Court File and Parties

Court File No.: CV-14-502018-00A1 Date: 2019-09-27 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: John Buhlman 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: September 27, 2019

Endorsement

[1] On July 26, 2019, the Plaintiff and Third Party (“Krieser”) moved for contempt of court against the Defendants for their failure to date in carrying out the terms of the judgment that I issued on March 29, 2019 following a two-week trial. I ordered both sets of Defendants to remove a dock owned by the Defendants, Anna Garber, Michelle Garber and Susin Garber (“Garber”) and built by the Defendants, Mike Nealon and Nealon Wood Products Ltd. (“Nealon”) that interferes with Krieser’s use and enjoyment of the next-door property.

[2] At the previous attendance, I indicated that I expected the parties to move diligently toward obtaining work permits from the Ministry of Natural Resources (“MNR”) to complete the work that had to be done to comply with my judgment. I indicated that if there was no progress within a month or two, the parties could return to court and were at liberty to call a representative from the MNR to explain what is going on with the permit applications.

[3] The matter has returned to court today and counsel has arranged for an official from the MNR, Alexander Gawlina, to attend. He was been sworn and examined as a witness on this motion.

[4] Mr. Gawlina indicated that an application to remove the dock and the piles on which the dock rests was submitted by Nealon on June 3, 2019. It took some time for the MNR to review and assess this application, as it is a complicated matter. On August 2, 2019, Nealon received a response by email from the MNR indicating that the work permit application needs amending in order to bring it into compliance with the Lake Simcoe Protection Plan.

[5] The Ministry finally denied Nealon’s application on August 6, 2019. On that date, Mr. Gawlina met with Nealon to discuss alternative applications that might accomplish something similar to what I ordered in my judgment. As a first step in that direction, on August 9, 2019, the MNR issued a work permit allowing for the removal of the large boulders that had been instrumental in interfering with Krieser’s use of their boat and their own dock and waterfront.

[6] In response to a question from counsel for Krieser, Mr. Gawlina indicated that this application was considered an amendment to the earlier one, which allowed the MNR to process it more quickly. The boulders have now been removed.

[7] On September 12-15, 2019, Nealon submitted three alternative work permit applications. These included cutting the piles off below the lakebed grade, cutting the piles off above the lakebed and below the waterline, and repurposing portions of the existing dock after modification to conform to the projected property lines. Mr. Gawlina indicated that it will take roughly 8 weeks from the date of their submission for these permit applications to be assessed and responded to by the MNR.

[8] Counsel for Krieser submit that the Defendants have been dragging their feet in attending to the removal of the interfering dock, in hopes that they will eventually not have to do anything at all. They indicate that the passage of time and the back-and-forth proposals with the MNR are indicative of a sort of coziness of Nealon with the MNR in the Lake Simcoe area and an overall intent to undermine the enforcement of my trial judgment.

[9] I do not see it that way. Mr. Gawlina was a straightforward, credible public official who explained the MNR’s timing and processing of the work permit applications without any sense that he preferred one side or another in this dispute. Nealon appears to me to be making a genuine effort to come up with proposals that will remove the interference with Krieser’s property while still complying with the MNR’s various policy concerns in issuing permits. Garber has been doing very little, but that is not surprising as they are the homeowners who have a professional contractor, Nealon, attending to the permit applications. I would think that most homeowners would similarly rely on their contractor to attend to the technicalities of a permit application and to conduct feasibility discussions with the permit-granting body.

[10] As I indicated at the hearing, I ruled in my judgment that the Garber dock as built constituted a nuisance that was to be removed from its present location. However, I expressed this conclusion not in any technical sense or as in terms that use construction or demolition jargon. If the piles can be buried, or cut off at some point rather than removed in their entirety, and that approach is found to comply with the MNR’s requirements, that could be a way of satisfying the terms of my judgment. I do not have the expertise, nor the institutional competence, to evaluate the safety, environmental or other regulatory concerns that the MNR brings to bear in granting a work permit. It is for the MNR, not me, to approve the approach that a contractor is to take. The key to fulfilling what I ordered in my judgment is to remove the nuisance, however that might appropriately be accomplished.

[11] I would suggest that Nealon re-submit the initial June 3rd application to remove the dock with all of the piles so that it can be considered by the MNR along with the other three alternatives that he has put forward. It may be that there is some way that the piles can be removed that resolves the concerns previously expressed about compliance with the Lake Simcoe Protection Plan. If not, at least Mr. Gawlina and his colleagues will have before them the four proposals that Nealon has come up with, and they can go with the one that works best from a regulatory point of view.

[12] I am of course concerned that Krieser has had to go another summer without use of his lakefront for boating. I am hopeful that this will be the last summer season that the Krieser family endures this nuisance. In the meantime, I note that the boulders that previously crossed the projected property line between the Garber and Krieser properties have been removed. Those boulders formed the most severe interference with the Krieser waterfront, and their removal alone eliminates any actual crossing of the projected property line between the two properties. While this does not achieve the setback for the Garber dock that was originally envisioned when the work permit to construct it was issued, it is an improvement from Krieser’s point of view and may free up some access to the Krieser waterfront.

[13] Given the efforts being made to bring the Garber dock into compliance with my judgment, the contempt motion is dismissed. On the other hand, given that the dock, or at least the interfering bulb at the end of the dock, has not been entirely removed, Nealon and Garber are to continue to use best efforts to obtain a work permit and to remedy the nuisance.

[14] There shall be no costs of this motion for or against any party.

Morgan J.

Date: September 27, 2019