Court File and Parties

Court File No.: CV-14-502018-00A1 Date: 2019-07-26 Superior Court of Justice - Ontario

Re: Shari Krieser, Plaintiff – AND – Anna Garber, Michelle Garber, Susin Garber, Mike Nealon and Nealon Wood Products Ltd., Defendants – AND – George Krieser, Third Party

Before: E.M. Morgan J.

Counsel: Ken Prehogan, Lia Boritz and Kelsey Gordon, for the Plaintiff and Third Party David Thompson and Celina Fotiadis, for the Defendants, Mike Nealon and Nealon Wood Products Ltd. Irvin Schein, for the Defendants, Anna Garber, Michelle Garber, and Susin Garber

Heard: July 26, 2019

Contempt Motion

[1] The Plaintiff and Third Party (“Krieser”) move for contempt of court against the Defendants for their failure to date in carrying out the mandatory Order that I issued following a two-week trial between the parties.

[2] Krieser also moves for an order authorizing the registering of my judgment on title to the property owned by the Defendants, Anna Garber, Michelle Garber and Susin Garber (“Garber”), at 144 Lake Drive East, Georgina, Ontario. That judgment impacts on property rights of Krieser’s at 140 Lake Drive East, and Krieser wishes to give notice of those rights via the land registry.

[3] I gather that Krieser has already tried to register my reasons for judgment, but it was not in a form that the land registry office would accept. I do not know whether the formal judgment taken out by Krieser is any more registerable, but I will leave it to Krieser and his counsel to figure out with the land registry officials what form they need to register notice of the judgment on title. I understand the desire for notice, but it is for the land registry, not me, to determine what documents are registerable and what are not. I am making no order with respect to the registration request.

[4] On March 29, 2019, I released my judgment ordering the Defendants to remove the dock that they had built extending out from the Garber property along the shore of Lake Simcoe. The dock was constructed by the Defendants, Mike Nealon and Nealon Wood Products Ltd. (“Nealon”), and was built contrary to the work permit issued by the Ministry of Natural Resources (“MNR”) on August 17, 2011. The dock, which incorporates numerous large boulders that surround it for protection from ice flows in the winter, extends across the projected property line at the western boundary of the Garber property and interferes with the use and enjoyment of the neighbouring property owned and occupied by Krieser.

[5] Nealon applied for a work permit to remove the dock on June 3, 2019. He contends that he was pondering how to do the removal before applying for a permit, and that in any case two months is not an unreasonable amount of time under the circumstances as it is a complicated bit of work to remove a large structure like this from the lake bed. Nealon also says that my Order is in need of clarification, as it did not specifically set out whether the demolition of the dock would have to await a work permit from the MNR.

[6] Krieser contends that Nealon intentionally delayed the application for the work permit. They also contend that Garber has been one of the causes of delay. As the owner of the property, Garber would have to authorize the work being done by Nealon, and yet Garber under cross-examination on a related motion for a stay of my judgment stated that he was engaged in painting and repairing the dock rather than demolishing it. Indeed, it would seem that at the time of Nealon’s work permit application on June 3rd, Garber had not authorized any work to be done. Nealon only received ex post facto authorization from Garber several weeks later when he started doing some preliminary work in removing the decking from the above-water part of the dock

[7] All counsel agree that the test for civil contempt is as set out by the Supreme Court of Canada in Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79: a) “the order alleged to have been breached ‘must state clearly and unequivocally what should and should not be done’” [para 33]; b) “the party alleged to have breached the order must have had actual knowledge of it” [para 34]; and c) “the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels” [para 35]. Importantly, the Court has preserved a discretionary element to the contempt power of a motions judge to the effect that “where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt” [para 37].

[8] As indicated, Nealon is of the view that my Order needs clarification, and that accordingly the first part of the test has not been met. With all due respect, there is no merit to this contention. I ordered the dock taken down. There is nothing unclear about that; indeed, Nealon testified at trial that if he were ordered to do so he would be able to take it down. Krieser’s counsel points out that the formal judgment was taken out with the agreement of Nealon’s and Garber’s counsel as to its form and content, with no suggestion that it was in need of clarification.

[9] My reasons for judgment did not say one way or another whether a permit should be applied for, as that is in the nature of how to implement the Order and not the meaning of the Order. By the same token, I did not specify which equipment was to be used in the demolition. As I told counsel at the hearing, whether to apply for a demolition permit to do the required work is for the Defendants to assess and for the MNR to determine, not the court.

[10] In any case, the record shows that Nealon was entirely aware that an MNR permit would be required. Apparently, in 2013 when he was charged with the provincial offense of constructing the dock contrary to the building permit, he applied for and received a permit to remove the boulders that crossed the projected property line between the Garber and Krieser properties. That work was never done at the time. But if a permit was required in 2013, there is no reason to think that it would not be required in 2019.

[11] As for the balance of the Carey v Laiken test, it is not controversial that Nealon and Garber knew of the Order, as they were both parties to the trial and represented at all times by very competent counsel. The real question is whether the delay has been intentional, or, whether Nealon and Garber acted in good faith and reasonably in their compliance efforts.

[12] In saying that they acted intentionally, Krieser’s counsel relies on a number of cases which suggest that there are very few excuses for non-compliance with a court order. In Boily v Carleton Condominium Corporation 145, 2013 ONSC 1467, paras 37-40, the court indicated that it is not a defence to a contempt charge to argue that the order is impossible to comply with where the impossibility is a result of the contemnor’s own conduct. Impossibility is frequently said to go to sentence, but not to liability for contempt: Phanpha v Bytyqi, 2019 ONSC 3556, para 10. Further, in In Sussex Group Ltd. v 3933938 Canada Inc. (cob Global Export Consulting), [2003] OJ No 2906, para 55, it was held that “[i]t is no defence that the court order is incorrect, null, or under appeal, and thus ‘ineffective’”.

