2020 NLSC 106, 2020 NLSC 106

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Young v. Foley , 2020 NLSC 106 Date : July 31, 2020 Docket : 202001G0618 Between: evan joseph young Plaintiff And: felicia foley First Defendant (DISCONTINUED) And: david whiffen Second Defendant (DISCONTINUED) And: Lucy Foley Third Defendant (DISCONTINUED) And: michael o'leary Fourth Defendant And: veronica o'leary Fifth Defendant And: paul whiffen Sixth Defendant And: frank whiffen Seventh Defendant

(DISCONTINUED) And: william whiffen Eighth Defendant And: Lorraine Benoite Ninth Defendant Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 24, 2020 July 27, 2020

Summary: The application for a declaration restraining the Defendants from entering upon or using the Plaintiff’s property is dismissed. Similarly, the application for an injunction restraining the Defendants from entering upon, using and communicating with prospective purchasers or otherwise interfering with the sale of the property is dismissed. Appearances: Wayne White Appearing on behalf of the Plaintiff Gobhina Nagarajah Appearing on behalf of the First, Second, Third and Seventh Defendants Gregory J. French Appearing on behalf of the Fourth, Fifth, Sixth, Eighth and Ninth Defendants Authorities Cited:

CASES CONSIDERED: Lemessurier et al v. Newfoundland & Labrador, 2005 NLTD 10; Hurley v. Slate Ventures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 (Nfld. S.C. (T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Plaintiff purchased land in Fox Harbour, Newfoundland and Labrador from Frank Whiffen, the executor and solebeneficiary of the unprobated estate of Patrick W.

Whiffen – who died in 2002. [2] The Plaintiff and his spouse built a house on the land between 2013 and 2015, and they lived there until irreconcilabledifferences arose between them and they separated in July or August, 2018. The Plaintiff’s spouse is the niece of the vendor of theproperty and a niece of the Fourth, Fifth, Sixth and Eighth Defendants. [3] The Plaintiff offered to sell the property to his estranged spouse in consideration of her taking over the mortgage payments. She refused to do so because her income was insufficient.

Thereafter the Plaintiff listed the property for sale since he had relocated toFort MacMurray, Alberta.

He is unable to buy a house in Fort MacMurray on account of his mortgage obligation in Fox Harbour. [4] The Fifth and Ninth Defendants notified the Plaintiff’s realtor of a title issue with the Plaintiff’s land and his access routethereto. [5] The Fourth and Fifth Defendants have placed “Private Property” signs on their property in an attempt to dissuade users of thepathway leading to the Plaintiff’s house from traversing same. [6] The Sixth Defendant has blocked access to the Plaintiff’s house by parking his truck in such a manner as to thwart traffic fromcoming or going from the Plaintiff’s house. [7] A caveat has been filed in relation to the application for the probate of the estate of Patrick W.

Whiffen. No evidence wasadduced with respect to the nature of the caveat or the reason why the issuance of letters probate is in dispute. [8] The Plaintiff commenced an action early in 2020. In his prayer for relief he claimed:

a) A declaration, pursuant to Rule 7.16 of the Rules of the Supreme Court, SNL 1986, c42,

Schedule D as amended, that theDefendants shall not enter upon or use the Property;

b) An injunction to restrain the Defendants from entering upon or otherwise using the Property, and restraining the Defendants fromcommunicating with prospective purchasers of the Property or otherwise interfering with the sale of the Property. [9] Shortly thereafter the Plaintiff commenced an interlocutory application seeking the same relief as was requested in theStatement of Claim. [10] A hearing was conducted on July 27, 2020. At that time the following persons were cross-examined on affidavits that they hadfiled: a.

Daphne Clarke – the real estate agent who was appointed by the Plaintiff to sell his property; b. Adam Thomas Mayo – an articling student with Mr. White’s office who had tendered an affidavit attaching certain surveyingdocuments and photographs; c. Evan Joseph Young – the Plaintiff; d. Lorraine Benoit – the Ninth Defendant;

e. Paul Whiffen – the Sixth Defendant; and f. Veronica O’Leary – the Fifth Defendant. [ 11 ] The action against the First, Second, Third and Seventh Defendants were discontinued prior to the hearing of the application. [ 12 ] Prior to the hearing of the application the Eighth and Ninth Defendants filed notice that they had terminated their counsel’s retainer and that they intended to act on their own behalf. Both of them were personally present at the hearing. [ 13 ] Daphne Clarke testified that she received a telephone call from Veronica O’Leary – who indicated that she was trespassing when showing Mr.

