Court File and Parties

COURT FILE NO.: CV-09-61869 DATE: 2021/01/20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Malgorzata Dankiewicz, Plaintiff AND: Todd Joseph Sullivan, Defendant

BEFORE: Justice I.F. Leach

COUNSEL: John Goudy, for the Plaintiff Matthew Dupre, for the Defendant

HEARD: December 10, 2020

Endorsement

Introduction

[1] This endorsement deals with a motion brought by the plaintiff to strike specified evidence tendered by the defendant, in advance of the "penalty phase" of the directed trial of the contempt proceedings herein, on the basis such evidence is inadmissible.

[2] The motion was argued on December 10, 2020, at which time I formally reserved my decision. I also committed to providing that decision to counsel prior to January 7, 2021, to assist in their preparation and/or finalization of facta and books of authorities being filed in relation to the remaining trial proceedings.

[3] On January 6, 2021, counsel were advised that, for reasons to follow, I was granting the substantive relief sought by the plaintiff in paragraph 1 of her notice of motion dated November 27, 2020, (i.e., striking the defence evidence specified therein as requested), with costs associated with the motion to be reserved and addressed when costs of the trial are being addressed.

[4] These are those reasons.

Further background

[5] The underlying events and litigation leading to the present proceedings are described at length in my judgment released on November 4, 2019, reported as Dankiewicz v. Sullivan, 2019 ONSC 6382.

[6] This endorsement should be read along with that earlier judgment, for more detailed background and context to the plaintiff's motion to strike evidence. However, for present purposes, I think it sufficient to highlight the following:

a. This litigation stems from a longstanding disagreement between the owners of two adjacent residential properties, wherein the plaintiff has sought relief in relation to the defendant's interruption of surface water drainage from her property onto and across the defendant's adjacent property.

b. The dispute proceeded to a trial before Justice Rady. On June 24, 2011, Justice Rady released Reasons for Judgment finding, inter alia:

i. that the original grading in the adjoining rear yards of the parties' properties probably never accorded perfectly with that of the originally contemplated grading plan, but was still in general conformity with that plan, permitting positive surface water drainage from the plaintiff's property to the east, over the property of the defendant; and

ii. that conduct by the defendant, (e.g., construction of a shed in his rear yard causing a covered drainage tile system to fail, and raising the elevation of his back yard), had reversed the intended west to east flow of surface water drainage.

c. In her judgment, Justice Rady granted the plaintiff various forms of relief, including an order directing the defendant to "take whatever steps are necessary to ensure that the plaintiff's surface water drains across his property".

d. By 2016, the parties still had not reached a mutually agreeable solution to the surface water drainage issues, and the plaintiff brought a motion requesting a finding that the defendant was in contempt of Justice Rady's judgment, as well as consequential relief. In response, the defendant brought a cross-motion, seeking relief that included:

i. an order directing a "new trial" in this matter, based upon alleged "discovery of new evidence" relating to the original grading of the properties; and

ii. an order "amending" Justice Rady's judgment.

e. In his notice of motion dated April 1, 2016, the defendant indicated reliance on Rule 59.06(2) of the Rules of Civil Procedure, Rule 59.06(2)(a) of which permits a party to seek variation of an order, (a term which is defined by Rule 1.03 to include a judgment), on the ground of "facts…discovered after it was made".

f. In August of 2017, Justice Rady directed a trial of the parties' competing motions. As Justice Rady was not seized of the matter, the resulting trial proceedings began before me in March of 2019. At that time:

i. I was advised by counsel for the defendant that it was no longer necessary for me to consider certain requests set forth in his notice of motion's prayer for relief, including his request for an order directing a "new trial" in this matter based upon the supposed discovery of "new evidence" relating to the original grading of the properties.

ii. Upon receiving that indication, I noted that the remaining relief sought by the defendant, in his relevant notice of motion, also included a requested order "amending" Justice Rady's judgment. In that regard:

1. 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 factual determination and premise concerning the original grading of the properties.

