[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Huber v. Tomina, 2020 ONSC 6591
COURT FILE NO. 66856/10
DATE: 20201028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Huber and Ingeborg Huber
Plaintiffs
– and –
Joe Tomina, Mary Tomina, 135684 Ontario Ltd., operating as Eagleson Construction, Municipality of Clarington, and Central Lake Ontario Conservation Authority
Defendants
William Dunlop, for the plaintiffs
Grant Walsh, for Eagleson Construction
Kurt Pereira, for Central Lake Ontario Conservation Authority
HEARD: October 16, 2020
S.T. Bale J.
REASONS FOR DECISION
Overview
[1] The plaintiffs move for judgment enforcing the terms of a settlement agreement reached with the defendants. The minutes of settlement required the defendants to carry out certain earth works on the Tomina lands. The plaintiffs’ position, based upon reports authored by Dobri Engineering, is that the required work has not been satisfactorily completed. The defendants’ position, based upon reports authored by Golder Associates, is that the work done fulfills the essential requirements of the plans prepared pursuant to the minutes of settlement.
[2] At the outset of the hearing, I raised two issues. The first was whether it is appropriate for the court to, in effect, order specific performance of a contract for services, as the plaintiffs request. The second was whether the parties were content that I decide the motion based upon the unsworn Dobri and Golder reports, and in the absence of cross-examination. With respect to the first issue, defendants’ counsel advised that they took no issue with the form of the relief requested. With respect to the second issue, all counsel agreed to proceed on the basis of the unsworn evidence of the engineers, and without cross-examination.
[3] Of the five defendants, only Eagleson Construction and Central Lake Ontario Conservation Authority are responding parties on the motion. I refer to them as the “defendants” for simplicity’s sake.
Background facts
[4] This action arose from the alteration of the elevations on the Tomina lands, with the result that the Huber lands became subject to frequent seasonal flooding and increased groundwater levels. The alterations on the Tomina lands were carried out by Eagleson Construction. Eagleson dumped approximately 4,500 truck loads of earth on those lands.
[5] The action was commenced in May 2010. In April 2017, the action was settled. Pursuant to the minutes of settlement, the defendants paid the plaintiffs the sum of $278,000. In addition, Eagleson was required to excavate and remediate the Tomina lands, in accordance with a grading plan to be prepared by Golder and Associates Ltd.
Analysis
Scope of motion
[6] Counsel for Eagleson objected to plaintiffs’ counsel arguing for relief beyond that specifically outlined in the notice of motion. However, it was clear from the outset that the purpose of the motion was to obtain compliance with the defendants’ obligations under the minutes of settlement. Subsequent to service of the original motion record, evidence of additional noncompliance came to the plaintiffs’ attention. Details of the additional allegations were provided to the defendants in the Dobri report of June 27, 2020 and were responded to in the Golder report of September 28, 2020. In the circumstances, it only makes sense for me to deal with all the alleged deficiencies at the same time.
Buffer zone grading plan
[7] Based upon the grading plan prepared by Golder pursuant to the minutes of settlement, a buffer zone was created on the Tomina property, adjacent to the Huber property. When the fill was placed on the Tomina property, a swale had been constructed on what is now the buffer zone. The grading plan required that the swale be filled. Dobri says that ponding in the swale threatens the Huber property. Golder disagrees but says: “The area adjacent to the common lot line could be regraded further, by importing some additional fill to fill in the remnant swale. This might hide the water, but the overall ground conditions would be expected to remain soggy, and in our opinion would achieve limited practical benefit.”
[8] I interpret “limited practical benefit” to mean “some but not much.” However, the defendants must comply with the settlement agreement. Whatever the extent of the practical benefit may be, the plaintiffs are entitled to it.
East-west berm
[9] The grading plan included a berm along the full extent of the buffer zone to divert runoff away from the buffer. The easterly limit of the berm was to be the east property line of the Tomina property. However, there is a tree line approximately 4 m west of the property line and the drip line of the trees would be a further 4 m west. According to Dobri, the berm now ends 7 m west of the drip line, leaving it a total of approximately 15 m short of the property line. Golder disagrees and says that the berm has been constructed as far east as is practical, without removing existing trees. His position is supported by Perry Sisson, P. Eng., Director, Engineering and Field Operations, Central Lake Ontario Conservation Authority, who walked the length of the berm in July of this year.
