COURT FILE NO.: CV-20-2394-0000
DATE: 2021 04 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JAMES DUBBLESTYNE and SANDRA FLEMING (Applicants) and
VERONIQUE HOSTEIN, BASSAM EL SAMMAK, and the TOWN OF OAKVILLE (Respondents)
BEFORE: D. E. Harris J.
COUNSEL: Michael Corbett for the Applicants
Elaine Navarrete and Mark M. O'Donnell for the Respondents
Scott Hamilton for the Town of Oakville
DATE: February 24, 2021 by video conference
ENDORSEMENT
[1] This litigation arises out of a dispute between neighbours. The Applicants live at 1330 Bayshire Drive, Oakville and the Respondents live next door at number 1326. A wooden retaining wall on 1326 sidling between the backyards of the two properties was deteriorating and needed to be replaced. In 2017 the Respondents took down the original retaining wall and constructed a replacement wall. The construction of the replacement wall was badly flawed and, ultimately, the Town of Oakville in a September 3, 2019 order in which both properties were named, directed that it be removed by October 18, 2019. The replacement wall has now been removed and the Respondents now propose to build a new wall.
[2] This matter was commenced by the Applicants by way of a Notice of Application dated September 28, 2000. The relief requested was that the replacement wall be removed and damages of $120,000 be awarded arising out of the construction of the replacement wall, demolition of that wall and proposed construction of a new wall. It was also requested that the Applicants be permitted a “self-help remedy” to ensure that the new wall not encroach on their property. In the Notice of Application, the Applicants proposed that the trial be held in Milton.
[3] By Notice of Motion dated January 19, 2021, the Applicants requested an interlocutory injunction to prevent the Respondents from building a new wall until the Town of Oakville had issued a building permit, until the Respondents obtained written permission from the Applicants to enter their property and pending inspection for safety and other issues. Against the Town, the Applicants’ requested that there be a mandatory order that they issue a building permit. The Applicants cited irreparable harm if their injunction was not granted. The Respondents’ insurer refused to cover them with respect to the Applicants’ bid for an injunction. The Respondents hired Mr. O’Donnell to respond to the injunction motion. A hearing to determine the motion for an injunction was set down for February 24, 2021.
[4] On February 9, 2021, the Applicants filed a notice of abandonment of the motion for injunctive relief. At this hearing, Mr. Corbett said that the injunction was filed out of a concern that the Respondents had not contacted the Town about the construction. The abandonment of the injunction led, in the hearing before me, to Mr. O’Donnell for the Respondents and Mr. Hamilton for the Town making submissions only with respect to costs.
[5] The injunction hearing date was converted to a date to hear the application. At this hearing, Mr. Corbett for the Applicants made submissions requesting that the Respondents be found liable based on three separate legal heads: 1. Negligence; 2. Trespass; and 3. Nuisance. He pointed to photographs in the record and statements in the affidavit of Mr. Dubblestyne which supported that damage had been caused to his clients’ property. It seems reasonably clear that there has been some encroachment on the Applicant’s property but the extent of it, the damage to the property, whether the Applicants originally consented to the presence of workmen on their property and a host of other pertinent matters are very much open to question.
[6] Ms. Navarrete on behalf of the Respondents makes one main submission. She argues that this is not a matter that can be resolved by way of an application. It does not fall within the enumerated categories in Rule 14.05(3) of the Rules of Civil Procedure Ont. Reg. 194. R.R.O. 1990, Reg. 194. Ms. Navarette also argues that the facts are in dispute. The basket clause in Rule 14.05(3)(h) reads,
Application under Rules
14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial.
[7] I agree with Ms. Navarrete’s position. It is inarguable that the underlying facts are unsettled and disputed. Mr. Corbett made no substantial argument otherwise. The law is that “the application procedure is best suited to resolving disputes involving undisputed or easily settled facts” [citations omitted] Holmested and Watson: Ontario Civil Procedure, (online), Section 14[2]. Also see Fort William Indian Band v. Canada (Attorney General) (2005), 2005 CanLII 28533 (ON SC), 2005 CarswellOnt 2288, 76 O.R. (3d) 228 (S.C.J.) at paras. 28, 30.
[8] I tend to agree with the judicial authorities which hold that the enhanced fact-finding powers in Rule 20 of the Rules or analogous powers are likely applicable to applications as well as to actions: see Rubner v. Bistricer, 2018 CarswellOnt 4501, 2018 ONSC 1934 (S.C.J.) at paras. 105, 107; Sekhon v. Aerocar Limousine Services Co-Operative Ltd., 2013 CarswellOnt 715, 2013 ONSC 542 (S.C.J.) at paras. 51-52. But it is unnecessary to finally decide this issue as I would decline to exercise enhanced fact-finding in this instance whether or not available. There is no adequate foothold in the record for the material findings to be made. The discussions between the neighbours, the extent and nature of the encroachments, the damages and indeed the majority of the underlying facts behind all three heads of legal liability are impossible to ascertain with any degree of assurance.