2. 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; i.e., before I proceed with the directed trial of the plaintiff's contempt motion and the defendant's cross-motion. 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 court recess on the first day of trial.

3. When court reconvened after that initial recess, I received further indications from defence counsel indicating that the request for amendment of Justice Rady's judgment no longer was being pursued. In particular:

a. 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.

b. When I pressed for a firm 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".

c. 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.

d. 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".

iii. Notwithstanding those express indications by defence counsel, on behalf the defendant, there were numerous aborted attempts to raise such issues again during the course of the ensuring "liability phase" of the trial that followed. In particular, despite the express confirmation I had received that such requests for relief and related issues were being abandoned, 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.

g. The "liability phase" of the directed trial proceeding to a conclusion on March 28, 2019, at which time I reserved my decision. On November 4, 2019, I issued my judgment, noted above. I made an order declaring that the defendant was in contempt of Justice Rady's judgment dated June 24, 2011, insofar as he had failed to "take whatever steps [were] necessary to ensure that the plaintiff's surface water [drained] across the defendant's property". In the result, the relief requested by the defendant's cross-motion, including his request for court approval of the remedial drainage work he had undertaken and/or proposed, and an order compelling the plaintiff to provide a release and "satisfaction piece" on the suggested basis that the defendant had complied with Justice Rady's 2011 judgment, was denied.

h. The matter then was scheduled for trial continuation before me; i.e., to deal with how the defendant's established contempt should be addressed, taking into account any intervening measures taken by the defendant to purge his contempt before the trial continuation.

i. When the defendant and his counsel failed to approve a draft order proposed by plaintiff counsel, reflecting my judgment on November 4, 2019, an appointment before me to settle that order, pursuant to Rule 59.04(2) of the Rules of Civil Procedure, was scheduled for June 26, 2020. To facilitate management of the remaining trial, I also directed the holding of a case conference, pursuant to Rule 50.13(5), to follow immediately thereafter.

j. On June 26, 2020, after receiving counsel submissions, I made a further endorsement settling the form of the order corresponding to my judgment of November 4, 2019, and providing directions for management of the remaining trial proceedings. Amongst other provisions, that endorsement indicated and confirmed:

i. that the remaining contested issues for trial included:

1. whether the defendant had purged his contempt by the time of the trial continuation and, if so, to what extent;

2. the nature of the penalty to be imposed and remedial measures to be ordered, if any, to address the defendant's contempt; and

3. whether the defendant should be entitled to any of the relief sought in his cross-motion, largely focused on whether the court should provide formal confirmation that the defendant has satisfied his obligations to the plaintiff and remove any associated encumbrance on title to the defendant's property;

ii. that, barring further order of the court, evidence in relation to the penalty phase of the contempt proceeding trial would be presented in writing through affidavits and transcripts of cross-examination on affidavits, all of which were to be delivered on or before dates set forth in a specified timetable; and

iii. that continuation of the trial was to be scheduled by the Local Administrative Judge for London, or his designate, for commencement on a date on or after October 26, 2020, with an estimated maximum trial duration of two days.

k. The trial continuation subsequently was scheduled to take place on December 9 and 10, 2020.

l. On November 20, 2020, However, I received correspondence from counsel for the defendant containing indications that, in my view, raised additional trial management and other concerns. In particular, defence counsel indicated that he had received instructions to proceed with a defence motion "for a new trial and the admission of fresh evidence forthwith", and anticipated doing so when the trial continued on December 9 and 10, 2020. I accordingly directed a further case management teleconference to clarify what was being proposed, and to determine whether the proposal raised fundamental issues that might be better addressed and resolved, one way or the other, prior to continuation of the trial.

m. That further case management teleconference took place on November 23, 2020. As indicated in my corresponding endorsement of that date:

i. Extended discussion with counsel during the case conference distilled the immediate issue to one focused on whether the defendant should be permitted to introduce and rely on certain evidence already filed by the defendant in a supplementary motion record; evidence which plaintiff counsel characterized as, inter alia, a collateral attack on the finality of matters already decided. In particular, plaintiff counsel intended to argue that the evidence attempted to call into question findings and decisions made by Justice Rady in her judgment of June 24, 2011, (a judgment which was not appealed, and the finality of which apparently had been accepted by the defendant during the proceedings before me in March of 2019), prior to my decision in relation to the liability phase of these contempt proceedings.

