Pittson v. Murnaghan, 2011 NSSC 402

SUPREME COURT OF NOVA SCOTIA Citation: Pittson v. Murnaghan , 2011 NSSC 402 Date: 20111031 Docket: Hfx 236026 Registry: Halifax Between: Paul N. Pittson Plaintiff v. Norman Brian Murnaghan and Dorothy Theresa Redmond Defendants Judge: The Honourable Justice Patrick Duncan Heard: April 01 and May 03, 2011, in Halifax, Nova Scotia Counsel: Thomas M. Macdonald, for the plaintiff Peter C. Rumscheidt, for the defendant s By the Court :

By the Court : INTRODUCTION [ 1 ] The parties own adjoining properties and became embroiled in a boundary line dispute that led to the commencement of an action by the plaintiff against the defendants, and counterclaims by the defendants against the plaintiff. That action was settled prior to trial, on terms that were mutually agreeable to the parties and committed to a Consent Order issued by this court. Unfortunately, the terms of the settlement have not been fulfilled. Each party blames the other for this.

The matter comes before the court as a motion of the plaintiff to find the defendants in contempt of the court order that gave effect to their settlement. BACKGROUND [ 2 ] The plaintiff Paul Pittson has, since April 12, 1979, held title to lands situate at 1597 Oxford Street, Halifax, Nova Scotia. The defendants, Norman Murnaghan and Dorothy Redmond purchased the adjoining property, 1605 Oxford Street, Halifax, on April 22, 1990. [ 3 ] Both properties face Oxford Street on their western boundary. The defendants ’ lot is on the northern side of the plaintiff ’ s lot.

The north - south boundary line area is covered with grass from the street until it reaches the defendants ’ garage and a fence, which fence extends from a corner of the garage to the eastern line (or back line) of the properties. [ 4 ] For years preceding and after the parties acquired their respective lands, a fence existed along the eastern end on or near the southern boundary of the defendants ’ lands. (1990 fence). That fence was, effectively, recognized as the common boundary line of the two properties for that part of the north - south boundary line.

In fact, it appears that it was inside the defendants ’ property line as established by deed. [ 5 ] In May of 2004, the defendants tore down the 1990 fence and built a new one (2004 fence) which, the plaintiff alleged, was constructed approximately two feet to the south of the 1990 fence location and thus encroached on the Pittson lands, or lands Pittson claimed entitlement to by adverse possession and/or deeded right of way. That fence was constructed by the defendants with the intention that it would be on the their lands as defined by the metes and bounds description in their deed.

During construction of the 2004 fence, the defendants ’ agents removed mature bushes, shrubs and flowerbeds planted by the plaintiff. [ 6 ] The plaintiff initiated an action in November of 2004 claiming property rights over the disputed area, an injunction to restrain the defendants from further interfering with the plaintiff ’ s right to the use of the land, and damages and costs. [ 7 ] Also in dispute was the usage of a strip of the grass area running in a westerly direction from the end of the fence out to the street.

A portion of it was being tended to by the defendants but by deed was the property of the plaintiff. It appears to have been an issue as to who would control that property. [ 8 ] The parties achieved a settlement of the dispute just prior to the commencement of the trial. It was on terms that generally accepted the position advocated by the plaintiff. That agreement was set out in the order of Hood J., dated 31 July 2009. [ 9 ] The plaintiff alleges that the defendants have failed to comply with the following four provisions from that Order: 1.

The defendants will convey the property on the south side of the fence to the plaintiff up to the point where the existing fence ends and the conveyance will be by way of Quit Claim Deed. (Order, paragraph 2)

2. The defendants will agree to a boundary line 66' wide stretching from the chain-link fence on the south side of the plaintiff’sproperty 66' in a northerly direction. The reference points will be 66' from the front of the chain-link fence and another 66' from the rearof the fence where it lines up (approximately) with the point where the existing wooden fence comes to its westerly end. The intent willbe to give the plaintiff a lot width of 66' from the chain-link fence to the northern side of his property.

