COURT FILE NO.: CV-10-218-00SR (Owen Sound)
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Peter Majewsky
Self-Represented (Responding party on the motion)
Plaintiff
- and -
Juris Veveris and Christina Miller-Veveris
Stewart Title Guaranty Company
R. H. Thomson for Juris and Christina Miller-Veveris (Moving party on the motion)
S. Lucenti for Stewart Title Guaranty Company (Responding party on the motion)
Defendants
HEARD: April 20, 2022 – By videoconference
REASONS FOR DECISION
KUMARANAYAKE J.
Nature of the motion
[1] The Defendants, Juris Veveris and Christina Miller-Veveris (“the Veveris Defendants”) and the Plaintiff, Peter Majewsky (“Mr. Majewsky”), own neighbouring properties in Markdale, Ontario. They had a dispute about the property boundaries. Their dispute was the subject of a trial heard by Justice Donohue in June 2016 and resulted in the Judgement, dated October 11, 2016, see: Majewsky v. Veveris, 2016 ONSC 5608 (“the Judgement”). The Judgement includes the history of how the dispute arose. It is not necessary to repeat that history to determine the issue before me.
[2] The Defendant Stewart Title Guaranty Company (“Stewart Title”) did not participate in the trial. In July 2014, Mr. Majewsky settled his claim against Stewart Title and then Stewart Title discontinued its crossclaim against the Veveris Defendants. On September 25, 2014, Justice Emery dismissed the action against Stewart Title without costs.
[3] The Judgement granted Mr. Majewsky’s claim for possessory title to the house and yard, prescriptive right to the driveway encroachment, and the prescriptive right to the use the cedar trail as specified in the Judgement (see para. 119 and following).
[4] The Judgement also required that a Reference Plan be prepared and registered on title to the subject properties and that the Reference Plan detail a new property boundary between Mr. Majewsky’s lands and the Veveris Defendants’ lands. The Judgement set out the coordinates for the property boundary (see paras. 122 to 126).
[5] The Veveris Defendants appealed the Judgement. The Ontario Court of Appeal partially granted their appeal and only set aside the trial judge’s finding that granted Mr. Majewsky a prescriptive easement over the cedar trail. The other grounds of appeal were rejected, see: Majewsky v. Veveris, 2018 ONCA 848.
[6] As part of the settlement reached with Mr. Majewsky, Stewart Title agreed to retain a surveyor to prepare the Reference Plan. In February 2020, through counsel, Stewart Title retained Ron Mak of Van Harten Surveying Inc. (“Mr. Mak”). Mr. Mak provided a draft of the Reference Plan in April 2020 (“April 2020 version”) and a Final Reference Plan in June 2020 (“June 2020 version”).
[7] The Veveris Defendants brought this motion for directions in August 2021. The Veveris Defendants state that another dispute has arisen with respect to an interpretation of para. 119 of the Judgement and the preparation of the Reference Plan to be registered on title in accordance with para. 122 of the Judgement.
The position of the parties
[8] The Veveris Defendants assert that the parties disagree about which version of the Reference Plan is correct. The Veveris Defendants maintain that the April 2020 version is the correct one.
[9] Mr. Majewsky and Stewart Title share a common position. They assert that no dispute exists, as only one Reference Plan has ever been prepared: the one from June 2020. They maintain that the Veveris Defendants are dragging out the conclusion of this matter because they disagree with June 2020 version. Neither Mr. Majewsky nor Stewart Title dispute the June 2020 Reference Plan’s accuracy. They each want this matter to conclude, as the litigation started with a statement of claim issued on September 7, 2010.
The issue and the short answer
[10] I must determine whether the Veveris Defendants are correct in their position that f the Reference Plan prepared by Mr. Mak in April 2020 is the correct Reference Plan.
[11] The short answer is that I find that the Veveris Defendants’ position cannot prevail. I find that the June 2020 Reference Plan prepared by Mr. Mak is the one that should be registered on title to the property. I explain my reasons below.
