Court File and Parties

COURT FILE NO.: CV-09-00061869-0000 DATE: 2023/11/27 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 Jason DiFruscia, for the Defendant

HEARD: November 27, 2023

Endorsement

(Case conference held on 27 November 2023)

[1] This endorsement addresses and reflects a further case conference held this morning, in relation to the above dispute.

[2] As noted in earlier decisions released in relation to this matter, this litigation has an extraordinarily long and complicated history, described at length in the following previous judgments and endorsements:

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

[4] For present purposes, I simply note the following:

a. On June 24, 2011, Justice Rady released a judgment in relation to a longstanding surface water drainage dispute between the parties. The judgment included provisions requiring the defendant Mr Sullivan to take steps necessary to ensure that surface water accumulating on the property of the plaintiff Ms Dankiewicz would drain across Mr Sullivan’s property. b. The dispute between the parties nevertheless lingered thereafter, with Mr Sullivan continuing to take the position that Justice Rady’s judgment should not have been granted, (although it was never appealed), and/or insisting that he had taken reasonable and adequate measures to comply with the judgment, and Ms Dankiewicz taking the position that Mr Sullivan not only had failed to comply with Justice Rady’s judgment but actually had engaged in further conduct making the surface water drainage issues being experienced by the plaintiff even worse. c. Eventually, the plaintiff brought a motion to have the defendant found in contempt, with the granting of consequential relief, while the defendant brought a motion for various forms of relief including a declaration that he had complied with Justice Rady’s judgment. A trial of the two motions was directed by Justice Rady, with that trial then being assigned to me. d. I thereafter proceeded with a judge-alone trial of the two motions, with the trial being bifurcated into a “liability” phase and a “penalty” phase. Without reiterating the details of all the decisions made in the course of those proceedings, the general upshot may be summarized as follows:

i. The defendant Mr Sullivan was found in ongoing contempt of Justice Rady’s judgment. ii. When no steps were taken by Mr Sullivan to purge that contempt, I granted relief that included an order mandating the implementation of remedial work to be done on the defendant’s property, by the plaintiff’s engineers and contractors, at the defendant’s expense, with more detailed provisions addressing the manner in which the cost of that work was to be determined and paid. iii. After releasing a final endorsement relating to costs of the proceedings before me, I essentially was functus, and no longer seized of the matter.

[5] On November 20, 2023, plaintiff counsel then contacted the London trial co-ordinator to request an urgent case conference with a judge, (ostensibly pursuant to Rule 50.13 of the Rules of Civil Procedure), to seek directions and/or further relief in relation to an emerging dispute as to whether and how Mr Sullivan would allow the engineer and contractors retained by Ms Dankiewicz to enter his property at 55 Shepherd Avenue, here in the city of London, to carry out the mandated remedial work. In particular:

a. Arrangements had been made for the contemplated work to begin on Friday, November 24, 2023. Appropriate notice in that regard had been given to Mr Sullivan, in accordance with the terms of the relief I granted. b. Mr Sullivan nevertheless apparently indicated that the contractors and their equipment would not be permitted to access his property via the area to the east of his house. He instead was insisting that his property would have to be accessed by the contractors and their equipment passing between the parties’ houses. c. Obliging the contractors and their equipment to access Mr Sullivan’s property only by passing between the two houses would not only force them to traverse a much narrower gap, but also necessitate the destruction/removal of trees, as well as other landscaping and fencing between the two homes. That in turn necessarily would increase the time and expense involved in implementing the remedial work and effecting ancillary repairs, while causing some elements of damage, (i.e., the removal of mature trees), that realistically would be incapable of immediate restoration once the remedial work was completed.

[6] Although I am no longer seized of the matter and was unavailable to preside over the requested case conference last week, (i.e., before the scheduled commencement of the remedial work), it was decided by the London trial co-ordinator, in consultation with the London Administrative Judge, that the requested conference should be delayed until my return, given my familiarity with the matter.

[7] The case conference accordingly was scheduled for this morning.

