CITATION: Dankiewicz v. Sullivan, 2022 ONSC 4324  
COURT FILE NO.: CV-09-61869  
DATE: 2022/07/25  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
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BETWEEN:  
MALGORZATA DANKIEWICZ  
John D. Goudy, for the Plaintiff  
Plaintiff  
– and –  
Matthew G. Dupré, for the Defendant  
TODD JOSEPH SULLIVAN  
Defendant  
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) HEARD: January 14, 2020  
JUSTICE I.F. LEACH  
Introduction  
[1]  
This judgment addresses the “penalty phase” of the plaintiff’s motion for contempt, and a  
motion for directions and other relief brought by the defendant, in respect of which a trial  
was directed by Madam Justice Rady.  
[2]  
It represents yet another chapter in this prolonged saga of extended litigation between the  
owners of two neighbouring residential properties here in the city of London.  
Further background and procedural history  
[3]  
The underlying dispute between the parties dates back to 2007, with further developments  
and litigious steps over the ensuing 15 years being outlined repeatedly in numerous  
judgments and endorsements of this court. See, in particular:  
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; and  
Page: 2  
e. Dankiewicz v. Sullivan, 2021 ONSC 485, released on January 1, 2020.  
[4]  
[5]  
This judgment should be read together with those earlier decisions, in order to obtain a full  
understanding of the overall context for my current ruling. Regard should be had, in  
particular, to Dankiewicz v. Sullivan, 2019 ONSC 6382; i.e., the judgment I rendered in  
relation to the “liability phase” of this directed trial.  
For present purposes and for ease of reference, the following overview of this matter’s  
history will suffice:  
a. The parties own adjacent residential properties located on the south side of  
Shepherd Avenue, here in the city of London. In particular, the plaintiff has owned  
and lived at 51 Shepherd Avenue since 1997, and the defendant has owned and  
lived at 55 Shepherd Avenue, (located immediately to the east of the plaintiff’s  
property), since 1994.  
b. A large berm, (the “railway berm”), runs along the southern boundary of both  
properties. It separates the residential homes to the north from a railway that runs  
in an east-west direction along the southern side of that railway berm. However,  
the railway berm also effectively prevents drainage of surface water to the south.  
c. The original grading design for the relevant residential neighbourhood  
contemplated elevations that would result in “split” directional drainage of surface  
water from the plaintiff’s backyard; i.e., flowing to the west and east from the area  
between her house and the railway berm. In particular, the original grading design  
contemplated that surface water from the areas located at or near the western edge  
of that area would drain to the west, while surface water from the vast majority of  
the plaintiff’s backyard would drain to the east, across the defendant’s property.  
The easterly flow of that surface water was to be facilitated by a swale, running in  
an easterly direction, to the north of the railway berm, and through the backyards  
of 51 Shepherd Avenue and 55 Shepherd Avenue.  
d. The plaintiff is an avid gardener, and went to considerable lengths to beautify the  
backyard area of her property between her house and the railway berm; e.g.,  
planting numerous flowers and shrubs, and installing various other landscaping  
features. Notwithstanding such changes, for many years, the plaintiff experienced  
no noticeable problems with the drainage of surface water from the rear of her  
property.  
e. From at least 2007 onwards, however, the plaintiff began to experience substantial  
drainage problems in relation to her backyard; problems which the plaintiff  
attributed to work done by the defendant in the rear area of his property, (e.g.,  
replacement of the swale with a drainage tile system covered by soil, and  
installation of a large shed along the eastern boundary of his back yard), which was  
said to have reversed the direction of surface water drainage.  
Page: 3  
f. In the result, the plaintiff claimed, the surface water from the rear of her property  
was no longer able to drain to the east across the defendant’s property. Moreover,  
surface water from the rear of the defendant’s property now was draining into the  
plaintiff’s backyard. The resulting accumulation of water in the plaintiff’s  
backyard was said to have caused substantial flooding and damage, which the  
plaintiff unsuccessfully tried to alleviate by frequent efforts, on her part, to pump  
the accumulation of water from her back yard to the storm sewer located to the front  
or north of her property.  
g. The defendant denied responsibility for the plaintiff’s surface water drainage  
problems; e.g., claiming that the problems stemmed from work done by the plaintiff  
herself, such that she was the author of her own misfortune.  
h. The parties were unable to resolve their differences and the result was this litigation,  
which proceeded to a trial before Justice Rady in March and May of 2011.  
i. Justice Rady released her initial “Reasons for Judgment”, (i.e., Dankiewicz v.  
Sullivan, 2011 ONSC 3485), on June 24, 2011. For present purposes, her reasons  
and ordered relief may be summarized as follows:  
i. Justice Rady found that, although the original grading in the rear yards of  
51 Shepherd Avenue and 55 Shephard Avenue probably never accorded  
precisely with that of the originally contemplated drainage plan, it was still  
in general conformity with that plan. In particular, until 2007, the grading  
was such that it permitted positive drainage from the west to the east, (i.e.,  
from the plaintiff’s property onto and across the defendant’s property),  
despite the defendant’s intervening alterations to the swale by installation  
of a covered drainage tile system.  
ii. However, Justice Rady also found that something had occurred in 2007 to  
cause a reversal of that prior surface water drainage flow. In that regard,  
Justice Rady accepted the evidence of the plaintiff’s engineering expert,  
who opined that the defendant’s construction of a shed in his rear yard, in  
2007, had caused the covered drainage tile system to fail, while  
simultaneously raising the elevation around the shed such that it was higher  
than that of the property to the west. The net result was an alteration and  
reversal of the intended west to east flow of surface water drainage.  
iii. Moreover, Justice Rady accepted the evidence of the plaintiff’s engineering  
expert, indicating that the plaintiff’s landscaping changes were not the cause  
of the problems.  
iv. In the result, Justice Rady found that the plaintiff was entitled to judgment,  
as the flooding of the plaintiff’s backyard constituted a nuisance caused by  
the defendant’s actions. Although Justice Rady declined the plaintiff’s  
request for punitive damages, the plaintiff was awarded non-pecuniary  
Page: 4  
damages and special damages. Moreover, in response to a plaintiff request  
for an order compelling the defendant to restore his property to the  
previously approved grading:  
1. Justice Rady found, (by virtue of the Development Agreement  
registered on title, which sets forth the obligation of relevant  
property owners, binding on successors to title, to maintain  
contemplated and approved grading), that the plaintiff had acquired  
a prescriptive right to have her surface water continue to flow over  
the defendant’s property; and  
2. Justice Rady ordered the defendant “to take whatever steps are  
necessary to ensure that the plaintiff’s surface water drains across  
his property”.  
j. The aforesaid “Reasons for Judgment” released by Justice Rady were transformed  
into an issued and entered formal judgment, the fourth paragraph of which reads as  
follows: “THIS COURT ORDERS that the Defendant, Todd Joseph Sullivan, is  
ordered to take whatever steps are necessary to ensure that the Plaintiff’s surface  
water drains across the Defendant’s property.”  
k. In October of 2011, Justice Rady released her endorsement awarding costs to the  
plaintiff; an endorsement that similarly was transformed into a formal issued and  
entered judgment.  
l. In the wake of Justice Rady’s judgment, the parties, (with the assistance of legal  
counsel and their respective engineers), continued to discuss and consider various  
ways in which surface water from 51 Shepherd Avenue once again would be  
permitted to flow onto 55 Shepherd Avenue, and surface water from 55 Shepherd  
Avenue would be prevented from flowing onto 51 Shepherd Avenue. By 2016,  
however, the parties still had not reached a mutually agreeable solution to the  
surface water drainage issues. In particular, while the defendant had implemented  
certain measures on his property, the plaintiff was of the view that the measures  
taken had done nothing to stop the flow of surface water from the defendant’s  
property onto hers, or permit the drainage of her surface water across the  
defendant’s property. In that regard, the plaintiff complained that she was still  
experiencing severe flooding problems in her backyard; problems which she had  
been trying unsuccessfully to address through measures taken on her own property.  
m. In the result, the parties once again were back before Justice Rady in 2016, having  
brought competing motions. In particular:  
i. the plaintiff had brought a motion requesting a finding that the defendant  
was in contempt of Justice Rady’s judgment, and consequential relief that  
included the ordered implementation of remedial drainage solutions  
proposed by the plaintiff with the support of her engineer; and  
Page: 5  
ii. the defendant had brought a motion seeking relief that included court  
approval of the remedial drainage work undertaken and/or proposed by the  
defendant, (with the support of his engineer), 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 judgment.1  
n. When the matter initially came back before Justice Rady, she emphasized the  
practical difficulty posed by having to decide between competing engineering  
proposals, (both of which seemed to be respectable professional opinions), on the  
basis of a “paper record”. In an effort to promote a mutually agreeable solution,  
Justice Rady directed a meeting of the parties’ engineering experts; i.e., with a view  
to the engineers devising a plan, agreeable to both sides, that would resolve the  
ongoing surface water drainage dispute. In the meantime, the formal motions  
brought by the parties were adjourned.  
o. By June 29, 2017, however, the parties and their experts had been unable to agree  
on a mutually acceptable solution, and the parties and their lawyers once again were  
back before Justice Rady. In particular, and as reflected in Justice Rady’s  
endorsement dated July 12, 2017:  
i. The plaintiff was intent on proceeding with her contempt motion, which  
included a request for court-ordered implementation of one of the two  
drainage solutions proposed by her engineer.  
ii. The defendant sought formal approval of the solution proposed by his  
engineer, in respect of which the defendant had taken some implementation  
measures.  
iii. Although Justice Rady expressed some preliminary general reactions to the  
competing proposals put forth by the parties, she nevertheless felt that she  
was in no better position to make a final determination concerning an  
appropriate and reasonable engineering solution, based on the paper record  
before her.  
iv. In the result, Justice Rady found it necessary to direct a trial of the plaintiff’s  
contempt motion, so as to permit the receipt of viva voce evidence from the  
parties and their respective engineers.  
1 The defendant’s cross-motion included additional requests for relief, including: an order for directions arising from  
Justice Rady’s judgment; a request for amendment of Justice Rady’s judgment, on the basis that the prescriptive  
easement declaration had been granted in error; an order approving the defendant’s drainage solution or specification  
of exactly what solution was required; an order vacating and deleting the Certificate of Pending Litigation registered  
against the defendant’s property by the plaintiff; an order lifting and vacating the writ of seizure and sale registered  
against the defendant; and, in the alternative, an order directing a “new trial in this matter, based upon the discovery  
of new evidence”.  
Page: 6  
p. In early August of 2017, Justice Rady was asked via counsel correspondence to  
render a further endorsement dealing with the defendant’s outstanding motion as  
well. She did so on August 4, 2017, indicating that the defendant’s motion was  
adjourned to the same trial of the plaintiff’s contempt motion. Her endorsement  
also indicated that both motions, directed to trial, were to be the subject of a  
simultaneous pretrial hearing.  
q. On February 23, 2018, the matter was the subject of a judicial pretrial with Justice  
Grace. During that pretrial, the parties agreed that Justice Rady was not seized of  
the matter. Justice Grace also made a number of pretrial directions, including an  
indication that the parties would be permitted to file their respective consolidated  
motion records as exhibits – although supplementary viva voce testimony was  
contemplated.  
r. For reasons outlined in more detail in my earlier judgment, (Dankiewicz v. Sullivan,  
2019 ONSC 6382), but some of which need to be reiterated here, when the matter  
came before me for trial in March of 2019, counsel expressed uncertainty as to how  
the directed trial would proceed, including the particular matters and issues to be  
tried. In that regard:  
i. At the outset of trial, counsel for the defendant advised that a number of  
issues raised by the defendant’s motion had been addressed and resolved,  
and accordingly no longer required court consideration. In particular, I was  
advised that it was no longer necessary for the court to consider the  
defendant’s requests for:  
1. an order vacating and deleting the plaintiff’s registration of a  
certificate of pending litigation against the defendant’s property;  
2. an order lifting and vacating the writ of seizure and sale obtained by  
the plaintiff and filed against the defendant, in relation to this  
proceeding; and  
3. an order directing a “new trial” in this matter, based upon “the  
discovery of new evidence”; i.e., evidence relating to the original  
grading of the properties.  
ii. I simultaneously was advised, at the outset of trial, that the defendant still  
was pursuing all other aspects of the relief requested in his motion.  
However, as I noted at the time, that would include the defendant’s request  
for an order “amending” Justice Rady’s judgment. In that regard:  
1. The defendant’s notice of motion indicated the defendant had  
requested such relief, in part at least, because of a perception that  
Justice Rady had erred in finding/declaring that the plaintiff had a  
prescriptive right in that regard. However, further remarks by  
defence counsel made it clear the request for such relief also was  
Page: 7  
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  
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. 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  
recess.  
3. When court reconvened after that initial recess, I nevertheless  
received further indications from defence counsel 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 an 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.  
Page: 8  
4. 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. Of the remaining issues formally raised by the motions, in my view it was  
appropriate, (for reasons outlined at the time and in my earlier judgment),  
to proceed first with trial of the “liability phase” of the plaintiff’s motion  
for contempt; a process that, inter alia, offered the additional advantage of  
simultaneously addressing the defendant’s preliminary contention that he  
already had implemented sufficient measures to address the plaintiff’s  
surface water drainage concerns and comply with Justice Rady’s judgment,  
thereby entitling him to a release, “satisfaction piece” and/or other relief  
sufficient to clear the cloud on title to his property created by the plaintiff’s  
ongoing claims.  
s. In the result, the initial 2019 trial proceedings before me, resulting in my earlier  
judgment, were focused on the “liability” phase of the plaintiff’s contempt motion.  
As noted in my earlier judgment, those trial proceedings were punctuated by  
defence counsel’s repeated attempts to criticize the findings made by Justice Rady  
and her resulting judgment; e.g., through defence counsel submissions that Justice  
Rady’s reasons and judgment were “messed up”, insofar as they were said to be  
premised on a directional flow of water that allegedly “never did” exist. When I  
pointed out my inability to entertain such submissions, (i.e., in light of defence  
counsel’s earlier indications regarding the accepted finality of Justice Rady’s  
judgment), they were withdrawn.  
t. In my earlier judgment, (Dankiewicz v. Sullivan, 2019 ONSC 6382), released on  
November 4, 2019, I found, for the reasons set out at length therein:  
i. that the plaintiff had established, beyond a reasonable doubt, all three  
essential elements required for a finding and corresponding declaration that  
the defendant was in civil contempt of court for failing to abide by Justice  
Rady’s judgment;  
ii. that such a finding and corresponding declaration were appropriate in the  
circumstances, pursuant to my exercise of the court’s residual discretion in  
that regard; and  
iii. that my finding of contempt, based on the defendant’s failure to comply  
with Justice Rady’s judgment, simultaneously demonstrated that he was not  
yet entitled to various forms of relief sought by his motion, such as removal  
of the judgment registered against his property, a final release, or a  
satisfaction piece.  
u. My earlier judgment also directed that the matter should be scheduled for trial  
continuation before me; i.e., for trial of the “penalty phase” of the plaintiff’s motion  
Page: 9  
for contempt, in order to determine a just order to address the defendant’s  
established contempt of court. In doing so, I noted that any determination in that  
regard would take into account any intervening measures taken by the defendant to  
purge his contempt.  
v. Before continuation of the trial, the matter was back before me again on June 26,  
2020, for two reasons. The first was an appointment to settle a formal order  
reflecting my reasons for judgment released on November 4, 2019; an appointment  
necessitated by the failure of defence counsel to respond to correspondence from  
plaintiff counsel, providing a draft order and asking whether its form and content  
were agreeable. The second was a case conference I had directed, pursuant to Rule  
50.13 of the Rules of Civil Procedure to address the matters described in Rule  
50.13(5), with the exception of Rule 50.13(5)(b). After settlement of the order, I  
received submissions from counsel and then made numerous directions concerning  
the remaining trial proceedings; see Dankiewicz v. Sullivan, 2020 ONSC 2979. In  
particular:  
i. The issues remaining for trial, (all of which were contested), were identified  
as follows:  
1. whether the defendant has 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 motion; and  
4. costs of the litigation.  
ii. Directions were provided concerning the manner in which evidence would  
be presented, (i.e., by way of affidavits, responding affidavits and reply  
affidavits), including the setting of a timetable for the exchange of evidence  
by affidavits, cross-examination on those affidavits, and the filing of facta  
and books of authorities.  
w. After the trial continuation had been scheduled for December 9 and 10, 2020, a  
further Rule 50.13 case conference nevertheless was necessitated by:  
i. defence counsel indicating through correspondence that he had received  
instructions to bring a motion “for a new trial and the admission of fresh  
evidence”; and  
ii. defence counsel filing a supplementary motion record that included  
evidence which plaintiff counsel characterized as a collateral attack on the  
findings and decisions made by Justice Rady, whose judgment had not been  
Page: 10  
appealed, and the finality of which appeared to have been accepted by the  
defendant during the proceedings before me in 2019.  
x. That further Rule 50.13 case conference was held on November 23, 2020, at which  
time I rendered a further endorsement, (i.e., Dankiewicz v. Sullivan, 2020 ONSC  
7211), setting a timetable for the exchange of material for a plaintiff motion to strike  
portions of the trial evidence filed by the defendant, to be argued on December 10,  
2020, and amending the previously established timetable with a view to the trial  
continuing on January 14 and 15, 2021.  
y. Following argument of the plaintiff’s motion on December 10, 2020, I indicated to  
counsel that, for reasons to follow, (see Dankiewicz v. Sullivan, 2021 ONSC 485),  
I would be granting the relief requested by the plaintiff; i.e., striking specified  
portions of the evidence contained within the “Supplementary Record of the  
Defendant” dated August 21, 2020. The reasons for that ruling are set out at length  
in my endorsement, but included findings that:  
i. much of the “evidence” in question actually was inappropriate argument;  
ii. other parts of the impugned evidence were hearsay, or hearsay upon  
hearsay;  
iii. some portions of the impugned evidence were clearly in the nature of expert  
opinion, in respect of which there had been no effort made to comply with  
Rule 53.03;  
iv. the circumstances did not fall within the ambit of Rule 59.06(2)(a), pursuant  
to which the defendant might request a variation of Justice Rady’s judgment  
based on “facts arising or discovered after it was made”; and  
v. in my view, allowing the defendant to tender such evidence at that point in  
the proceedings would permit and condone conduct prohibited by the  
doctrines of issue estoppel, the rule against collateral attacks on  
orders/judgments, and abuse of process; i.e., insofar as the evidence was an  
inappropriate effort by the defendant to pursue an effective “reset” of the  
underlying and long established factual matrix against which issues relating  
to his ongoing contempt, and possible remedies for that contempt, had to be  
decided.  
z. The trial continuation finally resumed before me on January 14, 2021. In that  
regard, I note the following:  
i. The proceedings began with an effort by defence counsel to tender further  
evidence; i.e., another letter, dated January 6, 2021, provided by the  
defendant’s engineering expert Mr Dykstra, who works with Dillon  
Consulting. In the course of an ensuring voir dire, defence counsel argued,  
inter alia, that the letter was relevant to demonstrating the defendant’s “state  
Page: 11  
of mind”, insofar as his failure to comply with Justice Rady’s judgment was  
said to be based on the “professional advice” he had been receiving from  
his engineering expert, suggesting once again that Justice Rady’s judgment  
had been based on a faulty understanding of the original drainage system  
for the two properties. After receiving submissions from counsel, I ruled  
the letter inadmissible. My reasons in that regard were delivered in part on  
the record, but included the following:  
1. Without justification, the letter was being tendered at the eleventh  
hour, in contravention of the timetable for delivery of trial  
continuation evidence which I had set more than six months earlier.  
2. The letter was being tendered in an unsworn format and, insofar as  
it contained expert opinion,2 without any attempt to comply with the  
provisions of Rule 53.03 of the Rules of Civil Procedure.  
3. Prejudice to the plaintiff from late admission of the letter into  
evidence, in contravention of the established timetable, would be  
compounded by the plaintiff effectively being denied corresponding  
rights to cross-examination in that regard, (which also had been  
conferred by the timetable), and in my view it would have been  
inappropriate to adjourn these protracted proceedings yet again,  
(even with an appropriate cost award), where further delay would  
only inure to the benefit of a party already found in contempt of  
court.  
4. The letter made reference to the same evidence which already had  
been struck out by my ruling on the plaintiff’s motion, (i.e., the  
motion argued on December 10, 2020), and represented a further  
inappropriate effort to revisit and question Justice Rady’s factual  
findings and resulting judgment.3  
2 In that regard, defence counsel suggested in the course of his submissions that the letter should not be regarded as  
evidence presenting expert opinion, insofar as it was said not to be offered for the truth of its content. However, that  
suggested characterization/purpose was undermined by the following almost simultaneous indication by defence  
counsel regarding the letter from the defendant’s expert: “I asked him for an opinion and that’s what that is.”  
3
In that regard, I also note in particular my rejection of defence counsel’s suggestion that, apart from any overt  
challenging of Justice Rady’s factual findings or judgment, the letter had supposed relevance to demonstrating the  
defendant’s innocent “state of mind”; i.e., insofar as the defendant was said to honestly believe Justice Rady’s findings  
and judgment to be flawed, and based on a fundamentally false premise, because the defendant had received and relied  
upon “professional advice” to that effect. As noted in my earlier judgment, reliance on professional legal advice does  
not shield a party from a finding of contempt; again, see Carey v. Laiken, [2015] 2 S.C.R. 79, at paragraph 44. In my  
view, it follows, a fortiori, that a party in the defendant’s position cannot seek to be excused from a finding that he is  
in contempt of a court judgment, or avoid a remedy to address any ongoing contempt in that regard, by professing  
reliance on professional engineering advice.  
Page: 12  
ii. Although two days had been scheduled for the trial continuation, the parties  
were able to conclude all of their respective submissions on January 14,  
2020, at which time I reserved my decision.4  
[6]  
It was against that extended background that I proceeded to consider the further substantive  
issues for trial identified in my endorsement dated June 26, 2020; i.e., whether and/or to  
what extent the defendant had purged his contempt, the penalty and/or remedial measures  
to be ordered to address any outstanding contempt, and whether the defendant should be  
entitled to any of the relief sought in his motion.  
Party positions  
[7]  
[8]  
[9]  
Counsel made extended written and oral submissions in relation to those issues, and I have  
considered them at length in their entirety. Nothing in the following overview of those  
submissions should suggest otherwise.  
Having said that, I think a more extended than usual summary of those party positions is  
appropriate in this case, in order to place the analysis that follows in context and make it  
more comprehensible.  
Submissions made on behalf of the plaintiff included the following:  
a. It was said that the defendant Mr Sullivan had taken no steps whatsoever to purge  
his contempt since my findings in that regard released on November 29, 2019; i.e.,  
that there was no evidence before me to suggest that anything had changed since  
my finding of contempt, or that there had been any attempt whatsoever by the  
defendant to purge his contempt. The defendant instead repeatedly had directed his  
efforts towards further inappropriate direct and/or collateral attacks on the  
judgment issued by Justice Rady in 2011. In such circumstances, counsel for the  
plaintiff essentially submitted that a finding of ongoing contempt was inevitable,  
and that the next appropriate issue for determination thereafter was an appropriate  
order to address that ongoing contempt.  
b. In her initial motion material, (filed on or about April 13, 2016), the relief sought  
by the plaintiff, (i.e., to address the defendant’s ongoing contempt in failing to abide  
by Justice Rady’s judgment), was an order directing the performance of alternative  
remedial work plans put forward by the plaintiff, (to be carried out by the defendant  
or, in the event of the defendant failing to do so, by the plaintiff and her agents at  
the defendant’s expense), and requiring the defendant to pay, inter alia, the  
plaintiff’s legal and engineering costs, the costs associated with the plaintiff having  
to pump water from her property, and the costs associated with the repair of damage  
4
A number of weeks after the hearing, I sustained an injury which unfortunately prevented continuation with any  
judicial work for an extended period during the course of my recovery, and permitted only slow but gradually  
increasing progress thereafter. While every effort was made to return to that work as soon as possible, completion of  
these reasons regrettably was delayed until now.  
Page: 13  
to the plaintiff’s property. As for the remedial work to be ordered, the plaintiff  
presented two alternatives, (supported by her engineering experts, with  
corresponding cost estimates), to reinstate the flow of surface water from the  
plaintiff’s property onto and across the defendant’s property:  
i. The first proposal contemplated permanent relocation of the backyard shed  
erected by the defendant, (i.e., moving it north, from its existing site where  
the original drainage swale across the defendant’s property had been located  
to a site beside or to the east of the defendant’s house), and reinstatement of  
the original drainage swale which effectively had been destroyed by the  
defendant’s construction and landscaping activities.  