Discussion
Summary of litigation history
[12] This litigation history was helpfully summarized in paras. 2 to 10 of the affidavit filed on behalf of Stewart Title and I adopt that summary.
Undisputed facts/chronology
[13] The evidence filed on behalf of Veveris Defendants for this motion is not extensive. It consists of two short affidavits from a law clerk in their lawyer’s office and one short affidavit from Christine Miller-Veveris.
[14] Stewart Title filed a comprehensive affidavit outlining the proceedings’ history as well as the events that led to this motion. Most of the evidence Stewart Title filed is factual in nature and was not included in the Veveris Defendants’ evidence.
[15] While Mr. Majewsky’s affidavit was relatively short, it addressed the moving party’s concerns.
[16] Based on the evidentiary record before me, I make the following factual findings based largely on the evidence filed on behalf of Stewart Title. I note that in their materials, the Veveris Defendants did not dispute any of that evidence:
a) On or about February 27, 2020, Mr. Mak was provided with a copy of the Reasons for Judgement, Reasons for Decision of the Court of Appeal, and the Amended Judgement of Justice Donohue.
b) Mr. Mak attended at the property on March 24, 2020, and on April 1, 2020.
c) On April 2, 2020, Mr. Mak provided counsel for Stewart Title with a draft Reference Plan.
d) On June 12, 2020, counsel for Stewart Title sent the draft Reference Plan to the Veveris Defendants.
e) This draft Reference Plan is what these Reasons refer to as the April 2020 version.
f) On June 16, 2020, Mr. Mak provided a follow-up report which was provided to the lawyers for Stewart Title.
g) On June 19, 2020, the Veveris Defendants sent correspondence to counsel for Stewart Title in which they stated that the way Mr. Mak had prepared the survey did not accord with the Judgement and stated that more than 3 metres of their property would be encompassed for maintenance. They provided their suggestions for changes.
h) On June 22, 2020, a law clerk for Stewart Title’s counsel provided the Veveris Defendants with a copy of Mr. Mak’s follow-up report and forwarded their correspondence to Mr. Mak. The law clerk also confirmed that the retainer of counsel on behalf of Stewart Title did not include negotiating terms between the parties. Rather, the retainer was limited to rectifying the title based on the surveyor’s understanding of the Judgement.
i) On June 30, 2020, Mr. Mak provided the final Reference Plan – the June 2020 version. Further, he provided a response to the Veveris Defendants’ letter of June 19, 2020. Mr. Mak explained why the April 2020 version was problematic:
I re-examined the plan with the intent to show more clearly that the northerly limit of Part 3 is indeed "a distance of three (3) metres beyond the current edge of the driveway ... ". The previous draft reference plan constructed the northerly limit of Part 3 as a parallel offset of the northerly boundary of Part 2. That arc was then improperly extended to meat [sic] the northerly limit of Part 9 of R- 139. The intent of the judgement is clear that the 3 metre offset is to be taken from the current edge of the driveway. As such, the plan has been corrected to reflect this properly. [Emphasis added]
j) The Veveris Defendants subsequently wrote to counsel for Stewart Title on July 26, 2020. By this correspondence, they provided their comments about the June 2020 version of the Reference Plan. Once again, they did not agree with what Mr. Mak had prepared or the starting point that he used for the 3-metre offset.
k) On July 30, 2020, Mr. Mak provided a response to the concerns set out in the Veveris Defendants’ correspondence of July 26, 2020. In his response, Mr. Mak stated:
Their response makes an assertion based on what, in my opinion, is a convoluted and ultimately incorrect interpretation of the judgement. In my 30+ years of surveying, I have never seen an easement constructed in the matter described by Veveris. Also, given that the easement is based on prescriptive rights based and usage [sic], I think that it would (sic) difficult to imagine that usage being contained within an arc with a 3 metre radius (as shown on their sketch) centred on a point of intersection that's existence, let alone location was not even known to either party before this survey was done.