Young’s property. She also received an email message from Lorraine Benoit purportedly sent on behalf of three of the Whiffen children that canvassed a number of issues with the sale of the property including: the land was not freehold, the estate had not been probated and there is no right-of-way to access the subject property. [ 14 ] Adam Thomas Mayo is Mr. Wayne White’s articling student. He had filed an affidavit attaching a number of surveyor’s certificates and photographs that had been obtained by his principal’s law firm. Mr.

Mayo acknowledged, in cross-examination, that he did not possess expertise that would allow him to opine on the existence of a right-of-way to the Plaintiff’s property. [ 15 ] The Plaintiff, Evan Joseph Young, was cross-examined. He acknowledged that Paul Whiffen, Michael O’Leary and Veronica O’Leary, the Sixth, Fourth and Fifth Defendants, were not using his property or entering upon it.

He further acknowledged, that other than the e-mail sent by Lorraine Benoit, that William Whiffen and Lorraine Benoit, the Eighth and Ninth Defendants, had not interfered with the Plaintiff’s property. [ 16 ] Lorraine Benoit, the Ninth Defendant, was cross-examined. She is the spouse of the Eighth Defendant, William Whiffen. She stated that she had not spoken to anyone concerning the property except Daphne Clarke. She acknowledged sending the e-mail to Daphne Clarke. She indicated that she has a vague idea of where the property is located because she has been there.

But she has no knowledge of it other than that. [ 17 ] Paul Whiffen, the Sixth Defendant, also was cross-examined. He stated that he owns land that is adjacent to the disputed right- of-way. He obtained title to his land in the same manner as the Plaintiff – by way of a conveyance from Frank Whiffen. He has an artesian well close to the disputed right-of-way and is concerned about damage to his water supply when the right-of-way is used during periods of rain.

He has blocked access to the Young property with his half-ton truck on one occasion out of concern for his well. [ 18 ] Veronica O’Leary was cross-examined. She is the daughter of Patrick Whiffen. She indicated that at one time her father owned all of the property now owned by his children and the Plaintiff. When the Plaintiff and his former spouse were living in their house she did not object to them using the disputed right-of-way. She stated that she owned the disputed right-of-way and that she did not want anyone going up there (to the Plaintiff’s house) any more.

She testified that all of her life there was a walking path that went to a barn that Patrick Whiffen owned – the land that the Plaintiff now owns. She said that “Everyone used the pathway – that’s just the way it is”. ISSUES 1. Is the Plaintiff entitled to a Declaration pursuant to Rule 7.16 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D (“ Rules ”), as amended? 2. Is the Plaintiff entitled to an Injunction pursuant to Rule 22.01 of the Rules , as amended? THE LAW [ 19 ] Rules 7.16 and 22.01 of the Rules , as amended state as follows: 7.16.

No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. 22.01.

(1) An application for an injunction may be made by a party to a proceeding, at any time after the commencement of the proceedings, whether or not the claim for the injunction was included in the party’s statement of claim, originating application, counterclaim or third party notice.

(4) An application for an interim injunction may be granted, refused or otherwise dealt with by the Court on such terms as are just. DECLARATION [ 20 ] In Lemessurier et al v. Newfoundland & Labrador , 2005 NLTD 10 , Halley J. outlined that three matters are to be considered in determining whether the discretionary remedy of a declaratory judgment ought to be granted:

1. The issue must be real (not theoretical); 2. The Plaintiff must have a real interest in the matter; and 3. The Defendant must be in a position to oppose the application. INJUNCTION [21] Green, J. (as he then was) set out the principles applicable to the grant of interlocutory injunctions in Hurley v. Slate VenturesInc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 (Nfld. S.C. (T.D.)), at paragraph 25. They aresummarized as follows: 1. The applicant must show that there is a serious issue to be tried, in the sense that the claim is not frivolous or vexatious. 2.

The applicant must show he or she is suffering or will likely suffer irreparable harm, namely, loss that cannot be readily assessed interms of money or, if it can be so assessed, a loss that will be uncollectable. 3. The applicant should give an undertaking in damages that would be adequate, if the respondent were to succeed at trial, tocompensate the respondent for loss sustained because of the granting of the injunction. The person giving the undertaking ought, as ageneral rule, to be in a financial position to honour the undertaking if called upon. 4.

Where there is doubt as to the adequacy of the respective remedies in damages available to either party, the applicant must thensatisfy the court that the balance of convenience favours the granting of the injunction. In considering this factor, the court must look atand balance, among other things, the degree of irreparable harm that may be suffered by the plaintiff, if the injunction were not grantedand by the Defendant, if the injunction were granted. The existence and strength of the undertaking offered by the applicant is a factor tobe considered in the determination of the balance of convenience. 5.

