COURT FILE NO.: CV-09-61869 DATE: 2019/11/04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MALGORZATA DANKIEWICZ Plaintiff

– and –

TODD JOSEPH SULLIVAN Defendant

COUNSEL: J. Goudy, for the Plaintiff M. Dupre, for the Defendant

HEARD: March 25, 26, 27 and 28, 2019

BEFORE: JUSTICE I.F. LEACH

Reasons for Judgment

Introduction

[1] This judgment represents the latest instalment in a prolonged saga of extended litigation between the owners of two neighbouring residential properties here in the city of London.

[2] Their longstanding dispute focuses on the flow of surface water between their respective properties, and the plaintiff’s contention that she has suffered and continues to suffer from the defendant’s improper interruption of surface water drainage from the plaintiff’s property onto and across the defendant’s adjacent property.

[3] The dispute has been the subject of formal litigation for more than 10 years.

[4] This particular judgment addresses the initial phase of a directed trial in relation to a motion brought by the plaintiff, seeking:

a. a declaration that the defendant is in contempt of court, for having failed to comply with an earlier judgment rendered by Justice Rady on June 24, 2011; and

b. if the defendant is found in contempt, further orders granting consequential relief to address and remedy that failure.

[5] It takes place against the backdrop of a cross-motion brought by the defendant seeking, inter alia, an order compelling the plaintiff to provide the defendant with a final release and “satisfaction piece”, insofar as the defendant claims that his judgment related obligations vis-à-vis the plaintiff have been satisfied.

[6] An understanding of what led to the two motions being brought and directed to trial, and how this judgment came to focus only on the liability phase of the plaintiff’s contempt motion for the time being, (while other aspects of the plaintiff’s motion and the defendant’s cross-motion currently have been adjourned sine die), requires a more extended explanation of the somewhat unusual circumstances leading up to the proceedings before me.

Background and procedural history

[7] In the course of this judgment, I will have more to say about specific findings relating to whether or not the plaintiff has made out the essential elements of civil contempt beyond a reasonable doubt.

[8] For now, having regard to the exhibits that were filed on consent, (including substantial affidavit material), and the oral testimony I received from the parties and their respective engineers, (i.e., Kyle McIntosh and Rick Dykstra, retained by the plaintiff and defendant respectively, and qualified as engineers with expertise in the areas of storm water management and grading design, including surface water drainage), background facts and procedural developments underlying this judgment include the following:

• The parties own adjacent residential properties located on Shepherd Avenue, here in the city of London.
• The relevant area of Shepherd Avenue runs in a general east-west direction, (parallel to a railway line situated a relatively short distance to the south), and ends in a cul-de-sac at its eastern terminus. The properties owned by the parties are situated on the southern side of the street, between Shepherd Avenue and the railway’s property.
• Since 1997, the plaintiff has owned and lived at the third property from the eastern end of the street, known by its municipal address as 51 Shepherd Avenue.
• Since 1994, the defendant has owned and lived at the second property from the eastern end of the street, known by its municipal address as 55 Shephard Avenue. It lies immediately to the east of the plaintiff’s property at 51 Shepherd Avenue.
• Towards the southern end of each residential property along the south side of Shepherd Avenue is a large earth berm, separating the residential properties from the railway line running along the south side of that berm. The berm, situated partly on the residential properties, and partly on property belonging to the railway, predates the residential homes to the north, and shields those residential properties from the sights and sounds associated with passing railway trains. It nevertheless has the additional effect of preventing the flow of surface water, from the residential properties, to the south. Moreover, all precipitation falling on the northern slope of the railway berm flows downhill towards the more level backyard areas of the properties along the south side of Shepard Avenue, including the backyard areas belonging to the parties.
• The original grading design for the residential neighbourhood contemplated elevations that would result in “split” directional drainage of surface water from the plaintiff’s backyard; i.e., flowing to the west and east from the area between her house and the railway berm. In particular, the original grading design contemplated that surface water from the areas located at or near the western edge of that area would drain to the west, while surface water from the vast majority of the plaintiff’s backyard would drain to the east, across the defendant’s property. The easterly flow of that surface water was to be facilitated by a swale, (i.e., an open low depression effectively acting as a broad open ditch), running in an easterly direction, to the north of the railway berm, and through the backyards of 51 and 55 Shepherd Avenue.
• The plaintiff is an avid gardener, and went to considerable lengths to beautify the backyard area of her property between her house and the railway berm; e.g., planting numerous flowers and shrubs, and installing features that included a patio, pond, bog garden and gazebo. Notwithstanding such changes, for many years, the plaintiff experienced no noticeable problems with the drainage of surface water from the rear of her property.
• From at least 2007 onwards, the plaintiff nevertheless began to experience substantial drainage problems in relation to her backyard; problems which the plaintiff attributed to work done by the defendant in the rear area of his property, (e.g., replacement of the swale with a drainage tile system covered by soil, and installation of a large shed along the eastern boundary of his back yard), which was said to have reversed the direction of surface water drainage.
• In the result, the plaintiff claimed, the surface water from the rear of her property was no longer able to drain to the east across the defendant’s property. Moreover, surface water from the rear of the defendant’s property now was draining into the plaintiff’s backyard. The resulting accumulation of water in the plaintiff’s backyard was said to have caused substantial flooding and damage, which the plaintiff unsuccessfully tried to alleviate by frequent efforts, on her part, to pump the accumulation of water from her back yard to the storm sewer located to the front or north of her property.
• The defendant denied responsibility for the plaintiff’s surface water drainage problems; e.g., claiming that the problems stemmed from work done by the plaintiff herself, such that she was the author of her own misfortune.
• The parties were unable to resolve their differences and the result was this litigation, which proceeded to a trial before Justice Rady in March and May of 2011.
• Justice Rady released her initial “Reasons for Judgment” on June 24, 2011. The full text of those reasons, and the judgment contained therein, may be found at Tab B-5 of trial Exhibit No. 1. For present purposes, however, the reasons and relief ordered may be summarized as follows:
  • Justice Rady found that, although the original grading in the rear yards of 51 and 55 Shephard Avenue probably never accorded precisely with that of the originally contemplated drainage plan, it was still in general conformity with that plan. In particular, until 2007, the grading was such that it permitted positive drainage from the west to the east, (i.e., from the plaintiff’s property onto and across the defendant’s property), despite the defendant’s intervening alterations to the swale by installation of a covered drainage tile system.
  • However, Justice Rady also found that something had occurred in 2007 to cause a reversal of that prior surface water drainage flow. In that regard, Justice Rady accepted the evidence of the plaintiff’s engineering expert, who opined that the defendant’s construction of a shed in his rear yard, in 2007, had caused the covered drainage tile system to fail, while simultaneously raising the elevation around the shed such that it was higher than that of the property to the west. The net result was an alteration and reversal of the intended west to east flow of surface water drainage.
  • Moreover, Justice Rady accepted the evidence of the plaintiff’s engineering expert, indicating that the plaintiff’s landscaping changes were not the cause of the problems.
  • In the result, Justice Rady found that the plaintiff was entitled to judgment, as the resulting flooding of the plaintiff’s backyard constituted a nuisance caused by the defendant’s actions.
  • Although Justice Rady declined the plaintiff’s request for punitive damages, the plaintiff was awarded non-pecuniary damages of $5,000 and special damages of $4,257.
  • Moreover, in response to a plaintiff request for an order compelling the defendant to restore his property to the previously approved grading:
    • Justice Rady found that the plaintiff had acquired a prescriptive right to have her surface water continue to flow over the defendant’s property - by virtue of the Development Agreement registered on title, which sets forth the obligation of relevant property owners, binding on successors to title, to maintain contemplated and approved grading; and
    • Justice Rady ordered the defendant “to take whatever steps are necessary to ensure that the plaintiff’s surface water drains across his property”.
• The aforesaid “Reasons for Judgment” released by Justice Rady were transformed into an issued and entered formal Judgment, dated June 24, 2011, which may be found at Tab B-3 of Exhibit No. 1. Paragraph 4 of that formal Judgment reads as follows: “THIS COURT ORDERS that the Defendant, Todd Joseph Sullivan, is ordered to take whatever steps are necessary to ensure that the Plaintiff’s surface water drains across the Defendant’s property.”
• On October 20, 2011, Justice Rady released her endorsement awarding costs to the plaintiff, after receiving written cost submissions from the parties; an endorsement that similarly was transformed into a formal issued and entered Judgment.
• Unfortunately, the dispute between the parties was far from over.
• In the wake of Justice Rady’s judgment, the parties, (with the assistance of legal counsel and their respective engineers), continued to discuss and consider various ways in which surface water from 51 Shepherd Avenue once again would be permitted to flow onto 55 Shepherd Avenue, and surface water from 55 Shepherd Avenue would be prevented from flowing onto 51 Shepherd Avenue.
• By 2016, however, the parties still had not reached a mutually agreeable solution to the surface water drainage issues. In particular, while the defendant had implemented certain measures on his property, the plaintiff was of the view that the measures taken had done nothing to stop the flow of surface water from the defendant’s property onto hers, or permit the drainage of her surface water across the defendant’s property. In that regard, the plaintiff complained that she was still experiencing severe flooding problems in her backyard; problems which she had been trying unsuccessfully to address through measures taken on her own property.
• In the result, the parties once again were back before Justice Rady in 2016, having brought the competing motions noted above. In particular:
  • the plaintiff’s motion requesting a finding that the defendant was in contempt of Justice Rady’s judgment, and consequential relief, (including remedial drainage solutions proposed by the plaintiff with the support of her engineer), initially was returnable on April 26, 2016; and
  • the defendant’s cross-motion, seeking relief that included formal approval of the remedial drainage work undertaken and/or proposed by the defendant, (with the support of the defendant’s engineer), and an order compelling the plaintiff to provide a release and “satisfaction piece”, (on the basis the defendant had complied with Justice Rady’s judgment), was made initially returnable on the same day.[^1]
• When the matter initially came back before Justice Rady, she emphasized the practical difficulty posed by having to decide between competing engineering proposals, (both of which seemed to be respectable professional opinions), on the basis of a “paper record”. In an effort to promote a mutually agreeable solution, Justice Rady directed a meeting of the parties’ engineering experts; i.e., with a view to the engineers devising a plan, agreeable to both sides, that would resolve the ongoing surface water drainage dispute. In the meantime, the formal motions brought by the parties were adjourned.
• By June 29, 2017, however, the parties and their experts had been unable to agree on a mutually acceptable solution, and the parties and their lawyers once again were back before Justice Rady. In particular, and as reflected in Justice Rady’s typed endorsement of July 12, 2017:
  • The plaintiff was intent on proceeding with her contempt motion, which included a request for court-ordered implementation of one of the two drainage solutions proposed by her engineer.
  • The defendant sought formal approval of the solution proposed by his engineer, in respect of which the defendant had taken some implementation measures.
  • Although Justice Rady expressed some preliminary general reactions to the competing proposals put forth by the parties, she nevertheless felt that she was in no better position to make a final determination concerning an appropriate and reasonable engineering solution, based on the paper record before her.
  • In the result, Justice Rady found it necessary to direct a trial of the plaintiff’s contempt motion, so as to permit the receipt of viva voce evidence from the parties and their respective engineers.
• On August 3, 2017, defence counsel sent a letter to Justice Rady, (copied to plaintiff counsel), requesting a further endorsement dealing with the defendant’s outstanding motion as well.
• On August 4, 2017, Justice Rady released a further handwritten endorsement, indicating that the defendant’s cross-motion was adjourned to the same hearing, (i.e., trial), of the plaintiff’s motion. Her endorsement also indicated that both motions, directed to trial, were to be the subject of a simultaneous pretrial hearing.
• On February 23, 2018, the matter was the subject of a judicial pretrial with Justice Grace. During that pretrial, the parties agreed that Justice Rady was not seized of the matter. Justice Grace also made a number of pretrial directions, including an indication that the parties would be permitted to file their respective consolidated motion records as exhibits – although supplementary viva voce testimony was contemplated.

