Altemeyer v. Winnipeg (City) et al., 2015 MBQB 187

• Judge: Edmond, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 25, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 187;(2015), 325 Man.R.(2d) 7 (QB)

Altemeyer v. Winnipeg (2015), 325 Man.R.(2d) 7 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.044

Jennifer Altemeyer (applicant) v. The City of Winnipeg and West Broadway Development Corporation (respondents)

(CI 15-01-94222; 2015 MBQB 187)

Indexed As: Altemeyer v. Winnipeg (City) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Edmond, J.

November 25, 2015.

Summary:

Altemeyer, self-represented, applied for judicial review respecting a variance order granted by the City of Winnipeg in relation to a vacant lot used as a community garden for over 20 years. The property was owned by West Broadway Development Corp., a not-for-profit organization. Altemeyer moved for an interlocutory injunction, a Mareva injunction, and an Anton Piller order/injunction, pending a decision on the merits.

The Manitoba Court of Queen's Bench dismissed the motion.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - The applicant applied for judicial review respecting a variance order granted by the City of Winnipeg in relation to a vacant lot, owned by the West Broadway Development Corp. (WBDC), and used as a community garden for more than 20 years - She moved for an interlocutory injunction, pending a decision on the merits - The applicant submitted that the balance of convenience weighed in favour of maintaining the status quo; i.e., that the community garden was the status quo - WBDC submitted that granting the injunction would delay the development of the $5 million project, which had the support of the community and the City, and could put the entire development into jeopardy, which would cause irreparable harm to WBDC - The applicant was not in a position to provide an undertaking as to damages (rule 40.03) - The Manitoba Court of Queen's Bench was satisfied that WBDC would suffer the greater harm or inconvenience if the interlocutory injunction was granted - "Ultimately, I have considered what is just and equitable in the circumstances based on the principles articulated in RJR-MacDonald Inc. and have concluded that this is not an appropriate case to grant an interlocutory injunction." - See paragraphs 51 to 59.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1612

Interlocutory or interim injunctions - General principles - Mareva injunctions - Preservation of property pending or after judgment - The applicant applied for judicial review respecting a variance order granted by the City in relation to a vacant lot owned by the West Broadway Development Corp. (WBDC), and used as a community garden - The Manitoba Court of Queen's Bench dismissed the applicant's request for a Mareva injunction and an Anton Piller order/injunction - "Mareva injunctions are only granted in exceptional circumstances. Generally, in situations where there is a domestic defendant, the plaintiff must establish that there is a danger of the defendant's absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is danger that any judgment that is obtained will not be satisfied. ...  [T]here is no evidence to suggest that there is a danger that the assets of WBDC or the City will be dissipated or removed out of this jurisdiction. Accordingly, the request for a Mareva injunction is dismissed. ...  Anton Piller injunctions are also only awarded in exceptional and extraordinary cases. ...  Ordinarily requests for Mareva injunctions and Anton Piller injunctions proceed on an ex parte basis because there is evidence that the named party may abscond or move assets in the case of a Mareva injunction, or destroy documents before the discovery process in the case of an Anton Piller order. There is no such evidence in this case" - See paragraphs 60 to 62.

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - The applicant applied for judicial review respecting a variance order granted by the City of Winnipeg in relation to a vacant lot used as a community garden for more than 20 years - She moved for an interlocutory injunction to prevent the alteration of the appearance, content, and functionality of the "community garden", pending a decision on the merits - By consent, the owner of the property, the West Broadway Development Corp. (WBDC) was added as a respondent - The Manitoba Court of Queen's Bench, in dismissing the motion, held that the applicant failed to satisfy the "serious question to be tried" test - WBDC, as the owner, was entitled to develop the property, subject to compliance with zoning and other bylaws - The applicant had no contract with WBDC to maintain the garden, and had no legal interest in the property - At best, the applicant had a license to use the property - While the applicant had standing, there was no legal basis to establish her right to request that WBDC be prevented from proceeding with the development - Further, the motion was procedurally flawed, as the request for an interlocutory injunction was not ancillary to the application for judicial review (rule 14.05(3)) - See paragraphs 33 to 46.

Injunctions - Topic 1785

Interlocutory or interim injunctions - Preservation of status quo - Seizure (Anton Piller Order) - [See Injunctions - Topic 1612 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - The applicant applied for judicial review respecting a variance order granted by the City of Winnipeg in relation to a vacant lot used as a community garden for more than 20 years - She moved for an interlocutory injunction to prevent the alteration of the appearance, content, and functionality of the "community garden", pending a decision on the merits - The Manitoba Court of Queen's Bench, in dismissing the motion, was not satisfied that the applicant had met the onus of establishing that she would suffer irreparable harm and that her loss and damage could not be compensated for in damages - The garden, while it was important to her and probably provided a benefit to the area's residents during the time that it operated, could be moved to another location and continue to provide a benefit in the area - See paragraphs 47 to 50.

Municipal Law - Topic 1693

Powers of municipalities - Judicial review of exercise of powers - Status or standing - Persons entitled to apply - [See Injunctions - Topic 1616 ].

Practice - Topic 3378

Interim proceedings - Preservation of property - Mareva injunction - [See Injunctions - Topic 1612 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, appld. [para. 32].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 32].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 35].

Stein v. Winnipeg (City) (1974), 48 D.L.R.(3d) 223 (Man. C.A.), refd to. [para. 35].

Rosenberg et al. v. Grand River Conservation Authority et al. (1976), 12 O.R.(2d) 496, leave to appeal refused, [1976] 2 S.C.R. x, refd to. [para. 35].

Burke v. Winnipeg (City) (1982), 18 Man.R.(2d) 134 (Q.B.), refd to. [para. 35].

Thomas v. Sorrell (1673), 124 E.R. 1098, refd to. [para. 37].

Pusateri's Yorkville Ltd. v. Toronto (City), [2013] O.T.C. Uned. 6860; 2013 ONSC 6860, refd to. [para. 39].

Coleman v. Pateman Farms Ltd. et al. (2001), 156 Man.R.(2d) 144; 246 W.A.C. 144; 2001 MBCA 75, refd to. [para. 44].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1994), 95 Man.R.(2d) 241; 70 W.A.C. 241 (C.A.), refd to. [para. 58].

Hudson Bay Mining and Smelting Co. v. Dumas et al. (2014), 303 Man.R.(2d) 101; 600 W.A.C. 101; 370 D.L.R.(4th) 237; 2014 MBCA 6, refd to. [para. 58].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266; 2006 SCC 36, refd to. [para. 61].

Statutes Noticed:

Queen's Bench Rules (Man.) - see Rules of Court (Man.).

Rules of Court (Man.), rule 14.05(3) [para. 40]; rule 40.03 [para. 55].

Counsel:

J. Altemeyer, applicant, self-represented;

Denise A. Pambrun (on a watching brief), for the respondent, The City of Winnipeg;

John S. Michaels, for the respondent, West Broadway Development Corp.

This motion was heard before Edmond, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment and reasons, dated November 25, 2015.