I will continue to wait for your instructions before setting the bars and finalizing the plan. I must admit though, that if you were to instruct me to amend the plan to reflect the interpretation by Veveris, I would be faced with a serious dilemma. If I were to make this change, it would not confirm [sic] to the judgement [Emphasis added].
l) Mr. Mak’s response was provided to the Veveris Defendants on July 30, 2020.
m) On August 9, 2020, the Veveris Defendants acknowledged receipt of Mr. Mak’s correspondence of July 30, 2020. Once again, they reiterated to counsel for Stewart Title that they disagreed with the June 2020 version of the Reference Plan and asserted that the April 2020 version was “more accurate.”
n) On November 16, 2020, Mr. Majewsky contacted counsel for Stewart Title to request that Mr. Mak return to the property to place the appropriate stakes to outline the boundary lines. His correspondence was copied to the Veveris Defendants.
o) On November 23, 2020, counsel for Stewart Title confirmed that Mr. Mak would attend at the property as requested. Counsel for Stewart Title also inquired if Mr. Majewsky and the Veveris Defendants were able to have the June 2020 version of the Reference Plan registered on title.
p) By his response to this inquiry, Mr. Majewsky indicated that he agreed.
q) However, by their response, dated November 25, 2020, the Veveris Defendants once again maintained their objection to the June 2020 version of the Reference Plan.
r) Once again, Mr. Mak provided his response by correspondence dated November 27, 2020, and once again, it was Mr. Mak’s that the Veveris Defendants were taking an incorrect position:
I have read and considered their rationale but continue to hold that my interpretation of the judgement is correct. Their [Veveris'] interpretation relies on an inference which they claim is necessary as it is "the only way the Order makes sense." I do not see any need for the inference ... It is my sincere hope that the Veveris' will recognize that it (sic) the mandate of the Ontario Land Surveyor, not one of the contesting parties, to interpret the description contained in the judgement. As you know, the Majewski's [sic] also initially had a significant disagreement with the survey. However, it seems that they have come to understand that the survey very accurately reflects the judgement and that their understanding of some details was wrong. Similarly, while the Veveris' obviously do not like it, they are not the ones to decide the matter. [Emphasis added]
s) On January 19, 2021, counsel for Stewart Title once again wrote to the parties and confirmed that Mr. Majewsky was content with the June 2020 version of the Reference Plan prepared by Mr. Mak. Counsel also noted that that Stewart Title was not required to consult with the parties until a consensus was reached and referred to the requirement that the parties were required to execute and cooperate to facilitate the preparation and registration of the new property boundaries and rights of way (counsel for Stewart Title referred to para. 127 of the Court of Appeal’s decision, however the correct reference is to para. 127 of the Judgement, a paragraph which was not set aside by the Court of Appeal).
t) Counsel for Stewart Title left the Veveris Defendants with two options: accept the June 2020 version of the Reference Plan or retain counsel and challenge the accuracy of that Reference Plan at their own expense.
u) The Veveris Defendants once again noted their objections by correspondence dated January 28, 2021.
v) Another round of correspondence was exchanged in March 2021 between counsel for Stewart Title and the Veveris Defendants. They were no closer to an agreement that the June 2020 version of the Reference Plan be registered. The Veveris Defendants also indicated that they were retaining counsel.
w) By April 9, 2021, the Veveris Defendants had retained counsel. Their counsel sent correspondence, dated April 26, 2021, to Mr. Mak reiterating that the Veveris Defendants were agreeable to the April 2020 version of the Reference Plan and that the June 2020 version should not be registered on title.
x) If Mr. Mak responded to the correspondence from the Veveris Defendants’ counsel, that response has not been included in the record before me.
y) The Veveris Defendants’ notice of motion and affidavit of Darlene Shearer (law clerk) was served on August 23, 2021.
z) After the motion was served and between September 2021 and January 2022, lawyers for the Veveris Defendants and for Stewart Title exchanged more correspondence. That correspondence is more relevant to the issue of costs.
