Court File and Parties

COURT FILE NO.: CV-09-00061869-0000 DATE: 2023/03/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MALGORZATA DANKIEWICZ, Plaintiff AND: TODD JOSEPH SULLIVAN, Defendant

BEFORE: Justice I.F. Leach

COUNSEL: John D. Goudy, for the Plaintiff The Defendant, self-representing

HEARD: March 7, 2023

Endorsement

Introduction

[1] This litigation has a very extended history, described at length in the following previous court endorsements:

a. Dankiewicz v. Sullivan, 2011 ONSC 3485, released on June 24, 2011; b. Dankiewicz v. Sullivan, 2019 ONSC 6382, released on November 4, 2019; c. Dankiewicz v. Sullivan, 2020 ONSC 3979, released on June 26, 2020; d. Dankiewicz v. Sullivan, 2020 ONSC 7211, released on November 23, 2020; e. Dankiewicz v. Sullivan, 2021 ONSC 485, released on January 1, 2020; and f. Dankiewicz v. Sullivan, 2022 ONSC 4324, released on July 25, 2022.

[2] I will not repeat that extended history, yet again, in this endorsement. This endorsement should instead be read together with those earlier decisions, in order to obtain a full understanding of the overall context for my current ruling. [1]

[3] For present purposes, suffice it to say that the primary purpose of this endorsement is to set forth, (following the “Amount Determination Hearing” described in my last endorsement), my specific rulings contemplated and required by sub-paragraph 6(d)(4) and paragraph 10 of my Order dated July 25, 2022. In particular, this endorsement addresses:

a. quantification of the initial amount to be paid into court by the defendant, to thereafter be directed towards the expenses incurred by the plaintiff, her engineer or engineers, and any necessary contractors retained to complete the work associated with “Modified Option 1”, described in that Order; and b. quantification of the contempt fine to be paid by the defendant to the Provincial Treasurer.

[4] Before turning to determination or quantification of those amounts, in my view there nevertheless are some additional matters that should be noted.

No negotiated/voluntary drainage solution

[5] For reasons discussed at length in my last endorsement, a proper application of the law relating to contempt proceedings effectively prevented me from making an order directing implementation of the “Alternative Draining Solution” proposed by the plaintiff.

[6] I was instead obliged to make an order, (“less optimal” from a drainage and finality perspective), inevitably involving much more substantial disruption to the defendant’s property, (at what seemed likely to be greater expense to the defendant), and the defendant’s assumption of ongoing maintenance and drainage obligations that to date effectively have been imposed on the plaintiff by the defendant’s improper conduct.

[7] As indicated in my last endorsement, while I could not order implementation of the aforesaid “Alternative Drainage Solution”, the relief I did order included provisions staying the remedial work provisions of my Order until the “Amount Determination Hearing”, in an effort to provide the defendant with one last opportunity to pursue a negotiated solution that arguably would be more favourable from his perspective and that of the plaintiff.

[8] At the “Amount Determination Hearing”, I nevertheless was advised that the defendant declined to avail himself of that opportunity; i.e., there had not only been no negotiated agreement to implement a draining solution other than that contemplated by my Order, but no further negotiations whatsoever between the parties. In that regard:

a. As the defendant Mr Sullivan indicated expressly several times during the “Amount Determination Hearing” before me, he still insists that Justice Rady’s initial 2011 judgment was wrongly decided and he refuses to accept its finality. He stubbornly maintains that position notwithstanding my many efforts to explain and emphasize, to Mr Sullivan and his former counsel, that the time for questioning that judgment has long since passed, and that Justice Rady’s judgment must be respected. Indeed, during the “Amount Determination Hearing”, Mr Sullivan tried to reopen such issues yet again; i.e., by tendering further correspondence from the city of London’s department of Planning and Development, dated January 10, 2023, confirming that Mr Sullivan had been requesting additional information relating to his property, and any additional lot grading plans in that regard. As noted in my “penalty phase” judgment, Mr Sullivan simply will not listen, or accept the legal realities of his situation. He is a completely recalcitrant contemnor. b. In the course of the most recent hearing before me, Mr Sullivan also indicated expressly that he similarly disagrees with and does not accept my judgments either; i.e., as he firmly believes that I should have revisited the issues decided by Justice Rady, instead of enforcing her judgment through these contempt proceedings. Indeed, I was informed that Mr Sullivan commenced a formal appeal, in relation to my “penalty phase” judgment rendered on July 25, 2002. However, the material before me also confirmed that Mr Sullivan’s appeal was formally dismissed for delay on February 13, 2023. [2]