ii. Feeling that it was important for the evidentiary record to be settled before the parties proceeded with finalization and delivery of their contemplated facta and books of authorities, and before the court proceeded with trial and argument of the remaining issues, I issued further directions whereby:

1. continuation of the trial was adjourned, in consultation with the London trial co-ordinator, to January 14 and 15, 2020; and

2. a timetable was set for the delivery of material relating to a formal motion by the plaintiff to strike portions of the evidence filed by the defendant, to be heard on December 9, 2020, on the understanding that I then would indicate my decision on the motion prior to the extended deadline for filing of facta and books of authorities in relation to the trial continuation.

n. Argument of the plaintiff's motion to strike trial evidence filed by the defendant proceeded on December 9, 2020, at which time I formally reserved my decision.

o. As noted above, counsel were advised on January 6, 2020, that I had decided to grant the relief specified in the plaintiff's relevant notice of motion, (i.e., striking the specified trial evidence filed by the defendant), for reasons to follow.

Analysis

[7] The particular defence evidence the plaintiff sought to strike was specified in paragraph 1 of the plaintiff's notice of motion dated November 27, 2020.

[8] While I reviewed and considered that particular evidence in detail, in the course of arriving at my decision in relation to the plaintiff's motion, I think it unnecessary for present purposes to replicate that evidence in extensive detail here. By way of general description:

a. In an affidavit sworn by the defendant Mr Sullivan on August 21, 2020, he:

i. included reference to his engineer investigating the grading history of the relevant properties and finding indications, (reflected in correspondence attached to the affidavit as an exhibit), that regrading of the properties prior to 1995 had resulted in a situation where the relevant surface water drainage thereafter was primarily to the west, rather than to the east;

ii. asserted that such "new evidence" should be admitted, in part by referring to specified decisions, (one of which was attached to the affidavit as an exhibit), of the Supreme Court of Canada and Ontario Court of Appeal; and

iii. asserted that the "new evidence" raised "the inevitable conclusion that the final judgment [of Justice Rady] was not based on the actual grading history of the properties".

b. In an affidavit sworn by the defendant's engineer Mr Dykstra on August 21, 2020, Mr Dykstra asserted:

i. that although a specified report from 1995 admittedly disclosed during the trial before Justice Rady had made reference to construction on the plaintiff's property being too low, the full nature and effect of regrading was not disclosed or "appreciated" at that trial;

ii. that Mr Dykstra's investigations had disclosed implementation of a new grading design whereby surface water drainage actually would flow to the west rather than to the east, thereby flowing from the defendant's rear yard onto the plaintiff's rear yard rather than the other way around;

iii. that Mr Dykstra' felt his conclusions in that regard were supported by communications he had with the city of London in 2018, as well as aerial photographs of the area;

iv. that Mr Dykstra unsuccessfully had attempted to raise such matters with the plaintiff's engineer; and

v. that the drainage ordered by Justice Rady in her judgment accordingly was "contrary to the drainage design" that actually had been approved by the city of London.

[9] In my view, the specified evidence filed by the defendant was clearly inappropriate for a number of reasons, thereby warranting the relief sought by the plaintiff striking that evidence.

