1711811 Ontario Ltd. et al. v. Buckley Insurance Brokers Ltd. et al., 2014 ONCA 125

• Judge: MacPherson, Gillese and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 125;(2014), 315 O.A.C. 160 (CA)

1711811 Ont. v. Buckley Ins. (2014), 315 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.016

1711811 Ontario Ltd. and Olga Maria Paiva, operating as AdLine (applicants/respondents) v. Buckley Insurance Brokers Ltd., Robert Buckley and 1730849 Ontario Ltd. (respondents/appellants)

(C57291; 2014 ONCA 125)

Indexed As: 1711811 Ontario Ltd. et al. v. Buckley Insurance Brokers Ltd. et al.

Ontario Court of Appeal

MacPherson, Gillese and Hourigan, JJ.A.

February 18, 2014.

Summary:

AdLine and Buckley were neighbours who shared the use of a laneway that ran at the rear of their buildings. Buckley owned the property on which the laneway was located. AdLine had a registered right of way over the laneway. In 2009, Buckley notified AdLine that it intended to renovate the laneway. AdLine applied for injunctive relief to prevent Buckley from constructing on or obstructing the laneway. Pursuant to a consent order, the application was dismissed and Buckley was ordered not to block vehicular access to the laneway during business hours. In 2011, Buckley began further construction in the laneway. AdLine brought a motion to have Buckley found in contempt of the 2009 consent order, and asked for mandatory injunctive relief beyond the terms of the consent order.

The Ontario Superior Court dismissed the motion for contempt but ordered a permanent injunction that included numerous restrictions. Buckley appealed.

The Ontario Court of Appeal allowed the appeal.

Contempt - Topic 10

General principles - Scope of contempt power - [See Courts - Topic 290 ].

Courts - Topic 290

Judges - Powers or jurisdiction - Respecting judgments or orders - AdLine and Buckley were neighbours who shared the use of a laneway that ran at the rear of their buildings - Buckley owned the property on which the laneway was located - AdLine had a registered right of way over the laneway - In 2009, Buckley notified AdLine that it intended to renovate the laneway - AdLine applied for injunctive relief to prevent Buckley from constructing on or obstructing the laneway - Pursuant to a consent order, the application was dismissed and Buckley was ordered not to block vehicular access to the laneway during business hours - In 2011, Buckley began further construction in the laneway - AdLine brought a motion to have Buckley found in contempt of the 2009 consent order, and asked for mandatory injunctive relief beyond the terms of the consent order - The motion judge refused to find Buckley in contempt because she was not satisfied that the consent order continued to be in effect beyond Buckley's 2009 renovations - However, the motion judge did grant permanent injunctive relief - Buckley appealed, arguing that the motion judge erred by ordering a permanent injunction in the absence of an underlying legal proceeding - The Ontario Court of Appeal allowed the appeal - Although the motion judge declined to find Buckley in contempt, she retained the authority to make any order that was "just" (Rules of Civil Procedure, rule 60.11(5)) - However, the scope of her powers under rule 60.11(5) did not encompass the right to make an order for permanent injunctive relief - Once the motion judge found that the consent order was spent, that part of the motion in which AdLine sought further injunctive relief was unmoored from a legal proceeding - Because there was no proceeding, the evidence necessary to decide whether to grant permanent injunctive relief and, if so, the terms of that relief, were not before the court - See paragraphs 90 to 102.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Injunctions - Topic 7841 ].

Injunctions - Topic 2

General principles - Types of relief available - The Ontario Court of Appeal discussed the differences between interim, interlocutory, mandatory and permanent injunctions - See paragraphs 49 to 59.

Injunctions - Topic 1441

Permanent injunctions - When granted - General - AdLine and Buckley were neighbours who shared the use of a laneway that ran at the rear of their buildings - Buckley owned the property on which the laneway was located - AdLine had a registered right of way - AdLine claimed that Buckley was obstructing the laneway and brought a motion for "mandatory" injunctive relief - In one endorsement, the motion judge applied the test for interlocutory injunctions set out in RJR-MacDonald (1994 SCC), and granted "interim and interlocutory" injunctive relief - In a subsequent endorsement, the motion judge stated "I clarify that the terms of the injunctive relief ordered ... are imposed as permanent injunctive relief." - Buckley appealed, arguing that the motion judge erred by imposing a permanent injunction on the basis of the test for an interlocutory injunction - The Ontario Court of Appeal allowed the appeal - A different test applied for permanent injunctions - Permanent relief could only be granted after a final adjudication when the legal rights of the parties were fully evaluated - See paragraphs 74 to 80.