[9] None of these further developments bode well for the future; i.e., insofar as they suggest that Mr Sullivan may be inclined to engage in conduct constituting further contempt of court when it comes to implementation of the measures set forth in my “penalty phase” judgment; i.e., measures designed to address the contempt Mr Sullivan has demonstrated to date.

[10] Hopefully that will not happen.

[11] For present purposes, I simply will emphasize that Mr Sullivan needs to respect and abide by the decisions I have made, (which have not been appealed, or successfully appealed), just as much as he needed and needs to respect and abide by the judgment rendered by Justice Rady, which was not appealed.

[12] I also will emphasize that, although Mr Sullivan has not yet been imprisoned for his demonstrated contempt of court, (for the reasons outlined in my “penalty phase” judgment), he should not be surprised if the court finds it necessary and appropriate to employ that escalated sanction in the future if Mr Sullivan continues to reject the binding nature of this court’s decisions.

[13] In short, Mr Sullivan should consider himself duly warned in that regard.

Further filings

[14] In advance of the “Amount Determination Hearing”, the parties tendered additional documents for my consideration.

[15] From the plaintiff and her counsel, I received further evidence properly introduced by way of properly served affidavits sworn by the plaintiff and her engineering expert Mr McIntosh, respectively. In that regard:

a. The plaintiff herself noted that a package of documents apparently was delivered by Mr Sullivan to plaintiff counsel on or about January 11, 2023, apparently by way of attempted compliance with the provisions of my “penalty phase” judgment requiring Mr Sullivan to make disclosure of his assets and income prior to the “Amount Determination Hearing”. That package was said to have included documents relating to the value of Mr Sullivan’s property at 55 Shepherd Avenue here in the city of London, such as: i. a mortgage statement, indicating the existence of a mortgage on that property held by the Toronto-Dominion Bank, in respect of which there was a balance of $107,372.64 owing as of January 10, 2023; and ii. documentation indicating assessments of the property prepared by the Municipal Property Assessment Corporation (or “MPAC”) in 2012 and 2016, assigning the property a value, for purposes of municipal taxation, of $217,000 as of January 1, 2012, and $211,000 as of January 1, 2017. b. In her sworn affidavit, the plaintiff also indicated her belief that property values in the relevant Shepherd Avenue neighbourhood had increased substantially in recent years; e.g., based on Parcel Registrar extracts showing that a property located at 39 Shepherd Avenue, comparable to the 55 Shepherd Avenue property owned by the defendant, (apart from having a two car garage in contrast to the defendant’s single car garage), previously sold for $224,450.00 on January 9, 2012, but sold for $630,000.00 in June of 2021. c. For his part, Mr McIntosh provided evidence via his sworn affidavit, including an attached exhibit of his correspondence to plaintiff counsel, indicating: i. that the work I described in my “penalty phase” judgment as “Modified Option 1” needed to be supplemented by further particularized work, (e.g., installation of an appropriate underground pump pit, sump pump, buried discharge line, electrical work and restoration work, with the pump system designed for a 1:10 year storm event and to be functional year round), to ensure an outlet for the water that now will be accumulating on the defendant’s property; ii. that such additional work realistically will be required to ensure that the defendant, (and thereafter his heirs, assigns and successors as the case may be), have the ability to take the steps necessary, (including active pumping of water as required), to comply with their obligation, (also imposed by my judgment), to ensure that any water accumulating at 55 Shepherd Avenue will not back up onto 51 Shepherd Avenue but instead be drained across 55 Shepherd Avenue to the street; [3] and iii. that the total estimated cost of implementing all of the required work including those supplemental components, as of October 31, 2022, would be $66,274.00, including applicable taxes. d. I note that, in providing that cost estimate, Mr McIntosh did not simply resort to provision of a global figure, but instead itemized the components of the work required, and provided cost estimates in relation to each of those components, having regard to the specific work items, obligations and requirements of my “penalty phase” judgment. e. Mr McIntosh also indicated that the required work would take approximately 2-3 weeks to complete, adding that such work nevertheless should be undertaken in the spring or summer months.