[10] First, the impugned portions of the affidavit sworn by the defendant Mr Sullivan clearly included inappropriate argument. In that regard:

a. Rule 4.06(2) of the Rules of Civil Procedure make it clear that an affidavit "shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where [the] rules provide otherwise". [Emphasis added.] Arguments and expressed opinions about the law, or legal conclusions the court is being asked to draw, are self-evidently not "facts" within the meaning of Rule 4.06(2). Nor would a witness testifying at court be permitted to address such matters, except in rare circumstances, (e.g., proof of foreign law), not raised by this case.

b. Pursuant to Rule 37.10(6) of the Rules of Civil Procedure, the place for a written "concise argument" and statement of the law relied upon by a party is in that party's factum. An affidavit is not the place for a party, or his or her lawyer, to make written arguments or cite cases.[^1]

c. In my view, having regard to such basic principles, paragraphs 12, 13 and 15 of Mr Sullivan's affidavit, overtly making submissions relating to the test for admitting new/fresh evidence, citing specific decisions of appellate courts, and asserting what conclusions the court should draw in this case, are clearly in the nature of argument and statements of law which have no proper place in the defendant's affidavit. Nor should the defendant have attached a copy of one of those decisions as an exhibit to his affidavit. That purported "evidence" accordingly needed to be struck out in any event.

[11] Second, insofar as the impugned portions of the affidavit sworn by Mr Dykstra refer to factual assertions made by counsel for the city of London, they contain inadmissible hearsay. To the extent the impugned portions of the affidavit sworn by the defendant Mr Sullivan effectively refer to Mr Dykstra's indications of what Mr Dykstra has been told by counsel for the city of London, they contain inadmissible hearsay upon hearsay.

[12] Third, insofar as the impugned portions of the two affidavits purport to supply the court directly and indirectly with additional opinion evidence provided by the defendant's engineering expert, there has been no effort made to comply with Rule 53.03 of the Rules of Civil Procedure in that regard; e.g., provisions of that rule requiring preparation and service of a proper written report in accordance with the sensible provisions set out therein.

[13] Fourth, for reasons set forth convincingly in the factum filed by plaintiff counsel on September 10, 2018, (i.e., prior to the express indications by defence counsel in the initial trial proceedings before me that the defendant would no longer be pursuing his requests for a "new trial" or any order "amending" Justice Rady's judgment, and was instead accepting finality of that judgment), supplemented by my independent awareness of the law regarding permissible variation of orders and judgments, in my view the circumstances do not fall within the ambit of Rule 59.06(2)(a) of the Rules of Civil Procedure, pursuant to which the defendant might request a variation of Justice Rady's judgment based on "facts arising or discovered after it was made". Without limiting the generality of the foregoing:

a. Rule 59.06(2), rather than the inherent jurisdiction previously exercised by the court in relation to such matters, now governs the court's ability to set aside or vary a court order or judgment based on new or "fresh" evidence.[^2]

b. To engage Rule 59.06(2), the evidence in question must actually be new or "fresh" evidence. The court will not permit a party to characterize, as new or "fresh" evidence, what essentially is old evidence that has been recycled.[^3]

c. More generally, in addition to showing that proposed new or "fresh" evidence is apparently credible and would have an important influence on the outcome, the party seeking to tender and rely on such evidence also must show that it could not have been discovered or obtained by reasonable diligence prior to the relevant order or judgment being made.[^4]

d. However, the court will not permit an order or judgment to be varied, on the basis of new or "fresh" evidence, in circumstances where the party requesting the variation has failed to act with reasonable diligence and has provided no justification for the excessive delay.[^5]

e. Nor will the court permit variation of an order or judgment in circumstances where there has been a change in position, or a change of circumstances.[^6]

f. In the case at hand:

i. As emphasized by plaintiff counsel, and as indicated in paragraph 4 of the affidavit sworn by Mr Dykstra on August 21, 2020, the 1995 written report which is said to have led to Mr Dykstra's further investigations/inquiries and views, (i.e., a letter or report written by David Whitney dated November 16, 1995, indicating that construction on the plaintiff's property may have been done at an elevation that was "too low"), formed part of the evidence in the trial before Justice Rady. In particular, it formed part of the plaintiff's brief of documents, which was received and marked as Exhibit 2 in the trial before Justice Rady. Moreover, the document in question did not simply indicate that the plaintiff's house had been "built 300 mm too low". It also indicated that the grading had been changed from 1.5% to 1.36%.