The lot line will be the same linesas shown on the Halifax Regional Municipality Surveyor’s Location Certificate prepared by Lawrence G Miller dated January 12, 2007. The foregoing will be reflected in a boundary line agreement. (Order, paragraph 3) 3. The plaintiff and the defendants agreed to a license as follows: the defendants will be permitted access to the other side of thefence to maintain it (painting, repairing, replacement) which access will take the form of an annual April inspection.

If the maintenanceis undertaken and completed during the first week of April no notice will be required, otherwise written notice will be required withrespect to the maintenance

schedule and suggested dates which will not be unreasonably refused by the plaintiff. The access andmaintenance by the defendants will not affect the perennials on the plaintiff’s side of the fence. (Order, paragraph 4) 4. The parties will execute an exchange of Mutual Releases. (Order, paragraph 6) [10] In consequence of these alleged breaches the plaintiff moves for an order holding the defendants in contempt and seeks aremedy for that contempt. PRINCIPLES OF CONTEMPT [11] The elements of contempt were discussed by Cromwell J.A. (as then was) in TG Industries Ltd. v.

Williams 2001 NSCA 105: 13 Civil and criminal contempt, although they are not mutually exclusive categories, have different elements and purposes. The coreelement of civil contempt is failure to obey a court order of which the alleged contemnor is aware. In Poje v. British Columbia (AttorneyGeneral), (SCC), [1953] 1 S.C.R. 516 at 522, Kellock, J. approved a definition of civil contempt as "...disregardingorders or judgments of a Civil Court, or in not doing something ordered to be done in a cause ... ". To similar effect, McLachlin, J. (asshe then was) in United Nurses of Alberta v.

Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901 at 931 stated that "[a] person who simply breaches a court order ... is viewed as having committed civil contempt. " See also Baxter Travenol Laboratoriesv. Cutter (Canada) Ltd., (SCC), [1983] 2 S.C.R. 388 at 396 - 397 and Bhatnager v. Canada (Minister of Employmentand Immigration), (SCC), [1990] 2 S.C.R. 217 at 224 - 227. The primary objective of exercising the civil contemptpower is to secure compliance with the order.

As Kellock, J. said in Poje at 517, in the case of civil contempt, "... the requirements ofthe situation from the standpoint of enforcement of the rights of the opposite party constitute the criterion upon which the court acts." (See also Sunnyside Shopping Plaza v. Sunnyside Transmission (1981), (NS SC), 46 N.S.R. (2d) 156 (S.C.T.D.) atpara. 16 and Leger v. Dunbar Estate, [1983] N.S.J. No. 209 (S.C.T.D.) at para. 31). ... 16 The second difficulty in the authorities arises from the use of terms such as "intent" and "intentional" in different senses.

In somecases, it is clear that the intention required for civil contempt is the intention to commit

an act which is, in fact, prohibited (see, forexample, Re Sheppard v. Sheppard (1975), (ON SC), 62 D.L.R. (3d) 35 (Ont. C.A.) at 595. In other cases, thelanguage appears to suggest that the required intention is that the alleged contemnor meant to disobey it in the sense that he or she knewthe act was prohibited and deliberately chose to do it anyway: see, for example, Morrow, Power v. Newfoundland Telephone Co. et al.(1994), (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. S.C.A.D.) at para. 19.

In my view, civil contempt requiresintention in the former but not the latter sense of the word. ... 19 There is a long line of authority for the view that intention to disobey is not an element of civil contempt. I will briefly reviewwhat, to my mind, are the four leading cases. 31 There is authority for the view that contempt should not be found where the defendant has exercised due diligence and done

everything possible to comply with the terms of the order: see e.g. Morrow, Power v. Newfoundland Telephone Co. et al., supra at para.20. While I am attracted by this view, which, if adopted, might provide an answer to a Charter challenge to the civil contempt power,there is no evidence of such diligence on the respondent's

part in the record. I would prefer to leave this question open for fullerconsideration in a case which raises the issue concretely. I have no doubt, however, that the diligence of the alleged contemnor'sattempts to comply is relevant to the discretion of the court in making an order after a finding of contempt. 32 ... I do not intend to depart in any way from the general principles that the elements of contempt must be proved beyond areasonable doubt and that the contempt power should be used cautiously and with great restraint.