[16] From the self-representing defendant, Mr Sullivan, I received no documentation in any properly introduced manner; i.e., by way of a sworn or affirmed affidavit attaching documents as exhibits. However, on behalf of the plaintiff, Mr Goudy did not object to my receipt and consideration of the aforesaid package of documentation informally dropped off at his law office by Mr Sullivan or his agent on or about January 11, 2023. That package included the following:

a. A copy of correspondence sent to the parties’ respective previous lawyers back on November 22, 2011, providing grading information requested by Mr Sullivan through his counsel at the time, and a copy of further correspondence, (mentioned above), sent to Mr Sullivan by the city of London’s Planning and Development department on January 10, 2023, confirming that Mr Sullivan had been requesting additional information relating to his property at 55 Shepherd Avenue. Those items of correspondence appeared to have been provided to the court by Mr Sullivan solely in furtherance of his ongoing desire to have the grading issues decided by Justice Rady reopened for renewed argument and a different determination. For the reasons outlined in earlier endorsements, and which I explained to Mr Sullivan yet again during the Amount Determination Hearing, such issues had been decided with finality and would not be argued further. b. A copy of a “Personal Assessment” provided to Mr Sullivan by the TD Canada Trust financial institution, indicating that Mr Sullivan, as of January 10, 2023, had total liabilities of $125,724.87, (including the aforesaid mortgage balance of $107,372.64, as well as some additional specified credit card, line of credit and consolidation loan liabilities), and total assets of $7,818.79 – although I note that figure includes only the balances of a savings account, a chequing account and a “plan”, (presumably a Registered Retirement Savings Plan), without any mention whatsoever of the equity Mr Shepherd holds in his personal residence at 55 Shepherd Avenue. c. Copies of Mr Shepherd’s income tax returns for 2019, 2020 and 2021, showing annual total incomes for those years of $63,294.43, $65,291.37 and $62,827.52 respectively. d. A municipal tax document from the City of London apparently from April of 2022, (although the date is obscured by the page numbering assigned by the electronic Caselines document filing and sharing system), indicating, inter alia, that Mr Sullivan’s property was assessed as having a value of $211,000 for municipal tax purposes, and that Mr Sullivan’s municipal taxes have been fully paid for the years 2020, 2021 and 2022. e. A handwritten and signed statement from Mr Sullivan indicating that he still owes his engineering expert Mr Dykstra $10,000.00 “for services”. f. The aforesaid MPAC Property Assessment Notice, and related correspondence, indicating that Mr Sullivan’s property at 55 Shepherd Avenue had an assessed value, for municipal tax purposes, of $217,000 in 2012 and $211,000 in 2016. g. A credit card statement dated November 19, 2022, showing a balance owing of $5,507.32. h. A one-page estimate provided by “Discount Drain”, (apparently the business name of Discount Drain Service Inc.), the substantive text of which briefly indicates an estimated cost of $6,780.00, (inclusive of applicable HST), to “Excavate 2’ trench 47” wide for drainage swale – Remove and dispose of fill – Supply and install sod”.

[17] During the Amount Determination Hearing itself, Mr Sullivan also informally tendered, (i.e., by simply handing it up in insolation, without any sworn or affirmed affidavit to introduce or support the document), a further one page document, to which counsel for the plaintiff did not object; i.e., a document from “291 Construction”, (apparently the business name of 291 Construction Ltd.), indicating that the authors “feel that the work that has been requested does not follow best lot grading practices”, but go on to provide “a breakdown of costs to upgrade your backyard as discussed”. That “breakdown” does not describe the particular work to be done, but the itemized cost of indicated equipment and labour, totalling $8,582.35, inclusive of HST.