Where the application of the balance of convenience test leads to no clear resolution, the court will normally seek to preserve thestatus quo. 6. Where the status quo is uncertain or its preservation is not a desirable result the court may consider the relative strength of eachparty’s case and if the merits on one side appear to be disproportionately greater than the merits of the other then the injunctive reliefshould be granted or denied accordingly. ANALYSIS DECLARATION [22] The Plaintiff requested a declaration, pursuant to Rule 7.16 that the Defendants shall not enter upon or use the property.

Thereis no evidence that any of the Defendants entered upon or used the Plaintiff’s property. Even the Plaintiff, in his cross-examination,acknowledged that apart from the e-mail sent by Lorraine Benoit and the phone call made by Veronica O’Leary, none of the Defendantshad entered upon or used his property. [23] That being the case, the issue, upon which the request for a declaration is based, is not real. The request addresses somethingthat is theoretical – it has not happened and there is no evidence that it is about to happen.

The request for a declaratory judgment has nogrounding sufficient to allow the Court the ability to grant a remedy. [24] There is no doubt that the Plaintiff has a real interest in the matter. The Defendants conceded this point in argument. [25] The Defendants would not be able to properly oppose the Plaintiff’s request for a declaratory judgment since there is no factualunderpinning to his claim for a declaration.

If, as the Plaintiff admits, there is no evidence that the Defendants entered upon or used hisproperty – there is no basis upon which a declaration can be given to prevent them from doing so. [26] The Plaintiff is alleging, in a backhanded way, that he has a valid right-of-way allowing him ingress and egress to his property. A declaration that the Defendants are not to enter upon or use his property will not provide him what he requires.

INJUNCTION [27] It will be remembered that the Plaintiff requested an injunction to restrain the Defendants from entering upon or otherwise usingthe property, and restraining the Defendants from communicating with prospective purchasers of the property or otherwise interferingwith the sale of the property.

[ 28 ] Since there is no evidence that the Defendants entered upon or used the property in any fashion, there is no basis for the granting of an injunction preventing those activities.

We are left, therefore, with restraining the Defendants from communicating with prospective purchasers of the property or otherwise interfering with the sale of the property – such as the placement of the private property signs and the blocking of access by the Sixth Defendant. [ 29 ] The Plaintiff seeks to use the remedy of the injunction to provide a gag order relating to the validity of his title and, as well, to validate his right-of-way. [ 30 ] The Plaintiff is in an unenviable position.

It is clear that upon the dissolution of his relationship with his former spouse any goodwill afforded him by the Whiffen family evaporated. He is stuck making mortgage payments on a house in Newfoundland and is unable to get on with his own life in Alberta because of his inability to obtain another mortgage in that jurisdiction – presumably because his income is insufficient to make two mortgage payments. [ 31 ] The Plaintiff has a serious issue to be tried – but it relates to the existence, or non-existence, of a right-of-way to his property in Fox Harbour.

That is not a matter that is, as yet, a subject of the pleadings in this Court. I suspect that it will become so because there is little point in selling a house that cannot be legally accessed by the purchaser. [ 32 ] It cannot be said, however, that the Plaintiff will suffer irreparable harm if the injunction is not granted. If it can be shown that the Defendant’s actions caused a real estate transaction to fall through, and if it can be shown that the Defendant’s actions were actionable, then the Plaintiff’s loss is easily calculable since it is the value of the transaction that was lost.

That is a risk that the Defendants will take if it is ultimately proven that they wrongfully interfered with the Plaintiff’s proposed sale of the property. [ 33 ] While the Plaintiff is willing to give an undertaking in damages in the event that the Defendants are successful at trial he is, by his own admission, not able to purchase a house in Alberta because of his financial commitments in the Province of Newfoundland and Labrador. One wonders, therefore, whether he would be capable of honouring such an undertaking.

Admittedly, this is speculative on my part because the thickness or thinness of his ability to pay was not addressed in cross-examination. In any event, I am not basing my decision on this factor. [ 34 ] There was insufficient evidence, in the course of the application, to determine whether or not the objection to the probate of Patrick Whiffen’s estate would affect the Plaintiff’s title. Similarly, there was insufficient evidence as to the existence of a right-of-way. On that score since the balance of convenience test is indeterminate, the balance must favour the status quo.

The status quo is that the Plaintiff has claimed a freehold interest in certain property together with a right-of-way for ingress and egress. Any interference with those claims continues to be actionable in damages even though I have declined his request for a declaration and an injunction. [ 35 ] I find that the Plaintiff has not shown that he would suffer irreparable harm that cannot be compensated in damages.

I find, as well, that the balance of convenience in this case favours the status quo. [ 36 ] Under the circumstances the Plaintiff’s request for declaratory and injunctive relief is dismissed. [ 37 ] Costs shall be in the cause. [ 38 ] I urge all parties, as Marshall, J. had earlier done, to set this matter down for a settlement conference with a view to settling their differences. _____________________________ Vikas Khaladkar Justice