I also recognize that there arenumerous subtleties in the relevant law, particularly relating to the relevance to the issue of contempt of the clarity of the order and of thealleged contemnor's reasonable efforts to comply with it. However, it is not necessary to address them further in this case. (Emphasis added) See also, Soper v. Gaudet 2011 NSCA 11, at paras. 22, 47 and 48. [12] An earlier decision of the Nova Scotia Court of Appeal is consistent with these statements, but speaks further as to the need forclarity in the order. In Skipper Fisheries Ltd. v.

Thorbourne (1997), 1997 NSCA 16 , 157 N.S.R.(2d) 241, Hallett J.A. writingon behalf of the majority held: 77 The jurisdiction of the Court to make a finding of contempt should be exercised with scrupulous care and only when the contemptis clear (Rawlinson v. Rawlinson (1986), (SK KB), 52 Sask. R. 191 (Q.B.)). 78 A citation for contempt must be defined with particularity (Northwest Territories Public Service Association v. Commissioner ofthe Northwest Territories (1979), (NWT CA), 107 D.L.R. (3d) 458 (NWT.

C.A.) at p. 479). 79 The terms of an order which it is alleged that a party has disobeyed and ought to be found in contempt must be clear andunambiguous (Borrie and Lowe, The Law of Contempt, 1973 at p. 315. It must be proven beyond a reasonable doubt that the courtorder was breached; Filipovic v. Glusica (1995), 1995 ABCA 430 , 174 A.R. 356 (Alta. C.A.)). [13] If contempt is found then the remedy is governed by the provisions of Civil Procedure Rule 89: Penalties for contempt 89.13

(1) A contempt order must record a finding of guilt on each allegation of contempt for which guilt is found and it may impose aconditional or absolute discharge, a penalty similar to a remedy for an abuse of process, or any other lawful penalty including any of thefollowing: (

a) an order that the person must abide by stated penal terms, such as for house arrest, community service, or reparations; (

b) a suspended penalty, such as imprisonment, sequestration, or a fine suspended during performance of stated conditions; (

c) a fine payable, immediately or on terms, to a person named in the order; (

d) sequestration of some or all of the person's assets;

(

e) imprisonment for less than five years, if the person is an individual.

(2) A contempt order may provide that a penalty ceases to be in effect when the person in contempt causes contemptuous behavior to cease, or when the person otherwise purges the contempt.

(3) A contempt order may provide for, or a judge may make a further order for, the arrest and imprisonment of an individual, or sequestration of the assets of a corporation, for failure to abide by penal terms, fulfill conditions of a suspended penalty, or comply with terms for payment of a fine. Discharge and variation of contempt order 89.14 A judge may discharge or vary a contempt order. [ 14 ] Any explanation by the alleged contemnor must be measured against the following principles, also enunciated in TG Industries Ltd. v.

Williams : [35] In civil contempt, the primary purpose of the sanction is to coerce compliance with the order: see. e.g. Sharpe, supra at § 6.100 and Skipper, supra at § 73. So, for example, contempt based on disobedience to an order may, in the Court's discretion, be purged by subsequent compliance with it. The judge in fashioning an order after a finding of civil contempt is entitled to do so in a way that will obtain compliance with the order so that the party entitled to the benefit of the order in fact receives it.