Findings – Amount determinations

[18] As noted above, the first figure to be addressed via the directed Amount Determination Hearing focused on quantification of the initial amount to be paid into court by the defendant, to thereafter be directed towards the expenses incurred by the plaintiff, her engineer or engineers, and any necessary contractors retained to complete the work associated with “Modified Option 1”, described in my “penalty phase” judgment and corresponding Order made on July 25, 2022. In that regard:

a. Based on the further sworn evidence provided by Mr McIntosh, I accept that the further work he described is necessary and appropriate to facilitate implementation of “Modified Option 1”, and fulfilment of the further obligations I have imposed on Mr Sullivan and his heirs, assigns and successors. To the extent necessary, an Order therefore shall go varying my earlier Order of July 25, 2022, in the following manner: i. The word “and” at the end of existing sub-paragraph 4(b)(ii) shall be deleted; ii. The period at the end of existing paragraph 4(b)(iii) shall be deleted and replaced with a semi-colon followed by the word “and”; and iii. the following additional sub-paragraph, to be numbered sub-paragraph 4(b)(iv), shall be inserted between existing sub-paragraph 4(b)(iii) and existing paragraph 5, and read as follows: (iv) installation, on the 55 Shepherd Avenue property, of an underground pump pit, sump pump, buried discharge line, electrical work and corresponding restoration work, with the aforesaid pump system to be designed for a 1:10 year storm event and to be functional year-round, including the winter months. b. I prefer and accept the evidence supplied by Mr McIntosh in relation to the estimated total cost of the ordered work to be done, for reasons that include the following: i. I specifically reject Mr Sullivan’s assertion that Mr McIntosh has any relevant and disqualifying conflict of interest that should result in his evidence being discounted or discarded. In my view, there was absolutely nothing in the properly presented evidentiary record before me to suggest any such conflict of interest. ii. In contrast to the estimates Mr Sullivan obtained from “Discount Drain” and “291 Construction”, the estimate provided by Mr McIntosh was provided to the court in the form of sworn evidence to which a specifically named individual was willing to put his name. Mr McIntosh also already has been properly qualified as an engineering expert in this proceeding, with expertise in relation to the specific drainage issues before the court. Having made a number of site visits, and having participated in party discussions and the trial proceedings before me, he unquestionably is familiar with the situation “on the ground”, the drainage issues raised by this litigation, and the originally proposed remedial work, (described in earlier reports as “Option 1”), that formed the underlying but revised template giving rise to the “Modified Option 1” work which my Order directed. There is nothing whatsoever before me to indicate that the authors of the “Discount Drain” or “291 Construction” estimates have even attended at the relevant properties. iii. While Mr McIntosh clearly provided a cost estimate with the detailed specifics of my Order in mind, (as demonstrated by his express reference to that Order, and a cost breakdown corresponding to the specific components of work directed by that Order), there is nothing before me to suggest that “Discount Drainage” or “291 Construction” were even provided with a copy of my Order, let alone any indication that either estimate made a cost determination with the specifics of that Order in mind. To the contrary:

1. The very brief work description in the “Discount Drain” estimate leads me to believe that the author or authors did not have all of the ordered work in mind; e.g., insofar as the description makes no reference to relocation of the defendant’s back yard shed, no reference to reinstatement of the original drainage swale, and no mention of regrading of the defendant’s backyard to ensure drainage into that reinstated drainage swale, while including comments that wrongly suggest the trench to be executed would constitute the drainage swale to be reinstated.
2. The estimate provided by “291 Construction” contains no specifics whatsoever of the contemplated work to be completed, and there are problematic indications that the author or authors of the estimate were relying solely on discussions with Mr Sullivan; i.e., to provide “a breakdown of costs to grade [his] backyard as discussed”. The history of this matter, and Mr Sullivan’s repeatedly demonstrated tendency to minimize or deny the need for any remedial work to correct the ongoing surface water drainage issues, inspires no confidence that Mr Sullivan verbally provided “291 Construction” with fulsome and accurate details of all the necessary ordered work to be performed. iv. While Mr Sullivan criticized the opinion of Mr McIntosh for having failed to specify the identity of the contractor or contractors who would complete the required work, it needs to be remembered that this aspect of the Amount Determination Hearing did not contemplate or direct the provision of such specifics. In particular, the current exercise was never intended to be one directed towards the acceptance of a particular “quote” from a particular contractor to perform the work contemplated by my Order. As indicated in my judgment, and my Order, this aspect of the Amount Determination Hearing was to quantify a reasonable initial payment to be held on account, to fund the expenses incurred by “the plaintiff, her engineer or engineers and any necessary contractors retained to complete the work”. In any event, I am satisfied, having regard to the proceedings as a whole, including Mr McIntosh’s previously confirmed expertise in this area, that Mr McIntosh is able to provide reliable cost estimates in relation to the work to be completed. c. For such reasons, I find that the initial amount to be paid into court by the defendant Mr Sullivan, as contemplated by paragraph 6(d) of my Order herein dated July 25, 2022, should be $66,274.00.

