Court File and Parties

BARRIE COURT FILE NO.: CV-11-0169-00 and CV-18-430-00

DATE: 2019-12-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Anne Evans and Michael Adam Lydan, Plaintiffs AND: Stanislaw Snieg and Maria Snieg, Defendants

AND RE: Stanislaw Snieg and Marie Snieg, Plaintiffs AND: Laura Anne Evans, Michael Adam Lydan, 1701560 Ontario Inc., c.o.b. as Alcar Contracting Ltd., Gary Pearson, and Pearson Engineering, Defendants

BEFORE: The Hon. Madam Justice A.A. Casullo

COUNSEL: M. Maltz, Counsel for the Plaintiffs/Defendants in 11-1069 R. Dowhan, Counsel for the Defendants/Plaintiffs in 18-430 No other counsel appearing

HEARD: December 4, 2019

ENDORSEMENT

OVERVIEW

[1] This matter arises out of a nuisance dispute between neighbours. There are two separate proceedings. In the first, Court File No. 11-0169 (“11-0169”), Laura Anne Evans and Michael Adam Lydan (“Evans”) are named as plaintiffs; Stanislaw Snieg and Maria Snieg (“Sniegs”) are named as defendants.

[2] In the second proceeding, Court File No. 18-430 (“18-430”), the Sniegs are named as plaintiffs. The defendants are the Evanses, as well as 1701560 Ontario Inc. c.o.b. as Alcar Contracting Ltd., Gary Pearson, and Pearson Engineering.

[3] The Sniegs seek the following relief:

• In respect of 11-0169, leave to bring the motion, and an order for inspection of the Evanses’ property; and
• In respect of 18-430, an order for inspection of the Evanses’ property.

[4] I reserved my decision at the conclusion of submissions. What follows is my endorsement.

Background

[5] The parties live on Sideroad 20 in Beeton, Ontario, and share a 700-foot unfenced border along their properties. Both properties generally slope towards the east, with the Sniegs’ property being on a higher elevation than the Evanses.

[6] The Sniegs began various improvements to their property, including clearing vegetation and leveling the earth, before the Evanses’ purchased their home. Following the Evanses’ purchase, the Sniegs undertook further work to their property. The Evanses claim that as a result of the work carried out by the Sniegs, a sizeable portion of their property has been overrun by encroaching earth, fill, silt and surface water.

[7] The Evanses commenced 11-0169, seeking $500,000 in damages for negligence, nuisance and trespass, and $200,000 in aggravated and punitive damages.

[8] On May 10, 2011, Howden J. granted a consent order requiring the Sniegs to take measures to stop the migration of earth fill, silt and water from their property on to the Evanses’. The Sniegs did so, erecting a silt fence and a concrete block wall.

[9] It appears the silt fence and concrete block wall did not provide an effective remedy. The Evanses again appeared before Howden J. seeking an alternate solution. They also asked that Mr. Snieg be held in contempt for non-compliance. On July 22, 2011, after trial of an issue, Howden J. ordered that the Sniegs carry out the recommendations contained in the report of Engineer Peter Smith (“Smith Report”), retained on behalf of the Evanses, within 30 days. Mr. Snieg was also found in contempt.[^1]

[10] Between October 2011 and November 2012, Mr. Snieg brought six further motions before Eberhard J.[^2]:

• October 4, 2011
• December 2, 2011
• December 16, 2011
• April 13, 2012
• August 8, 2012
• November 13, 2012

[11] Through these motions Mr. Snieg endeavoured to convince the court that the remediation design, premised on the recommendations contained in the Smith Report, was flawed and would not remedy the situation. In addition, he argued the remediation would cause damage to his own property.

[12] Mr. Snieg’s efforts were unsuccessful. In her November 13, 2012 Endorsement, Eberhard J. outlined the lengths the court had gone to, in an effort to assist the parties in arriving at a collaborative solution in lieu of the remediation design ordered by Howden J.. The court’s frustration with being asked, in essence, to overturn that order, is evident.

[13] I have no doubt that Mr. Snieg’s intransigence led to the Evanses’ request, pursuant to r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that Mr. Snieg be required to seek leave before bringing further motions. This was so ordered by Eberhard J. in her November 13, 2012 Endorsement.

[14] Construction of the retaining wall, along with changes to grading and drainage, was carried out under the Evanses’ sole direction in 2012.

[15] Mr. Snieg’s concerns over the design of the remediation proved to be well-founded. Within 14 months, the Evanses were back before Howden J., moving for an order to allow them to remediate the wall and grading that had been designed by Pearson Engineering and executed by Alcar Contracting Ltd. They asked that the Sniegs fund this remediation.