Further work  
associated with the proposal would include adjustment/alteration of the  
grading in the rear yard of the defendant’s property to ensure that water  
thereon drained into that reinstated swale, as well as corresponding  
adjustments to the fencing between the defendant’s property and the  
property to the east known by its municipal address as 59 Shepherd Avenue,  
adjustments/alterations to the rear yard of 59 Shepherd Avenue to facilitate  
receipt of water from the defendant’s property via the reinstated swale,  
removal of all surplus cut material, and restoration of topsoil and sod in the  
regraded and disturbed areas.5  
ii. The second proposal contemplated temporary relocation of the backyard  
shed erected by the defendant, allowing for the installation of an  
underground drainage culvert, running across the defendant’s backyard and  
sloping downwards to the east, (i.e., towards the backyard of 59 Shephard  
Avenue), in the approximate location of the original swale, before the  
placement of backfill over the buried culvert and reinstatement of the shed  
to its current location, as well as corresponding work on the rear yard of 59  
Shepherd Avenue to adjust its grading or extend the draining culvert to  
facilitate receipt of water being drained across the defendant’s property,  
adjustments to the fencing between the defendant’s property and 59  
Shepherd Avenue, removal of excavated material, and restoration or  
regrading of topsoil and sod in the disturbed areas.6  
c. Those remedial work options proposed and described by Mr McIntosh were  
formulated prior to his further report, (dated July 19, 2016, and attached as Exhibit  
5
The proposal is described with more particularity and specifications as “Option 1” in the letter prepared by Kyle  
McIntosh, P.Eng., (of Whitney Engineering Inc.), dated February 23, 2016, and attached as Exhibit 3 to Mr McIntosh’s  
affidavit sworn on April 13, 2016, which includes diagrams that were attached to the letter. At the time Mr McIntosh  
prepared his letter, the estimated construction cost of “Option 1” was said to be approximately $18,000.00 plus HST.  
6
The proposal is described with more particularity and specifications as “Option 2” in the letter prepared by Kyle  
McIntosh, P.Eng., (of Whitney Engineering Inc.), dated February 23, 2016, and attached as Exhibit 3 to Mr McIntosh’s  
affidavit sworn on April 13, 2016, which includes diagrams that were attached to the letter. At the time Mr McIntosh  
prepared his letter, the estimated construction cost of “Option 2” was said to be approximately $20,000.00 plus HST.  
Page: 14  
“B” to the affidavit sworn by Mr McIntosh on March 1, 2017), which also  
addressed the additional drainage problems being caused by the defendant, (as  
noted in my earlier judgment), having not only failed to comply with Justice Rady’s  
judgment but having made matters worse and compounded the plaintiff’s surface  
water drainage problems by filling in the swale that previously existed along the  
property boundary between the parties’ houses, which facilitated surface water  
drainage towards the street.7 In that regard, Mr McIntosh recommended, (without  
providing a corresponding cost estimate), that the pre-existing swale on the  
property line between 51 Shepherd Avenue and 55 Shepherd Avenue, in the area  
“at the front of the properties”, (i.e., as opposed to the rear yards which were the  
subject of his earlier report and recommendations), “should have all stored  
landscaping material removed and the swale re-instated”.  
d. All of the above recommendations from Mr McIntosh also predated his further  
testimony during the “liability phase” of the trial proceedings before me, (which I  
accepted), wherein he indicated that drainage of surface water from the plaintiff’s  
property onto the defendant’s property was being impeded by the defendant having  
made the elevation of his property higher – indeed, substantially higher -- than that  
of the plaintiff all along the boundary separating the two backyards in the area north  
of the railway berm. In that regard, Mr McIntosh indicated that effective facilitation  
of surface water drainage from the rear yard of the plaintiff’s property onto the rear  
yard of the defendant’s property, (rather than the other way around), could be  
accomplished by the creation of a trench at least three to four feet wide, with a depth  
at least twelve inches below the existing grade of the defendant’s rear yard in that  
area, with the water accumulating in that area being directed, (in the absence of  
regrading reinstituting the previously existing swale), towards the defendant’s  
drainage pit, provided the surface area around that drainage pit was lowered and  
the pit then was adequately monitored and pumped in a manner similar to that  
currently being done by the plaintiff in relation to her drainage pit.8  
e. By the time of the hearing before me on January 24, 2020, however, the plaintiff  
had modified the relief she was requesting, a least insofar as far as the remedial  
work to be ordered was concerned. In particular, because of indications from the  
defendant that he “has not” obtained or “cannot obtain” permission from the owner  
of 59 Shepherd Avenue for work to be done on that property, (e.g., to implement,  
in their entirety, either of the original remedial drainage proposals suggested by the  
plaintiff’s engineering experts in Mr McIntosh’s letter of February 23, 2016), the  
inability of the plaintiff’s engineering expert to secure such permission,9 and the  
demonstrated longstanding contempt of the defendant and his corresponding failure  
7 See paragraph 24(c) of my earlier judgment, released on November 4, 2019.  
8 See sub-paragraphs 19(b) and 19(c)(iv)(4) of my judgment released on November 4, 2019, and the footnotes thereto.  
9 In paragraph 4 of his sworn “Reply Affidavit” sworn on April 10, 2017, Mr McIntosh indicates that he personally  
was “not able to obtain permission from the owners of the property at 59 Shepherd Avenue”.  
Page: 15  
to take any meaningful and effective measures to ensure that the surface water  
drainage concerns of the plaintiff were being addressed, (causing the  
understandably frustrated plaintiff to abandon all faith in the prospect of the  
defendant ever reliably being counted upon to implement, maintain and monitor an  
appropriate drainage solution to ensure its ongoing effectiveness), the plaintiff now  
seeks an order that would implement, (at the cost of the defendant), an alternative  
drainage solution that essentially would be situated almost entirely on her own  
property and thereby remain within the effective control of the plaintiff and her  
successors in title. The specifics of that requested alternative drainage solution,  
(referred to in the plaintiff’s factum as the “Alternative Work Option”), and  
associated funding arrangements proposed by the plaintiff, are set forth in detail at  
paragraph 80 of the plaintiff’s factum dated January 8, 2021, and another expert  
report prepared by Mr McIntosh dated March 1, 2017, attached as Exhibit “H” to  
his affidavit sworn the same day. For present purposes, however, I think those  
specifics may be summarized broadly as follows:  
i. The plaintiff essentially would forego further efforts to have her surface  
water drain across the property of the defendant.  
ii. The plaintiff instead would ask the court to order implementation of an  
alternative solution to the drainage problems brought about by the  
defendant’s conduct, whereby:  
1. Necessary approvals and permits would be obtained from various  
divisions of the municipality, (e.g., the Building Division and the  
Stormwater Drainage Division), which representatives of the  
municipality informally have agreed to grant.  
2. Necessary approvals would be required from relevant utility  
companies – with no indication to date that such approvals would be  
refused.  
3. Temporary access to the properties at 47 Shepherd Avenue, (which  
the owner has agreed to give), and at 55 Shepherd Avenue, (which  
the defendant would be required to give), will be needed.  
4. A new topsoil berm, (approximately .20 meters or eight inches  
high), would be created along the base of the existing boundary  
fence separating the parties’ properties, running from the northern  
edge of the railway berm to an indicated between the parties’ houses,  
in an effort to inhibit the further flow of water from the defendant’s  
property onto that of the plaintiff.  
5. The surface water thereafter accumulating on the plaintiff’s  
property, (because of its inability to flow onto and across the  
defendant’s property), would be channeled, (through necessary new  
Page: 16  
swale regrading and installation of roof water leaders), towards a  
“rear yard catch basin manhole”, (or “RYCBMH”), to be installed  
approximately in the centre of the plaintiff’s backyard area between  
her house and the railway berm.  
6. The water accumulating in that new RYCBMH would be drained by  
way of permanent underground “gravity” system, (i.e., not reliant  
on any pumping mechanism, and capable of effective operation  
throughout the year), whereby water entering the RYCBMH would  
then travel via a buried downward sloping storm sewer that would  
carry the water underground to the area near the southwest corner of  
the plaintiff’s house, and thereafter underground and north along the  
west side of the plaintiff’s house towards the street, (i.e., Shepherd  
Avenue), where the underground storm sewer would be connected  
to the current terminus of the existing municipal storm sewer.  
7. Further required ancillary work to implement that proposal, (e.g.,  
removal and restoration of the existing curb and asphalt on Shepherd  
Avenue, removal of all landscaping/fencing and other material from  
the areas to be excavated, temporary exposure/relocation and  
restoration of various utility lines, regrading of the plaintiff’s  
backyard directing surface water to the new RYCBMH, and  
restoration of all affected areas in terms of curb areas, asphalt, grass,  
fences, paver stone sidewalk areas, decorative stone walls, and new  
trees/shrubs to replace those necessarily being removed and  
destroyed), would be done in the course of the project.  
8. All of the necessary preparation and completion work associated  
with the project had an estimated cost, as of March 1, 2017, of  
$50,000.00 plus HST, or approximately $56,500.00. In a further  
affidavit sworn by Mr McIntosh on July 31, 2020, (found within the  
“Supplementary Motion Record” filed by the plaintiff), he estimated  
that the cost of implementing/completing the project had risen, as of  
that date, to $55,000.00 plus HST, or approximately $62,150.00.  
iii. To ensure completion of the required work, its completion on a timely basis,  
and its effectiveness going forward, the plaintiff asked that the order  
granting relief also include provisions whereby, amongst other things:  
1. the defendant would be prohibited from transferring ownership of  
his property, or further encumbering it, until the necessary work had  
been completed;  
2. the plaintiff and her agents would be permitted to carry out the  
required work, rather than waiting for the defendant to make and  
carry out any arrangements in that regard;  
Page: 17  
3. the plaintiff and her agents accordingly would be permitted  
necessary access to the defendant’s property to carry out the  
contemplated work;  
4. that a restriction would be registered against title to the defendant’s  
property, at the expense of the defendant, effectively prohibiting the  
defendant and his successors in title from modifying or interfering  
with the berm to be installed along the western boundary of the  
defendant’s property; and  
5. that Justice Rady’s judgment should remain registered against title  
to the defendant’s property until the “Alternative Work Option” has  
been completed, at which time the plaintiff will consent to its  
deletion from the register.  
iv. In order to fund completion of that “Alternative Work Option”, (because  
the plaintiff herself currently no longer has the ability to finance the work,  
as a result of the expenditures and debt she already has incurred in the  
course of this litigation), the plaintiff asks that the defendant initially be  
ordered to pay the sum of $62,150.00 to the plaintiff’s lawyers in trust, with  
ancillary terms providing:  
1. that plaintiff’s counsel then would disburse those sums to third  
parties involved in completion of the project, upon receipt of  
invoices associated with carrying out the work required;  
2. that plaintiff’s counsel would provide defence counsel with copies  
of all such invoices as funds are being disbursed;  
3. that any remaining funds still being held in trust by plaintiff counsel  
after completion of the work would be paid to defence counsel, in  
trust for the defendant; and  
4. that the defendant conversely would be required to pay, within 10  
days, invoices presented to defence counsel relating to any  
outstanding costs over and above $62,150.00, if that amount proves  
to be insufficient to cover the actual completion costs of the work to  
be done.  
v. In modifying the relief being requested to address and resolve the plaintiff’s  
ongoing surface water drainage problems caused by the defendant and his  
contempt, counsel for the plaintiff acknowledged that the nature of that  
requested relief was being changed in a number of ways. In particular:  
1. As noted above, there was no dispute that the mechanism of relief  
was being altered from that contemplated by Justice Rady, insofar  
as the plaintiff’s accumulating surface water would not be drained  
Page: 18  
across the defendant’s property but instead be drained directly from  
the plaintiff’s property and into the municipal storm sewer.  
However, such a result was said to be within the spirit if not the letter  
of Justice Rady’s judgment, insofar as the obvious objective of that  
judgment was to address the surface water drainage problems the  
plaintiff was experiencing because of the defendant’s conduct; i.e.,  
“to restore drainage for the plaintiff’s property”. Moreover, the  
modification was said to be appropriate, “just and necessary” in the  
circumstances, as:  
a. The defendant has failed to obtain the consent of the owner  
of 59 Shepherd Avenue to allow any work to be done on that  
property, and the plaintiff’s engineering expert was unable  
to obtain such permission, which in turn seemed likely to  
prevent the two alternative drainage solutions initially  
proposed by the plaintiff’s engineers from being completed  
in their entirety; i.e., insofar as surface water would be  
drained from the plaintiff’s property onto the defendant’s  
property, but thereafter would not drain further east onto 59  
Shepherd Avenue and beyond.10  
b. The modified proposal would bring finality to the plaintiff’s  
surface water drainage concerns without her having to worry  
or litigate further about what the defendant was doing or  
failing to do on his property – except insofar as maintenance  
of the new boundary berm was concerned. Apart from  
maintenance of and non-interference with that boundary  
berm, the plaintiff effectively would be provided with the  
means to address the surface water accumulating on her  
property, because of the plaintiff’s actions, by means of a  
new drainage system that was “self-contained”; i.e., in the  
sense that its preservation, maintenance and ongoing  
effective operation would be entirely within the control of  
the plaintiff and her successors in title.  
c. The authority granted by Rule 60.11(5) of the Rules of Civil  
Procedure, indicating the possible content of a court order  
to address a finding of contempt, was said to be broad  
10 In that regard, it was noted and emphasized that the defendant says he “cannot secure permission for construction  
over my neighbour’s property to the east”, but also has indicated that he merely “has not secured” such permission,  
and there otherwise is no evidence providing any information or details whatsoever about any efforts being made by  
the defendant to secure such permission or consent in any way. In the circumstances, the plaintiff says such  
considerations warrant an adverse inference that the defendant actually has not even attempted to obtain permission  
for the alternative drainage options initially put forward by the plaintiff’s engineers.  
Page: 19  
enough to support an order “for relief from an ongoing  
nuisance that differs from the original order of the Court”.  
2. The modified remedial relief being requested also would be altered  
insofar as responsibility for completion of remedial work no longer  
would remain in the hands of the defendant, except for his obligation  
to pay the associated expense. However, it was said that more than  
10 years of the defendant failing to respect a judgment of this court  
was long enough, that the defendant demonstrably could not be  
relied upon to act in a manner sufficient to address the surface water  
drainage problems he had created, and he accordingly should be  
regarded as having forfeited his right to have direct participation in  
the necessary remedial arrangements and their execution.  
3. Finally, it was acknowledged that the modified relief being  
requested also differed from that initially proposed insofar as the  
plaintiff now seeks remedial relief primarily in the form of a  
monetary payment, (coupled with further directions allowing her  
and her representatives to carry out the proposed “Alternative Work  
Option”), rather than an order encouraging or compelling the  
defendant to carry out work that would ensure compliance with  
Justice Rady’s judgment. However, in that regard:  
a. it was emphasized that the plaintiff herself now lacks the  
financial resources to pay for such remedial work, owing to  
the expenditures and debt she necessarily has incurred  
because of her prolonged litigation with the defendant;  
b. it was noted that this court has the power to address nuisance  
by awarding damages for the cost of measures to be  
implemented on the plaintiff’s own property, in order to  
mitigate or abate the relevant nuisance; and  
c. it was submitted that Rule 59.06(2)(d) of the Rules of Civil  
Procedure gave the court authority to grant the plaintiff  
“other relief than that originally awarded”.  
f. In addition to that modified request for relief to address and resolve her ongoing  
surface water drainage problems, the plaintiff also maintained her request,  
(advanced from the outset of her contempt motion), for further monetary relief; i.e.,  
“her costs incurred since June 24, 2011 as a result of the Defendant’s failure to  
comply with the Judgment”, including “her legal and engineering costs and her  
costs associated with pumping water from her property and the repair of damage to  
her property”. In that regard:  
Page: 20  
i. That request was presented as a claim for relief that was separate and  
distinct from the plaintiff’s claim for the costs associated with her contempt  
motion and the defendant’s motion for directions.11  
ii. The claim included a request for payment of costs associated with  
restoration work to be done on the plaintiff’s property to address various  
types of damage and other changes brought about by the defendant’s failure  
to abide by Justice Rady’s judgment; e.g., regrading, leveling and/or  
restoration of patio areas, the plaintiff’s ornamental pond and stonework  
surrounding flower beds, (all said to have been damaged by flooding), and  
the elimination, reversal or removal of temporary mitigation measures  
implemented by the plaintiff, such as filling/covering of her existing  
drainage pit hole, returning downspouts to their original locations, and  
removing the stones, soil and sandbags the plaintiff had placed along the  
boundary between the parties’ properties, in an effort to address the flow of  
surface water coming onto her property from the property of the defendant.  
Mr McIntosh estimated the total cost of such restoration work to be, (as of  
July 31, 2020), $7,000.00 plus HST, or approximately $7,910.00. If I found  
it problematic to award such damages in the context of a contempt motion,  
it was said that such sums alternatively could be characterized as further  
restoration work to be done in conjunction with implementation of the  
“Alternative Work Option” now being proposed/requested by the plaintiff.  
iii. The claim also included a request for an order directing the defendant to  
reimburse the plaintiff for additional expenses she has incurred, (up until  
July 31, 2020, at least), as a result of the defendant’s failure to comply with  
Justice Rady’s judgment; expenses which plaintiff counsel submits can be  
the subject of an order directing restitution as a remedy/penalty for the  
defendant’s contempt, as well as a declaration that such an order should  
survive any defendant declaration of bankruptcy pursuant to s.178(1)(a) of  
the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3.12 Those expenses  
were said to include:13  
11 See paragraphs 7 and 8 of the plaintiff’s notice of motion dated April 13, 2016, (under the heading “THE MOTION  
IS FOR”), and sub-paragraphs 80(i), (j) and (k) of the plaintiff’s factum dated January 8, 2021. As indicated in my  
previous endorsements and during the last hearing before me, I intend to deal with the accumulated costs of these  
proceedings, (by way of written cost submissions), once my substantive decision in relation to the parties’ motions  
has been finalized.  
12 A similar request was made in relation to the payments to be made by the defendant to fund the “Alternative Work  
Option”.  
13 The expenses sought by the plaintiff as a remedy/penalty for the plaintiff’s contempt also included at least some of  
the legal fees she has incurred while trying to secure the defendant’s compliance with Justice Rady’s judgment. (See  
paragraph 90 of the plaintiff’s affidavit sworn April 13, 2016.) In my view, those amounts should be claimed, if at  
Page: 21  
1. payments made by the plaintiff to her engineering experts, totalling  
$22,498.59;14  
2. payments made for the purchase of pumping equipment and  
supplies, totalling $6,643.79;15  
3. the cost of preparing photographs documenting the plaintiff’s  
damages, totalling $267.50;16  
4. the mileage expense incurred by the plaintiff in making additional  
trips home from her workplace to pump water from her backyard to  
the street, totalling $3,807.00;17  
5. the cost of the additional electricity that was required to operate the  
plaintiff’s water pump, totalling $4,360.00;18 and  
6. interest charges, (in the amount of $7,567.36), on debt the plaintiff  
incurred to pay for those expenditures at the time they were required.  
g. As for the defendant’s motion, counsel for the plaintiff submitted that the court  
should decline to entertain the defendant’s motion until his contempt had been  
purged or remedied; by compliance with a further order of the court in that regard.  
[10] Submissions made on behalf of the defendant included the following:  
all, as part of the costs sought by the plaintiff in relation to these proceedings, when I subsequently invite and consider  
written cost submissions in that regard once my substantive decision has been finalized.  
14 This is the total of the relevant amount indicated in the plaintiff’s affidavit sworn April 13, 2016, at paragraph 91,  
and the relevant additional amount indicated in the plaintiff’s affidavit sworn July 31, 2020, at paragraph 38.  
15 This is the total of the relevant amount indicated in the plaintiff’s affidavit sworn April 13, 2016, at paragraph 93,  
and the relevant additional amount indicated in the plaintiff’s affidavit sworn July 31, 2020, at paragraph 37. I think  
it quite probable that this total understates the amount the plaintiff will have spent on such equipment and supplies to  
the date of this judgment, given the pattern demonstrated in the plaintiff’s evidence.  
16 This is the total of the relevant amount indicated in the plaintiff’s affidavit sworn April 13, 2016, at paragraph 93,  
and the relevant additional amount indicated in the plaintiff’s affidavit sworn July 31, 2020, at paragraph 37.  
17 This is the total of the relevant amount indicated in the plaintiff’s affidavit sworn April 13, 2016, at paragraph 93,  
and the relevant additional amount indicated in the plaintiff’s affidavit sworn July 31, 2020, at paragraph 37. I think  
it quite probable that this total understates the amount the plaintiff will have spent on such mileage to the date of this  
judgment, given the pattern demonstrated in the plaintiff’s evidence.  
18 This is the total of the relevant amount indicated in the plaintiff’s affidavit sworn April 13, 2016, at paragraph 93,  
and the relevant additional amount indicated in the plaintiff’s affidavit sworn July 31, 2020, at paragraph 37. I think  
it quite probable that this total understates the amount the plaintiff will have spent on such electricity to the date of  
this judgment, given the pattern demonstrated in the plaintiff’s evidence.  
Page: 22  
a. In support of arguments that the defendant has attempted to purge his contempt,  
and should no longer be held in contempt:  
i. It was emphasized that the defendant had taken steps to address surface  
water drainage issues, (e.g., by the installation of a drainage pit and pump),  
before these contempt proceedings.  
ii. It was said that the surface water drainage issues could and should have  
been resolved by the plaintiff taking measures on her property, (e.g., a  
“topsoil adjustment” and “grading revisions”), in order to “connect with”  
the defendant’s drainage pit and make it effective, (i.e., a solution  
contemplated by the engineers of both parties during the effort to reach a  
solution through consultation and agreement as suggested by Justice Rady),  
but the plaintiff “never made the required changes” and “rejected the  
Plaintiff’s (sic) efforts” in that regard.  
iii. It was said that the “major focus” of the defendant’s efforts to purge his  
contempt has been the defendant’s motion for directions that was “filed four  
years ago and has not yet been heard”.  
iv. It was suggested that the defendant was justified in refraining from  
implementation of any further drainage solution measures on his property  
once the plaintiff filed further motion material asking the court to order  
implementation of a drainage solution primarily on her property.  
v. It was said that the defendant was justified in refraining from  
implementation of any further drainage solution measures on his property  
in any event because nothing he would have done would have been  
acceptable to the plaintiff.  
vi. It was emphasized that the defendant “has been through a lot” and suffering  
greatly as a result of these proceedings, which “should have been in the  
small claims court”, as he has “incurred significant legal and engineering  
costs” and has had title to his property “encumbered for years”, thereby  
impeding his ability to refinance that property, the value of which has been  
impaired.  
vii. It once again was argued by defence counsel, at the insistence of his client,  
and notwithstanding my earlier rulings, that I reconsider evidence from the  
defendant’s engineer expert suggesting that any effort to drain the plaintiff’s  
surface water to the east would be contrary to the original grading of the  
subdivision; i.e., that surface water from the plaintiff’s property had always  
flowed to the west rather than the east, contrary to the findings made in that  
regard by Justice Rady.  
b. As for the relief to be ordered by the court, if the defendant was found to be in  
ongoing contempt:  
Page: 23  
i. The defence put forward no drainage solutions whatsoever, apart from the  
repeated suggestion, (noted above), that the plaintiff should have done work  
on her property to make the drainage pit installed on the defendant’s  
property effective.  
ii. It was said once again that implementation of any surface water drainage  
solution to address the plaintiff’s complaints would be difficult when the  
surface water drainage actually drains to the west rather than to the east, in  
accordance with the supposed “general grading” of the area, and one simply  
cannot make water drain uphill. In that regard, the final submission made  
on behalf of the defendant was made by Mr Sullivan personally, who  
interjected to emphasize that, in making my decision, I should look again at  
the original grading of the relevant properties and read that information  
carefully.  
iii. It was said that the “difficulty with the two options” originally presented  
and requested in the plaintiff’s motion material, (i.e., for addressing the  
surface water drainage issues), is that “they require construction and  
grading on the adjoining property at 59 Shepherd Avenue”, and the  
defendant “has not secured any agreement with the owner of 59 Shepherd  
Avenue”.  
iv. It was said that the drainage solution now being proposed and requested by  
the plaintiff to address the defendant’s contempt had been considered by  
both of the parties’ engineering experts, (when they were consulting with  
each other), and had been considered “not viable”.  
v. It was argued that an order directing implementation of the remedial work  
now being proposed by the plaintiff would be inappropriate, as:  
1. it would not be an order directed towards compliance with Justice  
Rady’s judgment that the plaintiff’s surface water be allowed to flow  
“across the defendant’s property”, and instead constitute a  
recognition that the defendant had been correct all along in his  
assertions that the plaintiff’s surface water should instead be drained  
to the west;  
2. on a related point, it was noted that, while Rule 60.11(9) of the Rules  
of Civil Procedure expressly permits a court dealing with a situation  
of contempt to order the completion of an act by someone other than  
a disobedient party at that disobedient party’s expense, where that  
disobedient party has failed to comply with an order requiring the  
doing of an act, it does not contemplate or permit an order directing  
the disobedient party to pay for the completion of an act different  
from the one originally ordered; and  
Page: 24  
3. it was argued that permitting the plaintiff to vary Justice Rady’s  
judgment now pursuant to Rule 59.06(d), (i.e., so as to direct  
implementation of a drainage solution that does not involve the  
plaintiff’s surface water draining across the defendant’s property,  
and/or to convert much or most of Justice Rady’s judgment to what  
essentially would be an award of damages), was not only beyond the  
court’s jurisdiction but an outcome that would be “very unjust”  
insofar as the defendant’s repeated efforts to revisit and vary Justice  
Rady’s judgment repeatedly have been met with arguments and  
rulings that Justice Rady’s judgment was final in the absence of a  
timely appeal.  
vi. It was suggested that the most appropriate course of action was for the court  
to give directions regarding possible drainage solutions, with the  
proceedings then being adjourned so that the defendant could review and  
consider those possibilities with his engineering experts.  
c. Consistent with the above submissions, it essentially was suggested that the court  
pause any further consideration of contempt or remedies for contempt until the  
defendant’s motion for directions had been heard and decided.  
[11] With the above factual background and submissions in mind, I turn to consideration of the  
identified issues for determination.  