The result is that the party in whose favour the order is made receives a remedy. [38] It was within the judge's discretion in this case, if persuaded that it was appropriate and in the interests of justice in all of the circumstances to do so, to fashion an order whose object was to secure for TG what Clarke ought to have paid to the sheriff in compliance with the execution order. The discretion is a broad one. Without in any way attempting to be exhaustive (and assuming without deciding that contempt is established here), there are several relevant considerations.

These include the diligence of the alleged contemnor in attempting to comply with the order, whether there was room for reasonable disagreement about what the order required, the fact that the alleged contemnor did not benefit from the breach of the order, the extent of the resulting prejudice to the appellant and, of course, the importance of execution orders being taken seriously by all affected by them. (Emphasis added) ANALYSIS Establishment of the Common Boundary Line [ 15 ] The problem has been generated by the inability of the parties to agree on the necessary metes and bounds description to attach to the Quit Claim Deed and the Boundary Line Agreement so that it reflects the legal consequences of their settlement. [ 16 ] The defendants maintain that they have made good faith efforts to fulfill their obligations under the order, but that the plaintiff has been obstructive, refusing their proposals, but offering little constructive criticism to help overcome what they see as ambiguity or a lack of clarity in the order.

They submit that they are and have been willing to sign the necessary documents, but that in the absence of agreement on the boundary description there is little that can be done to comply with the order. In

summary, they characterize the

allegations as ones of acts of omission that are offset by their exercise of due diligence to comply. [ 17 ] The plaintiff submits that the defendants have, from the outset, exhibited an unreasonable and untenable litigation strategy that has generated unnecessary delay and cost.

He takes the view that Justice Hood ’ s order is unambiguous and easily capable of being complied with, but that the defendants have deliberately advanced a plan that, in the words of their counsel “ is a thinly veiled attempt to reopen the settlement and move the line in [the defendants ’ ] favour. ” In consequence of this impasse the plaintiff says that a finding of contempt against the defendants is the only way to make them comply. [ 18 ] The defendants have not tendered original and properly executed documents as required by the order. In this sense they may be considered to be in contempt.

However, they say that they have no difficulties in producing such documents but that it is unproductive to do so in the absence of the agreement of the plaintiff on all the outstanding issues. [ 19 ] During the course of the hearing and in particular during submissions, it became apparent that the parties shared a common understanding of where, on the ground, the lands are that are subject to the Deed, Boundary Agreement and Licence.

The disagreement is in how to draft the documents and any necessary appendices. [ 20 ] The defendant says that it was not clear until the hearing that the plaintiff adopts the same understanding of the lines on the ground, believing that the plaintiff was seeking wording for the appendices that was indicative of a different position.

The plaintiff says that they always held the same view of where the lines were but that the plans being submitted did not represent that understanding and that, in the plaintiff ’ s view, the descriptions should simply be lifted verbatim from Justice Hood ’ s order and inserted as the appendices to the deed and agreements. The Quit Claim Deed 1.

The defendants will convey the property on the south side of the fence to the plaintiff up to the point where the existing fence ends and the conveyance will be by way of Quit Claim Deed. (Order, paragraph 2) [ 21 ] The first paragraph of the order required the defendants to move the 2004 fence back to the 1990 fence position. That was done in 2009. [ 22 ] This second paragraph of the order set out above, which is alleged to have been breached by the defendants, is somewhat confusing since the “ existing fence ” at the time of the order was the 2004 fence.

What the parties clearly intended was that the property to be conveyed was on the South side of a fence yet to be constructed in the location of the 1990 fence.

It was also intended that the western boundary of the lands subject to the Quit Claim Deed would be an extension of the line formed by the western end of the 2004 fence, that part of which was understood to be in the same location as the 1990 fence. [ 23 ] Over the period of 2009 and into 2010 the parties exchanged correspondence and draft documents intended to satisfy the orders. [ 24 ] In July 2009, a surveyor named Bob Daniels prepared a preliminary plan of a line that was intended to capture the intention of the court order.

