O'Neill v Quant, 2021 ABQB 473

Court of Queen’s Bench of Alberta Citation: O'Neill v Quant, 2021 ABQB 473 Date: 20210617 Docket: 2103 03534 Registry: Edmonton Between: Sean D. O'Neill Plaintiff - and - Theodore Quant Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] This application for a restraining order by Sean O’Neill (the Applicant) against Theodore (Buddy) Quant (the Respondent) came before me in Civil Chambers.

As not all materials had been uploaded to Sharepoint, it was agreed that I would review the affidavits sent to me and provide a written decision. I. Affidavits [ 2 ] The parties are neighbours in rural Alberta. The Applicant alleges that • the Respondent came onto his property and wrongfully sought to remove chattels after the Respondent was told that he was not to attend on the Applicant’s lands (May 3 and 4, 2020); • stole his dog (May 4 and November 10, 2020);

• after having been told he had no permission to be on the Applicant’s property, entered on the Applicant’s lands and engaged in intimidating conduct (June 2020 and October 6 and November 6, 2020); • attempted to communicate with the Applicant’s children; and, • on a further occasion when the Applicant sought to retrieve his dog from the Respondent, the Respondent assaulted the Applicant causing bodily harm (March 30, 2020). This incident occurred in front of the local RCMP Detachment.

The Respondent has been charged with mischief in relation to the alleged taking of the dog and with assault, as well as with breaches of release conditions for contacting the Applicant and his children when he was prohibited from doing so. [ 3 ] The Respondent sought to set up a form of jus tertii respecting the retrieval of the chattels from the Applicant’s premises, claiming that he was assisting the Applicant’s ex-wife who was entitled to the return of these items under a court order. That court order was not attached to the Respondent’s affidavit.

The Applicant denies that the order provides what the Respondent claims it provides. Regardless, the Applicant claims that the Respondent took items that did not fall under any court order. On the jus tertii issue see (e.g.) Thomas v Canada , 2006 ABQB 730 , Trussler J at para 51; Petrifond Midwest Ltd v Esso Resources Canada Ltd , 1996 ABCA 295 at paras 29-33 . [ 4 ] The Respondent denies coming onto the Applicant’s lands and engaging in the alleged intimidating conduct. On one of the dates (October 6), he claims to have been attending to business in Grande Prairie and so he could not have done what was alleged.

The Applicant subsequently indicated that the actual date was October 8 (the earlier date was in error). [ 5 ] As for the contacts with the Applicant’s dog, the Respondent claims that it persists in coming onto his lands and harassing his livestock. He has detained the dog, then returned it to the Applicant, taken it to a veterinary clinic (not to the Applicant because of the “no contact” bail condition), or taken it to the RCMP. [ 6 ] The Respondent claims that the Applicant was the aggressor in the incident that led to his injuries.

The Respondent pushed the Applicant in self-defence, having been backed against a wall. The Applicant fell. [ 7 ] The Respondent claims that the Applicant fabricated the allegations made to the RCMP that resulted in the Respondent’s “breach” charges. [ 8 ] The Respondent’s affidavit suggests that the Respondent has insinuated himself in an ongoing dispute between the Applicant and the Applicant’s estranged or former spouse. II. Assessment [ 9 ] Applicant’s counsel relied on the decision of Justice Hughes, as she then was, in RP v RV , 2012 ABQB 353 . Justice Hughes wrote as follows at para 33: [33] In

summary, subject to the wide discretion of the Court to grant equitable remedies based on all the circumstances, the general rule this Court should follow before granting a restraining order under the common law is whether the applicant has sufficiently demonstrated a reasonably held and legitimate fear for his or her safety, the safety of any other person under his or her care or the safety of his or her property as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour.

If so, the Court should grant the injunctive relief barring any other circumstances that might militate against doing so, such as facts that implicate one or more other equitable considerations, such as clean hands, excessive hardship, misrepresentation, laches , etc.

I acknowledge that “there is no longer a general requirement for an applicant to demonstrate an objective fear for their safety before a common law restraining order can be granted:” Muslim Counsel of Calgary v Mourra , 2018 ABQB 118 , DB Nixon J at para 70; see also the decisions of Justice Veit in Boychuk v Boychuk , 2017 ABQB 428 at paras 50-52 and Tran v Armstrong , 2015 ABQB 343 at para 23 .

However, the Applicant founds his case on an alleged objective fear for his safety, an interest that may attract the protection of a restraining order. [ 10 ] While the Applicant’s allegations go back to about a year before the application for the restraining order, I do not consider the relief to be barred by laches and the Respondent made no such argument. I discerned no other equitable bars to the remedy sought. [ 11 ] The affidavits of the Applicant and Respondent conflict.

That is obvious. [ 12 ] I acknowledge that conflict between affidavits that cannot be resolved except through credibility assessments based on examination and cross-examination precludes relief that depends on finding the facts. [ 13 ] In the present circumstances, though (as in the case, for example, of Emergency Protection Orders), I am not required to decide the facts before determining whether a pro tem remedy is appropriate. [ 14 ] The restraining order sought is a form of pre-trial or pre-final determination injunction, best viewed as an “interlocutory” injunction, in the sense that it is to be in place pending a “final” determination by trial or a viva voce hearing, although this determination should not be far in the future: see Muslim Council of Calgary at paras 57-60; see also 1711811 Ontario Ltd (AdLine) v Buckley Insurance Brokers Ltd , 2014 ONCA 125 , Gillese JA at paras 51-52.