[9] When the matter came before me for trial, there nevertheless was considerable uncertainty, (from the perspective of counsel at least), as to what had been contemplated by the directed trial of the two motions, and the manner in which outstanding issues should be addressed and resolved. In that regard:

a. At the outset of trial, counsel for the defendant advised that a number of issues raised by the defendant’s cross-motion had been addressed and resolved, and accordingly no longer required court consideration. In particular, I was advised that it was no longer necessary for the court to consider the requests set forth at paragraphs (d), (g) or (h) of the prayer for relief set forth in the defendant’s notice of motion, asking for: i. an order vacating and deleting the plaintiff’s registration of a certificate of pending litigation against the defendant’s property; ii. an order lifting and vacating the writ of seizure and sale obtained by the plaintiff and filed against the defendant, in relation to this proceeding; and iii. an order directing a “new trial” in this matter, based upon “the discovery of new evidence”; i.e., evidence relating to the original grading of the properties. b. I simultaneously was advised, at the outset of trial, that the defendant still was pursuing all other aspects of the relief requested in his cross-motion. However, as I noted at the time, that would include the defendant’s request, at sub-paragraph (b) of the relevant notice of motion’s prayer for relief, for an order “amending” Justice Rady’s judgment. In that regard: i. The notice of motion indicated the defendant had requested such relief, in part at least, because of a perception that Justice Rady had erred in granting a prescriptive easement. However, further remarks by defence counsel made it clear the request for such relief also was premised on the same defence perception that had motivated the abandoned request for a new trial; i.e., that the defendant felt Justice Rady’s judgment had been based on a fundamentally incorrect premise concerning the original grading of the properties. ii. As I indicated during preliminary discussions with counsel, I felt strongly that the defendant’s lingering request for amendment of Justice Rady’s judgment had to be addressed and resolved as a threshold issue. In particular, in my view it was inappropriate to address issues of whether or not there had been compliance with Justice Rady’s judgment, and a consideration of what further relief might be required in that regard, until the form and content of the relevant judgment had been confirmed with finality. I accordingly directed that the parties were to address that issue following the first recess. iii. When court reconvened after that initial recess, I nevertheless received further indications from defence counsel that the request for amendment of Justice Rady’s judgment no longer was being pursued. In particular: 1. I was informed that, although the defendant still thought Justice Rady’s judgment was problematic, and accordingly had contemplated asking for a new trial and/or for the judgment to be revisited and revised, the defendant and his counsel did “not know” how such relief could be pursued and doubted that the court had jurisdiction to entertain or grant such relief. 2. When I pressed for an indication of whether or not the defendant was pursuing such relief, and asking for any amendments to Justice Rady’s judgment, defence counsel responded by saying “We haven’t appealed it, and are not asking for a new trial, so it is what it is”. 3. When counsel nevertheless then made further comments once again suggesting that the judgment was deficient and/or defective, I pressed defence counsel again for a clear indication of whether or not the defendant accepted the finality of Justice Rady’s judgment, in terms of its form and content. In response, defence counsel confirmed that the court should proceed on that basis, as the defendant was no longer seeking to question Justice Rady’s judgment.[^2] iv. Moreover, when defence counsel opened the case for the defendant, he emphasized again that the defendant was “not attacking” Justice Rady’s judgment, which was “presumed to be correct”. c. Of the remaining issues formally raised by the motions, in my view it was appropriate to proceed next with trial of the “liability phase” of the plaintiff’s motion for contempt. In particular: i. Although the plaintiff was eager to proceed immediately to the presentation of evidence and argument concerning remedial relief she wanted the court to order, in my view such an approach presupposed a finding of contempt, in respect of which the law had established stringent prerequisites which merited careful and separate consideration. ii. In that regard, the plaintiff’s desire for immediate exploration and ordering of remedial relief also ran counter to numerous authorities, (some of which are noted below), emphasizing that the inherently serious matter of civil contempt generally should be approached in bifurcated “liability” and “penalty” phases. In particular, appellate authority has emphasized that “a proceeding that considers both liability and penalty in the same hearing may cause unfairness or be infested with legal error to such an extent to require a new hearing”.[^3] A bifurcated approach also provides a confirmed contemnor with an opportunity to purge any identified contempt voluntarily, thereby avoiding the further stigma of contempt, while saving additional party and court resources. iii. In this particular case, initial trial of the “liability” aspects of the plaintiff’s motion for contempt offered the additional advantage of simultaneously addressing, in effect, the defendant’s preliminary contention that he already had implemented sufficient measures to address the plaintiff’s surface water drainage concerns, thereby entitling him to a release, “satisfaction piece” and/or other relief sufficient to clear the cloud on title to his property created by the plaintiff’s ongoing claims.

[10] In the result, the trial proceedings before me were focused on the “liability” phase of the plaintiff’s contempt motion.