[8] By the time of that case conference, however, the parties had been able to address and resolve the immediate dispute outlined above; i.e., insofar as Mr Sullivan apparently had agreed, albeit belatedly, to permit the contractors and their equipment to access his property by passing to the east of his house.

[9] At the request of counsel, I nevertheless will document some of the observations and comments I made during the case conference; i.e., in an effort to provide the parties with further guidance as to how further disputes in relation to this matter, (which hopefully can be avoided through reasonable co-operation and dialogue through counsel), should be approached.

[10] In that regard, I will simply note the following:

a. As I indicated to counsel during this morning’s case conference, in my view there currently is no lis pendens before the court, (i.e., no ongoing action, application or motion), to provide any formal basis or framework for the holding of further case conferences or the granting of further relief. The action that proceeded to trial before Justice Rady concluded with her 2011 judgment. The subsequent proceedings before me concluded with the release of my judgments, (issued in relation to the “liability” and “penalty” phases of the trial), my endorsement made in relation to the necessary “Amount Determination Hearing” to finalize the relief granted after the penalty phase of the trial, and my final cost award addressing the costs of the proceedings before me. b. Consideration and/or granting of further requests for relief accordingly would require the taking of further formal steps to bring the matter back before the court; e.g., via an application by Ms Dankiewicz to have Mr Sullivan found in further contempt for failure to abide by my orders. As I indicated during the case conference this morning, I can appreciate why Ms Dankiewicz might think it unfair that she should have to incur yet more time and expense to bring this matter back before the court; i.e., as opposed to Mr Sullivan being required to initiate further proceedings requesting a formal variation of my orders, and/or formal confirmation that his contemplated conduct is consistent with my orders. However:

i. As a matter of law, a party alleging contravention of a court order and seeking its enforcement effectively bears the onus of bringing the matter back before the court if the alleged contemnor fails to take pre-emptive steps in the nature of those suggested by counsel for Ms Dankiewicz. ii. As a practical matter, little in the history of this matter inspires confidence that Mr Sullivan can be relied upon to move this matter forward to resolution.

c. While I am not averse to dealing with any further proceedings in relation to this longstanding dispute between the parties, it also should be understood that I am not seized of any further proceedings in that regard. In particular, any judge of the court may deal with enforcement of the orders I have made, in relation to this dispute between the parties, in the same manner I was asked to deal with enforcement of the earlier order made by Justice Rady in relation to the parties’ dispute. Without limiting the generality of the foregoing, if further relief is sought from the court on an urgent basis, there is no reason why any urgent request in that regard necessarily should be delayed until I can be made available to address the matter. d. As noted above, the emerging dispute that prompted the request for an urgent case conference last week apparently has been resolved and, in the absence of any formal proceeding or corresponding formal request for relief, I think it inappropriate for me to indicate how that dispute should have been resolved. Nor do I think it appropriate to indicate, in the abstract and without formal proceedings or argument, how any further dispute between the parties are likely to be decided. e. However, as I indicated to counsel this morning, I see no harm in emphasizing, for the benefit of all concerned, the following aspects of my earlier decisions:

i. The ordered remedial work was to be carried out on the defendant’s property. ii. Mr Sullivan was ordered to permit all access to his property that may be necessary for completion of that remedial work. iii. Mr Sullivan was ordered not to interfere with, alter or compromise that remedial work, or drainage measures implemented by that remedial work, whether before, during or after completion of that work. iv. As noted in my decision released on March 17, 2023, although Mr Sullivan continues to disagree with the orders made by Justice Rady and by me, he needs to respect and abide by those decisions, insofar as they were never made the subject of any successful appeal. v. As also noted in my decision released on March 17, 2023, 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 he continues to reject the binding nature of this court’s decisions. As I indicated then, and note again now, he should consider himself duly warned in that regard.

Justice I.F. Leach Date: November 27, 2023

Dankiewicz v. Sullivan, 2023 ONSC 6723

Case Summary

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