[19] A further Order therefore shall go obliging the defendant Mr Sullivan to pay that initial amount of $66,274.00 into court, as contemplated by paragraph 6(d) of my Order herein dated July 25, 2022.

[20] As for quantification of the appropriate fine to be paid by Mr Sullivan to the Provincial Treasurer, as a further measure to address Mr Sullivan’s ongoing contempt of court:

a. As indicated in my “penalty phase” judgment released on July 25, 2022, for the reasons outlined therein, I already have decided that such a fine should be paid by Mr Sullivan, and that it should be in the range of $5,000.00 to $10,000.00, subject to my receipt of further information about Mr Sullivan’s assets and income sufficient to satisfy me that Mr Sullivan had the ability to pay such a fine. b. Having regard to the further information that now has been provided, I am more than satisfied that a fine in the range I have contemplated would not be “crushing” for Mr Sullivan, even when one takes into account his obligation to fund the remedial work I have directed. Without limiting the generality of the foregoing: i. As suspected, (given Mr Sullivan’s indications that he had not been able to further encumber his home since the onset of this litigation, his intervening paying down of his existing mortgage, and the significant increases in average real estate values in London over the past decade), Mr Sullivan may have limited liquid assets at the moment, but he has very substantial accumulated equity in his residential property at 55 Shepherd Avenue. In particular, given the information noted above regarding the remaining balance of his mortgage, and the demonstrated market value of a comparable property on Shepherd Avenue, I think it reasonable to assume that Mr Shepherd conservatively has at least $400,000 in net equity in 55 Shepherd Avenue; equity that is capable of being accessed pursuant to the provisions of paragraph 6(e) of my Order dated July 25, 2022. ii. While Mr Sullivan obviously would have to service the payments on any further encumbrance on his property, and he has some other limited debts noted above that also will have to be serviced, he appears to have a steady and not inconsiderable income from employment. Moreover, to the extent Mr Sullivan has attributed his inability to pay debts to the impact this ongoing litigation has had on his ability to encumber or sell his home, it needs to be remembered and borne in mind that this entire arrangement is designed to bring an end to the litigation, and provide Mr Sullivan with his long-desired confirmation that all of his obligations in relation to this litigation have been fulfilled. If Mr Sullivan co-operates with the court-ordered arrangement, moves swiftly to make the required payment into court and pay the required fine, all without further unnecessary delay or lack of cooperation, and the remedial work proceeds to completion within 2-3 weeks this spring or summer, the subsequent lifting of constraints on Mr Sullivan’s ability to thereafter sell or further encumber his home should follow shortly thereafter. c. As for the precise quantum of the fine to be paid by Mr Sullivan to the Provincial Treasurer, Mr Sullivan’s ongoing and vocal disrespect for the orders made by this court, and his refusal to accept them, is obviously a matter for concern. Were it not for that ongoing recalcitrant attitude, I might have been inclined to set the quantum of Mr Sullivan’s fine at the lower end of the range I stipulated; i.e., at $5,000.00. As matters stand, however, and bearing in mind that Mr Sullivan’s compliance with this court’s orders will be required moving forward to ensure completion of the remedial work that has been directed, and non-disturbance of the results of that work into the future, it seems that Mr Sullivan is still very much in need of a firm and salutary reminder that ongoing contempt of court will have consequences. In the circumstances, a further Order shall go requiring Mr Sullivan to pay a fine of $10,000.00 to the Provincial Treasurer for his contempt of court.