General principles

[11] Before proceeding further, I pause to outline, in more detail, general principles and legislation relating to the law of civil contempt, which include the following:

a. Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law depends directly on the ability of courts to enforce their process, and maintain their dignity and respect. The purpose of a contempt order therefore is first and foremost a declaration that a party has acted in defiance of a court order.[^4] b. In relation to civil contempt, (which lacks the element of public defiance essential to criminal contempt), exercise of the court’s contempt jurisdiction is primarily intended to be coercive rather than punitive; i.e., to encourage or ensure compliance with court orders.[^5] c. A finding of civil contempt requires proof, beyond a reasonable doubt, of three essential elements: i. First, to ensure that a party will not be found in contempt where an order is unclear, the court order alleged to have been breached must state clearly and unequivocally what should and should not be done. For example, an order may not be sufficiently clear if it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.[^6] On the other hand, a party must comply with both the letter and spirit of a court order, and will not be permitted to hide behind formalistic, restrictive and literal interpretation to circumvent an order, thereby making a mockery of the order and the administration of justice. The days are long past when someone subject to a court order can get away with circumventing it by relying on a benign technicality.[^7] ii. Second, the party alleged to have breached a court order, (the alleged “contemnor”), must have had actual knowledge of the order. In appropriate circumstances, it nevertheless may be possible to infer such knowledge, or find the knowledge requirement satisfied on the basis of the “wilful blindness” doctrine.[^8] iii. Third, the alleged contemnor must have intentionally done the act that the order prohibits, or intentionally failed to do the act that the order compels. An intention to disobey the court order, in the sense of desiring or knowingly choosing to disobey the order, is not required for a finding of contempt - although the existence or non-existence of such a “contumacious intent” may be relevant in determining the penalty to be imposed following a finding of contempt. All that is required, in relation to this third essential element of civil contempt, is proof beyond a reasonable doubt of an intentional act or omission that is in fact a breach of the relevant court order.[^9] Reliance on legal advice does not shield a party from a finding of contempt.[^10] Nor does a belief on the part of the alleged contemnor that there is a conflict between the demands of a court order and other perceived legal obligations. A party in such a position has appropriate avenues open to him or her other than a unilateral decision to breach the order, (e.g., seeking a court determination in relation to the perceived conflict, and/or other efforts to appeal, quash, vary or otherwise have the order set aside), and cannot ignore the important and elementary principle that, so long as an order of the court remains in force, it is binding and conclusive, and must be obeyed.[^11] d. It nevertheless must be remembered that the court’s contempt power is discretionary, and the full scope of that discretion purposely has not been delineated. A judge entertaining a contempt motion therefore generally retains some discretion to decline making a finding of contempt even where the three essential elements of civil contempt otherwise have been established; e.g., in circumstances where a contempt finding would work an injustice, as in cases where an alleged contemnor acted in good faith in taking reasonable steps to comply with an order. In that regard, it should be remembered that courts consistently have discouraged routine use of the contempt power to obtain compliance with court orders, as resorting to the power too easily might ultimately “cheapen” the role and authority of the very judicial power a finding of civil contempt seeks to protect. The contempt power therefore should be used “cautiously and with great restraint”, as an enforcement power “of last rather than first resort”.[^12] e. In Ontario, civil contempt proceedings are governed by Rule 60.11 of the Rules of Civil Procedure. In that regard: i. Pursuant to Rule 60.11(1), a party to a proceeding may make a motion to a judge, in that proceeding, seeking a contempt order to enforce an order requiring a person to an act, (other than the payment of money), or to abstain from doing an act. ii. Pursuant to Rule 60.11(5), a judge disposing of such a motion may “make such order as is just”. Without limiting the generality of that jurisdiction, where a finding of contempt is made, the judge may order the person in contempt to be imprisoned, pay a fine, do or refrain from doing an act, pay just costs, and comply with any other order the judge considers necessary. iii. Pursuant to Rule 60.11(8), a judge also has authority to discharge, set aside, vary or give directions in respect of any order made under subrules 60.11(5) and 60.11(6), and grant such other relief and make such other order as is just. f. Rule 60.11 does not prescribe the form of contempt proceedings. However, as already noted above, in contempt proceedings liability for contempt and imposition of an appropriate penalty for any established contempt are discrete issues. As a general rule, contempt proceedings therefore are bifurcated into two phases. In particular, the first is a “liability phase”, wherein liability for an alleged contempt, (including any defence offered by the alleged contemnor), is considered. If liability for contempt is established, the matter then moves on to a second “penalty phase”, during which the court determines a just order to address the relevant contempt.[^13]

[12] With the above principles in mind, I turn to a consideration of whether or not the plaintiff in this case has made out, beyond a reasonable doubt, the three essential elements required for a finding that Mr Sullivan should be found liable for contempt, in relation to his alleged non-compliance with Justice Rady’s judgment.

Analysis

[13] In that regard, I have reviewed and considered, at length, all of the considerable documentary evidence and oral testimony that was presented during the liability phase of this trial.

[14] Frankly, a great deal of that evidence had no direct bearing on the particular issues to be decided at this juncture. While I have regard to all of the tendered evidence, my reasons accordingly will focus on those aspects of the evidence I consider most relevant to my analysis.

[15] As for whether the relevant provisions of Justice Rady’s judgment state clearly and unequivocally what should and should not be done:

a. The relevant provisions are found, as noted above, in paragraph 4 of Justice Rady’s judgment of June 24, 2011, whereby “the defendant, Todd Joseph Sullivan, [was] ordered to take whatever steps are necessary to ensure that the plaintiff’s surface water drains across the defendant’s property”. b. In my view, the plaintiff has met her onus of establishing, beyond a reasonable doubt, that those provisions provide the degree of clarity required by the first essential element of civil contempt. c. Although the defendant argued that the relevant provisions of the order were “obscure”, “overly broad”, “unlimited” and “infinite in time and space”, in terms of the obligation cast upon the defendant, I disagree. Without limiting the generality of the foregoing: i. In my view, the defendant’s arguments focus inappropriately on the variable means and timing by which a mandated outcome may be brought about, rather than the certainty of the prescribed outcome the defendant is ordered to achieve or effect. ii. Our courts routinely make orders dictating a result that must be achieved or implemented, without necessarily attempting micro-management of various alternative methods, potentially great in number, that might achieve the same prescribed result. Such provisions facilitate order compliance by not imposing unnecessary constraints that may make it harder to bring about an ordered result. iii. By way of general example, when the court orders removal of a specified barrier or structure, it matters not, in terms of order compliance, whether the barrier or structure in question is relocated, dismantled or destroyed. The required outcome ordered by the court is clear, even if the party subject to the order effectively is granted latitude in relation to the precise means by which the clear court-ordered result is to be achieved. iv. By way of a more specific example, (closer to the particular mandatory order at the centre of the contempt proceedings in this case), I have regard to Evans v. Snieg, 2011 ONSC 4489, in which the defendants had been ordered, in earlier proceedings, to “take such measures as are necessary to prevent the movement of earth, fill, silt and water from their property … onto the plaintiffs’ property”.[^14] The court at first instance found that the defendants had failed to comply with that order, (by doing nothing that was effective in engineering terms to bring about the result ordered by the court), and that the defendants accordingly should be found in contempt. That finding subsequently was upheld by our Court of Appeal.[^15] Implicit in both the trial and appellate rulings is a necessary finding that the original mandatory order, (similar to that ordered by Justice Rady, insofar as it directed the defendants to take the “measures necessary” to bring about a specified result, without dictating precisely what those measures had to be), was sufficiently clear to satisfy the first essential element of civil contempt beyond a reasonable doubt.

[16] There was no dispute, in this case, that the second essential element of civil contempt had been established beyond a reasonable doubt, insofar as the defendant unquestionably and admittedly had actual knowledge of Justice Rady’s relevant judgment shortly after it was released on June 24, 2011.

[17] Most of the evidence and argument in the case before me focused primarily on the third essential element of civil contempt; i.e., on whether or not the plaintiff had established, beyond a reasonable doubt, that the defendant has failed to do what Justice Rady’s judgment compelled him to do.

[18] In my view, the plaintiff has satisfied her onus in that regard.

[19] My findings and considerations in support of that conclusion are many, but include the following:

a. In my view, it is very clear that surface water is not draining from the backyard area of the plaintiff’s property, apart from the proactive measures being taken by the plaintiff in that regard to address and mitigate that situation to the extent she can. In that regard: i. I accept the plaintiff’s affidavit evidence and testimony, supported by essentially undisputed photographic evidence and the objective observations of Mr McIntosh, that substantial surface water continues to accumulate in and flood her backyard area to the east of the rise located near the western boundary of her property, and remain there despite the plaintiff still proactively taking measures aimed at collecting that water and redirecting it to the front of her property. ii. Without such measures being taken by the plaintiff, the water that falls directly onto the plaintiff’s property through precipitation, whether through rain or melting snow, and the water from similar sources that flows down towards her house from the slope of the railway berm to the rear of the plaintiff’s property, still pools and remains in the plaintiff’s backyard, in an area extending well beyond the ornamental pond area deliberately created by the plaintiff, occasionally submerging large areas of her yard, and causing considerable damage to the plaintiff’s landscaping. Without limiting the generality of the foregoing, I accept the plaintiff’s testimony that there has been no appreciable improvement in her surface water drainage problems since the granting of Justice Rady’s judgment; a conclusion which is supported by the uncontradicted testimony of Mr McIntosh that water does not drain from that backyard area without mechanical pumping. iii. The aforesaid measures taken by the plaintiff on her own property, in an effort to address the situation, (although Justice Rady’s judgment created no plaintiff obligations in that regard), have included the installation of a drainage pit at a low elevation of the relevant backyard area, which helps to collect and concentrate the accumulating water, so that the ponding and flooding does not extend across the surface of the plaintiff’s backyard as much as it otherwise might. Such measures also include the continued operation of pumps which redirect the accumulated water through pipes and hoses towards the street at the front of the plaintiff’s property.[^16] However, operation of the pumps is especially problematic during periods of the year where the temperature drops below freezing, during the day or night.[^17] In particular, the pipes freeze, (as they could not be buried below the frost line and still be at an elevation capable of transferring water to the street),[^18] and the automated submersible pump in the plaintiff’s drainage pit, (which activates automatically via a “float” trigger mechanism), cannot operate in freezing temperatures. Moreover, operation of the plaintiff’s surface pump and attached hoses, as an alternate means of transferring the accumulated surface water to the front of the plaintiff’s property, requires repetitive monitoring to ensure the surface pump’s activation at appropriate times, (e.g., to deal with water accumulation through significant rains and/or snow that has melted during the day), and to ensure that the hoses do not freeze and become blocked in sub-zero temperatures. The plaintiff understandably finds such remedial efforts both irritating and exhausting, (particularly insofar as they require her to check and monitor the water and pumps during the night), but necessary to protect her property from further damage.[^19] In that regard, the plaintiff emphasizes that her ground has become “soft and soggy”, and results in shifting positions of the stone work she installed, thereby creating, in addition to damaged aesthetics, constant trip hazards. iv. In the course of cross-examination, (and testimony from Mr Dykstra), it was suggested that the surface water drainage problems in the plaintiff’s backyard are in whole or part of her own making, insofar as she now is channeling roof water into her backyard via repositioned downspouts. However, the plaintiff testified, and I accept, that her actions in that regard are simply another manifestation of her efforts to address surface water drainage problems caused by the conduct of the defendant. In particular, the plaintiff testified, (and the defendant did not deny), that redirection of the relevant downspouts was necessitated by the defendant’s conduct in raising the elevation of his property, in the area between the parties’ houses, thereby filling in the additional swale which previously ran between the homes in a north south direction to channel surface water from that area towards the street in front of the properties.[^20] When the defendant did that, the roof water from the plaintiff’s originally positioned downspouts in that area had nowhere to go. In an effort to mitigate her damages, the plaintiff therefore redirected that water towards her installed drainage pit, where it too hopefully could be gathered and redirected to the front of properties and the street via the plaintiff’s ongoing pumping activities. b. I also think it quite clear that such surface water accumulates and remains, in that substantial area of the plaintiff’s backyard, because it still is not being permitted to drain to the east, across the defendant’s property, as originally intended. In that regard: i. Repeated reference was made, during the course of the proceedings before me, to the laws of gravity and the resulting truism that water does not naturally flow uphill. ii. The undisputed evidence of the plaintiff and Mr McIntosh is that there is no point along the boundary separating the plaintiff’s backyard from the defendant’s backyard where the property immediately to the west has an elevation higher than that of the property immediately to the east. In other words, all along the boundary separating the two backyards, the defendant’s property is higher – and in most areas substantially higher -- than that of the plaintiff’s property.[^21] iii. In my view, the present situation, which remains largely unchanged on the defendant’s side of the property boundary, (apart from the limited works undertaken by the defendant and described below), is such that surface water from the plaintiff’s property self-evidently cannot flow uphill to the east, onto and across the defendant’s property. To the contrary, the situation is such that the current grading of the defendant’s property, which generally slopes downhill to the west, causes the defendant’s surface water to flow west towards and onto the plaintiff’s property. iv. I also find that the above conclusions are not altered or undermined by the remedial measures the plaintiff has taken along the eastern border of her backyard in an effort to block or at least slow and/or reduce the flow of surface water from the defendant’s property onto her property; e.g., by her installation in October of 2017 of a makeshift barrier consisting of a tarp and substantial quantities of sand, replaced in October of 2018 by a continuous strip of aluminum, (approximately nine to ten inches high), and substantial quantities of sand. In particular, both the tarp and strip of aluminum were placed up against the border fence and buttressed immediately to the west by approximately 1600 pounds of sand, which the plaintiff transported to the location via approximately sixteen 100-pound sandbags. As emphasized by Mr McIntosh, given the elevation differential between the two properties, the plaintiff’s water could not and would not flow east, uphill, onto and across the defendant’s property even if the makeshift barriers erected by the plaintiff were removed. Until such time as surface water flow to the east is made possible, in my view the plaintiff is entitled to mitigate her damages by attempting to block the continued flow of surface water from the east, (i.e., from the defendant’s higher property), onto her property.[^22] c. In my view, the obvious reason for that impossibility, (i.e., the inability of the plaintiff’s surface water to flow the east), is the defendant’s failure to do the act Justice Rady’s judgment compelled him to do; i.e., the defendant’s failure to “take whatever steps are necessary to ensure that the plaintiff’s surface water drains across the defendant’s property”. In that regard: i. I note that Justice Rady’s judgment required the defendant to take whatever steps were necessary to ensure that required result, and not simply whatever steps arguably may have been reasonable in a potentially unsuccessful attempt to bring about that result. In my view, that is an important qualitative difference in the court ordered obligation imposed on the defendant. ii. I also think it important to note and emphasize that Justice Rady’s judgment imposed the relevant remedial obligation solely upon the defendant, without requiring the plaintiff to take any actions whatsoever in that regard. Such a result was entirely consistent with Justice Rady’s findings that the surface water drainage problems being experienced by the plaintiff had been caused entirely by what the defendant had done, on his land, to alter and reverse the intended and previous direction of surface water drainage. iii. In my view, such realities also made it implicitly if not explicitly clear that Justice Rady intended that the “necessary steps” to be taken by the defendant, “to ensure that the plaintiff’s surface water drains across the defendant’s property”, would be taken on the defendant’s property. In particular, the defendant self-evidently had no legal right or ability to take any such steps on the plaintiff’s property, or to demand the taking of such steps by the plaintiff. iv. As water does not naturally flow uphill, and the plaintiff was not obliged by the judgment to take any steps to make the water flow uphill onto the defendant’s property by unnatural means, (such as the pumping of water), I do not think one needs a degree in engineering to understand that, for the defendant to comply with Justice Rady’s judgment, without any proffered voluntarily assistance from the plaintiff, the defendant effectively was obliged to alter the elevation and grading of his property. In particular: 1. I think it clear that the defendant effectively was required to make the elevation of his property lower than that of the plaintiff’s property along the boundary separating the two properties, so that surface water from the plaintiff’s property would be permitted to flow “downhill” onto the defendant’s property. 2. I similarly think it clear that the defendant was required to ensure that the plaintiff’s surface water, once it initially flowed downhill over the boundary onto the defendant’s property, then would be dealt with in a manner that enabled its continued flow across the defendant’s property thereafter. In particular, any steps taken to make the defendant’s property elevation lower than that of the plaintiff, immediately along the boundary, would be insufficient to satisfy Justice Rady’s judgment if the surface water initially passing the boundary then had nowhere to go, causing it to once again back up and accumulate on the plaintiff’s property. 3. In my view, that result, implicit in Justice Rady’s judgment, obviously could have been achieved by the defendant taking steps, entirely on his own property and without assistance from the plaintiff, to reinstate the grading levels originally contemplated for the defendant’s property - albeit perhaps with considerable difficulty and at considerable expense, insofar as it would have required removal of the defendant’s shed and movement of earth, in circumstances where the defendant’s backyard allows limited access for heavy construction equipment. 