[10] Dobri argues that because the berm cannot be extended right to the east property line, runoff may be able to round the end of the berm and enter the buffer area. Dobri’s solution is that the berm be extended to the drip line, and then continued south to the Huber property line. However, Golder notes that in their initial design, the berm was shown to extend into the buffer zone and close off the eastern end of the buffer to provide greater certainty that the water in the diversion swale would not make its way back into the buffer zone. That solution was rejected by Huber.
[11] I am unable to resolve this issue on the record now before me. The parties disagree on how close the easterly end of the berm is to the tree line and I have no way of resolving that dispute. If the berm does, in fact, end short of the tree drip line, it should be extended as far east as practical, without removing trees. However, with respect to Dobri’s proposal that the berm be continued south, the problem is that that is not required by the settlement agreement, and I am not satisfied that the risk of flooding, at the easterly end of the buffer zone, is now any greater than it would have been had the tree line and adjacent wet lands been 8 m further to the east, and the berm had extended to the drip and property lines (which would then be coextensive).
North-south berm
[12] The grading plan included a berm along the western limits of the buffer area along the Holt Road ditch to reduce the possibility of ditch flows entering the buffer area. The berm was to extend from the Huber property line to the east-west berm.
[13] Dobri says that the as-built survey confirms that the berm does not extend to the Huber property line and that contaminated water from the municipal ditch remains at risk to enter the buffer area and flood the Huber property. He says that it needs to be regraded to eliminate the swale connection to the Holt Road ditch. Golder says that on a site visit in November 2019, it was noticed that the berm did not extend completely to the Huber property line, that the contractor was notified, and that on November 28, 2019, the berm was extended to the lot line. It is also my understanding from the Golder report that there is no longer a swale connection to the Holt Road ditch.
[14] Given this disagreement between Dobri and Golder, and in the absence of cross-examination or further evidence, I am unable to resolve this issue.
General conformance
[15] Golder’s opinion is that the as-built conditions “generally conform” to the intent of the grading design. Golder explains that a statement of general conformity is an industry standard accepted by Professional Engineers Ontario intended to convey that in the professional judgment of the reviewing engineer, “the standard of the construction work fulfills the essential requirements of the plans and other documents.”
[16] In his report of June 20, 2020, Dobri disputes the applicability of the general conformance standard: “The Minutes of Settlement do not require that the conditions should “generally conform to the intent of the grading design.” The Minutes of Settlement require that the works must actually be completed in accordance with the approved Grading Plan, and that the as-built drawing must demonstrate the completion of the works.” In the result, the standard by which compliance with the grading plan is to be judged remains unclear.
Disposition
[17] At the commencement of the hearing, plaintiffs’ counsel indicated that he was content that the motion be decided based upon the record now before me. Based solely upon that record, I would order that Eagleson fill the swale in the buffer zone and otherwise dismiss the motion. However, I see that as an unsatisfactory disposition.
[18] A motion to enforce a settlement agreement is a motion for summary judgment: Hashemi-Sabet Estate v. Oak Ridges Pharamasave Inc., [2018] ONCA 839, at paras. 27 and 28. Accordingly, one option would be to order a mini-trial under rule 20.04(2.2), with the only witnesses being Bruno Dobri and Douglas Kerr of Golder.
[19] Pursuant rule 20.05(2)(k), the court may order that experts engaged by the parties meet and attempt to resolve or clarify the issues which are the subject of their disagreement and prepare a joint statement setting out the areas of agreement and disagreement and the reasons for it. Such a meeting might prove beneficial in this case.
[20] I will withhold my order for a period of 45 days to allow the parties to file written submissions with respect to my disposition of the motion, including reference to rules 20.04(2.2) and 20.05(2). With respect to rule 20.05(2)(k), I will require argument on whether the conditions for ordering such a meeting exist.
[21] I have not been provided with any information relating to the costs of doing the work that the plaintiffs submit should be done. It may be that the costs of any further litigation would not be proportional to the amounts in issue. In any event, whether such costs would be proportional or not, a return to the bargaining table might well prove to be beneficial.
“S.T. Bale J.”
Released: October 28, 2020
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Huber v. Tomina, 2020 ONSC 6591
COURT FILE NO. 66856/10
DATE: 20201028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Huber and Ingeborg Huber
Plaintiffs
– and –
Joe Tomina, Mary Tomina, 1356584 Ontario Ltd., operating as Eagleson Construction, Municipality of Clarington and Central Lake Ontario Conservation Authority
Defendants
REASONS FOR DECISION
S.T. Bale J.
Released: October 28, 2020