Ongoing contempt  
[12] A party previously found in contempt of court beyond a reasonable doubt has the onus of  
proving any mitigating fact, (such as purging of the relevant contempt), on a balance of  
probabilities.19  
[13] In my view, there is no doubt that the defendant remains in contempt of Justice Rady’s  
judgment, insofar as the evidence properly before me discloses nothing of relevance to  
disturb or displace any of the findings I made in my earlier judgment, (released on  
November 4, 2019), that all three essential elements of civil contempt had been established  
in this case. Without limiting the generality of the foregoing:  
a. For the reasons outlined in my earlier judgment,20 Justice Rady’s order requiring  
the defendant “to take whatever steps are necessary to ensure that the plaintiff’s  
surface water drains across the defendant’s property” provided, and therefore  
19 See, for example, Korea Data Systems Co. v. Chiang, [2009] O.J. No. 41 (C.A.), at paragraphs 50-52.  
20 See, in particular, paragraph 15 of my earlier judgment.  
Page: 25  
continues to provide, the degree of clarity required by the first essential element of  
civil contempt.  
b. There is no question that the defendant had and continues to have actual knowledge  
of Justice Rady’s order in that regard.  
c. For the reasons outlined in detail in my earlier judgment,21 the plaintiff had  
established beyond a reasonable doubt that the defendant had failed to do what  
Justice Rady’s judgment compelled him to do, and that failure was intentional. In  
that regard:  
i. I accept and agree with plaintiff counsel’s submission that there is no  
evidence before me to suggest that anything whatsoever has changed “on  
the ground” since my earlier judgment, (i.e., to facilitate drainage of the  
plaintiff’s surface water across the defendant’s property), and there  
accordingly is no evidence to suggest that the defendant has done anything  
whatsoever to purge his contempt in that regard.  
ii. My finding in that regard was buttressed by the responses given by defence  
counsel to my direct questions in that regard, posed during the course of  
counsel submissions. In particular, I specifically asked defence counsel  
whether the defendant had done anything concrete in terms of altering the  
physical landscape or topography of his back yard or property to change the  
relevant surface water flow, and the answer was “No”.  
iii. In my view, the situation accordingly does not involve one of determining  
whether efforts made by the defendant to do the act he previously was  
ordered to do, after a finding of contempt, were sufficient to comply with  
the original order of the court in whole or in part; i.e., thereby purging the  
defendant’s previously established contempt entirely or to some extent. In  
this case, the defendant effectively has made no further attempt whatsoever  
to comply with Justice Rady’s judgment. In such circumstances, I think a  
finding of ongoing contempt must be made; i.e., that based on the evidence  
before me, the defendant has failed to prove, on a balance of probabilities,  
that he has purged his contempt as a mitigating consideration.  
[14] In reaching that conclusion, I considered but rejected the various submissions advanced by  
defence counsel, in support of his arguments that there should not be a finding of ongoing  
contempt. In that regard:  
a. In my view, reliance on the steps taken by the defendant to address surface water  
drainage issues before my earlier judgment, (e.g., installation of a drainage pit and  
pump), was misplaced. For the reasons outlined in detail in my earlier judgment,  
those measures were insufficient to prevent a finding of contempt. Actions that  
21 See, in particular, paragraphs 17-19 of my earlier judgment, and the footnotes thereto.  
Page: 26  
were insufficient to prevent a finding of contempt then self-evidently are  
insufficient to prevent a finding of ongoing contempt now.  
b. Nor, in my view, was there any new merit to defence counsel’s previously rejected  
argument that the defendant should not be held in contempt because it was really  
the plaintiff who was at fault; i.e., for failing to take measures on her property to  
“connect with” the defendant’s drainage pit and make it effective. For the reasons  
explained at length in my earlier judgment,22 the defendant’s approach and views  
in that regard were and remain fundamentally flawed and wrong in law. The  
plaintiff had no obligation to alter her property to address and resolve the surface  
water drainage problems created by the defendant on his property.  
c. I reject the suggestion that the defendant’s bringing of his motion for directions  
presented or presents any reason why he should not have been found in contempt,  
and/or should not be found in ongoing contempt. Without limiting the generality  
of the foregoing:  
i. The defendant placed considerable emphasis on the fact that his notice of  
motion for directions was “served first”, (i.e., on April 1, 2016, whereas the  
plaintiff’s original notice of motion is dated April 13, 2016), and therefore  
should have been heard and determined prior to the plaintiff’s contempt  
motion. However:  
1. Having regard to the events leading up to the two motions, I am  
inclined to agree with plaintiff counsel’s characterization of the  
defendant’s motion as an attempt to “pre-empt” an anticipated  
motion by the plaintiff to have the defendant found in contempt.  
2. The court has a right to control its own process, and determine the  
appropriate manner in which motions should be heard; e.g., having  
regard to authority confirming the court’s discretion to refuse  
hearing a contemnor’s request for relief from the court.23 The race  
for priority of hearing does not always go to the swiftest.  
3. Although the defendant’s notice of motion includes a request for  
alternative relief “defining exactly what solution is required”, a  
review of the defendant’s motion material makes it clear that he  
primarily was seeking a court declaration approving the measures  
22 Without limiting the generality of the foregoing, see in particular sub-paragraphs 19(c)(ii), 19(c)(iii) and 19(d) of  
my earlier judgment.  
23  
See, for example: Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 5 O.R. (3d) 560 (Gen.Div.),  
additional reasons (July 16, 1992), Doc. RE 2782/89 (Gen.Div.); Paul Magder Furs Ltd. v. Ontario (Attorney General)  
(1991), 6 O.R. (3d) 188 (C.A.), leave to appeal to Supreme Court of Canada refused 9 O.R. (3d) xii (note); and Korea  
Data Systems Co. v. Chiang, supra, at paragraph 35.  
Page: 27  
he had taken, and granting further relief, (e.g., vacating of the  
certificate of pending litigation and judgment registered against his  
property, vacating of the writ of seizure and sale obtained by the  
plaintiff against the defendant, and an order compelling the plaintiff  
to provide a final release and satisfaction piece), premised on a  
finding that the defendant had done all that was required of him,  
such that all of the plaintiff’s remaining claims against him should  
be formally terminated.  
ii. In my view, any meaningful review and consideration of my earlier  
judgment would have made it clear to the defendant and his counsel that I  
effectively addressed most if not all of the matters raised by his motion.  
Without limiting the generality of the foregoing:  
1. I explained, in considerable detail, why the measures taken to date  
by the defendant, and his proposed drainage solution, were  
ineffective in fact, (i.e., to comply with Justice Rady’s judgment  
obliging the defendant “to take whatever steps are necessary to  
ensure that the plaintiff’s surface water drains across his property”),  
and inappropriate in law.24  
2. I also explained, in considerable detail, the essentials and  
fundamental mechanics of the drainage solution the defendant was  
required to implement, on his own property, to comply with Justice  
Rady’s judgment.25 Without limiting the generality of the  
foregoing:  
a. I noted that Justice Rady’s judgment required the defendant  
to take whatever steps were necessary to ensure that required  
result, and not simply whatever steps arguably may have  
been reasonable in an unsuccessful attempt to bring about a  
negotiated result upon which the parties had mutually  
agreed.  
b. I noted and emphasized that Justice Rady’s judgment  
imposed the relevant remedial obligation solely upon the  
defendant, (i.e., without requiring the plaintiff to take any  
actions whatsoever in that regard), and that such a result was  
entirely consistent with Justice Rady’s findings that the  
surface water drainage problems being experienced by the  
plaintiff had been caused entirely by what the defendant had  
24 See, in particular, sub-paragraphs 19(c)(v) and 19(c)(vi) of my earlier judgment.  
25 See, in particular, sub-paragraph 19(c)(iv) of my earlier judgment.  
Page: 28  
done on his land to alter and reverse the intended and  
previous direction of surface water drainage.  
c. I noted that such realities also made it implicitly if not  
explicitly clear that Justice Rady intended that the  
“necessary steps” to be taken by the defendant, “to ensure  
that the plaintiff’s surface water drains across the  
defendant’s property”, would be taken on the defendant’s  
property. In particular, the defendant self-evidently had no  
legal right or ability to take any such steps on the plaintiff’s  
property, or to demand the taking of such steps by the  
plaintiff.  
d. I noted that, as water does not naturally flow uphill, and the  
plaintiff was not obliged by the judgment to take any steps  
to make the water flow uphill onto the defendant’s property  
by unnatural means, (such as the pumping of water), for the  
defendant to comply with Justice Rady’s judgment, without  
any proffered voluntarily assistance from the plaintiff, the  
defendant effectively was obliged to alter the elevation and  
grading of his property. In that regard:  
i. The defendant effectively was required to make the  
elevation of his property lower than that of the  
plaintiff’s property along the boundary separating  
the two properties, so that surface water from the  
plaintiff’s property would be permitted to flow  
“downhill” onto the defendant’s property.  
ii. The defendant was required to ensure that the  
plaintiff’s surface water, once it initially flowed  
downhill over the boundary onto the defendant’s  
property, then would be dealt with in a manner that  
enabled its continued flow across the defendant’s  
property thereafter. In particular, any steps taken to  
make the defendant’s property elevation lower than  
that of the plaintiff, immediately along the boundary,  
would be insufficient to satisfy Justice Rady’s  
judgment if the surface water initially passing the  
boundary then had nowhere to go, causing it to once  
again back up and accumulate on the plaintiff’s  
property.  
iii. I noted that such a result, implicit in Justice Rady’s  
judgment, obviously could have been achieved by  
the defendant taking steps, entirely on his own  
Page: 29  
property and without assistance from the plaintiff, to  
reinstate the grading levels originally contemplated  
for the defendant’s property, albeit perhaps with  
considerable difficulty and at considerable expense,  
insofar as it would have required removal of the  
defendant’s shed and movement of earth, in  
circumstances where the defendant’s backyard  
apparently allows limited access for heavy  
construction equipment.  
iv. I indicated that, for the defendant to ensure  
compliance with Justice Rady’s judgment by the  
taking of unilateral steps on his own property, (in the  
absence of voluntary cooperation and assistance  
from the plaintiff), while avoiding complete  
reinstatement of the originally contemplated grading  
levels for the defendant’s backyard, it was incumbent  
on the defendant to implement a system, by the  
taking of unilateral steps on his own property, that  
demonstrably allowed surface water to flow  
“downhill” onto his property from the plaintiff’s  
property to the west, with that water thereafter being  
sufficiently channelled across the defendant’s  
property in some other effective and reliable manner  
so as to eliminate its accumulation and backing up  
onto the plaintiff’s property. In that regard, I  
specifically noted the expert testimony of Mr  
McIntosh, which I accept, indicating that, short of  
regrading his entire property to the originally  
contemplated elevations, the defendant unilaterally  
could have excavated a trench on his own property,  
at least three to four feet wide, with a depth at least  
twelve inches below the existing grade of his  
property along its western boundary, to receive  
surface water from the plaintiff’s property and  
channel that water towards the defendant’s drainage  
pit – provided the surface level around that pit also  
was lowered – if that pit then was adequately  
monitored and pumped in a manner similar to that  
being done by the plaintiff in relation to her drainage  
pit. Moreover, increasing the width and depth of  
such a trench, and positioning a drainage pit further  
away from the property line, would have further  
reduced the chances of surface water backing up on  
the plaintiff’s property; e.g., if the pumping  
mechanism failed. I also specifically noted Mr  
Page: 30  
Dykstra’s testimony indicating that there was  
nothing preventing the defendant from changing the  
grading on his side of the property such that the  
lowest point on his side of the boundary, (currently  
near to where the defendant has installed his drainage  
pit), would be closer to the vicinity of the low points  
of the plaintiff’s property where the plaintiff’s  
surface water ponding actually is occurring.  
v. I stopped short of specifying the precise form of  
remedial work required, for the reason also indicated  
in my earlier judgment. An order dictating a result  
that must be achieved or implemented, without  
necessarily attempting micromanagement of various  
alternative methods which might achieve the same  
result, is actually beneficial to a party such as the  
defendant who has been ordered to achieve that  
result. Such an approach, which effectively grants  
the party subject to such an order latitude in relation  
to the precise means by which the court ordered  
result is to be achieved, facilitates order compliance  
by not imposing unnecessary constraints that may  
make it harder to bring about the ordered result.26  
e. Notwithstanding that considerable effective direction from  
the court, by the time of the trial continuation before me, the  
defendant had done nothing – absolutely nothing – to alter  
the configuration of his property to address the ongoing  
surface water drainage problems and his contempt, both of  
which were confirmed in my earlier judgment.  
3. I noted that the defendant self-evidently was not entitled to the  
various forms of additional relief sought in his motion, (e.g.,  
vacating of the certificate of pending litigation and judgment  
registered against his property, vacating of the writ of seizure and  
sale obtained by the plaintiff against the defendant, and an order  
compelling the plaintiff to provide a final release and satisfaction  
piece), while it was clear that he had not yet complied with Justice  
Rady’s judgment.27  
26 See, in particular, paragraphs 15(c)(ii) and 15(c)(iii) of my earlier judgment.  
27 See, in particular, paragraph 25 of my earlier judgment.  
Page: 31  
d. I completely reject the suggestion that the defendant somehow was justified in  
refraining from implementation of any further drainage solution measures on his  
property once the plaintiff filed further motion material asking the court to order  
implementation of a drainage solution primarily on her property. As noted and  
emphasized by plaintiff counsel:  
i. the remedial work option in respect of which the plaintiff now seeks court-  
ordered implementation is nothing new. It was an option discussed and  
reviewed by the parties’ engineers since March of 2017, if not earlier; and  
ii. the reason the plaintiff is pursuing that option now stems from the  
defendant’s longstanding and ongoing failure/refusal to take any further  
steps on his property to implement an effective drainage solution and/or to  
secure the permission of his neighbour to the east in that regard, and a  
corresponding (and in my view understandable) apprehension that the  
defendant demonstrably cannot be relied upon to ensure the installation and  
maintenance of effective surface water drainage solutions.  
e. In my view, the defendant also clearly was not justified in refraining from  
implementation of any further drainage solution measures on his property because  
of his subjective view that nothing he would have done would have been acceptable  
to the plaintiff. In that regard, it needs to be remembered and emphasized that the  
defendant owes an obligation to the court to abide by its orders, (including the  
judgment of Justice Rady), that a binding and conclusive court order must be  
obeyed so long as it remains in force, and the court – not the plaintiff – has the final  
say in relation to whether or not there has been such compliance.  
f. I am not swayed by arguments that this matter “should have been in the small claims  
court”, and/or that the defendant has suffered greatly in various ways as a result of  
these proceedings. Without limiting the generality of the foregoing:  
i. As the defendant and his counsel should know, the Small Claims Court is  
not a court with plenary jurisdiction. In particular, it does not have  
jurisdiction to grant equitable relief, including declarations, injunctions  
and/or mandatory orders in that nature of those sought by the plaintiff in  
this litigation.28  
ii. In my view, the defendant’s ongoing efforts to portray himself as the  
“victim” in this matter are completely inappropriate. As emphasized in my  
earlier judgment, the defendant is mistaken in his belief that he has done  
nothing wrong and that the surface water drainage problems being  
experienced by the plaintiff are not his concern. As I also indicated in my  
28 See s.96(3) of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and authorities such as 936464 Ontario  
Ltd. v. Mungo Bear Ltd. (2003), 75 O.R. (3d) 511 (Div.Ct.).  
Page: 32  
earlier judgment and will repeat yet again: the court-declared reality is that  
he alone is responsible for this unfortunate ongoing dispute.29  
g. It should not be necessary at this point, but I also will state and emphasize yet again  
that the incessant efforts by the defendant and his counsel to revisit, challenge and  
reverse the findings of Justice Rady in her judgment, (including her conclusion that  
the original grading of the relevant properties generally accorded with the relevant  
subdivision grading plan, albeit perhaps with some minor deviations), are  
impermissible and inappropriate. When defence counsel embarked on such efforts  
yet again at the insistence of the defendant, during the hearing before me on January  
14, 2020, I made a point of expressly addressing Mr Sullivan directly, mid-way  
through the hearing, to indicate and emphasize that: the issue in that regard had  
been decided by Justice Rady; that the facts in that regard had been found; that we  
were not going to keep going backwards with further attempts to revisit that issue;  
that we now were dealing with a resulting court order that had been made, and that  
I was obliged to deal with the situation before me of Mr Sullivan’s apparent non-  
compliance with that order. At the conclusion of defence counsel’s submissions,  
Mr Sullivan nevertheless proactively interjected to ask, once again, that I revisit the  
original grading of the relevant properties. He simply refuses to listen.  
[15] In the circumstances, a declaration shall be made that the defendant Mr Sullivan remains  
in ongoing contempt of Justice Rady’s judgment, insofar as he has failed to “take whatever  
steps are necessary to ensure that the plaintiff’s surface water drains across the defendant’s  
property”.  
Determination of remedy for ongoing contempt  
[16] I accordingly must decide upon an appropriate order to address the defendant’s ongoing  
contempt.  
[17] Before proceeding with my analysis in that regard, (including consideration of the positions  
advanced by the parties), I pause to note a number of general principles relating to the  
approach that should be taken by a court when addressing civil contempt.  
GENERAL PRINCIPLES  
[18] Breaching a court order has serious implications, which have been forcefully described  
many times. The rule of law requires that courts maintain their dignity and respect. To  
maintain respect, courts must enforce their process. If court orders can be ignored, our  
system of justice, the foundation of our society, breaks down.30  
29 See, in particular, my earlier judgment at paragraph 24.  
30 See Boily v. Carleton Condominium Corp. 145, [2014] O.J. No. 3625 (C.A.), at paragraph 143.  
Page: 33  
[19] The ordering of remedies for civil contempt is addressed by various provisions of Rule  
60.11 of the Rules of Civil Procedure, including the following:  
60.11 (5)  
In disposing of a motion [for a contempt order], the judge may  
make such order as is just, and where a finding of contempt is made, the judge  
may order that the person in contempt,  
(a) be imprisoned for such period and on such terms as are just;  
(b) be imprisoned if the person fails to comply with a term of the order;  
(c) pay a fine;  
(d) do or refrain from doing an act;  
(e) pay such costs as are just; and  
(f) comply with any other order that the judge considers necessary.  
…
(7)  
An order under subrule (5) for imprisonment may be enforced  
by the issue of a warrant of committal (Form 60L).  
…
(9)  
Where a person fails to comply with an order requiring the  
doing of an act, other than the payment of money, a judge on motion may  
instead of or in addition to making a contempt order, order the act to be done,  
at the expense of the disobedient person, by the party enforcing the order or  
any other person appointed by the judge.  
(10) The party enforcing the order and any person appointed by the  
judge are entitled to the costs of the motion under subrule (9) and the  
expenses incurred in doing the act ordered to be done, fixed by the judge or  
assessed by an assessment officer in accordance with Rule 58.  
[20] In theory, the court’s ability to “make such order as is just” to address civil contempt,  
pursuant to Rule 60.11(5), gives rise to a wide range of available penalties. In practice,  
however, the list is a relatively short one consisting of incarceration, a suspended sentence  
(perhaps conditional upon some act or event occurring), a fine, or no penalty – with the  
Page: 34  
latter outcome usually reserved for situations where the relevant contempt has been  
purged.31  
[21] While Rule 60.11(5)(d) gives the court authority to order that a contemnor “do or refrain  
from doing an act”, Rule 60.11(5)(f) gives the authority to order a contemnor to “comply  
with any other order that the judge considers necessary”, and Rule 60.11(9) contemplates  
and authorizes a court to order the performance of an act by others at the expense of a  
contemnor who failed to do the act as ordered, and such options remain possible remedies  
for contempt under the court’s broad powers to address a finding of contempt,32 it is critical  
to bear in mind at all times that the relevant conduct being sanctioned and to which the  
court’s remedy must respond is the wilful disregard of the court’s authority, and that civil  
contempt proceedings “do not have and must not appear to have the function of a civil  
action in tort or for breach of contract”. Any concern of opposing litigants about injury to  
them caused by the contemnor’s activities ought to be recoverable in damages or profits  
claimed, rather than imposition of a penalty for contempt. The concern of the court, in a  
case of civil contempt, is and must be the failure to respect the court’s process.33  
[22] Applicable general principles governing exercise of the court’s discretion, reflected in Rule  
60.11(5), Rule 60.11(7) and Rule 60.11(9), include the following:  
a. In cases of civil contempt, (as opposed to criminal contempt), the court’s emphasis  
is less about punishment and more about coercion; i.e., attempting to obtain  
compliance with the court’s order, and corresponding societal respect for the  
courts.34 A remedy for civil contempt therefore primarily should be designed not  
only to enforce the rights of a private party, but also to enforce the efficacy of the  
process of the court itself.35  
31  
See Niagara Regional Police Services Board v. Curran (2002), 57 O.R. (3d) 631 (S.C.J.), at paragraph 20;  
Mercedes-Benz Financial v. Kovacevic, [2009] O.J. No. 888 (S.C.J.), at paragraph 6; and Ceridian Canada Ltd. v.  
Azeezodeen, [2014] O.J. No. 3353 (S.C.J.), at paragraph 7.  
32 See, for example: Boily v. Carleton Condominium Corp. 145, supra, at paragraphs 2-4 and 89, where the Court of  
Appeal upheld an order addressing established contempt by directing that the landscaping of an area be restored to a  
specific configuration and appearance to address and eliminate the contemnors’ willful deviations from a previous  
court order.  
33  
See, for example: Boily v. Carleton Condominium Corp. 145, supra, at paragraphs-129-130; and Business  
Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), at paragraph 90.  
34  
See, for example: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 91 O.R. (3d) 1 (C.A.), at  
paragraph 37; Korea Data Systems Co. v. Chiang, supra, at paragraph 11; Mercedes-Benz Financial v. Kovacevic,  
supra, at paragraph 7; Boily v. Carleton Condominium Corp. 145, supra, at paragraph 79; and Business Development  
Bank of Canada v. Cavalon Inc., supra, at paragraph 77.  
35 See Boily v. Carleton Condominium Corp. 145, supra, at paragraph 79.  
Page: 35  
b. Punishment nevertheless has been recognized as a secondary purpose underlying  
sentencing for civil contempt. In other words, the effectively dual purpose of  
contempt orders is to compel obedience and punish disobedience. In particular,  
punishment serves to denounce conduct that requires denouncing and thereby deter  
the contemnor and others more generally who might contemplate breaches of court  
orders at will.36  
c. Because civil contempt “bears the imprint of the criminal law”,37 aspects of its  
application are analogous or similar to those applied in the criminal law context. In  
particular, civil contempt must not only be made out to the criminal standard of  
proof beyond a reasonable doubt, but a person found in contempt may be committed  
to jail or face any other sanction available for a criminal offence.38  
d. Similarly, general substantive principles governing determination of sentence in the  
criminal law context, including those found in ss.718, 718.1, 718.2 and 724(3) of  
the Criminal Code, R.S.C. 1985, c.C-46, are applied by way of analogy when  
determining the appropriate penalty (if any) to be imposed for civil contempt. For  
example, factors considered by the court include the following:39  
i. the proportionality of the sentence to the wrongdoing, (i.e., such that the  
sentence is proportionate or “fitted to” the gravity of the offence and the  
degree of responsibility of the offender), bearing in mind that the relevant  
conduct being sanctioned is the wilful disregard of the court’s authority, and  
that the court accordingly must assess the seriousness of the relevant  
disrespect of the court rather than the severity of any resulting harm to other  
litigants;40  
36 See, for example: College of Optometrists (Ontario) v. SHS Optical Ltd., [2008] O.J. No. 3933 (C.A.), at paragraph  
106; Chiang (Trustee of) v. Chiang, [2009] O.J. No. 41 (C.A.), at paragraph 177; and Business Development Bank of  
Canada v. Cavalon Inc., supra, at paragraph 81.  
37 See Korea Data Systems Co. v. Chiang, supra, at paragraph 11; and  
38  
See, for example: Pro Swing Inc. v. ELTA Golf Inc., [2006] 2 S.C.R. 612, at paragraphs 34-35; and Korea Data  
Systems Co. v. Chiang, supra, at paragraph 11.  
39 The summary of relevant factors that follows is drawn from authorities such as the following: Sussex Group Ltd. v.  
3933938 Canada Inc., [2003] O.J. No. 2952 (S.C.J.), at paragraph 6; Mercedes-Benz Financial v. Kovacevic, supra,  
at paragraph 11; Astley v. Verdun, [2013] O.J. No. 4942 (S.C.J.), at paragraph 16; Boily v. Carleton Condominium  
Corp. 145, supra, at paragraph 90; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph  
90.  