4. For the defendant to ensure compliance with Justice Rady’s judgment by the taking of unilateral steps on his own property, (in the absence of voluntary cooperation and assistance from the plaintiff), while avoiding complete reinstatement of the originally contemplated grading levels for the defendant’s backyard, I think it was incumbent on the defendant to implement a system, by the unilateral taking of steps on his own property, that demonstrably allowed surface water to flow “downhill” onto his property from the plaintiff’s property to the west, with that water thereafter being sufficiently channelled across the defendant’s property in some other effective and reliable manner so as to eliminate its accumulation on the plaintiff’s property. In that regard, I am mindful of the expert testimony of Mr McIntosh, which I accept, indicating that, short of regrading his entire property to the originally contemplated elevations, the defendant unilaterally could have excavated a trench on his own property, at least three to four feet wide, with a depth at least twelve inches below the existing grade of his property along its western boundary, to receive surface water from the plaintiff’s property and channel that water towards the defendant’s drainage pit – provided the surface level around that pit also was lowered – if that pit then was adequately monitored and pumped in a manner similar to that being done by the plaintiff in relation to her drainage pit. Moreover, increasing the width and depth of such a trench, and positioning a drainage pit further away from the property line, would have further reduced the chances of surface water backing up on the plaintiff’s property; e.g., if the pumping mechanism failed.[^23] I also am mindful of Mr Dykstra’s testimony indicating that there was nothing preventing the defendant from changing the grading on his side of the property such the lowest point on his side of the boundary, (currently near to where the defendant has installed his drainage pit), would be closer to the vicinity of the low points of the plaintiff’s property where the plaintiff’s surface water ponding actually is occurring.[^24] v. I certainly am mindful of the measures the defendant did take, in an apparent effort to respond to Justice Rady’s judgment. In particular: 1. In or about January of 2012, the defendant had a contractor install a drainage pit near to a low point in his backyard. In particular, the pit was created at a location quite close to the southwest corner of the defendant’s house, in an area near but not immediately adjacent to the boundary fence separating his property and that of the plaintiff. 2. Installation of the pit was accomplished through use of a “mini excavator”, which augured a hole approximately six feet deep and three feet in diameter, into which was placed a “blue water pipe”, with a diameter of two and a half feet, the top two feet of which were perforated to allow the ingress of water. The remainder of the augered hole, outside of the buried pipe, (i.e., approximately three inches around the pipe), was filled with crushed gravel. 3. According to the defendant, the top edge of the buried blue water pipe is at ground level, on top of which he has placed a lid constructed from a “compost bin”, with slots and perforations around the bottom. 4. The defendant says the pit also is equipped with a mechanical “float operated” sump pump attached to an extendable discharge hose, with a one-inch diameter and a length of 100 feet; i.e., a length sufficient to carry water across the surface of the defendant’s property to the front area where his property meets the street. 5. Up to and including the time of trial, the defendant was indicating that the drainage pit also was connected to a section of “big O” drainage tile, (really a plastic pipe which the defendant says was perforated and covered by a cloth “sleeve”), which he previously had installed in 2007 to assist in conveying ground water towards the road in front of his property. vi. However, I find that the measures unilaterally undertaken by the defendant on his property are insufficient to comply with the obligation imposed on the defendant by Justice Rady’s judgment. In that regard: 1. There really was no dispute that, without the plaintiff taking remedial measures on her own property to channel surface water towards the point on her property on the opposite side of the boundary fence from the defendant’s drainage pit, and without further work thereafter being undertaken in the intervening area to connect that surface water thus channelled by the defendant under the border fence and into the defendant’s drainage pit, there is no way for the plaintiff’s surface water to flow into that drainage pit; i.e., as a first step towards its being then transferred somewhere else through the defendant’s drainage pit system. From the outset, the defendant’s engineer, Mr Dykstra, noted that efficacy of the remedial option contemplating installation of such a drainage pit by the defendant would require grading revisions to the rear yard of the plaintiff,[^25] and a connection travelling under the boundary fence to connect the plaintiff’s redirected surface water into the defendant’s drainage pit. Such measures have not been taken. As Mr Sullivan himself put it, his installed drainage pit has “never been hooked up to [his] neighbour”, although he claims she had “the option” of performing additional work, such as “digging a hole”, and removing “one shovel width of dirt”, to access his pit. 2. In that regard, I think it worth emphasizing that, even if the plaintiff had taken all the steps contemplated by Mr Dykstra to regrade her property, and channel her surface water towards the defendant’s drainage pit, her surface water still would not have reached the defendant’s drainage pit, given the existing state of affairs on the defendant’s property. In particular, as emphasized by Mr McIntosh, even if the drainage pit structure installed by the defendant was “shaved off” to the surrounding ground elevation on the defendant’s property, that would still be approximately eight inches higher than the plaintiff’s property, in the relevant location, and at least six inches away from the property line. As matters stand, there accordingly is simply no way for the plaintiff’s surface water to reach the drainage pit installed by the defendant, even if the plaintiff had taken all the steps the defendant says she should have taken. 3. In short, the simple fact of the matter is that the defendant’s drainage pit is not receiving and cannot receive any of the plaintiff’s surface water. At best, (for the reasons outlined below), it is receiving only a portion of surface water emanating from the defendant’s property. As far as drainage of the plaintiff’s surface water onto and across the defendant’s property is concerned, the situation accordingly is the same as if the defendant’s drainage pit simply did not exist, and the measures undertaken by the defendant on his property accordingly do not ensure that the plaintiff’s surface water flows across the property of the defendant. 4. Indeed, during the course of the proceeding before me, defence counsel expressly indicated that the defence was “not denying” the plaintiff’s assertion that “the problem of inability of surface water drainage to flow across the defendant’s property is continuing”. When I requested confirmation that was the defendant’s position, I was told that the “defendant says that the plaintiff’s surface water is not draining over his property because [his] drainage solution is not connected” to the plaintiff’s property and surface water; i.e., because the plaintiff has failed to cooperate in the taking of additional measures to channel and connect her surface water to the drainage pit installed by the defendant. 5. As the actions taken by the defendant are not sufficient “to ensure that the plaintiff’s surface water drains across his property”, the defendant self-evidently has failed to “take whatever steps are necessary” in that regard. 6. Although that finding may be sufficient for present purposes, (in terms of establishing failure to comply with Justice Rady’s judgment), I think it also worth noting that, in my view, the evidence also falls short of establishing that the defendant’s drainage pit is having any appreciable impact on receiving and thereby diverting surface water from the defendant’s property that might otherwise flow west onto the plaintiff’s property.[^26] Without limiting the generality of the foregoing: a. Although the defendant located his drainage pit near an identified low point in his backyard, (based on geodetic elevation readings taken from a field survey of the area carried out by True Line Services in 2009), it seemed to me that location also was recommended by the defendant’s engineer because it would facilitate a contemplated connection to channelled surface water from the plaintiff’s property; i.e., in an area of the plaintiff’s property also thought to have a relatively low elevation. b. In my view, the entirety of the recorded geodetic elevations indicated by the field survey, and the corresponding east-west “cross section” report, (with the cross-section taken well to the south of the defendant’s drainage pit), along with the fundamental findings made by Justice Rady, indicate that that the defendant’s entire backyard generally slopes markedly from the east to the west, towards the boundary fence separating the parties’ properties, along which the elevation of the defendant’s property is substantially higher than that of the plaintiff’s property on the other side of that fence. c. Mr Dykstra noted in his testimony that a “minor amount of top soil had been brought in” to the defendant’s backyard, in 2011 or 2012, to create a slight rise extending between the railway berm and the defendant’s house, (running parallel to and near the north south boundary), in an effort to help channel surface water from the defendant’s property towards the defendant drainage basin, instead of towards the boundary fence between the parties’ properties. Mr Dykstra also opined that the relevant slight rise was still serving that purpose. However, I frankly have difficulty reconciling that evidence with the testimony of the plaintiff and Mr McIntosh, which I prefer and accept, that the plaintiff’s surface water is still penetrating along the property boundary, despite the significant mitigating efforts undertaken by the plaintiff to erect a substantial barrier in that regard - including the solid aluminum sheet currently being buttressed by 1600 pounds of sand. In my view, the proper inference is that a good deal of the defendant’s surface water is still making its way to the west, through or over the modest soil rise created on the defendant’s property near its western boundary, and onto the plaintiff’s lower property, where it accumulates and pools along with the plaintiff’s effectively trapped surface water. d. For the reasons already noted above, none of the plaintiff’s surface water currently is draining into the defendant’s drainage pit. e. Mr Dykstra indicated in his testimony that functioning of the drainage pit system installed by the plaintiff contemplated the automated “float controlled” pump activating and pumping water through the uncoiled extended drainage hose, around the defendant’s house, and out to the street; a hose that would be self-draining if no water was being pumped through it. Mr Dykstra also confirmed that, for the defendant’s drainage pit system to function as intended, its drainage hose would have to be fully extended all of the time. He acknowledged that, if the drainage hose was coiled, the water “obviously” would not get to the street.[^27] f. However, the plaintiff testified, and I accept, that following installation of the defendant’s drainage pit in January of 2012, the defendant operated that pit’s pump only once or twice, during the first five years of its existence, and otherwise has never uncoiled the drainage hose to pump any water from the drainage pit to the street.[^28] The plaintiff’s evidence in that regard was not challenged in cross-examination, nor contradicted by the defendant. Indeed, the defendant himself testified that his drainage pit never fills up; i.e.., that a situation never arises where use of his drainage pit’s pump and extended drainage hose is necessary.