Order

[21] For the reasons outlined above, a further Order shall go whereby:

a. This court’s earlier Order herein, dated July 25, 2022, shall be and hereby is varied in the following manner: i. the word “and” at the end of existing sub-paragraph 4(b)(ii) shall be and hereby is deleted; ii. the period at the end of existing paragraph 4(b)(iii) shall be and hereby is deleted and replaced with a semi-colon followed by the word “and”; and iii. the following additional sub-paragraph, to be numbered sub-paragraph 4(b)(iv), shall be and hereby is inserted between existing sub-paragraph 4(b)(iii) and existing paragraph 5, to read as follows: (iv) installation, on the 55 Shepherd Avenue property, of an underground pump pit, sump pump, buried discharge line, electrical work and corresponding restoration work, with the aforesaid pump system to be designed for a 1:10 year storm event and to be functional year-round, including the winter months. b. The defendant, Todd Joseph Sullivan, is hereby ordered to pay forthwith the initial sum of $66,274.00 (SIXTY-SIX THOUSAND, TWO HUNDRED AND SEVENTY FOUR DOLLARS) into court as contemplated by paragraph 6(d) of this court’s Order dated July 25, 2022, with the said sum to thereafter be paid out of court, and supplemented if and as necessary, as per the other provisions of that Order. c. The defendant, Todd Joseph Sullivan, is hereby ordered to pay forthwith a fine of $10,000.00 (TEN THOUSAND DOLLARS) to the Provincial Treasurer for his ongoing contempt of court.

Costs

[22] With the making of the aforesaid Order, the substantive determinations required by the directed trial assigned to me have come to an end.

[23] In particular, while I appreciate that the extended history of this matter suggests the possibility of further complications requiring the court’s assistance, (e.g., if Mr Sullivan demonstrates further acts of contempt by failing to co-operate and comply with the court ordered arrangement), and the court-ordered arrangement now put in place contemplates the parties returning to court to seek further rulings in accordance with that arrangement, [4] I will not be seized of those further proceedings, which may be placed before and dealt with by any judge of this court.

[24] In the circumstances, I think it appropriate to address, finally, the costs that have been accumulating to date in the particular legal proceedings before me.

[25] As indicated in my “penalty phase” judgment released on July 25, 2022, [5] I intend to do so by setting a timetable for the tendering of written cost submissions in that regard, if the parties are unable to agree on an appropriate cost disposition.

[26] Of course, it is always preferable that the parties arrive at a negotiated resolution of cost issues. However, if such a negotiated resolution proves to be impossible in this case:

a. The plaintiff shall deliver her written cost submissions within three weeks of the date on which this decision is released to the parties. Such cost submissions shall be limited to 20 pages in length, not including any attached Bill of Costs or submitted authorities. b. The defendant shall deliver his responding written cost submissions within two weeks of the plaintiff delivering her written cost submissions. Such cost submissions shall also be limited to 20 pages in length, not including any attached Bill of Costs or submitted authorities. c. The plaintiff shall deliver her reply written cost submissions, (if any), within one week of the defendant delivering his responding written cost submissions. Such reply submissions shall be limited to five pages in length. d. If no written cost submissions are received within three weeks of the date on which this decision is released to the parties, no costs shall be ordered.

“Justice I.F. Leach” Justice I.F. Leach Date: March 17, 2023

[1] Regard should be had, in particular, to Dankiewicz v. Sullivan, 2019 ONSC 6382, the judgment I rendered in relation to the “liability phase” of this directed trial, and to Dankiewicz v. Sullivan, 2022 ONSC 4324, the judgment I rendered in relation to the “penalty phase” of this directed trial.

[2] A copy of the relevant “Order Dismissing Appeal”, made by our Court of Appeal, was filed by Mr Goudy as counsel for the plaintiff.

[3] Although Mr McIntosh does not expressly indicate that the inclusion of such additional work also would be advisable to facilitate the granting of necessary approvals and permits by the city of London, I think that conclusion is a reasonable inference from reading the relevant correspondence from Mr McIntosh in its entirety.

[4] For example, see paragraphs 6(g), 6(h) and 6(j) of my Order dated July 25, 2022.

[5] See, in particular, footnote 91 and paragraph 65 of that judgment.