April 2020 versus June 2020 Reference Plan
[17] The Veveris Defendants submit that there are two versions of the Reference Plan prepared by Mr. Mak. They ask the Court to find that the first version, prepared in April 2020, is the correct version. However, they offer very limited evidence to support their position that the June 2020 version should be rejected. The evidence that they offer is not persuasive.
[18] The Veveris Defendants do not dispute that Mr. Mak is a qualified surveyor. There is no evidence before me that either of the Veveris Defendants has special skills or knowledge in preparing land surveys. The Veveris Defendants offer no evidence that would put Mr. Mak’s abilities or skills in question. I do not see how the Veveris Defendants are qualified to challenge Mr. Mak’s ability to prepare the Reference Plan or his ability to identify errors in that draft and then correct those errors.
[19] The Veveris Defendants ask the Court to accept their position that the April 2020 version is the correct Reference Plan. However, Mr. Mak, the person who prepared that draft, has indicated that there was an error in that draft, explained why there was an error, and then corrected the error.
[20] While the April 2020 draft may have been more palatable to the Veveris Defendants, it was simply that – a draft. It was a draft which Mr. Mak, who has over 30 years of experience, identified had to be corrected. As evident from the correspondence, Mr. Mak acknowledged the concerns of the Veveris Defendants and explained why he could not accept their view as correct. It was Mr. Mak’s opinion that the final version (June 2020) accords with the Judgement whereas the April 2020 draft did not.
[21] The Veveris Defendants had the option of retaining their own surveyor. From the correspondence outlined above, it is apparent that, by June 2020, the Veveris Defendants were aware of Mr. Mak’s view that the June 2020 Reference Plan was properly prepared and consistent with the Judgement. Yet, the Veveris Defendants offered no alternative survey prepared by a surveyor of their choice. That was an option available to them. But, for whatever reason, they chose not to pursue that option.
[22] This is not a case in which the Court must determine which of two competing surveys is correct. In this case, there is a draft Reference Plan and a final Reference Plan. The draft was prepared in April 2020. The final was prepared in June 2020.
[23] Further, I agree with the submissions of Mr. Majewsky and Stewart Title – there is no dispute about the interpretation of para. 119 of the Judgement. The Veveris Defendants attempted to show that there was a dispute as to which version of the Reference Plan should be registered on title. However, they have not met their onus to demonstrate that there is more than one possible Reference Plan. There is only one Reference Plan: the one prepared in June 2020.
[24] The Veveris Defendants’ assertion that the Court should prefer the draft prepared in April 2020 makes no sense when the person who prepared the April 2020 draft has explained that it is neither correct nor consistent with the Judgement.
Conclusion
[25] For the reasons outlined above, I do not find there to be a valid dispute about the Reference Plan to be registered on title. Only one final Reference Plan has been prepared: the one that was prepared in June 2020.
[26] Therefore, to the extent directions are necessary, the parties must take the necessary steps to ensure that the Reference Plan prepared by Mr. Mak in June 2020 is registered on title in accordance with para. 122 of the Judgement.
Costs
[27] At the conclusion of argument of the motion, the issue of costs was addressed. Counsel and Mr. Majewsky agreed to make their cost arguments at that time. Counsel for the Veveris Defendants and Stewart Title exchanged their bills of costs/costs outlines as directed. Considering Mr. Majewsky’s position on costs, it was not necessary for him to provide a costs outline.
The position of the parties
[28] If the Veveris Defendants were successful on the motion, then they requested costs in the amount of $3,380 on a partial indemnity basis. Their counsel submitted that they tried to keep costs down and tried to keep the proceeding simple and inexpensive.
[29] If the Veveris Defendants were not successful on the motion, then Stewart Title requested costs of $9,183.39, inclusive of fees, disbursements, and applicable HST, on a partial indemnity basis.
[30] Mr. Majewsky did not seek costs from either the Veveris Defendants or Stewart Title regardless of the outcome. However, he submitted that if the Veveris Defendants were successful, he opposed them receiving costs as they did not hire their own surveyor.