[^29] Such indications were echoed in the testimony of Mr Dykstra, who indicated that the defendant had indicated, to both engineers attending for a site visit, that “because [the defendant’s drainage pit] had been dry since the installation in 2011, (sic), no water had been pumped out of there”. g. In effect, the defendant essentially asserts that his prolonged failure to uncoil and deploy the drainage hose is simply a by-product of his drainage pit working very efficiently to drain water in any event, without use of its pumping system, thereby making use of the pit’ss pump and extended drainage hose unnecessary. In my view, however, the better inference, based on the available evidence, is that the defendant’s drainage pit is simply not receiving that much water. Without limiting the generality of the foregoing: i. The defendant himself testified in cross-examination that he repeatedly checks inside his drainage pit after it rains, (i.e., by removing its lid and looking inside), but usually finds only a minimum amount of water that has not been sufficient to activate the pump, and also finds even that water has been absorbed into the ground - and possibly caught by the weeping tile surrounding his house – by the time he returns to check the drainage pit again. ii. As noted by Mr McIntosh, the drainage pit actually installed by the defendant deviates from that recommended by the defendant’s own engineer. In particular, while Mr Dykstra recommended installation of a drainage inlet catch basin, (a structure with a horizontal or angled grate on top at ground level, with openings to catch surface water falling through the grate), the defendant actually installed a “sump pump pit”, with a structure having raised sides extending higher than the surrounding surface level, with a solid cover over top. Although the buried “barrel” of the defendant’s pit apparently has side perforations intended to permit subsurface drainage into the barrel, in my view that is likely to become problematic if water accumulating around the sides of the barrel below ground freezes in sub-zero temperature areas above the frost line and not exposed to periodic sunlight, thereby doing little to accommodate the flow of melted surface water making it way into the crushed gravel area.[^30] Similarly, it seems to me that perforations or slots in a raised “above-ground” lid are less likely to admit water than a system whereby water flowing freely over an unobstructed surface would simply drop into an open grate, especially if there are any ice formations or other obstructions to the slots or perforations in the vertical sides of the lid, or excessive surface flow makes it difficult for all the surface water to make its way into the relevant slits or perforations.[^31] In other words, as indicated by Mr McIntosh, it seems to me that the structure actually installed by the defendant makes it more difficult for surface water to enter the drainage pit compared to the recommended mechanism of an installed drain with an open surface level grate at its top. iii. As noted above, the defendant also asserted, up to and including the time of trial, that his drainage pit was connected to “big O” drainage tile, sufficient to automatically carry water underground to the street when water levels in his drainage pit reach a certain level; i.e., effectively making regular use of the pit’s pump unnecessary barring a “drastic” influx of water. However, I find the asserted mechanism of automatic efficient drainage from the pit without regular operation of the pump problematic for numerous reasons, and reject it. In cross-examination, the defendant acknowledged that the “big O” drainage tile actually was not connected to the drainage pit, but simply “butts up” to the pit, near the area of its perforations “on the top” of the pipe. Moreover, the drainage tile was not a design feature recommended by the defendant’s own engineer, and neither of the engineers testifying at trial had seen the alleged drainage tile to confirm its existence, proximity, diameter, depth, elevation, or degree of perforation. Nor did Mr Sullivan’s own engineer mention awareness or relevance of such a drainage tile after his initial two attendances at the defendant’s property. Moreover, even if such a drainage tile exists, I am persuaded by the testimony of Mr McIntosh – and certain aspects of the testimony of Mr Dykstra -- that it would not operate efficiently to ensure drainage from the pit to the street in front of the defendant’s property. In that regard, the elevation differentials between the pit and the higher surface levels at the front of the defendant’s property effectively prevent such a gravitational flow in any event.[^32] The water cannot evaporate by itself underground. Nor can it dissipate effectively into the surrounding ground, as the defendant’s property is located in ground composed primarily of clay rather than sand or gravel – such that water escaping from the perforated pipe eventually would have nowhere to travel, even if the pipe initially was surrounded artificially with a layer of gravel. Moreover, accumulations of such underground water likely would freeze in the winter in any event, or be prevented from emanating anywhere if the surrounding ground was frozen.[^33] iv. It was also suggested, by the defence, that water seeping from the drainage pit was being effectively drained by the weeping tile system surrounding his house, which channeled any such water, entering the foundation of the defendant’s house, into the defendant’s indoor sump pump. However, that too was not a feature of the possible drainage pit contemplated by the defendant’s own engineer, and I accept the testimony of Mr McIntosh that the suggested mechanism of surface water drainage from the pit was unlikely. In particular, foundation drainage systems are designed to channel water away from and not into the foundations of a home, and interior sump pumps are not designed to handle large quantities of surface water. h. In my view, the flow of surface water from the defendant’s property onto the plaintiff’s property has relevance to the question of whether the plaintiff’s surface water is able to flow in the opposite direction. In particular, in the prevailing circumstances, the plaintiff’s surface water, in order to flow across the defendant’s property, not only would have to flow uphill, to make its way onto the defendant’s property, but also overcome the force of surface water flowing the other way. d. Finally, I think it clear that the defendant’s failure to take such steps was intentional. In that regard: i. Having devoted considerable time, effort and expense to the alteration of his backyard from its original state, the defendant understandably is inclined towards remedial measures that would minimize the extent to which his efforts and expense in that regard would need to be undone. ii. In my view, that natural inclination has been reinforced, in this case, by the defendant’s strong resentment of the plaintiff’s ongoing complaints, and her legal efforts to force the defendant to take further remedial action. As Mr Sullivan emphasized in his testimony, (with evident bitterness), he firmly views the essence of this dispute as a “control issue”, rather than a “water issue”. In particular, he resents his neighbour wanting “to have control of [his] property, and what [he] can or cannot to” with his property. In essence, he resents the rights enjoyed by the plaintiff pursuant to the laws of nuisance, and the confirmation of those rights by Justice Rady’s judgment. iii. In such circumstances, Mr Sullivan naturally was drawn towards proposed courses of action that would minimize changes required to his property, minimize his own expense, and require the plaintiff herself to incur time, expense and effort to implement a surface water drainage solution; e.g., by doing work on her own property to collect and channel any surface water on her property into the drainage pit he installed on one of the existing low points in his backyard, without having to make any further alterations to his property. iv. I also think there is good reason to think that the defendant honestly believed, and still believes, that the steps he has taken in that regard were and are sufficient to satisfy the obligations cast upon him by Justice Rady’s judgment – which is why he has deliberately refrained from taking any other remedial steps to address the situation. In particular: 1. He has very much relied on the possibilities identified during the initial consultation between the parties’ engineers, directed by Justice Rady. 2. He has taken steps towards implementation of one of those options, proposed primarily by his own engineer. 3. He thinks he now has done everything required of him to implement that particular option, and argues that it is incumbent on the plaintiff to now take steps on her property to make that particular option work. In other words, the defendant deliberately has gone a certain distance down the road towards his preferred option for resolving the situation, but also deliberately has gone no farther. v. However, I also find that the measures taken by the defendant are not only inadequate to ensure the result mandated by Justice Rady, but that his entire approach in that regard is fundamentally flawed. In particular: 1. As noted above, Justice Rady directed consultation between the parties’ engineering experts in an effort to promote a mutually agreeable solution; i.e., a plan, agreeable to both sides, that would resolve the ongoing surface water drainage dispute. 2. Such an approach obviously created the potential for a wider variety of solutions than those dictated by Justice Rady’s judgment. In particular, whereas the judgment imposed a remedial obligation solely upon the defendant, (and therefore a solution inherently contemplating remedial work on the defendant’s property alone, sufficient to ensure the flow of the plaintiff’s surface water across the defendant’s property), a negotiated solution, whereby the plaintiff might voluntarily agree to take additional steps on her property to combine with those taken by the defendant, suggested the possibility of other engineering solutions. 3. However, I find no evidence that such consultations and discussions ever resulted in a binding mutual agreement, between the parties, whereby the plaintiff committed herself to taking measures on her own property to assist the defendant in correcting the surface water drainage problem brought about by the defendant’s conduct.[^34] 4. In the result, the defendant Mr Sullivan effectively was left with his original unqualified obligation to comply with Justice Rady’s judgment; i.e., by taking, on his own, on his own property, and without any mandated obligation on the plaintiff to provide any assistance whatsoever in that regard, “whatever steps [were] necessary to ensure that the plaintiff’s surface water drains across the defendant’s property”. 5. Notwithstanding that court-imposed obligation, the defendant nevertheless focused, (as Mr Dykstra confirmed), on implementing as much as the defendant could on his property to implement one of the various solutions, considered by the engineers, that had contemplated the two parties “working cooperatively together”. 6. The defendant’s obstinate refusal to then do anything further to remedy the ongoing surface water drainage problem, and bring about the result mandated by Justice Rady, (despite repeated indications by plaintiff counsel emphasizing why the defendant’s approach was flawed, and why further remedial action on the defendant’s part was required), while adamantly insisting that the plaintiff alone had the burden of taking any further steps required to address the situation, by making his preferred solution work, was simply wrong in law. vi. In the circumstances, the defendant may not have had any deliberate intention to disobey Justice Rady’s judgment. However, as noted above, proof of such an intention is not required to establish the third essential element of civil contempt. It need only be established, beyond a reasonable doubt, that the defendant has intentionally omitted to take certain action that was required by the judgment. In my view, the plaintiff has demonstrated that in the present case. In particular, I think it clear beyond a reasonable doubt that the defendant deliberately refrained from taking further remedial measures necessary to ensure that the plaintiff’s surface water drained across his property. Without limiting the generality of the foregoing: 1. In opposing the plaintiff’s request to have him found in civil contempt of Justice Rady’s judgment, the defendant relied, to a degree, on his professed reliance on the engineering and legal advice he had received. 2. However, for the reasons already noted, in my view the focus of the defendant’s engineer, in proposing a remedial solution based on jointly agreed measures to be taken on both properties, was fundamentally different from the focus of Justice Rady’s formal judgment, which placed the obligation to address the situation, caused by the defendant’s actions, squarely and exclusively on the defendant. 3. Moreover, as noted above, reliance on the advice of third-party professionals does not shield a party from a finding of civil contempt.[^35]