ii. Nor did that particular document fly "under the radar" at the trial before Justice Rady, once it had been entered into evidence. To the contrary:

1. during the course of the trial before Justice Rady, counsel then representing the defendant specifically cross-examined Colin Atkinson, the engineering expert witness called by the plaintiff, about the document in question, focusing in particular on the suggested deviation in actual grading from that which the applicable plan originally contemplated; and

2. in paragraphs 17 and 18 of her Reasons for Judgment released on June 24, 2011, Justice Rady made specific reference to the relevant 1995 letter from Mr Whitney, and that cross-examination of Mr Atkinson by defence counsel, before finding:

a. that the grading in the rear yards of the parties' properties probably never accorded precisely with the contemplated plan;

b. that there nevertheless was still positive drainage of surface water from the plaintiff's property across the defendant's property until 2007;

c. that the original grading therefore generally accorded with the plan, albeit perhaps with some minor deviations;

d. that the aforesaid drainage from the plaintiff's property onto and across the defendant's property continued until "something happened in 2007 causing a reversal of drainage flow"; and

e. that the defendant's 2007 installation of a shed in his backyard was the probable cause of that reversal.

iii. In the circumstances, there is nothing in the record to suggest that the defendant could not have discovered or obtained, with reasonable diligence, the evidence he now wishes to place before the court; evidence which, in his affidavit, Mr Dykstra candidly indicates is being submitted for the purpose of persuading the court, in the proceedings before me, that Justice Rady did not have a fulsome and/or accurate appreciation of the nature and effect of the relevant regrading of the relevant properties, in turn causing her to err by ordering drainage contrary to the actual drainage design approved by the city of London. To the contrary, the record before me indicates that the defendant and his counsel at the time were fully aware of the 1995 report and its potential significance prior to trial, and made overt efforts to explore that significance. Mr Dykstra, the new engineering expert retained by the defendant many years after the trial before Justice Rady, may have made further inquiries in that regard and offered a further opinion about the significance of such regrading. In my view, however, there is nothing in the record to indicate or even suggest that such further inquiries could not have been made, with reasonable diligence, prior to the trial before Justice Rady. On my reading of the situation, there is also much to suggest that the defendant has simply recycled "old" evidence through the medium of a new expert.

iv. This also is not a situation where the plaintiff has acted with reasonable diligence to obtain and proffer the supposed new or "fresh" evidence. The trial before Justice Rady took place in March and May of 2011. As already noted, Justice Rady released her Reasons for Judgment on June 24, 2011. A formal judgment apparently was issued and entered shortly thereafter. The defendant nevertheless apparently made no formal request or attempt to tender the supposed new or "fresh" evidence in any way until his notice of motion dated April 1, 2016; i.e., almost five years after Justice Rady had released her Reasons for Judgment, including her findings concerning the defendant's suggestion that the actual original grading in the rear yards of the parties' properties had deviated significantly from that contemplated in the original grading plan, in turn supposedly undermining the plaintiff's contention that surface water from her rear yard had drained to the east across the defendant's property prior to 2007. In its current recycled incarnation, the evidence the plaintiff now moves to strike from the record was not filed by the defendant until August 21, 2020; i.e., more than nine years after Justice Rady had released her Reasons for Judgment.

v. In my view, this is also a situation where there has been a change in position and/or a change of circumstances since Justice Rady's judgment was issued and entered. Without limiting the generality of the foregoing:

1. For more than nine years now, the plaintiff understandably has proceeded on the basis that she was successful in obtaining a judgment obliging the defendant to "take whatever steps are necessary to ensure that the plaintiff's surface water drains across his property".

2. For more than nine years now, the plaintiff also understandably has incurred considerable time and litigation expense attempting to secure the defendant's compliance with that judgment; a judgment for which the defendant has demonstrated ongoing contempt, formally established for the reasons set forth in my judgment of November 4, 2019.