Discussion on costs
[31] Costs are discretionary: see section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 57.01(1) of the Rules of Civil Procedure under the Courts of Justice Act. Costs should be proportionate to the result obtained and should be reasonable from the unsuccessful party’s perspective, see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24; and Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 OR (3d) 66, at para. 52.
[32] No reference was made to any offers to settle so I proceed on the basis that no offers to settle were made.
[33] In consideration of the factors set out in Rule 57.01(1), I have no difficulty finding that the issue in this motion was important to all the parties. The issue in this motion was not complex. However, the way the Veveris Defendants approached the motion unnecessarily lengthened this proceeding and unnecessarily delayed the conclusion of this litigation.
[34] The Veveris Defendants did not obtain their own survey despite knowing, in June 2020, that they disagreed with the Reference Plan prepared by Mr. Mak, and despite receiving Mr. Mak’s explanation as to why the plan he prepared in April 2020 would not be consistent with a proper interpretation of the Judgement.
[35] The basis of the Veveris Defendants’ objections was their personal opinion rather than an alternate survey prepared by a qualified land surveyor.
[36] Counsel for Stewart Title submitted that they initially did not intend to participate in this motion. However, when counsel could not obtain an assurance from counsel for the Veveris Defendants that a complete and fulsome evidentiary record would be provided, counsel for Stewart Title prepared a responding motion record. The correspondence exchanged between September 2021 and January 2022 supports this submission.
[37] Counsel for the Veveris Defendants submitted that it was not necessary for the pleadings to be included in Stewart Title’s responding motion record. While I can accept that a copy of the pleadings may not have been strictly necessary, I note that the none of the three short affidavits filed on behalf of the Veveris Defendants included the relevant evidence regarding Mr. Mak attending at the property on two occasions, or his explanations about the April 2020 draft of the Reference Plan, the error identified by Mr. Mak, and the correction in the final Reference Plan prepared in June 2020, or his view that the Veveris Defendants’ request for the April 2020 draft to be used would not conform to the Judgement.
[38] The correspondence from the Veveris Defendants and the responses from Mr. Mak were clearly relevant to determining the issue raised in this motion. The Veveris Defendants had a copy of all that correspondence. No explanation was given for why they failed to provide the Court with this relevant evidence.
[39] The costs outline filed on behalf of Stewart Title includes time for three different lawyers and a law clerk. Two of those lawyers were called to the bar in 2009, but one lawyer has an hourly rate of $385 and the other has an hourly rate of $375. No explanation was given for the different hourly rates of these two lawyers. The third lawyer was called to the bar in 2014 and has an hourly rate of $350. The hourly rate for the law clerk is $150.00. There is some duplication of time for the tasks completed by the lawyers as well as some duplication of the tasks completed by the lawyers and the law clerk. Accordingly, I made a reduction to the fees claimed.
[40] The disbursements claimed is for mileage ($66.78, inclusive of HST) and this claim is permitted.
Conclusion on costs
[41] Therefore, considering the relevant legal principles and the factors outlined in Rule 57.01(1), costs in the amount of $7,500 (all inclusive) on a partial indemnity basis would be reasonable and proportionate to the outcome.
Disposition
[42] For the reasons outlined above, I direct that the parties take the necessary steps to register, on title to the property, the Reference Plan prepared in June 2020 by Mr. Mak.
[43] Further, the Veveris Defendants shall pay to Stewart Title Guaranty Company costs fixed at $7,500 (all-inclusive and on a partial indemnity basis). These costs are payable within 30 days of the date of these Reasons for Decision.
Kumaranayake J.
Released: October 6, 2022
COURT FILE NO.: CV-10-218-00SR (Owen Sound)
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Peter Majewsky – Self-represented (responding party on the motion)
- and –
Juris Veveris and Christina Miller-Veveris – Counsel: R. H. Thomson (moving party on the motion)
Stewart Title Guaranty Company – Counsel: S. Lucenti (responding party on the motion)
Defendants
REASONS FOR DECISION
Kumaranayake J.
Released: October 6, 2022