Injunctions - Topic 1441

Permanent injunctions - When granted - General - [See Injunctions - Topic 2 ].

Injunctions - Topic 1601

Interlocutory or interim injunctions - General principles - Interlocutory and interim injunction distinguished - [See Injunctions - Topic 2 ].

Injunctions - Topic 2301

Mandatory injunctions - General - [See Injunctions - Topic 2 ].

Injunctions - Topic 7841

Setting aside injunctions - Grounds - General principles - AdLine and Buckley were neighbours who shared the use of a laneway that ran at the rear of their buildings - Buckley owned the property on which the laneway was located - AdLine had a registered right of way - AdLine claimed that Buckley was obstructing the laneway - AdLine brought a motion for mandatory injunctive relief - Buckley responded with affidavit evidence that it was actually AdLine who was acting unreasonably respecting the laneway - The motion judge granted AdLine permanent injunctive relief - Buckley appealed, arguing that the motion judge erred by making findings of fact that were not available on the motion - The Ontario Court of Appeal allowed the appeal - AdLine and Buckley offered dramatically competing versions of events - One version or the other had to be preferred in order to decide whether Buckley had infringed AdLine's rights - The motion judge's reasons did not refer to Buckley's contrary evidence and there was no indication why she accepted AdLine's evidence and implicitly rejected Buckley's - Credibility would play a large role in making the necessary factual findings - It was hard to see how such credibility findings could be made without a trial - It was also hard to see how such onerous injunctive relief could be fashioned without a trial, considering the nature and extent of the conflicting evidence - The motion judge gave no reasons for why she selected the particular terms of injunctive relief that she did - There was no evidence indicating how she determined that the terms constituted a fair and reasonable balancing of the parties' rights and interests - See paragraphs 81 to 89.

Practice - Topic 6105

Judgments and orders - Amendment, rescission and variation of judgments and orders - Before judgment or order perfected or entered - AdLine and Buckley were neighbours who shared the use of a laneway that ran at the rear of their buildings - Buckley owned the property on which the laneway was located - AdLine had a registered right of way - AdLine claimed that Buckley was obstructing the laneway and brought a motion for "mandatory" injunctive relief - In one endorsement, the motion judge applied the test for interlocutory injunctions set out in RJR-MacDonald (1994 SCC), and granted "interim and interlocutory" injunctive relief - In a subsequent endorsement, the motion judge stated "I clarify that the terms of the injunctive relief ordered ... are imposed as permanent injunctive relief." - Buckley appealed, arguing that the motion judge erred by changing the order from an interlocutory injunction to a permanent injunction without explanation - The Ontario Court of Appeal allowed the appeal - In the subsequent endorsement, the motion judge was changing the order, not clarifying it - In the first endorsement, the motion judge made no mention of the test for permanent injunctions nor whether it had been met - A mandatory injunction, which was what AdLine had requested, was not the same as permanent injunctive relief - A judge exercising her discretion to change an order before it was formally entered beared a significant onus to explain the change - Saying that the change was a clarification did not amount to a reason for changing the order - See paragraphs 60 to 73.

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 27].

Liu v. Matrikon Inc. - see Liu v. Tangirala et al.

Liu v. Tangirala et al. (2007), 422 A.R. 165; 415 W.A.C. 165; 2007 ABCA 310, refd to. [para. 56].

Montague v. Bank of Nova Scotia (2004), 180 O.A.C. 381; 69 O.R.(3d) 87 (C.A.), refd to. [para. 64].

Hanisch v. McKean et al., [2013] O.T.C. Uned. 2727; 2013 ONSC 2727, refd to. [para. 75].

Poersch v. Aetna, [2000] O.T.C. 66 (Sup. Ct.), refd to. [para. 75].

Cambie Surgeries Corp. v. British Columbia (Medical Services Commission) - see Schooff et al. v. Medical Services Commission (B.C.) et al.

Schooff et al. v. Medical Services Commission (B.C.) et al. (2010), 292 B.C.A.C. 8; 493 W.A.C. 8; 323 D.L.R.(4th) 680; 2010 BCCA 396, agreed with [para. 77].

Leskovar v. N.B. et al. (2005), 196 O.A.C. 320; 252 D.L.R.(4th) 508 (C.A.), refd to. [para. 96].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2013 Looseleaf Supp.), para. 2.15 [para. 51].

Counsel:

Jonathan L. Rosenstein, for the appellants;

Sara J. Erskine, for the respondents.

This appeal was heard on January 22, 2014, before MacPherson, Gillese and Hourigan, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., delivered the following judgment for the court on February 18, 2014.