3. In the meantime, and in understandable anticipation of the defendant being made to comply with his court ordered obligation, the plaintiff has continued to endure nine years of post-judgment non-compliance by the defendant. That non-compliance has resulted in further flooding of the plaintiff's backyard, as well as the aggravation, annoyance, time and expense associated with the plaintiff's attempts to mitigate the effects of that non-compliance; e.g., through the installation and maintenance of barriers and drainage mechanisms on her property, which would have been entirely unnecessary had the defendant complied with the court-ordered obligation imposed by Justice Rady.

vi. For all these reasons, in my view the defendant would not have been permitted to vary Justice Rady's judgment pursuant to Rule 59.06 of the Rules of Civil Procedure had he continued to seek such an outcome directly and openly. He therefore should not be permitted to pursue that outcome indirectly now; i.e., by simply tendering and relying upon supposed new or fresh evidence without leave of the court, in support of his suggestions that the findings and order of Justice Rady essentially should be revisited and disregarded on the basis they were made in error and without a proper appreciation of the underlying facts.

[14] Fifth, on a related note and perhaps most importantly, in my view allowing the defendant to proceed in such a fashion, (i.e., tendering and relying upon such evidence in support of arguments that the findings and order of Justice Rady should now be revisited and disregarded), would permit and condone conduct prohibited by the doctrines of issue estoppel, the rule against collateral attacks on orders/judgments, and abuse of process. In that regard:

a. The Supreme Court of Canada has explained and emphasized, in considerable detail, that a number of related common law doctrines have evolved, for sound policy reasons, to address and prevent the relitigation of issues finally decided in previous judicial proceedings; a goal that lies at the heart of the administration of justice.[^7] In particular:

i. The doctrine of "issue estoppel", (a branch of the doctrine of res judicata), precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successful invoked, three preconditions must be met:

1. the issue must be the same as the one decided in the prior decision;

2. the prior judicial decision must have been final; and

3. the parties to both proceedings must be the same.[^8]

ii. The rule against "collateral attack" bars actions to overturn decisions when those actions take place in the wrong forum. In that regard, it has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled that such an order may not be attacked collaterally, with a "collateral attack" being described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.[^9]

iii. More generally, judges have an inherent and residual discretion to prevent an abuse of the court's process. The concept of "abuse of process" has been described as proceedings "unfair to the point that they are contrary to the interests of justice", and as "oppressive treatment". In that regard:

1. Such an "abuse of process" may be established where the proceedings are oppressive or vexatious, and violate the fundamental principles of justice underlying the community's sense of fair play and decency;

2. While the concepts of oppressiveness and vexatiousness underline the interest of a litigant in a fair trial, the "abuse of process" doctrine evokes, as well, the public interest in a fair and just trial process, and the proper administration of justice;

3. Unreasonable delay causing serious prejudice can amount to an abuse of process;

4. The "abuse of process" doctrine also engages the inherent power of the court to prevent the misuse of its procedure – i.e., in a way that would be manifestly unfair to a party to the litigation before it, or that would in some other way bring the administration of justice into disrepute; and

5. The "abuse of process" doctrine is a flexible one, (e.g., "unencumbered" by the specific requirements of concepts such as issue estoppel), and is often employed in circumstances where the strict requirements of other doctrines such as issue estoppel are not met, but where allowing a certain type of litigation to proceed nevertheless would violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice.[^10]

b. In my view, all three of those doctrines warranted the relief, requested by the plaintiff, striking the specified evidence filed by the defendant. In particular:

i. It seemed clear to me that the defendant clearly was attempting to relitigate the issue of whether the grading of the parties' properties, prior to 2007, was such that surface water from the plaintiff's property drained to the east onto and across the defendant's property, or drained to the west from the defendant's property onto the plaintiff's property as the defendant believed and still believes. In that regard:

1. That same issue was before Justice Rady for determination, as a factual question to be decided before turning to resolution of other issues including causation and the granting of appropriate relief. Justice Rady clearly decided that issue; i.e., finding that, although the relevant grading prior to 2007 probably never accorded precisely with the original plan, it nevertheless generally accorded with that plan, (albeit perhaps with some minor deviations), such that surface water was still positively draining from the plaintiff's property onto and across the defendant's property.

