The Brazeaus will erect a new PVC fence and Ms. MacDonald will have no say on the scope and size of the new PVC fence. The PVC fence will be 6 feet from the existing grade of the property line;
3. The Brazeaus will comply with the City of Clarence-Rockland’s Compliance Order, grading plan pool permit;
4. The new fence will be tight to the ground and secured with Ms. MacDonald’s share fences with her other neighbours;
5. The new fence is to be installed by the Brazeaus no later than July 15, 2016.

[10] The minutes further provided that:

“11. The parties will sign a Mutual Full and Final Release, in the form drafted by counsel for the plaintiffs once the work is completed and no later than July 22, 2016;

12. The parties will agree to dismiss this Action and Counterclaim, on a without costs basis, once the work is completed and no later than July 22, 2016.”

Positions of the Parties

The position of the Plaintiffs

[11] The plaintiffs submit that they have fully complied with their obligations and that they are entitled to a full and final release of the action and the counterclaim should be dismissed.

[12] They submit that the fence, as modified, meets the requirements of the minutes and none of the defendant’s complaints are justified. Secondly although some of the documentary documents were provided after July 22nd, they now have been provided and the defendant is not prejudiced by the brief period of delay. The July 22nd deadline only applies to the “work” to be completed namely the erection of the fence not the municipality’s Compliance Order. Finally the compliance with municipality’s grading requirements were never intended to be met at any specific date. The process involves the approval of the municipality and therefore beyond the control of the plaintiffs. The plaintiffs are doing everything to get final approval as soon as possible.

[13] The plaintiffs therefore ask the court to enforce the minutes and order the dismissal of the action and counterclaim.

The position of the Defendant

[14] The defendant submits that the modifications to the fence render it unfit and not a new fence as stipulated by the minutes. Moreover the fence is not 6 feet high and in many areas there are gaps where the soil on the plaintiffs’ side of the fence has been removed.

[15] Secondly the plaintiffs have not complied with the Compliance Order for the grading of the land and this continues to be a real concern which was meant to be addressed by the settlement.

[16] Finally the plaintiffs have failed to meet the limit date of July 22, 2016 in fulfilling all their obligations.

[17] The defendant therefore asks the court to order the plaintiffs to comply with the terms of the minutes concerning the fence and compliance with the Compliance Order.

Analysis

On the evidence I find the following facts.

The Fence

[18] The plaintiffs removed the existing wooden fence. The plaintiffs hired Total Fence to erect the new fence. The fence was installed on June 28, 2016, at a cost of $12,900.00. However, it was not installed tight to the ground. Ms. MacDonald complained that the fence was not tight to the ground as required and constituted a risk to her pets.

[19] On July 9th, 2016, Mr. Brazeau took down the fence and lowered it in order to eliminate any gap between the fence and the land. The land drops down from back to front of the properties. In order to have the fence run flat to the ground and also keep the fence level from back to front, Mr. Brazeau had to cut several posts and also lower some posts into the ground. In doing so he chipped several of the concrete bases holding the posts.

[20] The fence, as modified by Mr. Brazeau, is shown in the photos at Exhibit 1 – Tab R and Exhibits 14, 15, 16, 17, 18, 19 and 20. The fence as it stood on June 27, 2016 before the modification is shown on Exhibit 8.

[21] The defendant complained about the modified fence. She listed her complaints in a letter dated July 14, 2016, and filed as Exhibit 1- Tab S.,

“I do have numerous concerns and would like to outline some of the outstanding issues in regards to the fence that have not been addressed to date, as part of the mediation contract.

These are the outstanding issues as per the mediation contract:

• The fence is not 6 feet, due to it being in the ground.
• The fence is lower than my current wooden fence on the perimeters of my property.
• The fence is supposed to be tight to the ground, not in the ground.

My concerns in regards to the fence include:

• The PVC rails and panels are currently in the ground and this is not recommended due to frost concerns.
• Large chunks of grass have been removed, which result in a change in the grade.
• The fence posts have been lowered in height. The fence posts also have un-uniformed heights.
• The fence is on an angle from one side to the next, starting high and going low. The fence bows in the middle. The appearance of the fence is sloped and uneven.
• The fence has been cut and it is not a straight cut. It is uneven.
• The screws in the fence were removed and reinstalled; this may impact the durability of the fence.
• The original structure of the concrete has been altered due to use of a drill in order to lower the fence posts.
• Permission was not sought to cut the fence.
• The warranty for the fence may be compromised due to the numerous alterations to the fence structure.