40  
See, for example: Boily v. Carleton Condominium Corp. 145, supra, at paragraphs-129-130; and Business  
Development Bank of Canada v. Cavalon Inc., supra, at paragraph 90. In assessing such proportionality, courts have  
had regard to matters such as: whether the contemnor’s defiance of the court order was deliberate, reckless and/or  
arrogant; whether the contemnor persisted in attempting to have his or her own way after receiving warnings from an  
opposing party and/or the court; whether the contemnor continued to add to aspects of their contempt over time; the  
Page: 36  
ii. the presence of aggravating factors;  
iii. the presence of mitigating factors;  
iv. denunciation and deterrence, (i.e., such that the sentence denounces  
unlawful conduct, promotes a sense of responsibility in the contemnor, and  
deters the contemnor and others from defying court orders);  
v. the similarity of sentences imposed in like circumstances; and  
vi. the reasonableness of incarceration or a fine.  
e. However, appellate authority also has emphasized that deterrence, both specific and  
general, is the most important objective of a contempt penalty. A penalty imposed  
in response to conduct that defies the authority of the court must be sufficient,  
having regard to the particular context, to deter those involved and other similarly  
situated individuals from like conduct.41  
f. Courts dealing with civil contempt also adopt, by way of analogy, certain  
procedural and evidentiary principles applied in relation to sentencing in the  
criminal law context, such as those referenced in s.724(3) of the Criminal Code,  
supra. In particular:  
i. a party alleging the existence of any aggravating fact said to warrant  
imposition of a more serious penalty for civil contempt must establish the  
existence of that fact by proof beyond a reasonable doubt; whereas  
ii. as noted above, a party found in contempt of court has the onus of proving  
any mitigating fact, (such as purging of the relevant contempt), on a balance  
of probabilities.42  
g. As also noted above, one possible penalty for civil contempt is incarceration –  
either immediate or by way of a suspended sentence conditional upon some act or  
event occurring. However:  
length of time over which the contemnor continued or has continued to disobey the relevant court order; and whether  
the contempt was motivated by personal gain or vengeance. See, for example: Boily v. Carleton Condominium Corp.  
145, supra, at paragraphs 96 and 100-101.  
41 See, for example: Cornwall Public Inquiry Commissioner v. Dunlop, [2008] O.J. No. 957 (Div.Ct.), at paragraph  
48; Astley v. Verdun, supra, at paragraph 19; Boily v. Carleton Condominium Corp. 145, supra, at paragraphs 105-  
107; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 91.  
42See, for example, Korea Data Systems Co. v. Chiang, supra, at paragraphs 50-52.  
Page: 37  
i. Reflecting the general tendency of Canadian courts to be lenient in relation  
to such matters, custodial sentences for civil contempt are rare and  
extraordinary, and lengthy custodial sentences for civil contempt are rarer  
still.43  
ii. Ordinarily, a finding of contempt, together with a fine or some other order  
in relation to the civil litigation, without incarceration, is sufficient to gain  
compliance and restore the authority of the court. Incarceration ordinarily  
is a sanction of last resort.44  
iii. In particular, incarceration generally should be imposed only in cases of  
serious deliberate disobedience, (e.g., repeated breaches of a restraining  
order, a wilful flagrant breach of an order that shows callous disregard for  
the court’s authority or active public defiance), violence, or wilful  
interference with the course of justice.45  
iv. Because incarceration for civil contempt is ordinarily a penalty of last  
resort, the court must always consider whether any other penalty short of  
incarceration would be a sufficient sanction for the gravity of the contempt,  
taking into consideration the sentencing principles applicable to civil  
contempt.46 In other words, incarceration generally is reasonable only  
where no other less restrictive sanction is appropriate.47  
v. Where a contemnor has purged his or her contempt, there usually is no  
longer any need or justification for incarceration.48  
43See, for example: Sussex Group Ltd. v. 3933938 Canada Inc., supra, at paragraph 4; Boily v. Carleton Condominium  
Corp. 145, supra, at paragraph 108; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph  
82. In Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 35, Justice Brown (as he then was) provided a  
helpful review of what were then relatively recent cases in which a term of incarceration was imposed as a sanction  
for civil contempt. It is noteworthy that, in almost all of those reviewed decisions, there had been very deliberate and  
sustained defiance of court orders involving demonstrated substantial personal financial gains of the contemnor or  
threatened and realized financial losses to others – usually involving millions of dollars in money or property value.  
44 See, for example: CIT Financial Ltd. v. Western Waste Recyclers Inc., [2008] O.J. No. 2386 (S.C.J.), at paragraphs  
6 and 10; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 82.  
45 See, for example, CIT Financial Ltd. v. Western Waste Recyclers Inc., supra, at paragraphs 7 and 10; and Business  
Development Bank of Canada v. Cavalon Inc., supra, at paragraphs 84-87.  
46 See Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 89.  
47 See West Lincoln (Township) v. Chan, [2001] O.J. No. 2133 (S.C.J.), at paragraph 39.  
48 See, for example, British Methodist Episcopal Church v. Davis, [2010] O.J. No. 684 (C.A.), at paragraph 3.  
Page: 38  
h. As noted above, another possible penalty for civil contempt of court is imposition  
of a fine. In that regard:  
i. As a further reflection of the general tendency of Canadian courts to be  
lenient in relation to such matters, fines imposed on individuals for civil  
contempt have remained low, (e.g., in the range of $1,500 and $5,000), even  
in cases where contempt has involved the loss or misuse of substantial  
amounts of money.49  
ii. Significant fines for civil contempt, (e.g., in the range of $50,000), have  
been imposed only in particularly egregious cases and/or where the  
contemptuous conduct was motivated by personal gain.50  
iii. The few instances in which fines have been imposed at $100,000 or higher  
have been against unions with large memberships, (where the impact of  
such a fine effectively is absorbed by many individuals), or against large  
corporations in particularly egregious circumstances. Even in the latter type  
of cases, fines imposed on individual corporate directors involved in the  
relevant contempt have notably tended to be no more than $10,000.51  
iv. Although some recent decisions have indicated a willingness of courts to  
consider imposition of more substantial penalties for contempt, such cases  
normally involve situations where there has been a lengthy course of  
disobedience and the contemnors have not purged their contempt.52  
v. If the court is inclined to impose a fine as a fit sentence for contempt, one  
important factor in that fine’s quantification is consideration of the  
particular contemnor’s ability to pay, lest the amount be trivial or unduly  
punitive vis-à-vis that particular contemnor. In any event, fines should  
never be imposed above an amount necessary to reflect the public interest  
in the matter.53  
vi. Fines for civil contempt ordinarily are remitted to the province and, in  
Ontario, should be paid to the Provincial Treasurer. Although the court may  
in certain circumstances have discretion to order that such fines be paid to  
49 See Boily v. Carleton Condominium Corp. 145, supra, at paragraph 108.  
50 Ibid., at paragraph 110.  
51 Ibid., at paragraph 109.  
52 Ibid., at paragraph 111.  
53 See, for example: Niagara Regional Police Services Board v. Curran , supra, at paragraph 36; and Boily v. Carleton  
Condominium Corp. 145, supra, at paragraph 133.  
Page: 39  
others, public policy generally militates against awarding the payment of  
contempt fines to opposing litigants. As noted above, contempt is an  
offence against the authority of the court and the administration of justice,  
and it must not appear to function as a civil action in tort or contract.54  
i. In the end, the overriding principle governing sentencing, in relation to civil  
contempt, is that the sentence imposed must be reasonable, having regard to the  
particular circumstances of the case.55  
[23] With the above principles in mind, I turn to their application in this particular case.  
ASSESSMENT - SENTENCING CONSIDERATIONS  
[24] In determining what penalty to impose on Mr Sullivan for his previous and ongoing civil  
contempt, my considerations have included the following:  
a. In relation to “proportionality”, (i.e., the fundamental principle that requires a  
punishment to “fit” the wrongdoing, in the sense of being commensurate with the  
gravity of the offence), in my view the severity of Mr Sullivan’s relevant contempt  
falls in the mid-range of the scale when compared to the contempt displayed in  
many of the other cases to which I have been referred. In that regard:  
i. The mere finding of contempt carries with it an inherent recognition that the  
conduct of the contemnor was deliberate and wilful. Contempt nevertheless  
can reflect degrees of wrongdoing, such that not every instance of contempt  
is equally blameworthy. Although all are serious, some are more serious  
than others.56  
ii. While Mr Sullivan failed to act in compliance with Justice Rady’s  
judgment, that failure was not coupled with any overt, aggressive, mocking  
or public indications of intention to defy the court’s authority, or otherwise  
voice disrespect for the court. In that respect, at least, Mr Sullivan’s civil  
contempt was not flagrant. The pertinacity displayed by his belated and  
numerous abandoned, resurrected and repeatedly unsuccessful efforts to  
revisit and change Justice Rady’s judgment, after having pursued no appeal  
in that regard, and in the face of court rulings making it clear why such  
evidence and arguments could not be entertained, was misguided and  
54 See, for example: Sussex Group Ltd. v. 3933938 Canada Inc., supra, at paragraph 13; SNC-Lavalin Profac Inc. v.  
Sankar, [2009] O.J. No. 365 (C.A.), at paragraphs 13-17; and Langford (City) v. dos Reis, [2016] B.C.J. No. 2418  
(C.A.), at paragraphs 23-26.  
55 See, for example: West Lincoln (Township) v. Chan, supra, at paragraph 40; and Boily v. Carleton Condominium  
Corp. 145, supra, at paragraph 112.  
56 See West Lincoln (Township) v. Chan, supra, at paragraph 29.  
Page: 40  
wasteful. However, those efforts were at least carried out through the  
medium of court filings and submissions.  
iii. This also is not a case involving a contemnor who acted covertly to avoid  
compliance with a known court order, in the hopes of simply “getting away  
with” undetected contemptuous behaviour; i.e., conduct indicative of  
intentional wrongdoing. Mr Sullivan’s failures and refusals to take  
appropriate action were overt and openly supported by his lawyers of  
record. While that is certainly no excuse for his conduct, it does suggest to  
me that his contempt of court, (in contrast to the acts and failures which  
constituted that contempt), was not intentional – at least until the time of the  
judgment I released on November 4, 2019.  
iv. On the other hand, I think Mr Sullivan’s ongoing contempt transitioned  
from misguided obstinacy to something akin to wilful blindness after my  
earlier judgment. He received a detailed court ruling that, inter alia,  
confirmed that Justice Rady’s judgment would not be revisited, confirmed  
that he was not the “victim” but most definitely in the wrong, (both in his  
general failure to comply with Justice Rady’s judgment and in his stubborn  
insistence on a joint drainage solution the plaintiff had no obligation to  
implement), explained to him at length why that was so, and provided him  
with guidance as to what needed to be done on his property to comply with  
Justice Rady’s judgment. He nevertheless thereafter remained obstinate,  
and failed to take any action whatsoever to comply with Justice Rady’s  
judgment. He instead remained fixated on pursuit of further inappropriate  
and wrongheaded efforts to challenge that judgment.  
v. Moreover, Mr Sullivan’s failure to act in compliance with Justice Rady’s  
judgment also was undeniably a case of unremitting and prolonged  
intransigence on the part of the contemnor. By the time of the hearing  
before me on January 14, 2020, Mr Sullivan had failed to comply with that  
judgment for almost 9 ½ years. Moreover, his final direct submission to me  
during the course of the trial continuation made it reasonably clear, in my  
view, that he had no intention of complying with Justice Rady’s judgment  
between the time of that hearing and release of this further judgment. He  
was instead still fixated on a hope that I would look once again at rejected  
evidence relating to the original subdivision grading, and essentially revisit  
Justice Rady’s judgment to negate his court-ordered obligations.  
b. In relation to aggravating factors:  
i. The relevant contempt of Mr Sullivan did not consist of a single isolated act  
or failure, but a more general, protracted and intransigent failure to ensure  
compliance with Justice Rady’s judgment over the course of many years.  
Although he took some steps to address the surface water drainage issues,  
(e.g., installation of a drainage pit and a pump), his pursuit of that drainage  
Page: 41  
solution, (which depended on the plaintiff taking additional measures she  
was not obliged to take), was not effective to address the situation, and in  
my view Mr Sullivan independently should have known that was the case.  
That reality nevertheless also was brought home to him repeatedly in  
correspondence from plaintiff counsel, the plaintiff’s court filings, and  
further rulings of this court. Despite all that, he stubbornly refused to take  
any further action to ensure that the plaintiff’s surface water drainage  
drained across his property, in accordance with Justice Rady’s order. In my  
view, at some point in that process and particularly after his receipt of my  
earlier judgment, his violation of Justice Rady’s judgment, although passive  
in nature, became deliberate and intentional.  
ii. Although this is not a case of contempt motivated by illicit financial gain or  
“the lure of lucre”,57 in my view the relevant contempt of court has  
displayed a remarkable self-centred or selfish attitude of a different sort;  
i.e., a misguided but obstinate view on the part of Mr Sullivan that he should  
be entitled to do whatever he pleases on his property, regardless of the  
obvious consequences to his neighbour which were being brought to his  
attention informally and then formally through repeated litigation and court  
filings. As noted in my earlier judgment, Mr Sullivan’s entire approach to  
this issue has been dominated by his resentment of the plaintiff, (who  
obtained a court judgment clearly vindicating her position), indirectly  
exerting “control”, through the laws of nuisance, over what Mr Sullivan  
“can and cannot do” on his own property.58  
iii. This is a case where Mr Sullivan’s contempt of court has resulted in  
significant, ongoing and mounting adverse consequences to his neighbour  
Ms Dankiewicz. In her 2011 judgment, Justice Rady expressly accepted  
that the plaintiff undoubtedly had suffered significant upset, stress,  
inconvenience and property damage because of the surface water drainage  
problems caused by the defendant’s action. In the circumstances, it should  
have been quite clear to the defendant that those problems and damages  
being experienced by the plaintiff inevitably would continue and mount  
unless he took effective action to comply with Justice Rady’s judgment.  
Yet he failed to do so and, for the reasons I have outlined at length, that  
failure became not only obstinate but deliberate. It remained so in the face  
of the further evidence being filed by the plaintiff in these proceedings,  
documenting her continued hardships and expenditures brought about the  
defendant’s failure to comply with Justice Rady’s judgment. In the course  
of the proceedings before me, that evidence of the plaintiff, (i.e., concerning  
57 Compare College of Optometrists (Ontario) v. SHS Optical Ltd., supra, at paragraph 108.  
58 See my earlier judgment, at sub-paragraph 19(d)(ii).  
Page: 42  
her resulting upset, stress, hardship and property damages), essentially went  
unquestioned and unopposed, apart from passing dismissive defence  
references to Justice Rady’s comment that the plaintiff is “prone to  
exaggeration”. In the circumstances, I accept the plaintiff’s essentially  
unchallenged evidence in that regard.  
iv. I also accept the evidence of the plaintiff and her engineering expert that the  
defendant actually has made the plaintiff’s surface water drainage problems  
worse, thereby compounding his contempt since the time of Justice Rady’s  
judgment; e.g. by active interference with the plaintiff’s efforts to pump  
water from her back yard to the street, (by redirecting a hose outlet back  
onto the plaintiff’s property), by filling in the drainage swale running along  
the border between the parties’ houses, and by raising the elevation of his  
property along the boundary between the parties’ backyards even higher.  
c. In relation to mitigating factors:  
i. I note that Mr Sullivan has made no apology, or given any indication  
whatsoever of regret or remorse for his contemptuous behaviour; actions  
which ordinarily might be considered mitigating factors.59 To the contrary,  
as noted above, Mr Sullivan wrongly continues to view himself as the  
“victim” in this legal dispute. Nor have Mr Sullivan’s court filings or  
testimony exhibited, in my view, any real indication that Mr Sullivan takes  
allegations of contempt of court, or his established contempt of court, very  
seriously. That conclusion seems buttressed by his failure to take any steps  
whatsoever to purge his established contempt; steps that our courts always  
regard as a significant and important mitigating factor.60 Moreover, his  
contempt cannot be attributed to youthful exuberance or naivete, which  
might suggest that he should not bear full responsibility for what he has  
done and failed to do.61 While I think the absence of such mitigating factors  
cannot and should not be treated as aggravating factors, militating in favour  
of a more serious penalty for Mr Sullivan’s contempt, their absence  
obviously deprives Mr Sullivan of considerations that would have weighed  
in favour of a more lenient approach to his contempt. They also provide  
insight into Mr Sullivan’s attitude and behaviour, relevant to the need for  
59 See, for example, Sussex Group Ltd. v. 3933938 Canada Inc., supra, at paragraph 7. While it occasionally has been  
suggested that the absence of an apology is an aggravating factor, I think it more appropriate to view it, as in the  
criminal context, as the absence of what otherwise would be a mitigating factor. In that regard, see Mercedes-Benz  
Financial v. Kovacevic, supra, at paragraph 22; Ceridian Canada Ltd. v. Azeezodeen, supra, at paragraph 13; and  
Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 25.  
60 See, for example, Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 22; and Astley v. Verdun, supra, at  
paragraph 25.  
61 See Korea Data Systems Co. v. Chiang, supra, at paragraph 86.  
Page: 43  
specific deterrence in this particular situation; a matter considered in greater  
detail below.  
ii. However, there was no evidence before to me to suggest that Mr Sullivan  
has ever defied any other court order in the past. This appears to be his first  
conviction for contempt. Mr Sullivan therefore essentially is a first-time  
offender in that regard, albeit a persistent one. As in the criminal law  
context, that must be regarded as a significant mitigating factor.62  
d. As far as denunciation and deterrence are concerned:  
i. All contempt of court is inherently reprehensible conduct, and merits  
denunciation. Falling in the mid-range of contemptuous conduct, Mr  
Sullivan’s misconduct may not merit the most severe degree of  
denunciation and deterrence reserved for extreme cases of contempt. On  
the other hand, Mr Sullivan’s contempt also was neither trivial nor fleeting.  
In my view, meaningful and serious denunciation and deterrence are  
required in this situation.  
ii. In relation to specific deterrence:  
1. For many reasons, (some of which have been noted above), I am not  
at all satisfied that these proceedings have brought home, to Mr  
Sullivan, the importance of complying with court orders and the  
serious implications of failing to do so. In my view, any remedy  
addressing Mr Sullivan’s ongoing contempt must bring that message  
home to him in a direct and tangible way. Without limiting the  
generality of the foregoing:  
a. For years, Mr Sullivan has failed to comply with Justice  
Rady’s judgment notwithstanding correspondence from  
plaintiff counsel, these contempt proceedings, and my earlier  
judgment emphasizing the importance of his doing so. As  
noted above, Mr Sullivan also took no steps to purge his  
formally confirmed contempt .  
b. As noted above, Mr Sullivan has made no apology, and/or  
given any indication of regret or remorse, for his non-  
compliance with Justice Rady’s judgment – which is the  
immediate focus of this ruling. Nor has he expressed any  
62 See, for example, Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 28; and Cellupica v. Di Giulio (2011),  
105 O..R. (3d) 687 (S.C.J.).  
Page: 44  
regret or remorse for the further and mounting harm caused  
to the plaintiff as a result of his contempt.  
c. Mr Sullivan clearly does not respect Justice Rady’s  
judgment. Not only has he failed to comply with it, but he  
overtly and repeatedly has indicated his unwavering belief  
throughout these proceedings that the judgment was wrongly  
decided. He also has persisted in his stubborn and  
wrongheaded efforts to challenge Justice Rady’s findings  
and judgment notwithstanding my repeated comments and  
formal rulings making it clear why such efforts are neither  
proper nor permissible at this stage of the litigation. As the  
Supreme Court of Canada has emphasized, and as I  
repeatedly have tried to make clear to Mr Sullivan and his  
counsel without success, the duty of a person bound by an  
order of a court is to obey that court order while it remains  
in force, (i.e., unless and until the order is negated by due  
process of law where that remains a possibility), regardless  
of how flawed he may consider it, or how flawed it may be.  
Public order demands compliance with an existing court  
order, and cannot tolerate disobedience in that regard.63  
2. In some cases, the seriousness of contempt is brought home to a  
party by his or her being confronted with the general rule, (noted  
above), that a party in contempt will not be heard in the substantive  
proceedings until his contempt has been purged.64 However, I think  
that consideration bears little weight in this case. Although Mr  
Sullivan complains that his motion for directions was “brought first”  
and has not been heard, he actually did receive substantial directions  
from me the court in my earlier judgment, (as noted above), and that  
judgment confirming his contempt made it quite clear why he was  
not entitled to the further relief he was requesting.  
3. Moreover, in my view Mr Sullivan has been dealt with somewhat  
leniently to date, insofar as he effectively has been granted a number  
of indulgences notwithstanding the contempt he has shown towards  
Justice Rady’s judgment. In that regard:  
a. Notwithstanding the numerous indications that the  
defendant had failed to comply with her judgment, (e.g., the  
63 See Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892,  
64  
Again, see Ontario (Attorney General) v. Paul Magder Furs Ltd., supra, and Paul Magder Furs Ltd. v. Ontario  
(Attorney General), supra. See also Milligan v. Lech, 2006 CarswellOnt 8464, at paragraph 21.  
Page: 45  
very fact that the plaintiff was pursuing contempt  
proceedings, and the substantial evidence the plaintiff had  
filed in that regard), Justice Rady declined to hear the  
plaintiff’s contempt motion immediately and instead  
allowed an extended opportunity for further negotiation  
between the parties, including consultation between their  
respective engineering experts. That resolution-oriented  
approach, (not infrequently adopted by courts in  
circumstances where parties will be required to interact with  
each other on an ongoing basis, and the merits of competing  
practical solutions to address allegations of contempt are not  
readily obvious), clearly may have been appropriate in the  
circumstances. In retrospect, however, it worked to the  
advantage of the defendant insofar as he favoured  
continuation of the prevailing status quo; i.e., of his taking  
no further action to comply with Justice Rady’s judgment.  
b. As noted earlier, Justice Rady’s 2011 judgment afforded Mr  
Sullivan considerable flexibility and choice in determining  
what particular mechanism he would pursue to ensure that  
the plaintiff’s surface water drained across his property.  
That flexibility was reduced somewhat by the guidance and  
directions provided by my earlier judgment, but still  
preserved to some extent. However, presented with a further  
opportunity to choose a specific method of judgment  
compliance involving the taking of some form of further  
action on his property, Mr Sullivan elected to do nothing.  
c. Mr Sullivan effectively was given an extraordinary period of  
time in which to purge his contempt after that contempt was  
confirmed by earlier judgment. In particular, after the  
release of that earlier judgment on November 4, 2019, the  
trial continuation to address remaining issues, (including  
whether the defendant had purged his contempt), could not  
be rescheduled until December 9 and 10, 2020, owing to  
complications that included intervening onset of the Covid-  
19 pandemic. Those hearing dates then had to be adjourned  
to January 10 and 11, 2021, in order to address intervening  
issues raised by one of the defendant’s repeated attempts to  
revisit Justice Rady’s judgment and file impermissible  
evidence in that regard. In the result, Mr Sullivan effectively  
had 14 months between the time of my earlier judgment, and  
continuation of the trial proceedings before me, to purge his  
confirmed contempt; a period well in excess of that regularly  
afforded to others found to be in civil contempt. Yet he took  
no action whatsoever during that extended period to comply  
Page: 46  
with Justice Rady’s judgment. He instead rededicated  
himself to further inappropriate efforts aimed at revisiting  
Justice Rady’s findings and judgment.  
d. Mr Sullivan’s repeated failures to avail himself of these  
indulgences reinforce the need for firm specific deterrence;  
i.e., to finally bring home to Mr Sullivan that failure to abide  
by court orders is a serious matter that gives rise to serious  
consequences.  
4. In my view, the need for meaningful specific deterrence is  
underscored by the reality that this is a longstanding dispute,  
extending over some 15 years at this point, between two neighbours  
who have given no indication of any desire to move elsewhere.65  
The matter of surface water drainage between their two properties  
therefore will remain a matter of concern, and a matter sensitive to  
the future conduct of the parties and their successors. All concerned  
need to know that the court’s orders in that regard must be respected.  
Without limiting the generality of the foregoing, as all of the posited  
court orders to address the defendant’s non-compliance with Justice  
Rady’s judgment contemplate a measure of work being done and  
maintained/preserved on the defendant’s property going forward,  
the order made to address Mr Sullivan’s contempt to date needs to  
make it abundantly clear to him that any future disrespect, non-  
compliance or interference in relation to that ordered outcome will  
not be tolerated, and have very real and significant consequences.  
iii. As for general deterrence:  
1. There was no evidence to suggest that this litigation or Mr Sullivan’s  
civil contempt has received any notable publicity, or come to the  
attention of anyone other than the parties, their lawyers and  
engineers, and their immediate neighbours; i.e., the current owners  
of the properties known by their municipal addresses as 47 Shepherd  
Avenue and 59 Shepherd Avenue, here in London.  
2. Having said that, judicial decisions such as this obviously are  
reported, and are frequently weighed in the balance by those  
considering the ramifications of possible disobedience, or ongoing  
65 Certainly, the plaintiff has given no indication that she would like to change her residence, as opposed to protecting  
the one in which she has lived from a time before the defendant’s arrival on the scene. The defendant has expressed  
frustration with his inability to refinance his property because of this dispute, and has raised the possibility of his  
declaring bankruptcy, but has not indicated a desire to voluntarily relocate.  
Page: 47  
disobedience, in relation to court orders.66 This province self-  
evidently has millions of residential properties that border each  
other, in respect of which one owner’s unilateral disruption of  
established surface water drainage patterns may give rise to similar  
disputes and corresponding litigation. In my view, a reported  
precedent, suggesting relatively modest consequences for a property  
owner who causes such problems and defies a resulting court order  
to take corrective action on his or her property to address and  
remedy such a disruption, would be cause for concern.  