[9] The factual foundation of the application is the affidavit of the Applicant Mr. Dubblestyne and exhibits appended to it. This affidavit is at cross-purposes to the relief requested. It is much more about supporting the argument that the replacement wall be demolished then about liability. The affidavit fails to address in any substantial way the factual underpinnings of the three heads of liability advanced by Mr. Corbett at this hearing.
[10] After summarizing the history of the demolition of the original wall and the construction of the replacement wall, the affidavit states in its main paragraphs:
18 We have been unable to agree to terms with the Defendants to deconstruct the existing wall and build a new wall in accordance with the orders.
- We are concerned that the deconstruction of the existing wall and construction of a new wall will result in further damage to our property.
20 Without a retaining wall built in the style of the original wall, it is possible that the existing wall will collapse onto our property due to subsidence.
21 We are named in Town of Oakville order #18-6209294 and are concerned that we will be responsible for future damages resulting from deconstruction of the existing wall.
22 We have made multiple attempts to resolve these issues without resorting to litigation.
23 We are informed that the Town of Oakville has issued a building permit for wall deconstruction, though we have not reviewed the permit and it is not clear as of this date when deconstruction will begin.
[11] Consistent with these paragraphs, the purpose of the affidavit is said to be “for an Order that the existing wall be removed from our property.” Although there is one paragraph stating that the Applicants hired a surveyor and an engineer for a total cost of just under $4000 and, furthermore, that the damage to their property is approximately $16,000, there is nothing else addressing the core liability issues raised at this hearing.
[12] Respondent Bassam El Sammak in his affidavit sworn for the purpose of the injunction proceeding, states that the cost of demolishing the flawed wall that was built and its reconstruction will be at least $49,000. The new wall is wholly on his property and the Town did not require a building permit for it to be constructed. The Town was aware of the wall and has attended the property several times. No stop work order was issued nor was any issue raised with respect to the ongoing work. He attests that the actions of the Applicant and their lack of co-operation cost his family approximately $20,000. Appended to the affidavit is a report from the engineering and construction firm retained to deal with the retaining wall issues. This report documents the ongoing problems securing the co-operation of the Applicants with respect to the work to be done.
[13] It is apparent from the juxtaposition of the Applicants’ and the Respondents’ affidavits, that no findings can be properly made in favour of Mr. Corbetts’ contentions. The facts are not only disputed, they are vague and unclear. The affidavit and supporting materials does not support the relief requested. For these reasons, I dismiss the application under Rule 38.10(1)(b) and order that the matter proceed to trial. In view of the state of the record before me, I cannot give further directions.
[14] As mentioned, costs with respect to the abandoned injunction motion were addressed at this hearing. The Respondents El Sammak and Bassam submit that the matter was of medium to high complexity, the importance of the issue to the Applicants and to the Respondents was high, and the Respondents were forced to cease construction and incurred substantial costs as a result. Mr. O’Donnell seemed especially piqued that his enjoyment of the Super Bowl on February 7, 2021 was hampered because he was in the midst of legal work to defend the motion for an injunction on that weekend. Partial indemnity asked for is $7,123.32. Mr. Hamilton put his partial indemnity costs at $8,189.41.
[15] After considering counsels’ submissions, I am of the opinion that the injunction was brought without sufficient care or caution. Greater attention ought to have been brought to bear on whether the application was truly necessary. By all indications, I believe that the injunction was doomed to fail. It is fair and reasonable that the Applicants bear the cost of the legal work devoted to defending against the improvidently filed injunction motion prior to its abandonment. I would order that the Applicant’s pay the partial indemnity costs set out above claimed both by the Town and by the Respondents within 30 days.
[16] If the parties cannot agree on the costs of this application, the Respondents shall deliver submissions of not more than 2 pages, not counting the bill of costs, within 30 days. The Applicants will have the same limit and must file within 20 days of the Respondents.
D.E. Harris J.
DATE: April 9, 2021
COURT FILE NO.: CV-20-2394-0000
DATE: 2021 04 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JAMES DUBBLESTYNE and SANDRA FLEMING (Applicants) and
VERONIQUE HOSTEIN, BASSAM EL SAMMAK, and the TOWN OF OAKVILLE (Respondents)
BEFORE: D. E. Harris J.
COUNSEL: Michael Corbett for the Applicants
Elaine Navarrete and Mark M. O'Donnell for the Respondents
Scott Hamilton for the Town of Oakville
DATE: February 24, 2021 by video conference
ENDORSEMENT
D.E.Harris J.
DATE: April 9, 2021