[13] One place where a failure to adhere to a court order or other legal imperative has been found to be legitimate is in the face of a competing legal requirement such as the need to obtain a work permit. Wilson J. expressed this in her concurring opinion in Perka v The Queen, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, 277-278: “where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused’s act constitutes the discharge of a duty recognized by law.” To the extent that a permit is required, Nealon was justified in applying for it and in waiting until it is granted to commence his demolition work.

[14] Krieser’s counsel does not take issue with the need for a permit from the MNR, but he does take issue with the idea that nothing can be done before a permit is issued. He bases this argument on a review of Ontario Regulation 239/13 under the Public Lands Act, RSO 1990, c P43, which sets out the need for a permit when working on the lake bed. Of particular significance is that “dredging” is an activity that requires a permit, and so extracting the piles on which the dock rests and removing the bottom layer of boulders surrounding the dock and embedded in the floor of the lake require a permit. Otherwise, Krieser’s counsel contends, removal of the rest of the dock’s structure and the boulders that lie on top of the bottom-most layer can be done immediately.

[15] Krieser’s position is that Nealon’s failure to start that work is a result of intentional delay and is a sign that he has not approached the task in a bona fide manner. According to Krieser’s counsel, any part of the removal project that can legally be accomplished without a permit should have been undertaken immediately or very soon after my judgment was rendered.

[16] In my view, Krieser’s counsel has circled the applicable portions of O Reg 239/13 with too fine a pencil. Nealon’s counsel submits that to remove the entire upper portion of the dock but leave the piles until a permit is issued would create a hazard in the water. The piles are not as visible to boaters once the top of the dock is gone, and it is generally not advisable to leave half a structure underwater in this way. Nealon’s counsel also points out that the evidence makes clear that the boulders surrounding the dock must be removed with grappling equipment that cannot handle the upper layer of rocks without disturbing the lower layer. If the MNR has a concern about the lake bed and the underwater environment being disturbed, the removal of all of the boulders should be done together and in accordance with the MNR’s specifications.

[17] In my view, the pertinent question is not why did Nealon fail to get started with portions of the removal project before the permit is issued. Rather, the question is why did he wait two months before applying for the permit in the first place? The answer to that question is, in effect, provided by Nealon’s counsel who points out that Nealon started work on removing the decking from the surface of the dock just three days after the motion to stay my judgment was dismissed by the Court of Appeal. That motion was heard and decided by Hourigan JA on June 19, 2019.

[18] In other words, having filed an appeal of my judgment, Nealon and Garber were hoping that they could obtain a stay and put off the demolition of the dock. That tact, which was not a proper one to pursue, came to an end when Hourigan JA determined that there would be no stay. As the court noted in Sussex Group, supra, para 55, “The order stands, and commands respect in all its aspects, until it is reversed on appeal…or an equally effective order [is] secured to the effect that it need not be obeyed.” The demolition order was enforceable when issued, and there was no reason to wait for the Court of Appeal to confirm that legal reality.

[19] In taking the approach that they did, Nealon and Garber managed to delay the removal of the dock to the point where Krieser will have to endure one more summer season at his lakeside home without boat access to his waterfront. That is entirely unfair to the successful party at trial. That said, it is difficult at this point to perceive whether this was done out of the misguided hope that a stay of proceedings would save them the work, or was intentionally strategized and reflective of male fides.

[20] In any case, construction – or, rather, deconstruction – of the dock could not have commenced until the beginning of July. The MNR wrote to Nealon on June 19, 2019 indicating that there are conservation issues that must be taken into account. As the MNR explained it:

Further, most work is not permitted to take place during fish-spawning timing windows. The timing window for the area of your application provides that in-water work can only occur from July 1st to March 31 in any given year. The Ministry may consider a request for work to be undertaken outside the timing window where it is determined that the work is so minimal as to not impact fish spawning.

[21] In separate correspondence to Krieser’s counsel, the same MNR official has indicated that it takes on average of 6 weeks for a permit application to be processed and a permit granted. It has now been nearly two months since Nealon submitted his permit application, and there has been no response from the MNR. I do not understand what is causing the holdup, and neither does Krieser or his counsel. Nealon has apparently been in communication with the MNR official handling the application, but if he has an explanation there is nothing to reveal it in the record. I do not know whether the permit process has slowed down because of some actual environmental, safety, or conservation concern, or because of a lack of motivation on the part of the MNR to speedily process the application.

[22] I would expect the work permit application to be answered by the MNR in the very near future. Assuming that the permit is issued, I would likewise expect Nealon to start work very soon after that. Krieser has a right to the remedy that was granted at trial, and his property should regain its boat access as soon as is feasible given the permit process. If that does not happen, I will have better insight into whether the delay to date has been intentional or not on the part of both Defendants.

[23] I am therefore adjourning the contempt motion. If the MNR has not responded to the work permit application submitted on June 3, 2019 within 30 days of today, Krieser shall be at liberty to bring this motion back to continue arguing contempt, on notice to the Defendants and on a date coordinated with my assistant, with a subpoena issued to the relevant MNR official to testify as to what is going on with the permit application. If the MNR grants the permit, and if Nealon and/or Garber have not substantially completed the removal of the dock within 30 days thereafter, Krieser shall be at liberty to bring this motion back to continue to argue contempt. It seems likely that any future delay will shed light on the nature of the delay up until now.

[24] In the event that all goes well, and the MNR issues the permit in the very near future and Nealon manages to accomplish the removal of the dock shortly thereafter, I would ask counsel to take out an Order dismissing the motion. The pending motion should not remain open indefinitely in the Motions Court files.

Morgan J.

Date: July 26, 2019