3. I also am mindful of the reality that the plaintiff and defendant will  
not own and occupy their respective properties forever. Their  
successors in title also must know that court orders made in relation  
to these two properties unquestionably will be enforced, thereby  
fostering certainty in relation to property rights and values, and  
minimizing the potential for future conflicts and litigation.  
e. In relation to similarity of “sentences” for contempt:  
i. A sentence should not reflect a marked departure from those imposed in like  
circumstances.67  
ii. Unfortunately, compared to sentencing decisions in the criminal law  
context, reported and unreported decisions in the area of sentencing for civil  
contempt are relatively scarce.68  
iii. Moreover, as our courts repeatedly have emphasized that instances of civil  
contempt and corresponding sentences are “notoriously fact specific”69, I  
am inclined to think, as the Supreme Court of Canada has emphasized in  
the criminal law context, that the search for a single appropriate sentence  
for a similar offender (contemnor) and a similar offence (contempt)  
frequently will be a fruitless exercise or academic abstraction.70  
66  
At the time of writing, even cursory searches conducted on Westlaw and indicate at least three reported  
decisions that have made reference to Justice Rady’s 2011 judgment, and two decisions that have made reference to  
my further decisions in this litigation. However, those search results obviously do not indicate how many additional  
times decisions in this litigation may have been reviewed and considered.  
67 See West Lincoln (Township) v. Chan, supra, at paragraph 30.  
68 Ibid., at paragraph 30.  
69 See College of Optometrists (Ontario) v. SHS Optical Ltd., supra, at paragraph 103.  
70 See R. v. M.(C.A.), [1996] 1 S.C.R. 500, at paragraph 92.  
Page: 48  
iv. As noted above, our Court of Appeal nevertheless helpfully has indicated  
generally that incarceration for civil contempt is rare, (and usually imposed  
only in relation to particularly egregious conduct), and that fines imposed  
on individuals for civil contempt generally have remained in the relatively  
low range of $1,000 to $5,000, with higher fines reserved for exceptional  
and particularly egregious conduct, (or conduct motivated by personal  
gain), and “six figure” fines being reserved for large labour unions or  
corporations. Some of the more striking precedents in that regard, (bringing  
perspective to a case such as this, if only because the circumstances here  
obviously pale in comparison), include the following:  
1. Our Court of Appeal’s decision in SNC-Lavalin Profac Inc. v.  
Sankar, supra, (a case involving a married couple’s deliberate and  
repeated breaches of a Mareva injunction involving improper  
appropriation and/or transfer of funds exceeding $400,000), in  
which the appellate court found that a fine for contempt of $150,000  
imposed by the motion judge was inappropriate, (as there was no  
identified public interest justifying the imposition of such a large  
fine), and substituted a fine of $10,000 jointly payable by the two  
contemnors.  
2. Our Court of Appeal’s decision in Boily v. Carleton Condominium  
Corp. 145, supra, to impose fines of $7,500 on individual  
contemnors in the “unique circumstances” of that case; i.e., where  
the directors of a condominium complex were not motivated by  
personal gain, but engaged in unremitting intransigence and open  
defiance of a court order, and refused to obtain legal advice until the  
eleventh hour, believing they knew best and were doing what was  
necessary.  
3. The Manitoba Court of Appeal’s decision in Apotex Fermentation  
Inc. v. Novopharm Ltd., [1998] M.J. No. 297 (C.A.), cited with  
apparent approval by our Court of Appeal in Boily v. Carleton  
Condominium Corp. 145, supra, at paragraph 109, reducing fines  
imposed at first instance on individual directors to no more than  
$10,000, in a patent infringement case where the defendant  
corporation and its directors, in a deliberate, wilful and carefully  
calculated manner, to secure millions of dollars in profit, had  
engaged in planned and sustained clandestine conduct to circumvent  
court orders preventing the corporate defendant’s continued sale of  
various drugs developed with technology and research wrongfully  
appropriated from the plaintiff.  
f. As for the reasonableness of incarceration or a fine:  
Page: 49  
i. The plaintiff did not seek an order incarcerating Mr Sullivan for his civil  
contempt, or subjecting Mr Sullivan to a suspended sentence. However, I  
independently was and am of the view that this is not one of those rare cases  
of civil contempt where it would be reasonable to impose a sentence of  
incarceration; at least, not yet. In that regard:  
1. while the ongoing contemptuous behaviour in this case is certainly  
not trivial, neither does it lie at the high end of the scale; and  
2. as indicated in more detail below, in my view there are measures  
short of incarceration available to address Mr Sullivan’s contempt  
in a meaningful way that will ensure compliance with Justice Rady’s  
judgment and encourage future respect for the court’s authority,  
such that matters have not yet reached the stage were incarceration  
must be ordered as a remedy “of last resort” in that regard.  
ii. In my view, imposition of a fine on Mr Sullivan for his demonstrated  
contempt would not be inappropriate, but by itself, (i.e., in the absence of  
any additional order requiring further action and/or requiring Mr Sullivan  
to pay any money),71 also would not be adequate. In that regard:  
1. Bearing in mind the precedents noted above, in my view there is no  
identified public interest or sufficiently egregious conduct in the  
present circumstances that would justify imposition of a fine on Mr  
Sullivan outside the $1,000.00 to $10,000.00 range of fines  
normally imposed on individuals for civil contempt. Having regard  
to all the circumstances, including the prolonged nature of Mr  
Sullivan’s ongoing contempt, his intransigence, and his stubborn  
refusal to move on from the merits of Justice Rady’s settled findings  
and judgment towards compliance, I think a fine in the higher end  
of that range generally would be appropriate, subject to  
consideration of Mr Sullivan’s ability to pay such a fine.  
2. As noted above, the ability of a contemnor to pay a fine is a crucial  
consideration in determining its appropriate quantum, and I received  
no direct evidence or information in that regard; e.g., in terms of  
specific details of Mr Sullivan’s income and expenses, the value of  
his assets, or the extent of his liabilities. I was provided only with  
general assertions/indications: that Mr Sullivan has spent  
“thousands of dollars on engineering and legal fees”, (as well as  
Justice Rady’s earlier award of damages and costs); that he is in  
71 For reasons outlined below, I will be declining the plaintiff’s request for an immediate order requiring the defendant  
to pay the plaintiff further sums providing reimbursement for various expenditures, and other loss, which the plaintiff  
is said to have incurred or experienced because of the defendant’s failure to comply with Justice Rady’s judgment.  
Page: 50  
“serious debt”; that registration of Justice Rady’s judgment on title  
to the defendant’s property is preventing its refinancing; and that Mr  
Sullivan is considering a declaration of bankruptcy.72  
No  
documentation was tendered in evidence to support such claims of  
dire financial circumstances. Nor was any evidence presented to  
suggest that Mr Sullivan is unemployed or unable to earn money, or  
lacking in assets. At the very least, it seems to me that Mr Sullivan  
likely has substantial equity remaining in his property; i.e., if he has  
been unable to refinance or further encumber that property since  
Justice Rady’s 2011 judgment was registered on title, and has  
continued to make any required mortgage payments over the many  
years that have passed since that registration.73 I think I also can  
take judicial notice that the value of residential real estate properties  
in the city of London has increased significantly since 2011. Having  
regard to such realities, I think it unlikely that imposition of a fine  
on Mr Sullivan in the range of $5,000.00 to $10,000.00 range would  
be crushing in the circumstances.  
3. However, in my view, imposition of such a fine alone would not  
suffice to encourage Mr Sullivan’s compliance with Justice Rady’s  
order, given his demonstrated intransigence and views to date. Nor  
do I think that such a fine alone would adequately address the public  
interest in terms of promoting Mr Sullivan’s compliance with  
Justice Rady’s judgment, or compliance of other similarly situated  
property owners with court orders made in relation to such matters.  
Indeed, given the quantum of such fines in relation to the current  
value of most residential real estate in this province, I think there is  
good reason to believe that Mr Sullivan and other residential  
property owners inclined to carry out work on their own property,  
without regard to negative surface water drainage implications for  
their neighbours, would regard such a fine as an acceptable licensing  
fee effectively permitting such conduct – unless such fines  
continued to mount substantially through further contempt  
proceedings and additional fines imposed over time. Having regard  
to all the circumstances of this case, including the extraordinary  
amount of time over which there has been no compliance with  
Justice Rady’s judgment, I think some form of further court order  
is necessary to ensure implementation of the drainage mechanism  
72 At paragraph 5 of his affidavit sworn on August 21, 2020, Mr Sullivan indicates that he is in “financial peril”, that  
he “cannot refinance” his property because of Justice Rady’s judgment, and “will seek bankruptcy if so advised”.  
73  
The continued making of such payments by Mr Sullivan, satisfying any pre-2011 charges against the property in  
whole or in part, seems likely given the apparent absence of any indicated foreclosure and/or power of sale  
proceedings.  
Page: 51  
contemplated by that judgment in the near future, and promote  
similar compliance going forward.  
4. Conversely, I think an order ensuring compliance with Justice  
Rady’s judgment, without imposition of an additional fine on Mr  
Sullivan to punish his contempt, also would be inadequate. In  
particular, mere belated implementation of the drainage measures  
required by Justice Rady’s judgment, more than 11 years after they  
were ordered and without further penalty, effectively would entail  
no penalty for Mr Sullivan’s extraordinarily prolonged contempt.  
5. In short, I think the situation requires an order that ensures respect  
for and adherence to Justice Rady’s judgment in the near future, as  
well as imposition of an additional fine.  
[25] With all of the above considerations in mind, I turn finally to precise determination of an  
appropriate order/penalty to address Mr Sullivan’s confirmed and ongoing contempt in the  
particular circumstances of this case.  
DETERMINATION OF SENTENCE  
[26] Again, the plaintiff did not seek an order directing incarceration of Mr Sullivan for his  
civil contempt, or imposition of a suspended sentence, and, for the reasons outlined above,  
I independently was and am of the view that this is not one of those rare cases of civil  
contempt where it would be reasonable to impose a sentence of incarceration.  
[27] Having said that, Mr Sullivan hopefully will understand, and bear in mind in the future,  
that incarceration as a remedy for civil contempt becomes more likely in the case of those  
who repeatedly fail to comply with court orders.  
[28] In my view, any order addressing Mr Sullivan’s civil contempt clearly must include  
provisions directing remedial work to ensure compliance with Justice Rady’s order as  
soon as possible. The court has been entitled to that compliance, and the plaintiff has been  
waiting for that compliance, since June of 2011.  
[29] That delay is obviously deplorable, and in my view should not be prolonged any further by  
hopes, (which I think unrealistic, given Mr Sullivan’s firmly entrenched views and strong  
disinclination, demonstrated for more than a decade, to implement any effective drainage  
measures on his property), that a fine in the relatively modest monetary range applicable  
in such circumstances, or an order directing the payment of certain requested restitution to  
the plaintiff, would prompt any swift remedial work on the part of Mr Sullivan. Having  
regard to all the evidence before me, and the lengthy history of this matter, (including Mr  
Sullivan’s failure to take further action after payment of the sums Justice Rady ordered him  
to pay), I firmly expect that imposition of such a fine or restitutionary order, without  
anything further, would be met with grudging payment, further inaction on the part of Mr  
Sullivan, and more protracted and costly contempt proceedings.  
Page: 52  
[30] As outlined above in more detail, in sub-paragraph 9(b) of these reasons, the plaintiff  
originally contemplated and proposed, in terms of directed remedial work to address the  
defendant’s contempt, an order principally focused on one of two projects that essentially  
would reinstitute the surface water drainage pattern eastward from the plaintiff’s back yard,  
onto and across the defendant’s backyard, that existed before the defendant installed his  
shed and otherwise interfered with that pattern. At the risk of over-simplification:  
a. one project, (described as “Option 1”), would do that “above ground” through  
permanent relocation of the defendant’s shed and regrading of the defendant’s  
backyard to essentially reinstitute the original drainage swale that previously  
existed in the defendant’s backyard; and  
b. the alternative project, (described as “Option 2”), would accomplish a similar result  
“underground”, (i.e., in a manner different from the original surface water drainage  
system for the parties’ properties), by temporary removal of the defendant’s shed  
to allow for the installation of a buried drainage culvert sloping downwards from  
the plaintiff’s property and to the east, across the defendant’s back yard.  
[31] As also outlined above in more detail, in sub-paragraphs 9(c) and 9(d) of these reasons,  
those original plaintiff proposals/requests effectively were supplemented by evidence that  
further measures would be required to address additional surface water drainage problems  
created by the defendant. In particular, and once again at the risk of repetition and over-  
simplification:  
a. further work was required to reinstitute the swale that previously had run in a north-  
south direction along the border between the parties’ properties, in the area between  
their respective houses; and  
b. further work was required to address and prevent the flow of surface water from  
the defendant’s back yard onto the plaintiff’s back yard, by the creation of a  
creation of a trench at least three to four feet wide, with a depth at least twelve  
inches below the existing grade of the defendant’s rear yard, with the water  
accumulating in that area then being directed, (in the absence of regrading  
reinstituting the previously existing swale), towards the defendant’s drainage pit,  
provided the surface area around that drainage pit was lowered and the pit then was  
adequately monitored and pumped in a manner similar to that currently being done  
by the plaintiff in relation to her drainage pit.  
[32] However, as further outlined above in more detail, in sub-paragraph 9(e) of these reasons,  
by the time of the trial continuation before me, the plaintiff essentially had abandoned hope  
of an effective drainage solution ever being implemented or faithfully maintained/operated  
principally on the defendant’s property, and was instead proposing/requesting court  
direction of an alternative project, to be implemented primarily on her property but funded  
by the defendant, whereby surface water accumulating in her backyard would be collected  
in a newly installed catch basin before being channeled, by an underground and downward  
sloping drainage culvert, to the west of the plaintiff’s house and then north to a connection  
Page: 53  
with the existing terminus of the municipal sewer line. Work required on the defendant’s  
property would be limited to the creation of a berm extending along indicated portions of  
the boundary between the parties’ properties, to eliminate or at least reduce the drainage of  
surface water from the defendant’s property onto the plaintiff’s property.  
[33] In the absence of any constraints on an order to be imposed to address and resolve this  
longstanding surface water drainage dispute between neighbours, (e.g., if I was sitting in  
the context of a judge hearing arguments ab initio as to whether the defendant’s conduct  
constituted actional nuisance vis-à-vis the plaintiff, and about the most appropriate remedy  
to address any such nuisance), I would order implementation of the remedial relief  
currently being sought by the plaintiff; i.e., the drainage system described in detail in the  
expert report prepared by Mr McIntosh dated March 1, 2017, (attached as Exhibit “H” to  
his affidavit sworn the same day), and referred to as the “Alternative Option Work” in  
paragraph 80 of the plaintiff’s factum dated January 8, 2021.  
[34] I say that for many reasons, but they include the following:  
a. In my view, the evidence establishes that the “Alternative Work Option” is  
technically viable from an engineering perspective; i.e., that it is a drainage system  
capable of being physically installed as described, and capable of working as  
contemplated to drain surface water from the plaintiff’s property effectively. In  
that regard:  
i. I accept the sworn evidence and expert opinion of Mr McIntosh, (who struck  
me as a knowledgeable, practical and forthright witness during the earlier  
trial proceedings), and note that there was no expert opinion expressly  
contradicting the sworn evidence of Mr McIntosh on that specific point.  
ii. Defence counsel attempted to rely upon a report generated after a “site  
meeting” involving himself and the defendant’s engineering expert Mr  
Dykstra on July 18, 2016, (i.e., during the abortive attempt to arrive at a  
mutually agreeable drainage solution through expert consultation, followed  
by party negotiations and a possible consensus), in which Mr McIntosh  
made a note indicating that a drainage solution in the nature of the  
“Alternative Work Option” was “not viable”. However, in his sworn reply  
evidence, (i.e., his “Reply Affidavit” sworn on April 10, 2017), Mr  
McIntosh explained and made clear, (in further evidence that was not  
contradicted), that:  
1. he previously referred to such a drainage solution as “not viable”  
because it was then unknown whether the city of London would  
approve the option, and because Mr McIntosh understood at the time  
that the plaintiff was not agreeable to such an approach because it  
would involve extensive damage to her existing landscaping; and  
Page: 54  
2. since then, relevant representatives of the city of London have  
approved the proposal in principle, and the plaintiff has indicated  
her willingness to proceed with such a drainage solution.  
iii. Defence counsel also suggested in passing that the drainage solution  
outlined in the “Alternative Work Option” was going to “fail” like the  
previous drainage system did; e.g., by becoming “filled or broken”.  
However, defence counsel also acknowledged, just as quickly, that he and  
his client “can’t prove that”.  
b. The uncontradicted evidence before me indicates: that the owner of 47 Shepherd  
Avenue has consented to the proposal, (insofar as that property will be incidentally  
and temporarily affected by construction operations associated with the system’s  
installation); that the city of London’s representatives have agreed in principle to  
the proposed work, (i.e., that formal applications for approval in that regard will be  
granted once they are made); and that the plaintiff obviously is now willing to  
accept such an outcome. Insofar as the court has authority to order the defendant  
to abide by the proposal as well, (e.g., by granting permission for necessary work  
to be done on his property, and directing that he and his successors in title not  
interfere with the system’s installation and preservation), all necessary “consent”  
to complete implementation of the “Alternative Work Option” has been or will be  
provided.  
c. I accept and agree with plaintiff counsel’s submission that implementation of the  
“Alternative Work Option” drainage solution would bring or a least substantially  
promote finality to this longstanding surface water drainage dispute, and greatly  
diminish the prospect of further litigation between the parties and/or their  
successors in title. Without limiting the generality of the foregoing:  
i. The plaintiff’s engineering experts agree that implementation of the  
proposed solution should address and eliminate many if not all of the  
plaintiff’s ongoing surface water drainage problems created by what the  
defendant has done on his property.  
ii. Apart from preservation and maintenance of the new berm to be created  
along the boundary between the back yards of 51 Shepherd Avenue and 55  
Shepherd Avenue, the relevant drainage system will be permanent, stable,  
and exist and function underground, through the operation of gravity and  
throughout all seasons of the year, without the need for any active human  
involvement by the plaintiff, the defendant, or either party’s successors in  
title. In my view, the need to date for such human activity to address the  
plaintiff’s surface water drainage problems, (e.g., through active and regular  
monitoring and/or pumping by the plaintiff and/or defendant of  
accumulating water, and/or the need for further efforts to reshape the  
surface landscape to obstruct or redirect the flow of surface water), has been  
Page: 55  
a significant factor in the considerable stress, resentment and animosity that  
has evolved between the parties, giving rise to this extended litigation.  
iii. As the drainage system contemplated by the “Alternative Work Solution”  
will be situated almost entirely on the plaintiff’s property, (apart from the  
portion of the new “boundary berm” situated along the defendant’s side of  
the relevant property boundary), the plaintiff and her successors in title  
generally will have the ability to maintain and repair that system as  
necessary without the involvement of neighbouring property owners,  
including the defendant and his successors in title. Preservation of the new  
“boundary berm”, on the defendant’s side of the boundary fence, will be  
something capable of easy monitoring through static observation and  
measurement, and objective enforcement, (if and as necessary), facilitated  
by registration of an order in that regard against title to the defendant’s  
property.  
iv. Transferring responsibility for implementation of a remedial drainage  
system from the defendant to the plaintiff and her representatives, (apart  
from the responsibility of the defendant to pay for that implementation),  
will ensure prompt completion of the work and end further litigation in that  
regard.  
[35] However, as tempting as it may be to order implementation of the plaintiff’s proposed  
“Alternative Work Option” for such reasons, I have decided, after much consideration and  
with reluctance, that it would be impermissible and/or inappropriate for me to do so in the  
current context. Without limiting the generality of the foregoing, my reasons in that regard  
include the following:  
a. I take no issue with plaintiff counsel’s assertion that our court, in deciding a civil  
action based on the tort of nuisance, has the ability to resolve that dispute by the  
imposition of remedies that include an award of damages to a successful plaintiff  
for the costs of mitigation or abatement of the nuisance on the plaintiff’s own  
property.74  
b. However, the fundamental underlying contextual reality here is that I am not in the  
position of a judge approaching this dispute ab initio, focused on the private rights  
of litigants and the most appropriate manner of determining and resolving their  
dispute. The parties’ dispute in this case was litigated. That litigation resulted in a  
judgment, adjudicating the respective rights and obligations of the litigants. As  
noted above, my proper concern and focus, in the context of these contempt  
proceedings, is the failure of the defendant to respect the court’s process and  
comply with that judgment.  
74  
In that regard, plaintiff counsel relied on authorities such as Keryluk v. Lamarche, [2006] O.J. No. 5215 (S.C.J.),  
and Dawes v. Gill, 2019 ONSC 5649 (S.C.J.).  
Page: 56  
c. As also noted above, exercise of the ostensibly broad powers of the court to address  
a finding of contempt, (e.g., by making “such order as is just”, including directing  
a contemnor to “do or refrain from doing an act” and/or “comply with any other  
order that the judge considers necessary”), effectively is subject to constraints  
consistent with that proper concern and focus. In particular, as appellate authority  
repeatedly has emphasized, sanctions imposed for civil contempt must respond to  
the established wilful disregard of the court’s authority, (i.e., non-compliance with  
the relevant order made by the court), and must not have, or even appear to have,  
the function of a civil tort action.  
d. In my view, ordering implementation of the remedial drainage solution the plaintiff  
now proposes, (i.e., the “Alternative Work Option”), would depart from those  
established principles and constraints in inappropriate and impermissible ways. In  
particular:  
i. While I have no doubt that such an order would address and remedy the  
plaintiff’s ongoing concern about her private rights and surface water  
drainage problem, (for the reasons outlined above), I think it would do little  
or indeed nothing to address the public interest inherent in ensuring respect  
for and compliance with the judgment made by Justice Rady. In that regard:  
1. Justice Rady’s judgment was focused on confirmation and  
enforcement of the plaintiff’s right to have her surface water drain  
across the defendant’s property. The judgment declared a  
prescriptive right in that regard and, consistent with that declaration,  
made what Justice Rady expressly characterized as a “mandatory  
order” compelling the defendant to take all necessary steps to ensure  
that the plaintiff’s surface water drains across the defendant’s  
property.  
2. The order requested by the plaintiff contemplates a fundamentally  
different outcome, and a different defendant obligation. As  
acknowledged by plaintiff counsel, none of the plaintiff’s surface  
water would drain across the defendant’s property as directed by  
Justice Rady, and the defendant would not be obliged to take any  
action to ensure such drainage apart from paying for the  
arrangement.  
3. The defendant’s intransigence in that regard, (i.e., his longstanding  
refusal to reverse any of the changes made to his property that  
interrupted the previous drainage of the plaintiff’s surface water  
across that property, or otherwise take any action to permit drainage  
of the plaintiff’s surface water eastward onto his property as it  
formerly did), effectively would be rewarded and vindicated. In  
particular, the court’s order addressing the defendant’s established  
civil contempt effectively would endorse an outcome and establish  
Page: 57  
a precedent whereby a landowner creating such a nuisance is entitled  
to continue doing as he or she pleases on his or her property and  
steadfastly ignore a court order made in that regard, (achieving the  
desired outcome of not having to alter or disturb the desired  
configuration or landscaping of his or her property by carrying out  
remedial work that was supposed to be done in compliance with the  
court order), provided the relevant landowner eventually pays, (in  
accordance with a further court order), a dollar figure which in my  
view might accurately be characterized as:  
a. a licensing fee or fine, paid not to the state but to a private  
party; or  
b. the equivalent of monetary damages allowing the plaintiff to  
address and prevent the future damages the defendant’s  
established nuisance otherwise would cause, such that the  
ostensible contempt proceedings take on the appearance of a  
civil tort action.  
4. As noted above, neither of those outcomes is a permissible use of  
the court’s powers to address civil contempt. Nor, in my view, are  
they outcomes which adequately address the goals of suitable  
denunciation and deterrence, (both specific and general), which are  
the most important objectives of an order addressing such contempt.  
5. Nor, in my view, would the imposition of a further obligation on the  
defendant to pay a fine, (i.e., to the province), in addition to paying  
the sums needed for the plaintiff and her agents to complete the  
“Alternative Work Option”, address or eliminate such concerns  
about an inappropriate exercise of the court’s powers to address civil  
contempt, or do anything to promote respect for or compliance with  
the judgment made by Justice Rady.  
ii. As noted above, in support of the plaintiff’s request for an order directing  
implementation of the “Alternative Work Option”, plaintiff counsel also  
made reference to Rule 59.06(d) of the Rules of Civil Procedure, which  
states that “A party who seeks to … obtain other relief than that originally  
awarded … may make a motion in the proceeding for the relief claimed”.  
In particular, it was noted that the court has discretion and authority to  
convert an order of specific performance into an award of damages, that  
Justice Rady’s judgment was an order in the nature of specific performance,  
(i.e., compelling the defendant to take specified action), that the required  
action specified by Justice Rady is no longer possible, (because neither the  
defendant nor the plaintiff has obtained permission from the owner or  
owners of 59 Shepherd Avenue to complete drainage proposals allowing  
surface water to drain from the defendant’s property onto and across that  
Page: 58  
property further to the east), and that it therefore would be appropriate for  
me to convert Justice Rady’s judgment into an order directing the defendant  
to pay the plaintiff the sum or sums required to implement the alternative  
drainage solution now being proposed by the plaintiff. However, I find the  
suggestion problematic for a number of reasons. In that regard:  
1. There is authority suggesting that a judgment cannot be varied with  
respect to matters that were not pleaded; i.e., because parties are  
entitled to have a resolution of their differences on the basis of the  
issues joined in their pleadings.75 As noted by Justice Rady, in this  
case the plaintiff sought a declaration that she had an easement in  
relation to the defendant’s property allowing her surface water to  
drain across the defendant’s property, which was granted. The  
plaintiff also sought a mandatory order compelling the defendant to  
alter the grading of his land to permit such drainage, (e.g., by  
restoring the grading to that approved by the city of London in  
1992), which in my view was granted, albeit in a more flexible and  
less specific manner; i.e., by directing the defendant to take  
whatever steps were necessary to ensure that the plaintiff’s surface  
water drained across his property. The plaintiff also sought non-  
pecuniary damages for the distress, inconvenience and interference  
with the plaintiff’s enjoyment of her land caused by the defendant’s  
nuisance and/or negligence, (which were awarded), special  
damages, (which were awarded), and punitive damages, (which  
were denied). The plaintiff did not seek an order compelling the  
defendant to pay for the cost of implementing a drainage system that  
would drain her surface water across her own property to the nearby  
terminus of the municipal sewer at the front of her property.  