2. The prior decision of Justice Rady was final, and was not appealed.

3. The parties to the litigation before Justice Rady, leading to that final decision, obviously were the same parties to the litigation now before me.

4. In the circumstances, the doctrine of issue estoppel accordingly applied, preventing the defendant from revisiting that factual issue again in these proceedings.

ii. There is no suggestion that Justice Rady lacked jurisdiction to make the factual determinations and resulting judgment she made in that earlier proceeding. Moreover, her decision stands, and is binding and conclusive, insofar as it was never set aside on appeal or lawfully quashed. Furthermore, in the proceeding before me, the defendant expressly and clearly abandoned pursuit of the aspects of his cross-motion which had the specific and express object of reversing, varying or nullifying Justice Rady's findings and judgment through a "new trial" or "amendment". In my view, the defendant was trying to achieve, in an indirect fashion by the unilateral filing of his supposed new or fresh evidence and arguments based on that evidence, those same desired results. As noted above, Mr Dykstra's affidavit clearly indicates his view that Justice Rady made her factual determinations without a proper appreciation of the nature and effect of the relevant regrading of the properties, in turn causing her to make a drainage order that supposedly was inappropriate insofar as it allegedly was contrary to the actual drainage design that had been approved by the City of London for many years. On any sensible view, such new or "fresh" evidence had relevance only if the defendant was permitted to argue that Justice Rady's judgment and the factual determinations underlying it effectively should be disregarded and nullified; i.e., to argue that I should make factual determinations different from those made by Justice Rady, and then conclude that the defendant's drainage obligation accordingly should be different from that imposed by Justice Rady. In short, permitting the defendant to tender and rely upon such evidence, in the manner obviously intended, would have condoned what essentially was a collateral attack on Justice Rady's judgment.

iii. In my view, allowing the defendant to tender and rely upon such evidence at this stage, for that obviously intended purpose, also would have condoned an "abuse of process" in the broader sense. Without limiting the generality of the foregoing:

1. Again, Justice Rady released her Reasons for Judgment in June of 2011; i.e., more than nine years ago. It was a final judgment, and one that was never appealed.

2. As noted above, the plaintiff has endured much over the past nine years, in terms of time, expense, frustration and personal effort, understandably hoping for and expecting the defendant's compliance with that judgment rendered by Justice Rady. Although the defendant has continued to view himself as the victim in relation to these proceedings, the truth of the matter is that he is the party who, for many years now, has been conducting himself in a contemptuous manner as far as Justice Rady's judgment is concerned.

3. As also noted above, the defendant allowed five years to go by without taking any formal steps to question Justice Rady's judgment, or the factual determinations made by Justice Rady upon which her judgment was based. Moreover, when pressed for his position in that regard, at the start of the trial proceedings before me in March of 2019, the defendant expressly abandoned his pursuit of any such relief. More than 17 months later, (and after receiving an adverse judgment from me in relation to the liability phase of the contempt proceedings), the defendant tendered the evidence the plaintiff now seeks to strike. By doing so, the defendant essentially signalled his intention to pursue such relief yet again; i.e., seeking to argue that Justice Rady's judgment and the drainage order contained therein should be disregarded, insofar as they supposedly were based on underlying factual determinations that were said to be flawed and at variance with the true underlying facts.

4. In short, approximately 14 years after the onset of the parties' dispute, 11 years after commencement of litigation between the parties, 9 years after receiving an adverse judgment from Justice Rady, 17 months after formally abandoning pursuit in this proceeding of any request for a new trial or variation of Justice Rady's judgment, and 9 months after receiving an adverse judgment from me, the defendant filed evidence effectively indicating his desire to pursue an effective "reset" of the underlying factual matrix against which issues relating to his ongoing contempt, and possible remedies for that contempt, should be decided.