[16] Howden J. accepted that the remediation was failing just over a year after being constructed. At para. 2 of his September 19, 2014 Endorsement, Howden J. found that the Sniegs had nothing to do with the failure of the wall and grading, “The present failure of the wall marks a new beginning but not one of the defendants’ doing, except as the cause of the original nuisance suit and overflow.”

[17] Howden J. held that the Evanses were permitted to undertake remedial work to reinforce the retaining wall, along with any necessary grading changes, relying on the builder’s warranty coverage. In the event the builder did not honour the warranty, Howden J. provided terms pursuant to which the parties could work together to remediate the wall.

[18] No further remediation was undertaken by the Evanses. No evidence was before the court that the Evanses made any efforts to enforce the builder’s warranty.

[19] No further motions were brought by either party in 11-0169.

[20] Given the lack of action on the Evanses’ part, the Sniegs commenced 18-430,[^3] alleging negligence against the Evanses, the designer of the project (Pearson defendants), and the contractor who carried out the construction (Alcar). The Sniegs seek specific damages in an amount to be quantified, and punitive damages of $700,000.

[21] The motion before me is the first proceeding in 18-430. Mr. Snieg is not required to seek leave to bring this motion.

ISSUES

[22] The issues to be determined by me are (a) whether the Sniegs should be granted leave to bring this motion; and (b) if leave is granted, whether the Sniegs should be allowed to inspect the Evanses’ property to gather evidence for use at trial in both actions.

[23] The Evanses submit that the motion in its entirety should be dismissed, as it has been brought without first obtaining leave. Alternatively, the Evanses submit that leave should not be granted pursuant to the doctrine of res judicata, as the relief sought by the Sniegs has already been adjudicated.

DISCUSSION

Is a Separate Motion for Leave Necessary?

[24] Rule 37.16 provides:

On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.

[25] The Rules do not set out the steps one must follow in order to seek leave. Obviously, the appropriate vehicle is a motion. The question is whether leave must be the sole relief sought on such a motion, or can leave be requested at the same time, and in addition to, the substantive relief being sought?

[26] On a common-sense basis, the latter scenario should prevail. It would be a waste of court resources to require a litigant to first bring a motion for leave, and if granted, to then return again, on another date, on a separate motion, to argue the relief being sought.

[27] An analogy can safely be made to appeals of costs awards, which are only permitted with leave pursuant to clause 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Whether seeking leave from the Divisional Court under r. 61.03(7), or the Court of Appeal under r. 61.04(17), the request for leave is included in the notice of appeal as part of the relief sought. Leave is sought from the panel hearing the appeal and, where leave is granted, the panel then hears the appeal.

[28] Accordingly, leave is properly considered on this motion.

Should Leave Be Granted?

[29] The Rules are silent as to what test the court is to apply on applications for leave in these circumstances. Certainly, when making orders pursuant to r. 37.16, the court must be satisfied that a party is abusing the process and bringing a multiplicity of frivolous or vexatious motions.

[30] In Litman v. Litman, 2005 CanLII 27658 (ON SC), Harvison Young J. referenced the New Brunswick decision of Mercer v. Faulkner, 2004 NBQB 37, which dealt with a similar rule:

In the case of Mercer v Faulkner, Wooder J. of the New Brunswick Court of Queen’s Bench dealt with a case under the virtually identical New Brunswick rule. The judge began by observing that the rule was bereft of guidance with regard to the criteria to be applied for granting leave in the face of existing orders prohibiting further interlocutory motions. This is similarly true in Ontario. In dismissing the motion, Wooder J. noted that such prohibition orders are rare to begin with, and held that a court should give weight to its existence, stating that “such an order should not be lightly disregarded or blithely treated by this court”.

[31] Eberhard J.’s November 13, 2012 order prohibits Mr. Snieg from bringing further motions with respect to the issue that was squarely before the court – the implementation of the remediation project. The remediation project is now complete. The damage has been done, and the parties are focused on remediating the remediation project.

[32] Mr. Snieg has not been declared a vexatious litigant, which would have proven a substantial burden to overcome. As LeMay J. held in Son v. Khan, 2017 ONSC 962, at para. 26, “I am fortified in this conclusion by the fact that Rules 2.1.02 and 37.16 are designed to be narrower in scope than section 140 of the Courts of Justice Act.”

[33] Eberhard J.’s order was imminently justified in the circumstances before the court at that time. Mr. Snieg was being intransigent. He was refusing to comply with a very clear court order. He brought multiple motions, adding to the costs of the litigation and delaying the construction of the retaining wall.