2. I agree with the submissions of defence counsel that firm denial  
and/or prevention of the defendant’s repeated requests and efforts to  
revisit and revise Justice Rady’s judgment, followed by ready  
acceptance of the plaintiff’s request to revisit and vary Justice  
Rady’s judgment pursuant to Rule 59.06(2)(d), to implement a  
drainage solution now preferred by the plaintiff, (especially in the  
absence of a formal motion as contemplated by that rule), would  
create an appearance of inconsistency and injustice. In that regard,  
it should be remembered that the plaintiff secured a finding of  
contempt based in large measure on the clarity and finality of Justice  
Rady’s judgment.  
75  
See, for example: 469635 Ontario Ltd. v. 1002953 Ontario Inc., [1999] O.J. No. 407 (C.A.), at paragraph 9; and  
Brito v. Canac Kitchens, 2012 ONCA 61, at paragraph 21.  
Page: 59  
3. I also agree with the submissions of defence counsel that the  
plaintiff’s request for an order compelling the defendant to pay for  
others’ completion of actions not contemplated and ordered by  
Justice Rady’s judgment is problematic. In particular:  
a. As noted above, Rule 60.11(9) of the Rules of Civil  
Procedure expressly contemplates situations “where a  
person fails to comply with an order requiring the doing of  
an act, other than the payment of money”, and authorizes a  
judge addressing such a situation, “instead of or in addition  
to making a contempt order”, to “order the act to be done, at  
the expense of the disobedience person, by the party  
enforcing the order or any other person appointed by the  
judge”. [Emphasis added.]  
b. I agree with defence counsel that, on a natural and ordinary  
reading of those provisions, Rule 60.11(9) only authorizes s  
a judge to order performance of an act at the expense of a  
contemnor when the act in question was one the contemnor  
was directed to do by the original court order.76  
c. Moreover, by expressly authorizing the court to order  
performance of an act at a contemnor’s expense in that  
specified situation, and no other situation, it seems  
reasonable to infer that Rule 60.11 did not intend to  
authorize the making of an order requiring a contemnor to  
pay for another’s performance of an act the contemnor was  
never ordered to perform.  
d. In this case, Justice Rady’s judgment, (the original court  
order giving rise to my finding of civil contempt by the  
defendant), ordered the defendant “to take whatever steps  
are necessary to ensure that the plaintiff’s surface water  
drains across his property”. [Emphasis added.] The  
defendant was never ordered to take whatever steps were  
76  
In that regard, I note that the contempt sentencing order imposed by the court in the prolonged Evans v. Snieg  
litigation (upon which the plaintiff’s suggested order and “Alternative Work Option” payment arrangement apparently  
was modeled), involved a situation where the defendant contemnor found liable for nuisance had failed to take the  
remedial steps he was ordered to take, and the court dealing with the resulting contempt proceedings  
directed/authorized the plaintiffs’ completion of the work originally ordered by the court, at the defendant contemnor’s  
expense; i.e., recognizing “the reality that the court [had] made an order as to how the nuisance problem must be  
addressed”, and the defendant contemnor was not permitted to “avoid” that reality. While I was provided with no less  
than seven reported decisions relating to that litigation, one should see, in particular: Evans v. Snieg, 2012 ONSC 2330  
(S.C.J.), at paragraphs 8, 21, 45, and 50-51; and Evans v. Snieg, 2012 ONSC 6460 (S.C.J.), at 5-6, 8 and 15. The  
approach ultimately taken in the Evans v. Snieg litigation, to address the defendant’s contempt, accordingly was  
entirely consistent with the authority expressly conferred on the court by Rule 60.11(9) of the Rules of Civil Procedure.  
Page: 60  
necessary to ensure drainage of the plaintiff’s surface water  
across the plaintiff’s property to the nearby terminus of the  
municipal sewer. In my view, ordering implementation of  
the remedial drainage solution now being proposed by the  
plaintiff, (i.e., the “Alternative Work Option”), at the  
defendant’s expense, would entail an exercise of jurisdiction  
not condoned or authorized by the Rules of Civil Procedure.  
4. I take no issue with plaintiff counsel’s assertion that Rule  
59.06(2)(d) permits the court to convert a judgment ordering  
specific performance into an award of damages; e.g., where the  
possibility of specific performance ordered by a judgment has been  
frustrated by events subsequent to the judgment. In particular:  
a. Dating back to the enactment of Lord Cairns’ Act (1858), 21  
& 22 Vict., c.27, and its “virtual replica” counterpart enacted  
in Ontario, (which survived as section 21 of the Judicature  
Act, R.S.O. 1980, c.223, up until passage of the Courts of  
Justice Act, supra, in 1984), courts of equity in this province,  
(such as this court), have had the ability, in cases where they  
could have ordered an injunction restraining a breach of  
covenant, contract or agreement, or specific performance  
compelling performance of a covenant, contract or  
agreement, to award “equitable damages” in addition to or  
in substitution for such an order. The authority to do so has  
been preserved in s.99 of the Courts of Justice Act, supra. It  
now provides that “a court that has jurisdiction to grant an  
injunction or order specific performance may award  
damages in addition to, or in substitution for, the injunction  
or specific performance.”  
b. In Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 13  
O.R. (2d) 430 (C.A.), our Court of Appeal held that the  
predecessor to Rule 59.06(2)(d) of the Rules of Civil  
Procedure, (i.e., what was then Rule 529), permits a  
judgment directing specific performance to be varied and  
converted into an award of damages or compensation,  
provided that a cause of action for such damages existed at  
the time of the original judgment.  
5. However, as noted above, the origins of that jurisdiction make it  
clear that it was conferred upon the court in the context of civil  
claims relating to breach or performance of a covenant, contract or  
agreement; i.e., an obligation voluntarily assumed by the consensus  
Page: 61  
of private parties.77 I am not aware of authority confirming  
availability of the jurisdiction to convert a court ordered obligation  
into an award of damages to address civil contempt arising from  
failure to comply with that court ordered obligation.  
6. Moreover, as emphasized by the Supreme Court of Canada in  
Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, where the  
jurisdiction is exercised, “the damages awarded must be a true  
substitute” for the specific performance which had been ordered.  
That would not be the case if I were to make the remedial order now  
being requested by the plaintiff. Again, Justice Rady ordered that  
the defendant take whatever steps are necessary to ensure that the  
plaintiff’s surface water drains across the defendant’s property. The  
plaintiff’s original alternative proposals were designed to secure that  
court-ordered result, and had an estimated implementation cost of  
$18,000,00 plus HST and $20,000.00 plus HST respectively, as of  
February 23, 2016. The plaintiff’s current “Alternative Work  
Option” would not secure that court-ordered result, and had an  
estimated implementation cost of $50,000.00 plus HST as of March  
1, 2017, and $55,000.00 plus HST as of July 31, 2020. Even if the  
2017 and 2020 cost figures are translated into equivalent dollar  
amounts as of February 23, 2016, the revised/varied obligation on  
the defendant now being proposed by the plaintiff would not only  
be qualitatively different in nature, (i.e., insofar as it effectively  
would award damages for performance of an act other than that  
ordered by Justice Rady), but it also would be significantly more  
onerous on the defendant from a quantitative perspective. In my  
view, all of this supports a conclusion that the plaintiff’s proposal  
would not be a “true substitute” for specific performance of the acts  
ordered by Justice Rady, but the monetary equivalent of the  
defendant performing a significantly different act.  
7. Nor am I satisfied that the actions and corresponding drainage  
solution ordered by Justice Rady are incapable of performance. In  
particular:  
a. Plaintiff counsel’s submissions in that regard were based on  
the failure of the plaintiff’s engineer and the failure of the  
defendant to obtain permission from the owner or owners of  
59 Shepherd Avenue to allow complete implementation of  
either alternative proposal, (i.e., “Option 1” and “Option 2”  
77 See Jeffrey B. Berryman et al, Remedies: Cases and Materials, 4th ed. (Toronto: Emond Montgomery Publications  
Limited, 2001), at pp.1195-1210.  
Page: 62  
outlined above), contemplated in Mr McIntosh’s letter of  
February 23, 2016.  
b. However, I think it likely that a request for such permission  
in that regard made by the defendant inherently would be  
more persuasive that a request from the plaintiff’s engineer,  
(as the defendant is the immediate neighbour of the owner or  
owners of 59 Shepherd Avenue, while the plaintiff and her  
engineer are not), and I agree with plaintiff counsel that the  
evidence of the defendant’s inability to obtain such  
permission, and/or having made any efforts in that regard, is  
slim, somewhat contradictory, and a cause for concern. In  
particular:  
i. In his reports and sworn evidence, the defendant’s  
expert engineer Mr Dykstra did not indicate that it  
was impossible to obtain permission from the owner  
or owners of Shepherd Avenue to implementation of  
the “Option 1” or “Option 2” drainage solutions  
proposed by the plaintiff’s engineers. He simply  
indicates that “both solutions” required construction  
on 59 Shepherd Avenue”.78  
ii. In his affidavit sworn on February 23, 2016, the  
defendant simply echoes Mr Dykstra in saying that  
the “Option 1” and “Option 2” drainage solutions  
proposed by the plaintiff’s engineers “require co-  
operation from the adjoining owner at 59 Shepherd”,  
without giving any indication whatsoever as to  
whether or not he has requested such co-operation.79  
iii. The defendant himself has indicated that, in the past,  
he has been able to obtain voluntary co-operation  
from the owner or owners of 59 Shepherd Avenue to  
the implementation of drainage solutions affecting  
that property.80  
78 See paragraph 10 of the affidavit sworn by Mr Dykstra on March 9, 2016, and paragraph 4 of Mr Dykstra’s letter  
to defence counsel dated August 4, 2015, attached to that affidavit as “Exhibit 6”.  
79 See the affidavit sworn by the defendant on February 23, 2016, at paragraph 13.  
80 In paragraph 7 of his affidavit sworn on March 17, 2017, Mr Sullivan notes that he worked with the owners of 51  
Shepherd Avenue and 59 Shepherd Avenue to install a “Big O drainage tile” to drain surface water easterly from 51  
Shepherd Avenue across 55 Shepherd Avenue and 59 Shepherd Avenue.  
Page: 63  
iv. However, in his affidavit sworn on May 20, 2016, the  
defendant said this: “I do not have authority or  
permission to do work on the neighbouring property  
59 Shepherd, nor is that required. The water drains  
naturally in that direction and no further work is  
required”.81 The defendant does not indicate that he  
has made any efforts to obtain the co-operation or  
permission of the owner or owners of 59 Shepherd  
Avenue in relation to implementation of the “Option  
1” or “Option 2” drainage solutions being proposed  
by the plaintiff’s engineer. To the contrary, his  
comments strongly suggest that he has not attempted  
to obtain such permission because he personally does  
not think any work on 59 Shepherd Avenue should  
be required.  
v. In his affidavit sworn on December 10, 2020, the  
defendant then simply makes a bald assertion that he  
“cannot secure construction over my neighbour’s  
property to the east”, without providing any details  
or further information whatsoever in that regard.82  
vi. Having regard to all of the above, I am not persuaded  
that the evidence establishes the defendant cannot  
obtain voluntary co-operation from the owner or  
owners of 59 Shepherd Avenue to implementation of  
the “Option 1” and “Option 2” drainage solutions  
originally put forward by the plaintiff.  
c. Moreover, even if the owner or owners of 59 Shepherd  
Avenue will not voluntarily grant permission for  
implementation of works permitting surface water from 55  
Shepherd Avenue to drain across that property, in my view  
that does not necessarily preclude the possibility, or provide  
a conclusive response justifying the defendant’s failure to  
comply with Justice Rady’s judgment and the mandatory  
order therein. In particular:  
i. In his letter to defence counsel dated August 4, 2015,  
the defendant’s engineer Mr Dykstra noted that a  
drain pipe previously constructed across “all three  
81 See the affidavit sworn by the defendant on May 20, 2016, at paragraph 7.  
82 See the affidavit sworn by the defendant on December 10, 2020, at paragraph 3.  
Page: 64  
lots”, (i.e., 51, 55 and 59 Shepherd Avenue), had  
been operating to drain surface water eastward across  
all three properties to the “CN ditch”. However, “a  
new owner at 59 Shepherd Avenue damaged the  
drainage pipe and it has not worked well since”.  
ii. Similarly, in his letter dated July 19, 2016,  
summarizing the “site meeting” held between the  
parties’ engineers to discuss possible co-operative  
drainage solutions, the plaintiff’s engineer Mr  
McIntosh said this: “The owner of #55 indicated that  
there was an agreement between property owners to  
install a pipe drain across the 3 lots in 1994 and the  
rear yards were regraded. This worked for a number  
of years until 2006 when there was a new owner on  
#59 who blocked the pipe when installing a post.”  
iii. As this litigation makes clear, if the owner of 59  
Shepherd Avenue interrupted the drainage of surface  
water from 55 Shepherd Avenue across 59 Shepherd  
Avenue, the defendant was not without remedy vis-  
à-vis the owner of 59 Shepherd Avenue. It did not  
justify the defendant transforming his resulting  
surface water drainage problem into a surface water  
drainage problem for the plaintiff; i.e., by preventing  
drainage of the plaintiff’s surface water onto the  
defendant’s property.  
d. Finally, in relation to this point, I think it needs to be  
emphasized that Justice Rady ordered the defendant “to take  
whatever steps are necessary to ensure that the plaintiff’s  
surface water drains across his property”. [Emphasis  
added.] That mandatory order was not limited to the taking  
of steps that would ensure drainage of the plaintiff’s surface  
water across the defendant’s property and onto/over the  
property at 59 Shepherd Avenue. In that regard:  
i. In my view, the evidence confirms that, even if the  
defendant is unable to drain accumulating surface  
water on his property over the property to the east, or  
over/through the railway berm to the south, that does  
not leave him without options or possible “steps” he  
still might take to ensure that the plaintiff’s surface  
water drains across his property. As the plaintiff’s  
ongoing actions have demonstrated, when surface  
water accumulates in the back yard of a property on  
Page: 65  
the south side of Shepherd Avenue, and that surface  
water cannot be drained onto and across a  
neighbouring property to the east, it is burdensome  
but possible to drain that accumulating surface water  
to the street itself; e.g., by installation of a  
mechanism to concentrate the accumulation of that  
surface water and thereafter engage in active  
pumping measures, (more burdensome in the cold  
winter months and freezing temperatures), to transfer  
that water through an above ground hose or hoses to  
the street.  
ii. The defendant’s wrongful conduct has cast such  
burdens on the plaintiff for the past 15 years.  
Without limiting the generality of the foregoing, for  
the reasons explained in detail in my earlier  
judgment, Mr Sullivan has had no incentive to  
engage in such active efforts to pump accumulating  
surface water from his property to the street because:  
1. the plaintiff’s surface water cannot drain onto  
Mr Sullivan’s property; and  
2. his surface water actually is draining onto the  
plaintiff’s property without ever reaching the  
ineffective drainage pit he installed.  
iii. In short, it is not impossible for the defendant to take  
steps necessary “to ensure drainage of the plaintiff’s  
surface water across his property”, as Justice Rady’s  
judgment required him to do. In my view, the  
defendant clearly could have implemented necessary  
measures entirely on his own property to permit  
drainage of the plaintiff’s surface water onto the  
property at 55 Shepherd Avenue, (e.g., by regrading  
his property in the various ways suggested by the  
plaintiff’s engineers to make the elevations of his  
property lower than that of the plaintiff along the  
boundary between the two properties), thereafter  
collecting that accumulating surface water and his  
own surface water on his property, and  
actively/regularly pumping that accumulated water  
across his property to the street, to ensure that it did  
not make its way back onto the plaintiff’s property.  
Page: 66  
iv. That clearly is not an optimal drainage solution from  
the defendant’s perspective; e.g., insofar as it will  
entail substantial regrading of his property and the  
creation/installation of some feature or mechanism  
on that property to collect accumulating surface  
water, may make portions of the defendant’s  
backyard unusable when surface water is  
accumulating there, require ongoing and sometimes  
difficult efforts on the defendant’s part to  
actively/regularly pump such accumulating water  
across his property to the street, (not only to prevent  
its return to the plaintiff’s property but to protect his  
own property), and likely reduce the value of his  
property accordingly. Moreover, it seems unlikely  
that the taking of such steps would completely  
eliminate the plaintiff’s concerns about the defendant  
taking pumping action, as required, to ensure that  
surface water accumulating on the defendant’s  
property does not reach the point where it backs up  
onto the plaintiff’s property. In other words, the  
implementation of such a drainage solution likely  
will not achieve the defendant’s desired goal of  
eliminating further monitoring of his conduct by the  
plaintiff, and the possibility of corresponding  
complaints and further litigation in that regard.  
However, if such steps present the only remaining  
option “to ensure that the plaintiff’s surface water  
drains across [the defendant’s] property”, in my view  
they are the steps that “are necessary” to ensure  
compliance with Justice Rady’s judgment.  
[36] While I think it impermissible and inappropriate to make the remedial work order requested  
by the plaintiff, for the reasons outlined above, and the defendant has put forward no  
suggestions whatsoever in terms of an appropriate order to address his contempt, I therefore  
do not think that forecloses the possibility of my making an order that takes into account  
all of the contempt sentencing principles and factors outlined above, and includes  
provisions which:  
a. ensure respect for and compliance with Justice Rady’s judgment by directing the  
carrying out of specified acts at the defendant’s expense; and  
b. simultaneously promote the goals of denunciation and deterrence, both specific and  
general, in a more appropriate way and adequate way.  
[37] In particular, in my order addressing the defendant’s civil contempt, (the final provisions  
of which are summarized below when setting forth my conclusion), I intend to include  
Page: 67  
provisions which require the completion, by the plaintiff, her engineers and contractors,  
and at the defendant’s expense, of what was described by the plaintiff’s engineer Mr  
McIntosh as “Option 1” in his letter of February 23, 2016, albeit with certain modifications.  
In that regard:  
a. To ensure that implementation and completion of the compliance/remedial work I  
will be ordering will not be disrupted or complicated by any attempted transfer,  
assignment or encumbrance of the defendant’s property at 55 Shepherd Avenue,  
my order will be registered against title to the property, and prohibit any such  
dealings with that property except in accordance with my order, or further order of  
the court.  
b. As outlined in more detail earlier in these reasons, the work proposed by that  
“Option 1” contemplated:  
i. permanent relocation of the backyard shed erected by the defendant,  
moving it north from its existing site, (where the original drainage swale  
across the defendant’s property had been located), to a site beside or to the  
east of the defendant’s house;  
ii. reinstatement of the original large drainage swale which effectively had  
been destroyed by the defendant’s construction and landscaping activities;  
iii. adjustment/alteration of the grading in the rear yard of the defendant’s  
property to ensure that water thereon drained into that reinstated swale;  
iv. adjustments to the fencing between the defendant’s property and the  
property to the east known by its municipal address as 59 Shepherd Avenue,  
as well as adjustments/alterations to the rear yard of 59 Shepherd Avenue  
to facilitate receipt of water from the defendant’s property via the reinstated  
swale; and  
v. further work that included removal of all surplus cut material, and  
restoration of topsoil and sod in the regraded and disturbed areas.83  
c. In my order, I intend to direct completion of the remedial work contemplated by  
that “Option 1”, albeit in a manner modified by specified deletions and additions.  
In particular:  
83 Again, the proposal is described with more particularity and specifications as “Option 1” in the letter prepared by  
Kyle McIntosh, P.Eng., (of Whitney Engineering Inc.), dated February 23, 2016, and attached as Exhibit 3 to Mr  
McIntosh’s affidavit sworn on April 13, 2016, which includes diagrams that were attached to the letter. At the time  
Mr McIntosh prepared his letter, the estimated construction cost of “Option 1” was said to be approximately  
$18,000.00 plus HST.  
Page: 68  
i. My order will not require completion of the work listed by Mr McIntosh as  
components “3” and “4” of “Option 1”; i.e., work that had been  
contemplated to “adjust/alter the grading of the rear yard at 59 Shepherd to  
drain/outlet the swale” or to “adjust the fencing between 55 and 59  
Shepherd to the new grades at the swale location”.84  
ii. In addition to completion of the remaining components of “Option 1”, my  
order also will require completion of work:  
1. to remove all stored landscaping material from the swale on the  
property line between 51 Shepherd Avenue and 55 Shepherd  
Avenue, and to reinstate or create that swale in a manner that  
includes, but is not limited to, the segment of that property line lying  
directly to the west of the defendant’s house;  
2. to create, on the defendant’s property immediately to the east of the  
property line between 51 Shepherd Avenue and 55 Shepherd  
Avenue, and along that property line in the area north of the railway  
berm to a point directly west of the southernmost point of the  
defendant’s house, a trench at least three to four feet wide, with a  
depth at least twelve inches below the existing grade of the  
defendant’s rear yard in that area; and  
3. to grade the aforesaid trench such that water accumulating therein  
will be directed towards and into the original drainage swale to be  
reinstated across the defendant’s back yard, as contemplated in  
“Option 1”.85  
d. As for arrangements to complete, fund and maintain that work, and ensure its  
effectiveness going forward:  
84  
In my view, “Option 1” is a more appropriate starting point than “Option 2” for implementing drainage works  
ensuring compliance with Justice Rady’s judgment, insofar as it more closely returns the defendant’s property to the  
state it was in prior to the measures taken by the defendant that interrupted drainage of the plaintiff’s surface water  
across the defendant’s property. As an open and accessible means of receiving, collecting and channeling surface  
water onto and across the defendant’s property, (as opposed to a buried drainage culvert that may lead nowhere without  
work being done on the property at 59 Shepherd Avenue), it will more readily allow for any necessary pumping  
activity to be carried out by the defendant and his successors; i.e., to direct water accumulating in the open swale  
across the defendant’s property to the street at the northern boundary of that property.  
85  
In my view, these additional recommended measures, (referred to in the testimony provided by the plaintiff’s  
engineering expert Mr McIntosh, and the engineering correspondence and reports that were filed as exhibits), should  
suffice to allow the plaintiff’s surface water to flow onto the defendant’s property, (once the temporary protective  
works erected on her side of the boundary separating the two properties have been removed), and arrest the flow of  
the defendant’s surface water towards the property of the plaintiff, which would counteract the ability of the plaintiff’s  
surface water to flow in the opposite direction.  
Page: 69  
i. I will be directing that the work be done by the plaintiff, her engineers, and  
her contractors, at the defendant’s expense, with additional provisions  
requiring the defendant to grant necessary access to his property, and  
directing the defendant and his heirs, assigns and successors not to interfere  
with the directed drainage measures before, during or after their  
implementation.  
ii. The defendant will be ordered to pay for the work through a mechanism  
described in more detail in the provisions of my order, (set out below), but  
which essentially will involve the defendant being required to make an  
initial payment into court, (in an amount to be determined by me at a further  
hearing, to be scheduled as soon as possible after September 5, 2022, after  
receipt of further evidence from the plaintiff regarding the estimated cost to  
complete the required work, and further evidence from the defendant  
regarding his income and assets), thereby establishing a fund against which  
the plaintiff and her agents may seek reimbursement of expenses incurred  
or to be incurred to complete the work.86 In that regard, additional  
provisions of my order will:  
1. facilitate the defendant’s making of that initial payment, (and/or  
required further payments), by allowing the defendant to move in a  
prescribed manner for an order permitting further encumbrance of  
his property, provided the resulting funds are paid directly into  
court;87  
2. indicate the manner in which the plaintiff and her agents may seek  
reimbursement of their expenditures from the fund or funds paid into  
court by the defendant;88  
86 Although plaintiff counsel suggested a payment of such funds to his firm in trust, with the plaintiff and her agents  
thereafter drawing against such funds as needed, I prefer the more objective court-controlled mechanism of a payment  
into court employed by the court in the Evans v. Snieg litigation.  
87 As I indicated earlier, I think it likely that the defendant has accumulated significant equity in his property; i.e., if  
he has been making payments on any charge registered against his property prior to 2011, and his sworn indications  
of being unable to refinance his property thereafter because of Justice Rady’s 2011 judgment are accurate. Again,  
property values also have increased significantly in the city of London since 2011. Lender concerns regarding charge  
registration priorities, if any, can be spoken to in the course of a motion seeking approval of a further encumbrance  
on the defendant’s property to enable the defendant’s payment of the sums required by this judgment.  
88  
Plaintiff counsel proposed a reimbursement system whereby the plaintiff and her agents would simply draw on  
funds held in trust by plaintiff counsel until they were exhausted, and then were replenished by further payment(s)  
from the defendant if and as necessary. In my view, however, that would not comply with the quantification  
procedures mandated by Rule 60.11(10) of the Rules of Civil Procedure, which provide for more objective review of  
incurred expenditures to ensure that they are reasonable and appropriate.  