5. In my view, allowing the defendant to do so at this point would have been extremely oppressive and vexatious vis-à-vis the plaintiff and, to any objective observer made familiar with the extended history of this litigation, would have violated the fundamental principles of justice underlying the community's sense of fair play and decency. For many years now, the plaintiff has "played by the rules", fairly obtaining a judgment finding the defendant at fault and imposing an obligation on the defendant; a judgment in respect of which the plaintiff rightly expected compliance. The plaintiff also has "played by the rules" to ensure that compliance; e.g., by fairly obtaining a further judgment from me, formally declaring the defendant to be in contempt of the court's earlier judgment rendered by Justice Rady. In the meantime, the plaintiff has continued to suffer and endure the effects of the defendant's non-compliance and contempt for that earlier judgment. It would be manifestly unfair if she effectively was obliged, at this late stage of the litigation between the parties, to argue once again that the underlying facts properly entitled her to the judgment made by Justice Rady. Moreover, the inherent prejudice to the plaintiff in that regard would be compounded by the defendant's unreasonable and repeated delays in raising such arguments.

6. In my view, allowing the defendant to tender such evidence at this late stage of the litigation, for the obvious purpose of reopening and rearguing the underlying facts already decided by Justice Rady, after substantial further litigation by the plaintiff to enforce Justice Rady's judgment, would have been completely at odds with the principles of judicial economy, consistency, finality and the integrity of the administration of justice.

c. As noted above, issue estoppel, the rule against collateral attack and preventing abuse of the court's process are related doctrines, all of which seek to prevent the relitigation of issues finally decided in previous judicial proceedings. For the reasons I have outlined, all three doctrines applied in the present circumstances. In relation to the factual determinations and resulting judgment of Justice Rady the defendant effectively was seeking to revisit, by the filing of his impugned evidence, the figurative ship sailed too long ago, and has travelled onwards for too many years, to be called back to port now.

Conclusion

[15] For the reasons outlined above, I made the decision indicated to the parties on January 6, 2021; i.e., granting the relief sought in paragraph 1 of the plaintiff's notice of motion dated November 27, 2020, and striking out the specified evidence filed by the defendant in his Supplementary Record dated August 21, 2020.

[16] As noted above, costs of the plaintiff's motion to strike that evidence are reserved, and will be addressed during the cost submissions to be received at the end of the ongoing trial proceedings before me.

Justice I.F. Leach

Date: January 20, 2020

[^1]: See Gutierrez v. The Watchtower Bible and Tract Society of Canada (2019), 2019 ONSC 3069, 34 C.P.C. (8^th) 240 (S.C.J.), at paragraph 50.

[^2]: See Goldentuler Estate v. Crosbie (2014), 2014 ONSC 6441, 123 O.R. (3d) 621 (Div.Ct.).

[^3]: See Watts, Griffis & McOuat Ltd. v. Harrison Group of Cos. (2001), 18 C.P.C. (5^th) 117 (S.C.J.).

[^4]: See Scott v. Cook, 1970 331 (ON SC), [1970] 2 O.R. 769 (H.C.); Rosenberg v. Geist (1984), 1984 2193 (ON SC), 48 O.R. (2d) 373 (H.C.); Saviro International v. Cadillac Gage Co. (1992), 14 C.P.C. (3d) 229 (Ont.Gen.Div.), affirmed (1993), 14 C.P.C. (3d) 252 (Ont.C.A.), leave to appeal to the Supreme Court of Canada refused 19 C.P.C. (3d) 21 (note); Dawi v. Armstrong (1992), 17 C.P.C. (3d) 196 (Ont.Gen.Div.), affirmed [2003] O.J. No. 3893 (C.A.); and Hall v. Powers (2005), 2005 23121 (ON SC), 80 O.R. (3d) 462 (S.C.J.).

[^5]: See Saviro International v. Cadillac Gage Co., supra.

[^6]: See Hall v. Powers, supra.

[^7]: See, in particular, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

[^8]: Ibid., at paragraph 23.

[^9]: Ibid., at paragraph 33.

[^10]: Ibid., at paragraphs 35-37.