Overall, these changes in the fence have a significant impact on the value of my property.”

[22] I have come to the conclusion that the fence erected by the plaintiffs substantially complies with the terms of the Minutes of Settlement. The only possible remaining issue is the possibility of small gaps between the ground and the bottom of the fence resulting from removal of sand and soil by the Plaintiffs on their side of the fence. Once the grading on the plaintiffs’ side is completed the fence will more than likely be tight to the ground.

[23] I do not accept the defendant’s submissions that the fence is not a new fence. The modifications by the plaintiffs did not change the nature and function of the fence. The evidence of the two representatives of Total Fence clearly indicates the fence is still under warranty by the manufacturer and Total will honour their work notwithstanding the modifications.

Pool Permit

[24] The municipality have issued a pool permit and I find this obligation has been fulfilled.

Compliance Order

[25] The plaintiffs took possession of the land in 2010. Yves Roussel, the municipal manager of engineering for Clarence-Rockland testified that the municipality have been trying for several years to have the plaintiffs comply with the grading by-law requirements.

[26] A letter requesting compliance had been sent to the plaintiffs by his predecessor in November 12, 2013. On October 22, 2015, Mr. Roussel sent a letter requiring compliance by November 23rd, 2015 under threat of enforcement proceedings.

[27] On November 24, 2015, the plaintiffs had not yet complied. They however promised to « have all landscaping and/grading plan works done before June 2016 ». In return Mr. Roussel granted the plaintiffs an extension of time to comply until the summer of 2016.

[28] As of the date of trial the plaintiffs had not completed the grading work. They only provided an engineering plan in September 2016 and the municipality had not yet approved the proposed grading.

[29] At my request, Mr. Roussel agreed to provide the municipality’s response to the plan within the next 10 days and the parties agreed to provide written submissions concerning the outcome of the review of the plans by the municipality. Both parties have confirmed that the municipality refused to approve the proposed grading work.

[30] I find that compliance with the municipality’s grading requirements included providing plans, obtaining approval and completing the grading work in accordance thereof.

[31] In his letter of October 22nd, 2015 (exhibit 23) the Compliance Order was set out as follows:

“The Occupancy for the above mentioned address has been given October 23rd, 2012. Therefore, we request that the completion of the works be done by November 23rd, 2015.

If the works are not completed by this date, we will be completing the words at your cost. Failure to complete these works could result in damaging the neighboring properties. Any damages related to this work not being done will end up being your responsibility.”

[32] I find the obligation to comply with the Compliance Order was an important term of the agreement reached by the parties when they signed the minutes on March 24, 2016. The plaintiffs had several months to comply with the order. They already had agreed with the municipality to complete the work before June 2016. I find that July 22nd, 2016 was a reasonable period of time to meet with their obligations under the minutes and was a term of the agreement. By only obtaining a plan and providing it to the municipality in September 2016 they acted unreasonably and in breach of their obligation.

[33] I agree with the defendant that to properly meet their obligations under the minutes, the plaintiffs had to complete the grading works before erecting the fence. This would have prevented any difficulty with the fence being tight to the ground all along its length. Presently, gaps are developing on the plaintiffs’ side of the fence because of the areas where soil and sand was removed. Once the grading work is done properly this should not be a problem. It must be remembered that the fence being tight to the ground was a very important element for the defendant.

[34] In any event, the plaintiffs have not completed an essential term of the contract. They are not therefore entitled to a full and final release nor a dismissal of the action and counterclaim. I therefore answer the issues in the negative.

[35] The plaintiffs’ motion is dismissed. The defendant’s motion is allowed and the plaintiffs are found in breach of the Minutes of Settlement. The plaintiffs are ordered to fully complete the work required for the grading according to municipal requirements within 100 days. The plaintiffs are also ordered to eliminate any gaps between the new fence and the ground within those 100 days.

[36] Each party may provide me with brief written submissions on costs. The defendant will submit her submissions within 20 days and the plaintiffs to answer within 15 days. If needed, the defendant to reply within 5 days thereafter.

The Honourable Justice M.Z. Charbonneau Released: January 20, 2017