[20] In the result, the plaintiff has established, beyond a reasonable doubt, all three essential elements of civil contempt.

[21] As noted above, it does not automatically follow that the plaintiff is entitled to an order formally declaring the defendant to be in contempt of court.

[22] Again, the court retains a residual discretion to decline such relief, even where the essential elements of civil contempt have been established; e.g., bearing in mind that the court’s contempt jurisdiction should be exercised with restraint, and that use of the power may be inappropriate in certain cases, such as those where a party has acted in good faith by taking reasonable steps to comply with an order.

[23] In this particular case, however, I think the requested finding of contempt is both necessary and appropriate.

[24] For too long, this dispute between neighbours has continued because the defendant frankly continues to believe that he has done nothing wrong, and that the surface water drainage problems being experienced by the defendant are not really his concern. Without limiting the generality of the foregoing:

a. The defendant essentially has ignored the provisions of Justice Rady’s reasons and judgment making it clear that the defendant alone is responsible for the surface water drainage issues at the heart of this dispute, (despite his views to the contrary), and that he alone was formally obliged by the judgment to take sufficient remedial action to address the situation. b. After taking measures capable of doing nothing more than dealing with a portion of his own surface water drainage, (at best), in circumstances where the defendant admittedly knew that such measures alone were insufficient to permit the flow of the plaintiff’s surface water across his property, the defendant essentially washed his hands of the situation, obstinately taking the position that the plaintiff alone was required to take any and all further measures required to address her ongoing surface water drainage concerns. He did so notwithstanding the obvious reality that nothing whatsoever in Justice Rady’s reasons or judgment cast any remedial obligations whatsoever on the plaintiff. c. Since the granting of Justice Rady’s judgment, the defendant has compounded the surface water drainage problems by filling the swale between the parties’ houses, which facilitated surface water drainage towards the street. In my view, such actions show an ongoing disregard for the impact of his actions on the flow of surface water in the area, so long as it has no appreciable impact on the defendant’s property. d. A review of the substantial correspondence filed in evidence makes it abundantly clear that such realities were emphasized to the defendant time and again, but he steadfastly chose to ignore them. e. Without a finding of contempt emphasizing the gravity of the situation, and the reality of the defendant being the party charged with the burden of taking effective measures on his property to completely address and remedy the situation, so as to ensure the flow of the plaintiff’s surface water across the defendant’s property, (which in my view implicitly includes an obligation to prevent surface water from flowing in the other direction), I think the defendant will continue to lack any incentive to take such measures and/or propose resolutions that recognize and reflect the court-declared reality that he alone is responsible for this unfortunate ongoing dispute.

[25] As for the defendant’s cross-motion, it perhaps goes without saying, but in establishing the essential element of civil contempt beyond a reasonable doubt, the plaintiff simultaneously has demonstrated that the defendant has not yet complied with Justice Rady’s judgment. The defendant accordingly is not yet entitled to various forms of relief sought by his cross-motion; e.g., removal of the judgment registered against his property, a final release, or satisfaction piece.

Conclusion

[26] For the reasons outlined above, I accordingly grant the relief sought by the plaintiff in paragraph 3 of her notice of motion’s prayer for relief. An order shall go declaring that the defendant is in contempt of Justice Rady’s judgment dated June 24, 2011, insofar as he has failed to “take whatever steps are necessary to ensure that the plaintiff’s surface water drains across the defendant’s property”.

[27] As noted above, the matter should be scheduled for trial continuation before me, to deal with how such contempt should be addressed; a determination that should take into account any intervening measures taken by the defendant to purge his contempt before the time of that hearing.

[28] The further relief sought by the plaintiff in her notice of motion, and the relief sought by the defendant in his cross-motion, will be considered then.

[29] Without limiting the generality of the foregoing, as the proceedings to date constitute only the first phase of the proceedings before me, all costs associated with those proceedings shall be addressed after the proceeding has reached its conclusion.

"Justice I. F. Leach"

Justice I.F. Leach

Released: November 4, 2019

Dankiewicz v. Sullivan, 2019 ONSC 6382

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MALGORZATA DANKIEWICZ Plaintiff