Regardless, the “tri-partite test” must be satisfied: i. is there a serious issue to be tried? ii. would the applicant for the injunction suffer irreparable harm if the injunction were not granted?

iii. is the balance of convenience in favour of granting the interlocutory injunction or denying it?

See Law Society of Alberta v Beaver, 2021 ABCA 163 at para 34; RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334; Muslim Council of Calgary at para 61; Buckley Insurance at para 74. [15] My first task is to assess whether there is a serious issue to be tried, in particular a “sufficient demonstration” of “reasonablyheld and legitimate fear for safety” as a result of a respondent’s alleged “harassing, intimidating, molesting, threatening, or violentbehaviour.” I must perform a risk assessment based on the affidavits of the Applicant and Respondent. [16] Interim or interlocutory injunctions generally and restraining orders in particular cannot be blocked through the filing of acounter-affidavit that denies the applicant’s allegations.

This was recognized by Lord Diplock in American Cyanamid Co v Ethicon Ltd,[1975] AC 396 at 407: It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which theclaims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and matureconsiderations.

As Lord Diplock observed, the resolution of conflicting evidence is for a later stage of proceedings such as trial or a hearing that includesviva voce evidence. [17] In this case, the Applicant’s allegations concern interference with his real property, his personal property, and his person. Hisevidence is not internally inconsistent. His allegations are not inherently improbable. He does not make admissions that undermine theweight of his allegations.

He provides detail – such as respecting the boundary collar worn by his dog – that reduce the probative valueof the Respondent’s allegations. [18] The probative value of the Applicant’s allegations is not reduced by considering those allegations in light of the allegations ofthe Respondent. While there may be independent corroborative evidence that would expose the lack of veracity of either party, suchevidence does not form part of the record.

Both parties’ allegations amount to assertions and counter-assertions. [19] In my opinion, at this stage of proceedings, I am not required to decide (and on the record I could not decide) whoseallegations are more likely. That is a task for a later stage of proceedings. [20] In my opinion, the Applicant has provided a sufficient demonstration of a reasonably held and legitimate fear for his safetyand the safety of his property because of the (alleged) harassing, intimidating, molesting, threatening, or violent conduct of theRespondent.

Given the number and nature of incidents alleged by the Applicant and by the interposition of the Respondent in an ongoingmatrimonial dispute, I find that there is a legitimate risk that the Respondent’s conduct will continue. See Muslim Council of Calgary atpara 72. [21] As for the irreparable harm factor, the Applicant claims to have been seriously assaulted and for there to have been a series ofinterferences with his real and personal property. Were the restraining order not granted, there would be a likelihood that the Applicantwould be further physically injured and his property damaged.

Of greatest concerns are the risks to his dog, who seems to be an ongoingfocus of attention, and the physical risks to the Applicant. The Applicant should not be forced to bear the risk of injury and to be left withseeking civil compensation from the Respondent. Damages are distant, expensive, and uncertain compensation. [22] With respect to the balance of convenience between the parties, I do not find that the Applicant’s allegations are weak. I donot find that, on their face, the Respondent’s allegations are inherently more likely or have greater weight.

The sheer conflict between theaffidavits does not cause the balance of convenience to tilt against the Applicant. [23] The Respondent lives some 1.5 kilometres from the Applicant. A requirement to stay away from the Applicant would notinterfere with his life or livelihood. Moreover, the Respondent is, it appears, under “no communication” and “no contact” conditionsconnected with release on his charges. The restraining order would have no or no significant marginal impact on the Respondent’sliberty.

The Respondent did not refer in his affidavit to prejudice that he would suffer if he were to leave the Applicant alone. [24] Balance of convenience considerations do not militate against granting the restraining order. [25] I therefore grant the restraining order in the form sought by the Applicant that had been uploaded to Sharepoint for the CivilChambers appearance.

If there any issues respecting the terms of this Order, counsel may contact me through my Assistant to clarifythose terms. [26] This restraining order will remain in force until further court order, based on trial or a trial of the issues or a material change incircumstances. [27] I direct counsel to apply for an oral hearing order and to set a date for an oral hearing respecting this matter. It may be that thehearing could be held fairly promptly, on an EPO viva voce hearing date. The affidavits address numerous collateral and immaterialissues.

Counsel should ensure that the type and scope of evidence for the hearing is confined to what will be useful and relevant to theissue of whether or not the restraining order should be continued or terminated and that these limitations are properly reflected in the oralhearing order. The Respondent has claimed that he has video evidence that will substantiate his versions of key events. Considerationshould be given to whether leave should be sought to introduce this evidence in the hearing. This issue too should be addressed in theoral hearing order.

A procedural order may also be sought, if, for example, cross-examination on affidavits shall be pursued in advanceof the oral hearing. Any Justice may hear the application for an oral hearing order and any procedural order. Heard on the 7th day of May, 2021. Dated at the City of Edmonton, Alberta this 17th day of June, 2021.

W.N. Renke J.C.Q.B.A. Appearances: Christopher J. Skrobot Jomha Skrobot LLP for the Applicant Karanpal S. Aujla Raponi Rideout Tarrabain for the Respondent