It was provided to counsel for the plaintiff who replied by letter dated July 30, 2009 that the plan was accepted by the plaintiff subject to one exception. [ 25 ] On November 4, 2009 Mr. Leahey, then counsel for the defendants, sent a letter to Mr. Macdonald, counsel for the plaintiff, enclosing the Daniels ’ “ Plan Showing Line of Settlement ” dated November 2, 2009. It removed the reference objected to in July by Mr. Macdonald.

[ 26 ] Mr. Leahey also enclosed a partially executed draft Boundary Line Agreement. Unfortunately, and on issues unrelated to the Quit Claim Deed, the letter triggered new debates by suggesting terms relating to the right of use of certain of the bordering lands and terminology to be included in the Boundary Line Agreement. This document was signed by the defendants and witnessed . [ 27 ] On December 15, 2009 Mr. Macdonald replied and it was at that time that he suggested that the plan was “ new ” and a “ thinly veiled attempt to reopen the settlement and move the line in your clients ’ favor ” .

He demanded that the July, 2009 plan be utilized. He threatened to bring a motion for contempt if the defendants failed to deliver the documents called for by the order. [ 28 ] Mr. Macdonald ’ s letter offers no information as to why he held this opinion. In comparing the July with the November Daniels ’ plans the 1990 fence location is clearly shown on both and has the same description, being N 70 ° 12'08"E over a distance of 52.52 feet. It has not been moved. The wording of the order and the intention of both parties was to convey the land on the south side of the 1990 fence location.

I do not see how the plan impacted on that understanding. [ 29 ] The November plan differed in one significant respect, in that it now included the position of a new fence (2009 fence) just completed and by everyone ’ s agreement in the location of the 1990 fence. To accomplish this the defendants removed the 2004 fence as required by paragraph 1 of the order.

If anything, this should have acted as reassurance that the defendants were attempting to comply with the order. [ 30 ] There is some evidence to suggest that the plaintiff ’ s concern was that the fence should have been of the same style and placed on the common boundary created by the 1990 fence. The 2009 fence was constructed so as to ensure that the entirety of it was on the defendants ’ property and therefore the south face of the new fence is flush with the boundary line established by the 1990 fence. [ 31 ] If this has been the plaintiffs ’ concern, then it has been misguided.

The substantive remedy sought by the plaintiff was to obtain title to the land on the south side of the 1990 fence.

Providing that the 2009 fence is not encroaching on the plaintiff ’ s property as defined by the Quit Claim Deed, and the description attached to the deed properly sets out the metes and bounds of that land to the south of the fence then the plaintiff has achieved his objective of unencumbered title and sole possession and occupancy of the subject land. [ 32 ] When the 2009 fence was constructed there were two support posts extending on the south side of the fence at its western end and intended to provide support for it. It is possible that they were intended to be flush to the 1990 fence location.

The plaintiff complained that they were encroaching on lands that were subject to the Quit Claim Deed and so the defendants removed those two posts prior to the contempt hearing. [ 33 ] The common position adopted at the hearing by the parties is that the 2009 fence is satisfactorily placed and that the lands subject to the Quit Claim Deed is that land to the south of the fence extending from the back line to the western end of the fence. The only issue is how to record that in the appendix to the deed. [ 34 ] It is difficult to understand how the parties have not been able to get this committed to writing.

It appears to be a product of the ongoing antagonism that has existed between the parties, as well as between plaintiff ’ s counsel and the defendants. In this latter regard, Mr. Macdonald showed during the hearing that he took umbrage to a complaint filed against him by the defendants during the course of the dispute. I expect this did not endear the defendants to plaintiff or his counsel.

It is clear that by late 2009 the plaintiff was not willing to discuss the matter and stopped providing any input to the defendants on how they might comply with the order notwithstanding their counsel ’ s correspondence suggesting that there was ambiguity in certain aspects of the order. [ 35 ] Ideally, the defendants should have executed a Quit Claim Deed attaching a description in accordance with their understanding of the agreement and then tender it to the plaintiff. Their failure to do so might be seen as noncompliance with the order justifying a finding of contempt.