– and –

TODD JOSEPH SULLIVAN Defendant

REASONS FOR JUDGMENT

Justice I.F. Leach

Released: November 4, 2019

[^1]: As noted and discussed in more detail below, the defendant’s cross-motion included additional requests for relief, including: an order for directions arising from Justice Rady’s judgment; a request for amendment of Justice Rady’s judgment, on the basis that the prescriptive easement declaration had been granted in error; an order approving the defendant’s drainage solution or specification of exactly what solution was required; an order vacating and deleting the Certificate of Pending Litigation registered against the defendant’s property by the plaintiff; an order lifting and vacating the writ of seizure and sale registered against the defendant; and, in the alternative, an order directing a “new trial in this matter, based upon the discovery of new evidence”. [^2]: Notwithstanding those indications, there were times, later in the trial, when the defence once again expressed implicit and/or explicit criticisms of Justice Rady’s judgment; e.g., through defence counsel submissions that the judgment was “messed up”, insofar as it was premised on a directional flow of water that “never did” exist. However, when I pointed out my inability to entertain such submissions, in light of counsel’s earlier indications, they were withdrawn. [^3]: See, for example, College of Optometrists of Ontario v. SHS Optical Ltd. (2008), 2008 ONCA 685, 93 O.R. (3d) 139 (C.A.), at paragraph 74. [^4]: See U.N.A. v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p.931; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at paragraph 35; and Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paragraph 30. [^5]: See Korea Data Systems Co. v. Chiang, 2009 ONCA 3, [2009] O.J. No. 41 (C.A.), at paragraph 11; and Carey v. Laiken, supra, at paragraph 31. [^6]: See Carey v. Laiken, supra, at paragraph 33. [^7]: See Chirico v. Szalas, [2016] O.J. No. 3907 (C.A.), at paragraphs 54 and 58; and Greenberg v. Nowack (2016), 2016 ONCA 949, 135 O.R. (3d) 525 (C.A.), at paragraph 25. [^8]: See Carey v. Laiken, supra, at paragraph 34, and Greenberg v. Nowack, supra, at paragraph 25. [^9]: See Carey v. Laiken, supra, at paragraphs 35 and 38-39; and Greenberg v. Nowack, supra, at paragraphs 25 and 27. [^10]: See Carey v. Laiken, supra, at paragraph 44. [^11]: See R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, at p.599; Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (C.A.), at p.192; Litterest v. Horrey, 1996 ABCA 13, [1995] A.J. No. 1208 (C.A.), at paragraph 14; and Carey v. Laiken, supra, at paragraphs 58-59. [^12]: See Carey v. Laiken, supra, at paragraphs 36-37; and Greenberg v. Nowack, supra, at paragraph 26. [^13]: See College of Optometrists (Ontario) v. SHS Optical Ltd., supra, at paragraphs 72-75; and Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paragraph 18. [^14]: See Evans v. Snieg, supra, at paragraph 4. [^15]: See Evans v. Snieg, 2012 ONCA 159. [^16]: Perhaps unintentionally, the defendant himself effectively confirmed such constant drainage efforts by the plaintiff through his complaints that the plaintiff is emptying water through a hose, to the short east-west section of fence running between the two houses near the front of the properties, “anytime it rains”, and “all during the spring flood”. [^17]: In that regard, the plaintiff emphasized that temperature fluctuations of only a couple degrees can result in melting snow during sunny winter days, (creating surface water), while also creating problems with the automated drainage system when the temperature drops below freezing in the evening. [^18]: In her testimony, the plaintiff also explained that she had made inquiries to see if the buried pipes could be heated in winter through electricity, but the associated costs were prohibitive. [^19]: The photographs that were taken in winter, and entered as exhibits, show very substantial footprint traffic to and from the area of the drainage pit and the area of the nearby surface pump operated by the plaintiff during winter freeze-thaw conditions. In my view, those footprints provide silent corroboration of the substantial efforts and inconvenience, described by the plaintiff in her testimony, to address the ongoing surface water drainage problems caused by the defendant’s conduct. [^20]: I note that effective blockage and/or limitation of the drainage swale that previously ran in a north-south direction between the houses was confirmed in correspondence sent by plaintiff counsel to defence counsel, and in the site meeting summary signed by the parties’ respective engineers on July 19, 2016. [^21]: In that regard, the plaintiff emphasized repeatedly that, when she initially moved to her property, there was a substantial open space underneath the border fence separating her backyard from that of the defendant; enough so that her small dog was able to pass back and forth beneath the fence. However, the plaintiff says that changed as the result of the defendant raising the elevation on his side of the fence through the repeated placement of substantial quantities of soil and mulch, even after the granting of Justice Rady’s judgment. According to the plaintiff, the surface elevation differential between her side of the border fence and the defendant’s side of the border fence, before the erection of her makeshift barriers, (described below), was at least 8 to 12 inches or more along the length of the boundary. In my opinion, the plaintiff’s evidence in that regard was not meaningfully challenged or undermined in cross-examination. It also found considerable support in the unchallenged testimony of Mr McIntosh, who has visited the location at least three times, (mostly recently in 2016), and seen that the defendant’s property, along the boundary “interface”, is “approximately eight to ten inches”, or “roughly 0.2 to 0.25 meters”, higher than the property of the plaintiff, in a somewhat uniform manner along the length of the fence. Moreover, as emphasized in the testimony of Mr McIntosh, the geodetic elevations measured closest to the property boundary, when the field survey was done in 2009, suggested an elevation differential of approximately five to six inches. Coupled with the aforesaid evidence of a greater differential in more recent observations made by the plaintiff and Mr McIntosh, that lends support to the plaintiff’s assertion that the defendant effectively has increased the differential by adding further soil and mulch on his side of the boundary fence over the intervening years. [^22]: Mr McIntosh testified, and I accept, that the makeshift barrier installed by the plaintiff reduces but does not prevent the defendant’s surface water from draining downhill onto the plaintiff’s property However, he candidly indicated that it also would be very hard to quantify exactly how much of the defendant’s surface water is making it through the barrier and onto the plaintiff’s property, to join with the plaintiff’s retained surface water. [^23]: At this juncture, I think it worth emphasizing again that this phase of the contempt proceeding is focused on liability, and not on the preferred method of addressing any established contempt. In other words, this is not the occasion to explore and decide upon the preferred method of solving the surface water drainage problem created by the defendant’s conduct. From a liability perspective, the current focus is on whether the defendant has taken all necessary measures, that he could have taken, to ensure that the plaintiff’s surface water drained across his property. If the problem persists, and a possible solution capable of unilateral implementation on the defendant’s own property was not undertaken by the defendant, then the defendant demonstrably will not have taken “whatever steps are necessary to ensure that the plaintiff’s surface water drains across his property”. [^24]: I also think it noteworthy that, in making his recommendations, Mr Dykstra admittedly proceeded solely on the basis of the available geodetic elevation points that had been recorded, without attending at the properties to observe where the plaintiff’s surface water actually was ponding. [^25]: In his testimony, Mr Dykstra expressed a view that, based on the geodetic elevations recorded in the 2009 field survey, the plaintiff’s surface water would not flow to the east onto the defendant’s property in any event, without some degree of regrading on the plaintiff’s property, because it otherwise would have to run contrary to the “natural grade” of the relevant properties which had “all the drainage going to the west” in the relevant areas. The difficulty I have with such arguments is that they run counter to Justice Rady’s fundamental finding, in 2011, that the plaintiff’s surface water naturally was running to the east but for work carried out on the defendant’s property, by the defendant. In my view, that fundamental issue between the parties has been formally decided by a binding decision of this court, which was not the subject of any appeal, and the issue accordingly should not and cannot be revisited by the defendant now, directly or indirectly. [^26]: In addition to the points that follow, I think it worth emphasizing again, (as noted above), that the makeshift barrier erected by the plaintiff, on her side of the border fence, reduces but does not prevent the flow of the defendant’s surface water downhill onto the plaintiff’s property. [^27]: Mr Dykstra also confirmed that the system would not function in winter if any standing water left in the hose “froze up”. [^28]: In that regard, I have no doubt that the plaintiff, in the course of her frequent monitoring and operation of her own drainage pit mechanisms, has been anxiously and carefully watching to see if the defendant was taking any similar actions on his property, in relation to his drainage pit. In the winter, she repeatedly has looked, in vain, for footprints in the snow in the area of the defendant’s drainage pit, similar to those she has been making in monitoring and servicing her own drainage pit. [^29]: In his testimony, Mr Dykstra indicated that he actually had never seen the defendant’s drainage pit system functioning, although “everything was in place as intended”. [^30]: In his testimony, Mr Dykstra explained that the drainage pit actually installed by the defendant has certain temperature related advantages over that which was recommended, insofar as the cover on top would restrict the entry of cold air and inhibit freezing of the water in the bottom of the pit, below the four foot or 1.22 meter “frost depth” standard which applies here in London. However, in my view, the same evidence, combined with that of the defendant indicating that the catch basis he installed has perforations only in its upper two feet, means that the subsurface water would be in a freezing zone in the area where it was intended to enter the side perforations of the defendant’s drainage pit. [^31]: The probability of water entering such a drainage pit opening more slowly, in such circumstances, was acknowledged by Mr Dykstra in cross-examination. [^32]: The views of Mr McIntosh in that regard appeared to be shared by Mr Dykstra, who confirmed in his testimony that “some type of pump system was required” to make the defendant’s drainage pit effective, as water “can’t drain uphill”; e.g., such that a subsurface pipe to naturally drain water from the drainage pit was not really an option. In cross-examination, Mr Dykstra suggested that water might rise in the pit to such an extent that it essentially would make the drainage tile operate under pressure; i.e., so as to “push the water” from the drainage pit through the drainage tile and out towards the street. However, I think such a notion, in this case, is entirely at odds with the defendant’s own testimony that very little water has ever gathered in his drainage pit, even after a rainfall. Moreover, it assumes elevations at each end of the drainage tile that admittedly are unknown. Furthermore, I find it difficult to believe that the lack of any direct connection between the drainage pit and the perforated drainage pipe would be conducive to such a pressurized drainage system, even if water did exceptionally accumulate in the defendant’s drainage pit. [^33]: The latter point was acknowledged by Mr Dykstra in cross-examination. [^34]: In the course of the hearing before me, the defence relied, to some degree, on the “Summary of Site Meeting” report, signed by engineers retained by both parties, on July 19, 2016. In particular, it was emphasized by defence counsel that both engineers apparently had agreed that use of the defendant’s drainage pit was a “viable option” to address the plaintiff’s surface water drainage problems, albeit one considered to be a “last resort”, and one that “would require a short section of pipe to be installed under the fence on the #51/#55 property line”. In my view, however, the report falls far short of establishing any form of binding agreement between the parties in relation to implementation of that particular option, or any of the other options considered in the report. In that regard, I note and accept the testimony of Mr McIntosh, indicating and confirming that the purpose of the meeting underlying the report was “not to come up with the final detailed solution and sign off on that”, but simply to “gather information and brainstorm ideas”. Moreover, I note the similar acknowledgment, in Mr Dykstra’s testimony, that the options being proposed in the relevant report, were premised on “contemplated agreement and cooperation and participation of both parties”. More generally, however, I think one really need look no further than the retainer letter sent to both engineers on July 6, 2016, by plaintiff counsel writing on behalf of counsel for both parties. The third contemplated “step”, set forth in that letter, makes it clear that implementation of any proposed solution required not only agreement between the two engineers that the solution was “mutually acceptable”, but also that the solution was “acceptable to both parties”. I see nothing in the evidence before me to indicate that the plaintiff ever agreed that the solution favoured by the defendant was acceptable to her as well, and mutually agreed. In particular, although Mr Dykstra suggested by way of hearsay evidence that the plaintiff’s previous counsel (Mr McKenzie) may have acknowledged that the “sump pit proposal” favoured by the defendant was reasonable, correspondence sent by that counsel on April 30, 2012, suggests quite the opposite. In that letter, the plaintiff’s former lawyer makes comments that include the following: “While Mr Sullivan may believe that his action may stop his surface water from flowing westerly, his action does nothing to restore Ms Daniewicz’s right to flow her surface water easterly across the Sullivan property.” In the course of further cross-examination, Mr Dykstra eventually conceded that the situation never “got by” the third step of the joint retainer, “where we had both parties agree”, and that he in fact “was never aware that both parties agreed to a solution”. [^35]: Although the authorities noted above focus on advice received from a lawyer, in my view the principle applies a fortiori to advice provided by a civil engineer.