[34] The litigation has evolved from the pandemonium the court was faced with between 2011 and 2012. The emotions driving Mr. Snieg during that period have levelled off. He has abided by the court order. He has been neither frivolous nor vexatious over the past seven years. This is his first leave application. The parties are preparing for trial. I understand from the material that there have been efforts at mediation. Furthermore, the matter is being case managed by McKelvey J. These are all positive steps.

[35] I see no juristic reason why Mr. Snieg should not be granted leave to bring this motion in respect of 11-0169, and leave is hereby granted.

Request for Inspection

[36] The Sniegs bring this motion seeking an order that their experts be granted access to the Evanses’ property. Their motion is governed by r. 32, which provides the court with discretion to make such an order where it appears necessary for the proper determination of an issue in a proceeding.

[37] An inspection of property advances the interests of justice by aiding in the determination of an issue on its merits. In light of the general principle of interpretation outlined in r. 1.04(1), r. 32 is to be construed liberally, and a request for inspection should only be denied if there is evidence of some countervailing prejudice that would be occasioned by the order, or if the request constitutes an abuse of the rights conferred under r. 32.01: Morier v. Michelen North America (Canada) Inc., 2010 CarswellOnt 615, 88 C.P.C. (6th) 115 (S.C.J.), at paras. 21 and 24.

[38] The Sniegs have retained an expert to opine on negligent design and construction of the grading, the drainage, and the retaining wall, as well as how to best repair or replace the wall, and remediate the grading and drainage. Without access to the Evanses’ property, the expert has advised its report cannot be completed.

[39] The Sniegs have also retained an arborist to inspect the damage to the trees and wetlands on the Evanses’ property. The arborist will require access to the Evanses’ property.

[40] Lastly, the Sniegs have retained a geomathologist to conduct a sediment transport study in order to assess the amount of material that migrated onto the Evans’ property. The geomathologist cannot conduct its study without access to the Evans’ property.

[41] The Evanses initially resisted the Sniegs’ motion to inspect their property, because they were concerned about large equipment being driven on to their land, and the potential for boreholes being dug. This is understandable.

[42] However, the court was advised that the inspections will be unobtrusive, and no damage will come to the Evanses’ property. The inspections are visual in nature. No vehicles or heavy equipment are required, and there will be little-to-no excavation or removal of material from the Evanses’ property. The experts will examine the property, taking measurements and photographs.

[43] Mr. Snieg’s most recent affidavit in support of his motion, sworn October 24, 2019, indicates that after being satisfied there will be no large equipment or boreholes, the Evanses have agreed to permit the inspection of their property.

[44] The findings of the experts are of significant importance to the Sniegs, not only in respect of making a full answer and defence in 11-0169, but in advancing their claims in 18-430.

[45] I question the necessity of this motion being argued at all. All three inspections could have been permitted pursuant to 18-430, without the need for the Sniegs to seek leave to request this relief under 11-0169. The report that will be generated by the engineer, opining on the negligent design and construction of the wall, relates only to 18-430. The sediment study is applicable to both 18-430 and 11-0169. Thus, the only expert retained solely in respect of 11-0169 is the arborist. This inspection is clearly the least invasive of the three inspections, and the Evanses could have agreed to allow this to take place under the auspices of 18-430.

[46] The Sniegs’ request to inspect is granted.

CONCLUSION

[47] Mr. Snieg is entirely successful on his motions. Having considered counsel’s draft orders, the following terms will be embodied in the court’s order on the motion before me:

1. Two staff members of Urbanworks Engineering Corporation (“Urbanworks”) will be permitted to enter onto the Evanses’ property located at 2852 Sideroad 20, Beeton, Ontario, and may conduct a detailed visual inspection of the exposed face of the retaining wall and grades at the base of the wall, including taking detailed photographs and measurements. This inspection shall be limited to four hours.
2. Access for Urbanworks is to be a 3-meter corridor along the north limit of the property, parallel to the retaining wall. Instruments required for the inspection are to include photography equipment for the purposes of taking pictures, and hand tools to take measurements. No vehicles or heavy equipment will be permitted. Urbanworks may not excavate or remove material from the property.
3. If Urbanworks is unable to honour its retainer with the Sniegs, an alternate engineering firm may be substituted. In the interests of clarity, only one engineering firm is permitted to conduct an inspection.
4. A representative of P&A Urban Forestry Consulting Ltd. (“P&A”) will be permitted to enter onto the Evanses’ property to conduct a detailed visual inspection and take photographs and measure the diameter of the various trees, bushes and shrubs on the property. This inspection shall be limited to four hours.
5. P&A will be permitted to walk along the boundary of the property where the alleged damage to trees, bushes and shrubs has occurred.
6. If P&A is unable to honour its retainer with the Sniegs, an alternate arborist firm may be substituted. In the interests of clarity, only one arborist firm is permitted to conduct an inspection.
7. Two representatives from GEO Morphix Ltd. – Geomorphology Engineer (“GEO”) will be permitted to enter onto the Evanses’ property to conduct a detailed visual inspection and to collect general survey measurements of the receiving drainage feature, as well as depth of deposited materials, and width and extent of the sediment release. In those locations where sediments were deposited, hand excavation is permitted to collect material. No vehicles or heavy equipment will be permitted. Equipment permitted to be used by the representatives shall include a measure tape, meter stick, camera, a small shovel, and a topographic survey level and rod. The property shall be reinstated after any digging. This inspection shall be limited to 10 hours.
8. If GEO is unable to honour its retainer with the Sniegs, an alternate geomorphology firm may be substituted. In the interests of clarity, only one geomorphology firm is permitted to conduct an inspection.
9. The dates of the inspections shall be dates that are mutually convenient to those involved and shall be co-ordinated through counsel. In the event dates cannot be agreed upon, a telephone conference shall be arranged with the case management judge who shall hear submissions and determine a date.
10. Neither the Evanses, nor their designates, nor their appointed experts, may be present during any of the above-referenced inspections.

COSTS

[48] At the conclusion of the hearing I asked counsel to provide me with costs outlines. Mr. Maltz handed his costs outline up to the court; Mr. Dowhan provided his costs outline via email to my judicial secretary on December 6, 2019.

[49] Any offers to settle were handed to the Registrar and sealed.

[50] Mr. Maltz seeks fees on a full indemnity basis in the amount of $35,267.30, and disbursements of $2,144.53, for a total of $37,411.83.

[51] Mr. Dowhan seeks fees on a partial indemnity basis in the amount of $4,875.00, and disbursements of $1,081.55, for a total of $5,956.55.

[52] Mr. Dowhan submits that this should have been a relatively simple motion, with the main issue being whether the Sniegs were first required to obtain leave before bringing the motion. Had they done this first, and obtained leave, Mr. Dowhan was certain the parties could have arrived at an agreement on the proposed testing, without necessitating the involvement of the court altogether.

[53] Further, Mr. Dowhan argues that given the litigation history of the Sniegs, it was incumbent upon the Evanses to question the relief sought, and their opposition was rational, reasonable and appropriate.

[54] I do not find favour with Mr. Dowhan’s submissions. As I noted earlier, had the Evanses simply allowed the three inspections to take place under 18-430, this entire exercise could have been avoided.

[55] Furthermore, the Sniegs’ litigation history between 2011 and 2012 is overshadowed by their model behaviour in the intervening seven years, and does not provide a sensible basis upon which to force them to obtain leave before permitting the requested inspections.

[56] The right to inspect is of great importance to the Sniegs. The information garnered may provide evidence to assist them in defending against the action brought by the Evanses.

[57] Apart from the question of leave, the Evanses made the motion more complex by raising issues of estoppel and res judicata. Although submissions on these issues did not take up significant court time, the Sniegs were required to address these arguments in their written material.

[58] Rule 57.01 of the Rules of Civil Procedure identifies the factors a court may consider when exercising its discretion to award costs, including, inter alia, the principle of indemnity, the complexity of the issues, and the conduct of any party that tended to shorten or lengthen the proceeding.

[59] I have reviewed the Sniegs’ Rule 49 offer, in which they offered to settle the motion on the basis that the Evanses allow the inspections and pay their costs of the motion of $6,000.

[60] The only reply to the offer that I can determine was contained in an email from Mr. Dowhan, in which he indicated that, should the Sniegs be successful on the leave motion, he was certain the parties could agree on the terms of the inspections.

[61] In light of my findings above, and in particular, the fact that this motion was unnecessary, I award the Sniegs costs in the all-inclusive sum of $23,000.

CASULLO J.

Date: December 17, 2019

[^1]: The contempt was purged in November 2013, when Mr. Snieg paid the outstanding balance owing on the cost of remediation. The Sniegs paid a total of $188,288.69 for the wall, grading and drainage. [^2]: Mr. Snieg also appealed Howden J.’s contempt finding of July 22, 2011, Eberhard J.’s orders of October 4, 2011 and December 2, 2011. All three appeals were dismissed. [^3]: Initially issued in Toronto under Court File No. 14-511887, the matter was later transferred to Barrie and assigned the current file number.