However, I am not satisfied beyond a reasonable doubt, that on the facts it would be appropriate to arrive at such a conclusion. Their intention was clearly to comply with the order and they expended time and money in moving the 2004 fence to the 1990 position, as well as retaining a surveyor for the purpose of providing both a preliminary and proposed final line of settlement. The plaintiff ’ s refusal is not satisfactorily explained and so the plaintiff bears some considerable responsibility for the fact that the deed has

not been completed as yet. [ 36 ] As I discussed with counsel during submissions, a finding that the defendants are not in contempt leaves the parties in limbo. Both counsel suggested that they should be able to work out some kind of wording given their common understanding. I invited counsel, during submissions, to seek a resolution after the hearing, but nothing has been communicated to the court to suggest that they have achieved one. [ 37 ] I will try to assist the parties by stating what I understand to be their now common position.

I am of the view that the defendants can satisfy paragraph 2 of the order of Justice Hood, by executing and tendering on the plaintiff a Quit Claim Deed that attaches a metes and bounds description prepared by a surveyor and which accurately describes that land located on the south side of the 2009 fence. The northern boundary will be flush to the 2009 fence, but I note that the fence is not on the boundary line but is entirely within the defendants ’ land.

The northern boundary is 52.52 feet and ends at a surveyor ’ s pin located on the eastern boundary of the lots respectively owned by the parties and as shown in the Daniels plan of November, 2009. The western boundary is formed by an extension of the line that begins at the western end of that fence. The southern boundary of the lands to be deeded by the defendants to the plaintiff is the property line shown on the surveyor ’ s location certificate prepared by Lawrence Miller and dated January 12, 2007.

The defendants should have this deed prepared and tendered on the plaintiff within 30 days of the date of this decision. I will retain jurisdiction over this matter and am prepared to entertain a further motion for contempt if the defendants fail to comply with Justice Hood ’ s order as I have interpreted it. The Boundary Line Agreement and Licence 2. The defendants will agree to a boundary line 66' wide stretching from the chain-link fence on the south side of the plaintiff’s property 66' in a northerly direction.

The reference points will be 66' from the front of the chain-link fence and another 66' from the rear of the fence where it lines up (approximately) with the point where the existing wooden fence comes to its westerly end. The intent will be to give the plaintiff a lot width of 66 feet from the chain-link fence to the northern side of his property. The lot line will be the same lines as shown on the Halifax Regional Municipality Surveyor’s Location Certificate prepared by Lawrence G Miller dated January 12, 2007. The foregoing will be reflected in a boundary line agreement. (Order, paragraph 3) 3.

The plaintiff and the defendants agreed to a license as follows: the defendants will be permitted access to the other side of the fence to maintain it (painting, repairing, replacement) which access will take the form of an annual April inspection. If the maintenance is undertaken and completed during the first week of April no notice will be required, otherwise written notice will be required with respect to the maintenance

schedule and suggested dates which will not be unreasonably refused by the plaintiff. The access and maintenance by the defendants will not affect the perennials on the plaintiff’s side of the fence. (Order, paragraph 4) [ 38 ] The line from Oxford Street to the western boundary of the fence seems non controversial. It is 66' from the southern boundary of the Pittson lot which has been defined by a chain link fence on that side. [ 39 ] The defendants say that the matter was confused by the reference to the Miller line and that the width of the plaintiff ’ s lot would be 66'.

The Miller line, so-called, established the common boundary line in accordance with their respective deeds. Both parties agree that it accurately reflects their boundary from Oxford Street to the point where the 1990 fence begins. However, with the establishment of the new line by the 1990/2009 fence the plaintiff ’ s lot is greater than 66' from that point to the back-line. [ 40 ] The problem seems to stem from the fact that the common boundary was going to be defined by an attached surveyor ’ s plan.