Page: 70  
3. indicate the manner in which the plaintiff may seek an order  
requiring the defendant to pay a further amount or amounts into  
court;  
4. provide a mechanism for documenting completion of the directed  
work and payment thereafter out of court, to the defendant, of any  
surplus funds remaining therein to the credit of this matter; and  
5. thereafter confirming the purging of the defendant’s contempt, and  
satisfaction of Justice Rady’s judgment, in turn allowing the  
restriction on transfer, assignment and/or further encumbrance of  
the defendant’s property without order of the court to be lifted, while  
preserving the remaining court-ordered obligations I will be  
imposing on the defendant and his heirs, assigns and successors.  
iii. Those remaining court-ordered obligations, to take effect after completion  
of the directed work, will require the defendant and his heirs, assigns and  
successors to take whatever steps are necessary to ensure that any water  
accumulating in the aforesaid trench and reinstituted swale in the rear yard  
of 55 Shepherd Avenue does not back up onto the property at 51 Shepherd  
Avenue, with such measures to include active pumping of water from the  
trench and reinstituted swale if and as necessary to ensure the flow of such  
water across 55 Shepherd Avenue to the street running along the north  
boundary of the defendant’s property.  
[38] In my view, the contemplated provisions of that remedial order, while certainly not ideal,  
(e.g., insofar as they still contemplate human intervention and pumping to ensure the  
complete flow of the plaintiff’s surface water across the defendant’s property), will ensure  
implementation of the overarching drainage mechanism contemplated by Justice Rady,  
who was focused, (as requested), on enforcement of the plaintiff’s surface water drainage  
rights.  
[39] Moreover, in my view there is reason to believe that “new” surface water drainage system  
will be effective, despite the reticence demonstrated to date by the defendant in terms of  
his taking action to address the relevant surface water drainage concerns. In particular,  
once the directed work has been completed, the defendant effectively will have been cast  
into the position in which his conduct has placed the plaintiff for the past 15 years; i.e.,  
whereby surface water will be draining onto and accumulating on his property, requiring  
active pumping measures to ensure that the water is then redirected to the street. In short,  
the defendant now will have an ongoing incentive to act that has been lacking to date.  
[40] However, before moving on from the provisions of a remedial work order to address the  
defendant’s contempt, I will add this:  
a. While I may lack the ability in the current context to order implementation of the  
“Alternative Work Option” drainage solution proposed by the plaintiff, for the  
Page: 71  
reasons I have outlined, I do not think those constraints prevent me from providing  
the defendant with a final opportunity to pursue a voluntary “off ramp” in that  
regard; i.e., through a negotiated agreement with the plaintiff to implement the  
“Alternative Work Option” and vacate Justice Rady’s judgment on consent, if the  
defendant finds the drainage solution directed herein unpalatable.  
b. In that regard, as I indicated earlier, there is much to recommend the drainage  
solution proposed by the “Alternative Work Option”, in terms of lending finality to  
the parties’ long-running dispute. Again, the new drainage system contemplated  
by that “Alternative Work Option”, largely out of sight once implemented,  
henceforth would address the plaintiff’s surface water drainage issues on an  
ongoing basis through the operation of gravity, throughout all seasons of the year,  
without the necessity of further human activity or likelihood of further conflict  
between the parties, or their respective heirs, assigns and successors.  
c. Despite its possibly greater implementation cost, the “Alternative Work Option”  
also would seem to offer numerous attractions to the defendant, in comparison to  
the work I otherwise will be directing. In particular, it contemplates minimal  
disruption to the various landscaping changes the defendant has made on his  
property, entails no further obligations on the part of the defendant or his heirs,  
assigns and successors apart from non-interference with the new “boundary berm”,  
and otherwise should end the plaintiff’s concerns and corresponding litigation  
relating to what the defendant may be doing on his property.  
d. Moreover, while I have no ability to direct the plaintiff’s continued willingness and  
agreement to implement the “Alternative Work Option”, (i.e., after she has read my  
decision indicating what the court-ordered remedial work will be, failing a  
voluntary agreement between the parties to implement that “Alternative Work  
Option” and vacate Justice Rady’s judgment on consent), such an outcome would  
seem to offer the plaintiff significant attractions as well, compared to the works I  
otherwise will be directing. In particular, it would provide the plaintiff with a  
drainage solution almost entirely under her control, thereby eliminating any need  
for further worry or concern about the defendant or his heirs, assigns and successors  
failing to take appropriate action on the property at 55 Shepherd Avenue to prevent  
accumulating surface water from once again backing up onto the property of the  
plaintiff), and allow the plaintiff to move forward secure in the knowledge that the  
beautification of her property will not be disturbed.  
e. For such reasons, I intend to add further provisions to my order, staying  
implementation of its remedial work provisions until the further hearing that will  
be scheduled to determine the initial amount the defendant otherwise will be  
required to pay into court. By that time, if the parties voluntarily have entered into  
an agreement to implement the drainage solution contemplated by the “Alternative  
Work Option” proposed by the plaintiff, and to have Justice Rady’s judgment  
vacated on consent, (which effectively will eliminate any further need for the court  
to ensure compliance with its provisions going forward), I will take that into  
Page: 72  
account when deciding, after hearing further from the parties, whether and what  
further variations of my order may be appropriate in the circumstances.  
[41] Before considering the possibility of also imposing a fine to address Mr Sullivan’s  
contempt, I turn next to the plaintiff’s request for what plaintiff counsel characterized as  
“restitution orders” requiring the defendant to pay the plaintiff various amounts to  
reimburse or otherwise compensate her for the expenses and loss she is said to have  
sustained as a result of the defendant’s contempt.89  
[42] As noted above, in this case the plaintiff also sought an order directing the defendant to  
reimburse the plaintiff for additional expenses she has incurred, (up until July 31, 2020, at  
least), as a result of the defendant’s failure to comply with Justice Rady’s judgment. Such  
expenditures were said to include:  
a. payments made to the plaintiff’s engineering experts;  
b. payments made for pumping equipment and supplies;  
c. the cost of photographs documenting property damage;  
d. mileage expense associated with the plaintiff having to make additional trips  
between her home and place of work to see to the pumping of water from her rear  
yard to the street in front of her home; and  
e. the cost of additional electricity required for such pumping activity.  
[43] In relation to all of these claimed expenses and/or loss, it was argued that the plaintiff  
should not be left bearing final responsibility for such expenses and loss incurred because  
of the defendant’s failure to comply with Justice Rady’s judgment, and that such expenses  
and loss can and should be the subject of an order directing “restitution” as a  
remedy/penalty for the defendant’s contempt.  
[44] In my view, some of the expenses claimed by the plaintiff, (i.e., the sums paid to her  
engineering experts who conducted investigations, prepared reports and swore affidavits  
in support of these contempt proceedings brought by the plaintiff, and the cost of  
photographs filed with the court to document the damages said to have been caused by the  
defendant’s contempt), are more appropriately characterized as disbursements said to have  
been necessarily incurred in connection with these legal proceedings. The court has  
jurisdiction to entertain claims for reimbursement of such expenses from the defendant  
when addressing the costs of these legal proceedings. In particular, costs awarded in  
89 I do so by way of analogy to criminal sentencing proceedings, wherein our courts are directed by section 740 of the  
Criminal Code, supra, to give priority to restitution in cases where the court finds it appropriate to make an order of  
restitution, is also considering ordering the payment of a fine, and there is reason for concern that the “offender” may  
not have the means or ability to comply with both the order of restitution and the order to pay a fine.  
Page: 73  
relation to contempt proceedings frequently are awarded on an elevated scale, and are often  
set at the highest level, (i.e., on a solicitor and his or her own client or fully indemnity  
basis), as a matter of principle.90 In my view, such claims of the plaintiff, relating to costs  
incurred in the course of contempt proceedings that have been successful from her  
perspective, should be deferred for consideration to that context.91  
[45] I also think that the plaintiff’s claim for interest charges she has paid to cover claimed  
expenses incurred because of the defendant’s conduct, at the time such expenditures were  
required, is more appropriately addressed, (if and when the court makes an order requiring  
the defendant to pay sums reimbursing the plaintiff for such expenditures), by sections 128  
and 129 of the Courts of Justice Act, supra, (which are designed to remedy concerns about  
the time value of money in relation to orders requiring the payment of money), and the  
court’s discretion to award interest in excess of the normally prescribed rates, if necessary  
and appropriate, in special circumstances warranting a departure from such rates.92  
[46] As for the other expenditures in respect of which the plaintiff claims reimbursement from  
the defendant:  
a. I take no issue with plaintiff counsel’s submission that, in appropriate  
circumstances, a court addressing a situation of civil contempt may order the  
contemnor to make various forms of restitution as one means of addressing civil  
contempt.  
b. Without limiting the generality of the foregoing, the court has a wide discretion to  
impose “the usual criminal sanctions” on individuals found in civil contempt, and  
a person found in civil contempt may face any sanction available for the  
commission of a criminal offence.93 Orders directing various forms of restitution  
clearly are one of those possible sanctions.94 It therefore is not surprising that courts  
90 See Oommen v. Capital Region Housing Corp., 2017 ABCA 143, at paragraphs 23 and 25. As a number of courts  
have noted, such cost awards “merely serve to indemnify the … plaintiff for expenses which he [or she] has incurred  
coming to court; they are not really punishment as such” for the offending party’s contempt. See Zelazo v. Masson  
(No.1)(1992), 126 A.R. 330, at paragraph 23; Zelazo v. Masson (No.2) (1992) 129 A.R. 388 (Q.B.), at paragraph 19;  
Georgia Pacific Canada Inc. v. B.B.F., Local D513 (1999), 243 A.R. 219 (A.B.), at paragraph 226; and Koerner v.  
Capital Health Authority, 2010 ABQB 557, at paragraph 23.  
91  
As noted below, I intend to address the accumulated costs of these proceedings once the proceedings have been  
completed; i.e., by setting a timetable for the tendering of written cost submissions in that regard.  
92 See Agribrands Purina Canada Inc. v. Kasamekas (2011), 106 O.R. (3d) 427 (C.A.).  
93  
See Sussex Group Ltd. v. 3933938 Canada Inc., supra, at paragraph 5, and SNC-Lavalin Profac Inc. v. Sankar,  
supra, at paragraph 15.  
94 See section 738 of the Criminal Code, supra.  
Page: 74  
addressing civil contempt have made reference to the possibility of a contemnor  
being required to make “restitution” to a moving party.95  
c. However, while restitution is a useful tool of corrective justice, in my view not  
every order directing the payment of money can be characterized accurately or  
properly as an order directing “restitution”. In particular:  
i. The law of restitution is the law relating to all claims, at common law or  
equity, which are founded on the principle of unjust enrichment.96 In that  
regard:  
1. Most frequently, restitution orders are founded on a plaintiff’s proof  
of three now well-established elements involving an enrichment by  
a defendant, resulting from a corresponding detriment to the  
plaintiff, in circumstances where there is no juristic reason for the  
enrichment; i.e., situations in which there may be an absence of  
“wrongful conduct” by the defendant, (such as a breach of fiduciary  
duty or criminal conduct), but a defendant is in possession of  
property or some other benefit which, in justice, should be restored  
to the plaintiff. In such cases, the court may order “restitution for  
unjust enrichment” per se.97  
2. However, to deter certain forms of wrongdoing, (e.g., breach of  
fiduciary duty, breach of confidence and criminal conduct), in some  
circumstances restitution orders also may be made where a  
defendant unjustly has obtained property or some other benefit  
through such wrongdoing that he or she in “good conscience”  
should not be permitted to retain, even though the plaintiff has  
suffered no corresponding detriment. In such cases, the court may  
order “restitution for wrongdoing”. Such restitution orders accord  
with the longstanding legal maxim nullus commodum capere potest  
de injuria sua propria, barring wrongdoers from benefitting from  
95 See, for example: Wheels Holdco Inc. v. NFM Investments Corp., [2011] O.J. No. 1476 (S.C.J.), at paragraph 46;  
and Uyj Aij Inc. v. Barnes, [2011] O.J. No. 3513 (S.C.J.), at paragraph 43.  
96 See Goff & Jones, The Law of Restitution, 6th ed., (London, Sweet & Maxwell, 2002), at pp. 1.  
97 See: Goff & Jones, supra, at p.13; Maddaugh, Peter D., and John D. McCamus, The Law of Restitution [Looseleaf  
Edition], (Aurora, ON, Canada Law Book, 2004), at pp.3-7; Rathwell v. Rathwell, 1978] 2 S.C.R. 436, at paragraph  
40; Becker v. Pettkus, [1980] 2 S.C.R. 834, at paragraph 38; Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, at paragraph  
20; Garland v. Consumers Gas Co., [2004] 1 S.C.R. 629, at paragraph 30; Kingstreet Investments Limited v.  
Department of Finance (New Brunswick), [2007] 1 S.C.R. 3, at paragraph 33; and Kerr v. Baranow, [2011] 1 S.C.R.  
269, at paragraphs 31-32.  
Page: 75  
their unlawful conduct, retaining their “ill-gotten gains” and  
operating with impunity.98  
ii. In such cases, “restitution” is a legal response calculated to take away  
property or some other enrichment or benefit, acquired by the defendant,  
that is considered to be inappropriate. The benefit may have been conferred  
on the defendant by the plaintiff, received by the defendant from a third  
party, or acquired by the defendant through his or her own wrongful act.99  
However, for the court to make a “restitution order”, there must always be  
such an “enrichment” or “benefit” acquired or gained by the defendant. A  
a “restitutionary claim” is not simply one “for loss suffered” by a plaintiff.  
A plaintiff requesting a restitution order must establish a clearly identifiable  
and tangible benefit received by the defendant’s inappropriate conduct  
which can be reallocated to the plaintiff in specie or by money. In that  
regard, the requirement of such a defendant benefit effectively is a “control  
device” for such claims. Where the alleged benefit received or acquired by  
a defendant through his or her inappropriate conduct is “vague”,  
“unascertained” or intangible, the courts have refused to grant restitution;  
i.e., a claim for restitution where the plaintiff cannot establish the necessary  
element of a defendant’s inappropriate enrichment or benefit with sufficient  
clarity and certainty will fail.100  
iii. In my view, where there is an absence of such evidence that a defendant  
unjustly has acquired some form of clear, certain and tangible property,  
enrichment or other benefit from wrongful conduct, a requested order  
98 See: Goff & Jones, supra, at p.12; Maddaugh & McCamus, supra, at pp.3-7; George B. Klippert, Unjust Enrichment,  
(Toronto, Butterworth’s, 1983), at pp.277-295; Soulos v. Korkontzilas, supra, at paragraphs 1, 4, 9, 11, 13-15, 17, 21-  
29, 33-34, 37-40 and 43; Kingstreet Investments Limited v. Department of Finance (New Brunswick), supra, at  
paragraph 33; and Pro-Sys Consultants Ltd. v. Microsoft Corp., [2013] 3 S.C.R. 477, a paragraph 27. The approach  
also extends to certain cases of tortious conduct where the law permits a plaintiff’s election to forego a request for  
relief in the form of compensatory damages and instead request an order compelling the defendant tortfeasor to  
disgorge gains acquired via the tortious conduct to the plaintiff; cases generally falling under a “waiver of tort” rubric.  
See, for example, Klippert, supra, at p.259; Serhan Estate v. Johnson & Johnson (2006), 85 O.R. (3d) 665 (Div.Ct.),  
at paragraphs 45-124, leave to appeal refused 2006WL6202532 (C.A.), leave to appeal refused [2007] 1 S.C.R. x  
(note); and Pro-Sys Consultants Ltd. v. Microsoft Corp., supra, at paragraphs 93-97. Restitution also may be ordered  
in circumstances where the defendant’s conduct may not be characterized as “wrongdoing” in terms of crime, tort or  
similar improper misconduct, (e.g., where a government has collected taxes in good faith pursuant to legislation or  
demands later declared to be unconstitutional or otherwise unlawful), where public policy similarly requires the  
making of an order depriving a defendant of a received benefit. See Kingstreet Investments Limited v. Department of  
Finance (New Brunswick), supra, and Goff & Jones, supra, at p.49.  
99 See Goff & Jones, supra, at pp.76-78, and 703-706.  
100  
See Goff & Jones, supra, at p.17; Klippert, supra, at pp.69-70, 239 and 267; Republic Resources Ltd. v. Ballem  
(1981), 33 A.R. 385 (Q.B.), at paragraphs 18-19 and 30; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R.  
762, at p.790; and Kerr v. Baranow, supra, at paragraph 38.  
Page: 76  
compelling that defendant to pay money to an aggrieved plaintiff who  
suffered loss ceases to be a “restitution order” and instead essentially  
becomes a request for an award of compensatory damages not grounded in  
the principles of restitution. Again, restitution law is not founded on the  
concept of loss.101  
iv. Such concerns come to the forefront in cases where the court is asked, in  
the context of civil litigation, to make a “restitution order” addressing civil  
contempt. In particular:  
1. As noted above, our Court of Appeal repeatedly has emphasized that  
that civil contempt proceedings “do not have and must not appear to  
have the function of a civil action in tort or for breach of contract”.102  
2. More specifically, the Supreme Court of Canada has emphasized  
that a contempt order is “first and foremost” focused on the court’s  
declaration that a party has acted in defiance of a court order, and  
that “a motion for contempt cannot be reduced to a way to put  
pressure on a defaulting debtor or a means for an aggrieved party  
to seek indemnification”.103 [Emphasis added.]  
v. I am mindful that Parliament, through section 738 of the Criminal Code,  
supra, has made legislated deviations from the above principles; i.e.,  
authorizing courts sentencing offenders to make orders directing the  
offender to pay various forms of compensation to victims of crime in  
circumstances where the offender may not have received, (and in some of  
the specified circumstances seems unlikely to have received), any tangible  
and clear benefit from his or her offence. For example, in the criminal  
context, a court sentencing an offender may “order that the offender make  
restitution to another person” by paying, where such amounts are readily  
ascertainable:  
1. the replacement value of property damaged, lost or destroyed by the  
offenders’ offence, arrest or attempted arrest, less the value of any  
part of such property that has been returned;  
101 See Kingstreet Investments Limited v. Department of Finance (New Brunswick), supra, at paragraph 45, and Pro-  
Sys Consultants Ltd. v. Microsoft Corp., supra, at paragraph 22.  
102  
Again, see authorities such as Boily v. Carleton Condominium Corp. 145, supra, at paragraphs-129-130, and  
Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 90.  
103 See Pro Swing Inc. v. ELTA Golf Inc., supra, at paragraph 35.  
Page: 77  
2. pecuniary damages incurred as a result of bodily or psychological  
harm, (including loss of income or support), caused by the  
offender’s offence, arrest or attempted arrest;  
3. in cases of bodily harm or threats of bodily harm inflicted on an  
offender’s spouse, common-law partner, child or any other person,  
that person’s actual and reasonable expenses incurred for temporary  
housing, food, child care and transportation, as a result of moving  
out of the offender’s household;  
4. in cases of identity theft and/or identity fraud, the reasonable costs  
incurred by a victim to re-establish his or her identity, including the  
cost of replacing identity documents and correcting a credit history  
and rating; and  
5. in cases involving the publication of an intimate image without  
consent, the reasonable costs incurred by a victim to remove the  
intimate image from the internet or another digital network.104  
vi. However, even if the approach taken by the Criminal Code, supra, is  
extended by way of analogy to the imposition of a sentence for civil  
contempt, in my view the situation before me, and the plaintiff’s claims for  
reimbursement of expenditures made for engineering experts, pumping  
equipment and supplies, photographs, mileage and/or electricity, do not  
really fall within the Code’s provisions enumerating the circumstances in  
which a court is permitted to make “restoration orders”.105 Moreover, if the  
analogy is extended further, the inability of a court to make an order  
granting the plaintiff’s requested relief in the criminal context suggests that  
such relief also should not be granted by way of an order imposing a  
sentence for civil contempt.  
104  
See, respectively, ss.738(1)(a), (b), (c), (d) and (e) of the Criminal Code, supra. One might easily envision  
situations where an offender may have received a benefit, even a transitory one, through the commission of an offence  
in some of those enumerated circumstances; e.g., through the taking and/or use of a victim’s property, through  
extortion involving the destruction of property and/or infliction of bodily or psychological harm, or through identity  
theft or identity fraud. However, it is even easier to contemplate scenarios where an offender receives nothing the law  
would regard as a benefit by mere destruction of another’s property without using it, by causing an abused family  
member to seek refuge elsewhere, or by publishing an intimate image without consent for the purpose of revenge.  
105 Without limiting the generality of the foregoing, in view they cannot be characterized as “the replacement value”  
of property damaged, lost or destroyed. Moreover, although there was evidence that the plaintiff injured herself during  
a fall while engaged in pumping water, the amounts claimed through the plaintiff’s request for a “restitution order”  
are not pecuniary damages incurred as a result of that bodily harm. Similarly, while there is evidence that the plaintiff  
has experienced distress and upset because of the defendant’s contempt and resulting ongoing nuisance, the  
expenditures claimed through the plaintiff’s request for a “restitution order” seem directed towards that ongoing  
nuisance rather than any “psychological harm”.  
Page: 78  
d. For such reasons, I think it problematic to suggest that the “restitution orders”  
requested by the plaintiff can be made in the context of these contempt proceedings,  
(i.e., directing Mr Sullivan to reimburse the plaintiff for various expenditures she  
is said to have occurred because of his contempt), when there appears to be little or  
no evidence indicating that Mr Sullivan clearly has received any form of clear,  
ascertainable and tangible profit, gain, enrichment or benefit from his contempt.  
e. In that regard, I have reviewed carefully the authorities relied upon by plaintiff  
counsel, but do not think they offer any support for concluding that sentencing for  
contempt may include a “restitution order” requiring a contemnor to reimburse an  
opposing litigant for financial losses sustained because of that contempt, despite  
the apparent absence of evidence indicating the contemnor’s receipt of a clear,  
ascertainable and tangible benefit from that contempt.106 In the absence of such  
106  
In my view, all of the authorities presented and relied upon by plaintiff counsel in that regard involve situations  
where the court made an order directing the contemnor to reimburse a plaintiff for expenditures, caused by the relevant  
contempt, in circumstances where the contemnor or contemnors clearly had received a tangible and ascertainable gain,  
enrichment or benefit from his or their contempt. In particular:  
a. In Sussex Group Ltd. v. 3933938 Canada Inc., supra, the defendants had been employed by the corporate  
plaintiff’s court appointed interim manager to assist with sourcing goods and services to one of the plaintiff’s  
key business partners in Cuba. In violation of the court’s order, the defendants, (a businessman and a  
company he controlled), wrongfully overcharged the plaintiff’s business partner through the tendering of  
inflated invoices, (and receipt of payments from that customer/partner), for time, office expenses, mileage  
and cellular phone charges supposedly devoted to the project by the defendant businessman and his company,  
without producing any required supporting documentation, thereby causing significant damage to the  
plaintiff’s business operations and relationships. The defendants, including the defendant businessman,  
accordingly had received an identifiable financial benefit from their contempt. In addition to requiring the  
defendant businessman to pay costs of the contempt proceedings, (which were addressed separately following  
cost submissions), the court’s sentence for contempt required the defendant businessman to be incarcerated,  
and to also pay reimbursement for the discrete “extra, direct costs in time and expenditures” incurred by the  
plaintiff and its business manager because of the contempt.  
b. In Wheels Holdco Inc. v. NFM Investments Corp., supra, the defendants had agreed to give the plaintiff a tax  
refund cheque as part of the consideration for a share purchase agreement. When the defendants failed to do  
so, the plaintiff brought a motion seeking an injunction or mandatory order compelling the defendants to  
endorse the relevant tax refund cheque in favour of the plaintiff. Upon the defendants providing the court  
with a sworn undertaking to do so, the court dismissed the plaintiff’s motion. In violation of their  
undertaking, however, the defendants then deposited the cheque into their own bank account. The plaintiff  
then successfully moved for a finding that the defendants were in contempt; i.e., with the court ruling that an  
undertaking entered into with, or given to, the court by a party or his counsel has exactly the same force as a  
court order, and that the breach of such an undertaking amounts to contempt. The sentence imposed by the  
court for the plaintiff’s contempt included a restitution order, whereby the defendants were obliged to pay  
the plaintiff the amount of the relevant tax refund cheque plus interest; i.e., the financial gain the defendants  
had made through their contempt.  
c. In Davies v. Byrd, 2020 ONSC 7388 (S.C.J.), the defendant fraudulently represented to a number of plaintiffs,  
the owners of residential single family homes, that he was leasing each respective home in contemplation of  
residing there with his family. He actually had no such intention, and instead carried out renovations  
essentially converting each home into a rooming house with an extraordinary number of unrelated tenant  
occupants, in violation of applicable zoning by-laws. He was ordered to restore each house to its former  
Page: 79  
authority, I am inclined to agree with an approach whereby such matters are not  
dealt with in that manner, but by the aggrieved party’s pursuit of an appropriate  
action for damages.107 In other words, this is another instance, in my view, where  
it is critical to bear in mind the context in which I am called upon to grant relief;  
i.e., imposition of a sentence for civil contempt, (subject to the focus and constraints  
outlined above), rather than simple adjudication ab initio of a civil dispute between  
private litigants where an aggrieved party is seeking and may be entitled to  
compensatory damages.  
f. In my view, that does not mean the plaintiff has no recourse in terms of pursuing  
compensation for the amounts she sought to recover by way of a “restitution order”.  