The Daniels ’ s November 2009 plan had been rejected by the plaintiff and so once again the defendants were left without a way to, in their opinion, adequately describe the common boundary for the entirety of the line from Oxford Street to the back-line at the eastern edge of the properties. [ 41 ] Having regard to the history of the discussions between the parties leading up to the settlement and the consent order it is difficult to accept that the defendants were in any way confused by what was intended.

Having said that, it is apparent that they did make some efforts to address concerns raised by the plaintiff.

[ 42 ] In a letter of July 9, 2009 Mr. Leahey sent a draft agreement that included terms intended to form the boundary line agreement and the license. In a reply of July 24, 2009 Mr. Macdonald suggested 11 changes to the agreement and license. Nine of these were incorporated into a redrafted document. [ 43 ] The current form of the agreement encompasses both the boundary line agreement and the license and is attached to Dorothy Redmond ’ s affidavit as Exhibit QQ. That document was signed by the defendants and forwarded to the plaintiff. It has not been dated or witnessed.

The defendants remain committed to executing that document subject to resolution of how to best describe the common boundary. [ 44 ] Ideally, the defendants should have executed the Boundary Line Agreement and License and attached the Daniels ’ plan in accordance with their understanding of the agreement. That could have been tendered on the plaintiff. The defendants ’ failure to do so might be seen as noncompliance with the order justifying a finding of contempt. [ 45 ] However I am not satisfied beyond reasonable doubt that the defendants were in contempt of paragraphs 3 and 4 of the order.

In my view, the defendants intended to comply with the order. [ 46 ] With respect to the boundary, the defendants made reasonable efforts, at their own expense, to retain Mr. Daniels and to obtain an appropriate plan that showed the common boundary of the lots. The plaintiff rejected this plan without a satisfactory explanation. [ 47 ] The licence provision in Exhibit QQ is repeated verbatim from paragraph 4 of the order, and therefore it is compliant with the order. [ 48 ] In the result I do not find the defendants in contempt of paragraphs 3 and 4 of the order.

As with the outcome in relation to the Quit Claim Deed, the parties are potentially left without a mechanism to overcome whatever differences that may remain. I am of the view that the defendants can satisfy these two requirements by having Mr. Daniels prepare a plan of the line that shows the common boundary beginning at Oxford Street at a distance of 66' from the chain link fence located at the south side of the plaintiff ’ s lot. The line will follow the Miller line until it reaches the western most end of the property that is described in the Quit Claim Deed.

At that point the boundary will go north to the 2009 fence and then follow the fence to the back-line as that boundary is described in the Quit Claim Deed. [ 49 ] The licence will be described as set out in the order and in Exhibit QQ. [ 50 ] The defendants should have the Boundary Agreement and Licence prepared and tendered on the plaintiff within 30 days of the date of this decision. I will retain jurisdiction over this matter and am prepared to entertain a further motion for contempt if the defendants fail to comply with Justice Hood ’ s order as I have interpreted it. Mutual Releases 4.

The parties will execute an exchange of Mutual Releases. (Order, paragraph 6) [ 51 ] Mr. Leahey, sent a letter to Mr. Macdonald on June 17, 2010 enclosing a “ Mutual Release ” in the form stipulated by the plaintiff. It was signed but not witnessed or dated. The plaintiff submits that as it is not properly executed the Release does not comply with the order. [ 52 ] The defendants submit that their intention to comply with the order is evidenced by the fact that this document was signed and

sent. Mr. Leahey ’ s letter asks Mr. Macdonald to confirm its acceptability. The reply letter of Mr. Macdonald dated June 29, 2010 does not respond to this request, instead indicating that his instructions are to proceed with a contempt motion. [ 53 ] It is correct to say that the order was not strictly complied with, but it is a failure that might easily have been addressed by Mr. Macdonald pointing out his concerns and returning the document with a request for the document to be properly witnessed and dated.

Having said that, the defendants were represented by counsel and they knew or ought to have known that it was not sufficient to provide an obviously defective document. Unlike the situation with the deed and the Boundary Line Agreement this document was not dependent upon resolution of the disputed line description. It was a stand alone document. [ 54 ] The defendants had still not, as at the conclusion of the hearing and submissions, submitted a properly executed Release, even after it became apparent that the Release previously submitted was fatally defective.

The explanation offered was that it was felt that the dispute over the boundary line had to be resolved and once that was done, then the Release would be properly executed and submitted. [ 55 ] The document releases each of the parties from their respective claims in the statement of claim and the counterclaim.

It specifically reserves the rights of the parties to enforce the settlement agreement and so was unrelated to the question of compliance with other provisions, such as the Boundary Line Agreement or the description to attach to the Quit Claim Deed. [ 56 ] In my view the defendant could have and should have, at some time prior to the conclusion of the submissions, provided a properly executed Release.

If there were continuing concerns about whether it had an effect on the remaining disputes, then it could have been provided, to be held “ in escrow ” pending the resolution of outstanding questions. [ 57 ] I am satisfied beyond a reasonable doubt that by failing to comply with the order, even after it became apparent that there was an ability to comply, the defendants are in contempt of Paragraph 6 of the Order of Justice Hood dated July 31, 2009. [ 58 ] As to penalty, I suspend the imposition of a penalty to permit the defendants an opportunity to purge their contempt by delivering to the plaintiff a properly executed Release within 30 days of the date of this decision.

If the defendants fail to purge the contempt then they will return to court at a time to be set in consultation with both counsel for further submissions on penalty.

CONCLUSION [ 59 ] In general, the defendants exhibited good faith efforts to comply with the order of Justice Hood, which was sufficiently ambiguous in paragraphs 2 and 3 so as to cause some confusion about the description of the common boundary line. [ 60 ] Unfortunately, the plaintiff, instead of recognizing the problem created by the drafting of the Consent Order, chose not to make constructive suggestions as to how best to arrive at a description that met the order. The plaintiff rejected proposed plans without offering up his own view as to what would overcome the inconsistency and comply with the order.

He did not see an inconsistency. [ 61 ] It was apparent that the plaintiff ’ s disagreement was founded largely in his frustration with the defendant ’ s litigation strategy during the period leading up to the settlement and the Consent order.

There was, quite simply, no patience left for the defendants and hence the confrontational and uncompromising stance in the discussions as to the construction of the Deed and the Boundary Line Agreement. [ 62 ] The defendants had not, as at the hearing, tendered on the plaintiff properly executed documents as required under the order, but they took the steps that were available to them to comply. I have concluded that the plaintiff has failed to prove, beyond a reasonable doubt the defendants ’ contempt in relation to the deed, the Boundary Line Agreement and the licence.

The better course of action in this case may have been to seek the court ’ s direction in clarifying the order so that the parties could comply.

[ 63 ] The matter cannot continue unresolved, and there are documents that could be executed and sent to the plaintiff that will bring the matter to a conclusion. I have set out what the evidence leads me to conclude is the manner in which the defendants can comply with paragraphs 2, 3 and 4 of Justice Hood ’ s order. [ 64 ] I have also decided that I will retain jurisdiction over this matter. If the defendant fails to comply with those provisions in the manner I have set out, then the plaintiff has leave to return the matter to me for a further review of whether the defendants are in contempt.

In saying this I do not mean to exclude the possibility that the parties may agree on some other means to comply with the order than that which I have set out. [ 65 ] I have found the defendants in contempt for their failure to provide a properly executed Release. The imposition of a penalty is suspended for a period of 30 days from the date of this decision in order to permit the defendants an opportunity to purge the contempt by tendering a properly executed Release on the plaintiff. COSTS [ 66 ] If the parties are unable to agree on costs I will receive their written submissions. Duncan J.