It simply means that, in the absence of a simultaneous civil claim for such damages  
existing outside of these contempt proceedings, I unfortunately cannot grant such  
relief in the current context of imposing a sentence for the defendant’s contempt.108  
g. Having said that, the plaintiff’s claim for such relief has been formally before this  
court in the context of these contempt proceedings, to the knowledge of the  
defendant, since the service and filing of the plaintiff’s motion record dated April  
13, 2016. While the constraints imposed on exercise of the court’s jurisdiction to  
address civil contempt may prevent me from awarding such relief now, I do not  
think they prevent me from addressing -- e.g., through the authority conferred by  
Rule 60.11(5) of the Rules of Civil Procedure to “make such order as is just” in  
“disposing of a motion” brought under Rule 60.11(1), such as the plaintiff’s motion  
-- what I think would be injustice flowing from compelling the plaintiff to  
commence an entirely new proceeding; a proceeding in which she unjustly might  
face limitation period arguments despite essentially having advanced a formal  
claim for recovery of such damages back in April of 2016, to the knowledge of the  
defendant.  
h. In the circumstances, my order addressing the defendant’s contempt and the  
plaintiff’s motion in that regard will include provisions whereby, in relation to the  
plaintiff’s claim for an order directing the defendant’s payment of damages and  
expenses said to have been sustained by the plaintiff as a result of the plaintiff’s  
status but failed to do so, while continuing to profit from his illegal rooming house operation. The defendant  
accordingly had received an identifiable and tangible financial benefit from his contempt. The sentence  
imposed for the relevant contempt was a restitution order directing the defendant to pay a specified sum into  
a fund against which the plaintiffs could draw to clean up and repair their homes, with additional provisions  
requiring the defendant’s incarceration if he failed to pay that sum as required.  
107 See, for example, Devathasan v. Ablacksingh, [2018] O.J. No. 6621 (S.C.J.), at paragraphs 47 and 51.  
108  
I say “unfortunately” because the plaintiff’s evidence regarding such expenditures was not really challenged or  
contradicted during the proceedings before me, apart from reference to the comment from Justice Rady’s judgment  
indicating that the plaintiff was “prone to exaggeration”.  
Page: 80  
contempt and/or ongoing nuisance following the order made by Justice H.A. Rady  
on June 24, 2011:  
i. The plaintiff may prepare, serve and file, within two weeks of this order, an  
amended statement of claim herein, (i.e., within this same action), restricted  
to the claiming of such damages and expenses, interest thereon and costs;  
an amended statement of claim which shall be deemed to have been issued  
on April 13, 2016, being the date on which the plaintiff’s claim in that  
regard was advanced in this court, to the knowledge of the defendant, via  
the plaintiff’s motion for contempt.  
ii. The Rules of Civil Procedure applicable to an action commenced by a  
statement of claim, (including the obligation of the defendant to file a notice  
of intent to defend and/or a statement of defence in response thereto if the  
claim is to be defended, and the provisions for summary judgment),  
thereafter shall apply to the plaintiff’s amended statement of claim as if it  
was an original statement of claim issued and served upon the defendant.  
i. For the sake of clarity and completeness, I note again that the plaintiff’s claim for  
an order or orders directing the defendant’s payment of compensation also included  
a requested payment by the defendant, (approximately $7,000.00 plus HST, or  
approximately $7,910.00), to address the cost necessary to repair at least some of  
the additional physical damage said to have been inflicted upon the plaintiff’s  
property by the defendant’s failure to abide by Justice Rady’s judgment. In  
particular, it was suggested that request also could form a component of the  
plaintiff’s request for a remedial order directing implementation of the “Alternative  
Work Option” at the defendant’s expense. However, the remedial drainage  
measures I will be directing in my order addressing the defendant’s contempt, (i.e.,  
the measures described above as “Modified Option 1”), do not include the  
execution of such repairs, and the plaintiff no doubt may still wish to pursue her  
claim in that regard.109 In my view, the plaintiff should be permitted to do so via  
the Amended Statement of Claim process described above.  
[47] I turn next to more specific consideration of a fine imposition.  
109  
I note, in passing, my view that the plaintiff’s claim for the cost of such repairs in that regard is not capable of  
precise delineation or monetary quantification in isolation, (i.e., without forming an additional component of the  
“Alternative Work Option” contemplated by the plaintiff), based on the evidence currently before me. In particular,  
the “Alternative Work Option” contemplated such repairs being done in conjunction with the other significant work  
to be carried out in the plaintiff’s backyard. Whether it would cost more or less to carry out the more limited repairs  
in isolation, (e.g., more because doing such repairs in isolation may cost more if they cannot “piggyback” on certain  
elements of the work necessarily required to restore the plaintiff’s property after implementation of the wider work  
contemplated by the “Alternative Work Option”, or less because certain existing elements of the areas to be repaired  
will not be destroyed completely if the work contemplated by the “Alternative Work Option” is not implemented), is  
unclear.  
Page: 81  
[48] As indicated above, in my view belated implementation of a drainage solution ensuring  
respect for and compliance with Justice Rady’s judgment, at the defendant’s expense, is  
not adequate by itself to address the defendant’s contempt of that judgment. In particular:  
a. belated compliance with the judgment through completion of the work I will be  
directing simply accomplishes, through a further court order, what the defendant  
should have done more than 11 years ago, without the necessity of these contempt  
proceedings and a further court order;  
b. such belated “compliance” and purging of the defendant’s contempt, standing  
alone, does not go further and inflict any punishment on the defendant for his  
contempt of Justice Rady’s judgment in the meantime; and  
c. without more, such belated compliance and purging of the defendant’s contempt  
fails, in my view, to express and promote adequate denunciation and deterrence,  
(both specific and general), in relation to the contempt demonstrated by the  
defendant.  
[49] In the circumstances, and having regard to all the sentencing considerations outlined above,  
I also think it appropriate to impose a fine on the defendant, payable to the Provincial  
Treasurer.  
[50] For the reasons noted above, I think a fine in the range of $5,000.00 to $10,000.00 is likely  
to be appropriate and not “trivial” or “unduly punitive” vis-à-vis the defendant.  
[51] However, having regard to the importance of considering the defendant’s ability to pay  
before quantifying such a fine, and my present lack of any precise information in that  
regard, I intend, out of an abundance of caution, to deter precise quantification of that fine  
until I have received evidence and heard further submissions in that regard, in the manner  
outlined below.  
[52] As noted above, the defendant’s protestations of financial hardship and indications of  
possible bankruptcy prompted the plaintiff to also request that any orders I make requiring  
payment by the defendant be deemed “restitution orders” within the meaning of  
s.178(1)(a) of the Bankruptcy and Insolvency Act, supra, thereby making them exempt  
from any order discharging the defendant from bankruptcy.  
[53] The subsection in question reads as follows:  
178.  
(1)  
An order of discharge does not release the bankrupt from  
(a) any fine, penalty, restitution order or other order  
similar in nature to a fine, penalty or restitution order, imposed  
by a court in respect of an offence, or any debt arising out of  
a recognizance or bail; …  
Page: 82  
[54] While civil contempt frequently is assumed to be an actionable civil wrong and criminal  
contempt a crime, both civil contempt and criminal contempt constitute “offences” for the  
purposes of Canadian law. That is why both are subject to the standards of proof and  
safeguards applicable to a criminal charge.110  
[55] In particular, civil contempt is an offence against the authority of the court and the  
administration of justice, and the integrity of the administration of justice, (which includes  
the enforcement of court orders), requires that the court not permit its power to impose and  
enforce sanctions for contempt to be undermined by permitting contemnors to seek refuge  
in bankruptcy.111  
[56] Courts therefore have regarded various orders made in response to demonstrated civil  
contempt, and requiring payments from contemnors, to be “sanction” orders “similar in  
nature to a fine, penalty or restitution order, imposed by a court in respect of an offence”  
for purposes of s.178(1)(a) of the Bankruptcy Act, supra.112  
[57] In my view, it similarly would be appropriate in this case to deem the payments that will  
be required by the defendant pursuant to my order addressing and sanctioning his civil  
contempt, (i.e., the payment or payments required to pay the expense of the remedial  
drainage work to be done to comply with Justice Rady’s judgment, and the fine to be paid  
by the defendant to the provincial treasurer), as orders falling within the ambit of  
s.178(1)(a) of the Bankruptcy Act, supra.  
[58] However, I think that is appropriate because they are capable of being characterized as a  
penalty and fine respectively, or orders “similar in nature” to a penalty and fine “imposed  
by a court in respect of an offence”. For the reasons outlined above, I do not think they  
properly can or should be regarded as “restitution orders”.  
The defendant’s motion  
[59] As for the defendant’s motion, seeking the relief set forth in his notice of motion dated  
April 1, 2016:  
a. As noted above and in my earlier endorsements, the defendant formally abandoned  
his request for some of that relief, (e.g., a new trial and/or an order amending Justice  
Rady’s judgment), and/or his renewed requests for such relief have been denied.  
110  
See, for example: Poje v. British Columbian (Attorney General), [1953] S.C.R. No. 25; Pro Swing Inc. v. ELTA  
Golf Inc., supra, at paragraphs 34-35; and Moudry v. Moudry, 2013 ONSC 7362, at paragraph 44.  
111 See SNC-Lavalin Profac Inc. v. Sankar, supra, at paragraph 14; and Moudry v. Moudry, supra, at paragraphs 44  
and 47.  
112  
See, for example: Button v. Jones, 2001 CarswellOnt 6114 (S.C.J.), at paragraphs 80-81 and 84; Wheels Holdco  
Inc. v. NFM Investments Corp., supra, at paragraph 49; and Moudry v. Moudry, supra, at paragraph 46.  
Page: 83  
b. My earlier judgment indicated why the drainage solution proposed by the defendant  
was not appropriate, and he accordingly was and is not entitled to an order  
“approving” that solution.  
c. As noted above, I think my earlier judgment also provided the defendant with  
adequate direction concerning the nature of the measures required to ensure  
compliance with Justice Rady’s judgment. He chose to do nothing in that regard.  
d. My judgment herein further specifies what drainage solution is required in the  
circumstances.  
e. The balance of the relief sought in the defendant’s notice of motion, (e.g., an order  
vacating and deleting the plaintiff’s registration of a Certificate of Pending  
Litigation in this proceeding against title to the defendant’s property, vacating and  
deleting the plaintiff’s similar registration of Justice Rady’s judgment against title  
to the defendant’s property, directing the plaintiff to provide a final release and  
“satisfaction piece”, and lifting and vacating the writ of seizure of sale obtained by  
the plaintiff), is premised on the defendant having satisfied all of his obligations  
arising from this litigation. That premise obviously is inaccurate and will remain  
inadequate until the defendant’s contempt is purged by completion of the remedial  
work to be directed by my contempt order, the defendant’s payment of the expense  
associated with completion of that work in accordance with the provisions of my  
contempt order, and payment of the fine to be imposed on the defendant pursuant  
to the provisions of my contempt order.  
[60] Having regard to the above, I intend to adjourn the defendant’s motion sine die, returnable  
on 10 days notice once the defendant has been served with the “written confirmation of  
completion” described below, (i.e., confirming completion of the ordered remedial work  
and the defendant’s payment of that work), and has paid the aforesaid fine.  
Conclusion  
[61] For the reasons outlined above, an order shall go as follows:  
a. This court declares that the defendant herein remains in ongoing contempt of this  
court’s order made by Justice H.A. Rady on June 24, 2011.  
b. To address and remedy that contempt:  
i. This court orders that, pending further order of the court, this order shall be  
registered against the title to the property known by its municipal address  
as 55 Shepherd Avenue, in the city of London.  
ii. This court orders that the property known by its municipal address as 55  
Shepherd Avenue, in the city of London, shall not be transferred, assigned  
or further encumbered on or after the date of this order, except in accordance  
with the provisions of this order, or pursuant to further order of this court.  
Page: 84  
iii. This court orders, subject to necessary approvals and/or permits being  
obtained from the municipality and/or utilities, the doing of the remedial  
drainage work described as “Option 1” in the letter written by Kyle  
McIntosh, P.Eng., on February 23, 2015, and attached as Exhibit 3 to the  
affidavit sworn by Kyle McIntosh, P.Eng., on April 13, 2016, with the  
following deletions and additions:  
1. The work to be done in accordance with this order shall not include  
completion of the work described in the aforesaid letter as  
components “3” and “4” of “Option 1”, to “adjust/alter the grading  
of the rear yard at 59 Shepherd to drain/outlet the swale” or to  
“adjust the fencing between 55 and 59 Shepherd to the new grades  
at the swale location”.  
2. The work to be done in accordance with this order shall include  
completion of the following additional work:  
a. removal of all stored landscaping material from the swale on  
the property line between the properties known by their  
municipal addresses as 51 Shepherd Avenue and 55  
Shepherd Avenue in the city of London, and reinstatement  
or creation of that swale in a manner that includes, but is not  
limited to, the segment of the property line between 51  
Shepherd Avenue and 55 Shepherd Avenue lying directly to  
the east of the existing house on 51 Shepherd Avenue or  
directly to the west of the existing house on 55 Shepherd  
Avenue;  
b. creation, entirely on the property of 55 Shepherd Avenue  
lying immediately to the east of the property line between 51  
Shepherd Avenue and 55 Shepherd Avenue, and running  
along that property line in the segment of that property line  
extending north of the railway berm to a point directly west  
of the southernmost point of the existing house on 55  
Shepherd Avenue, a trench at least three to four feet wide,  
with a depth at least twelve inches below the existing  
elevation and grade of the rear yard of 55 Shepherd Avenue  
in that area as of today’s date, with that existing elevation  
and grade not to be altered by the defendant and/or his agents  
between the date of this order and completion of the work  
directed herein; and  
c. grading of the aforesaid trench such that water accumulating  
in the trench shall be directed towards and into the original  
drainage swale to be reinstated across the back yard of 55  
Page: 85  
Shepherd Avenue, as contemplated in the aforesaid “Option  
1”.  
iv. This court requires and authorizes the mandated work described above,  
(hereinafter referred to as “Modified Option 1”), to be done by the plaintiff,  
the plaintiff’s engineer or engineers, and any necessary contractors retained  
to complete that work under the direction of that engineer or engineers, who  
shall provide the defendant, (or his heirs, assigns and successors, as the case  
may be), with two weeks written notice of any date or dates on which the  
work associated with “Modified Option 1” is to be performed.  
v. This court orders that the aforesaid work associated with “Modified Option  
1” shall be performed at the expense of the defendant herein, (or his heirs,  
assigns and successors, as the case may be), and that the expenses incurred  
in doing the acts required for completion of that work shall be paid by the  
defendant, (or his heirs, assigns and successors as the case may be), in  
accordance with the following provisions, and with such payment  
obligations of the defendant hereby deemed to be a “penalty” or “other order  
similar in nature to a … penalty” imposed by a court in respect of an offence  
for the purposes of s.178(1) of the Bankruptcy Act, R.S.C. 1985, c.B-3:  
1. A further hearing of this matter before Justice I.F. Leach, for a  
minimum of three hours, and hereinafter referred to as the “Amount  
Determination Hearing”, shall be scheduled by the parties in  
consultation with the London trial co-ordinator, on the soonest  
possible date after September 5, 2022.  
2. At that further Amount Determination Hearing, the court shall  
consider further evidence from the plaintiff providing an updated  
and/or revised cost estimate indicating the current estimated cost of  
completing the aforesaid “Modified Option 1” work directed by the  
court. In that regard:  
a. such evidence shall be served on the defendant at least two  
weeks prior to that further hearing;  
b. the defendant shall serve and file any responding evidence  
in that regard at least one week prior to that further hearing;  
and  
c. the plaintiff shall serve and file any reply evidence in that  
regard at least two days prior to that further hearing.  
3. At that further Amount Determination Hearing, the court also shall  
consider further evidence from the defendant providing disclosure  
of his current level of income, (including but not limited to  
disclosure of his income tax returns and notices of assessment for  
Page: 86  
the past three years), disclosure of the charges or other  
encumbrances currently registered against the defendant’s property  
at 55 Shepherd Avenue, (if any), and disclosure of the amount or  
amounts currently still owed, (if any), by the defendant in relation  
to any such charge or encumbrance. In that regard:  
a. such evidence shall be served by the defendant on the  
plaintiff at least two weeks prior to that further hearing, and  
any failure or failures in that regard shall give rise to adverse  
inferences against the defendant;  
b. the plaintiff shall serve and file any responding evidence in  
that regard at least one week prior to that further hearing; and  
c. the defendant shall serve and file any reply evidence in that  
regard at least two days prior to that further hearing.  
4. Following consideration of the aforesaid evidence presented at that  
Amount Determination Hearing, the court shall determine an initial  
amount to be paid into court by the defendant, to be directed, (in  
accordance with the further procedures indicated herein), 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”.  
5. To facilitate the defendant’s payment of that determined amount  
into court, the defendant may and shall, if necessary, within two  
weeks of the court determining the quantum of that initial amount to  
be paid into court, bring a motion on notice to all affected parties,  
including the plaintiff, authorizing the registration of a further  
encumbrance or charge against title to 55 Shepherd Avenue, on  
condition that the funds obtained via that further encumbrance or  
charge are paid by the beneficial holder of that encumbrance or  
charge directly into court on behalf of the defendant, to the credit of  
this matter.  
6. The plaintiff, her engineer or engineers and/or any necessary  
contractors retained to complete the work associated with “Modified  
Option 1” thereafter may make application on notice to a judge, (and  
to Justice I.F. Leach in particular if available, with the application  
material to be served on the parties, filed with the court, and include  
relevant invoices), for:  
a. an order fixing, in accordance with Rule 60.11(10) of the  
Rules of Civil Procedure, the amount or amount of particular  
Page: 87  
expenses incurred to complete the work associated with  
“Modified Option 1”; and  
b. an order directing payment out of court, from the amount or  
amounts paid into court by the defendant or on the  
defendant’s behalf pursuant to this order, an amount of  
amounts sufficient to satisfy the amount or amounts thereby  
fixed by the court.  
7. Should the determined initial amount to be paid into court by or on  
behalf of the defendant prove to be insufficient to satisfy the amount  
or amounts fixed by the court pursuant to Rule 60.11(1) of the Rules  
of Civil Procedure, the plaintiff may move herein before a judge for  
an order directing the payment of a further amount into court by the  
defendant or on the defendant’s behalf, for the purpose of satisfying  
such fixed amounts in the same manner described above.  
8. When the work associated with “Modified Option 1” has been  
completed, and all contemplated applications for the fixing of  
amounts pursuant to Rule 60.11(1) of the Rules of Civil Procedure  
and payments out of court to satisfy those amounts have been heard  
and completed pursuant to the above procedures, the plaintiff shall  
forthwith serve the defendant, file with the court, and register  
against title to 55 Shepherd Avenue, a “written confirmation of  
completion” in that regard.  
9. Following service, filing and registration of the aforesaid written  
confirmation of completion, the defendant may move herein before  
a judge for:  
a. an order directing payment out of court, to the defendant or  
his secured creditor or creditor who may have provided such  
funds, of any amounts remaining therein after satisfaction of  
all amounts fixed pursuant to Rule 60.11 of the Rules of Civil  
Procedure; and  
b. a further order:  
i. declaring that the previously declared contempt of  
the defendant, described in the court’s judgment  
dated November 4, 2019, has been purged;  
ii. declaring that the mandatory order contained within  
the judgment made by Justice H.A. Rady on June 24,  
2011, has been satisfied;  
Page: 88  
iii. declaring that the provisions of this order requiring  
the completion of the acts associated with “Modified  
Option 1” at the expense of the defendant, (including  
the payment mechanism provisions therein but not  
the remaining and ongoing obligations of the  
defendant, his successors and assigns indicated  
hereafter), have been satisfied; and  
iv. varying the provisions of the order herein so as to  
permit the transfer, assignment or further  
encumbrance of 55 Shepherd Avenue without further  
order of the court.  
vi. This court orders the defendant, (and his heirs, assigns and successors as the  
case may be), to permit all access to 55 Shepherd Avenue that may be  
necessary to complete the work associated with “Modified Option 1” as  
directed herein.  
vii. This court orders that the defendant, and his heirs, assigns and successors,  
as the case may be, and any of his or their agents, shall not interfere with,  
alter or compromise the work or drainage measures implemented by the  
work associated with “Modified Option 1” before, during or after their  
completion.  
viii. This court orders that, following completion of the above work, the  
defendant, and thereafter his heirs, assigns and successors as the case may  
be, shall take whatever steps are necessary to ensure that any water  
accumulating in the aforesaid trench and reinstituted swale in the rear yard  
of 55 Shepherd Avenue does not back up onto the property at 51 Shepherd  
Avenue, with such measures to include, but not be limited to, any active  
pumping of water from the aforesaid trench and reinstituted swale that may  
be required to ensure the flow of such water across 55 Shepherd Avenue to  
the street, currently known as Shepherd Avenue, running along the north  
boundary of 55 Shepherd Avenue.  
ix. This court orders that the defendant also shall pay a fine to the Provincial  
Treasurer, in an amount to be determined at the same Amount  
Determination Hearing referred to above, following the court’s  
consideration of the evidence to be filed by the parties at that hearing, and  
receipt of party submissions in that regard. That penalty shall be deemed to  
be a “fine”, “penalty” or “other order similar in nature to a fine [or] penalty”  
imposed by the court in respect of an offence, for the purposes of s.178(1)  
of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3.  
c. This court orders that, in relation to the plaintiff’s claim for an order directing the  
defendant’s payment of damages and expenses said to have been sustained by the  
Page: 89  
plaintiff as a result of the plaintiff’s contempt and/or ongoing nuisance following  
the order made by Justice H.A. Rady on June 24, 2011:  
i. The plaintiff may prepare, serve and file, within two weeks of this order, an  
amended statement of claim herein restricted to the claiming of such  
damages and expenses, interest thereon and costs, which shall be deemed to  
have been issued on April 13, 2016, being the date on which the plaintiff’s  
claim in that regard was advanced in this court, to the knowledge of the  
defendant, via the plaintiff’s motion for contempt.  
ii. The Rules of Civil Procedure applicable to an action commenced by a  
statement of claim, (including the obligation of the defendant to file a notice  
of intent to defend and/or a statement of defence in response there to if the  
claim is to be defended, and the provisions for summary judgment),  
thereafter shall apply to the plaintiff’s amended statement of claim as if it  
was an original statement of claim issued and served upon the defendant.  
d. This court orders that the hearing of the defendant’s motion, seeking the relief set  
forth in his notice of motion dated April 1, 2016, shall be adjourned sine die,  
returnable on 10 days notice once the defendant has been served with the “written  
confirmation of completion” noted above, and has paid the aforesaid fine.  
e. Notwithstanding any of the above, unless there is a further court order indicating  
the contrary, the provisions of this order set forth in sub-paragraphs 61(b)(iii),  
61(b)(iv), 61(b)(v)(6), 61(b)(v)(7), 61(b)(v)(9), 61(b)(vi), 61(b)(vii), 61(b)(viii)  
and 61(b)(ix) of this paragraph of these reasons, but only those provisions of this  
order, (with all remaining provisions to take immediate effect), shall be stayed until  
4:30pm on the date of the Amount Determination Hearing. At that hearing, the  
court also shall consider:  
i. evidence of any binding and documented agreement reached between the  
parties:  
1. to implement, at the defendant’s expense, the drainage solution  
described as the “Alternative Work Option” in paragraph 80 of the  
plaintiff’s factum dated January 8, 2021, and the expert report  
prepared by Kyle McIntosh, P.Eng., dated March 1, 2017, attached  
as Exhibit “H” to the affidavit sworn that day by Mr McIntosh; and  
2. to thereafter vacate, on consent, the judgment of this court made by  
Justice Rady on June 24, 2011; and  
ii. submissions from the parties concerning possible variation of the order  
herein, (before all of its provisions become operative), having regard to the  
defendant’s entering into such a binding agreement, and the need of this  
court to address the defendant’s contempt of Justice Rady’s judgment while  
it remained in effect.  
Page: 90  
[62] Perhaps it would go without saying, but I will note that, insofar as the sum or sums ordered  
to be paid by the defendant to implement the ordered drainage measures are based on the  
current cost of expenditures in that regard, they should not be the subject of any  
prejudgment interest charges. Considerations relating to the time value of money, in  
relation to such ordered payments, inherently will already have been addressed. An award  
of prejudgment interest on such sums would result in overcompensation of the plaintiff.113  
Costs  
[63] As indicated in my earlier judgment and endorsements, various costs of these proceedings  
have continued to be carried forward for determination once these proceedings have been  
completed in their entirety. In my view, it is appropriate to make a similar endorsement  
regarding costs associated with the “penalty phase” of these contempt proceedings.  
[64] Costs of the “penalty phase” of these contempt proceedings, (including costs associated  
with arguments related to whether the defendant should be permitted to proceed with his  
motion), are reserved accordingly until then.  
[65] My intention is to have all those remaining cost issues addressed by written submissions  
from the parties, pursuant to a timetable to be indicated once these current proceedings  
conclude with the “Amount Determination Hearing” described above.  
Ian F. Leach  
Justice I.F. Leach  
Released: July 22, 2022  
113 See Pozios v. 776575 Ontario Ltd., [2001] O.J. No. 1942 (C.A.), at paragraphs 4(4), and 13-14.  
Dankiewicz v. Sullivan, 2019 ONSC 6382  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
BETWEEN:  
MALGORZATA DANKIEWICZ  
Plaintiff  
– and –  
TODD JOSEPH SULLIVAN  
Defendant  
REASONS FOR JUDGMENT  
Justice I.F. Leach  
Released: July 25, 2022  


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