2023 MBKB 92, 2023 MBKB 92

Date: 20230424 Docket: CI 22-01-34580 (Winnipeg Centre) Indexed as: Arthur et al. v. The City of Winnipeg et al. Cited as: 2023 MBKB 92 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ROBERT ARTHUR, LISA CRAIG, MICHAEL ) David Hill GUERTIN, ANDREA O’MEARA, ) for the applicants JAMES O’MEARA, JOAN SPEIDEL, ) IVAN SPEIDEL and SHAUNA STREICH, ) Nicole Beasse ) for the respondents applicants, ) - and - ) Lynda Troup ) Intervener for THE CITY OF WINNIPEG, THE ASSINIBOIA ) Oakdale Lands Ltd.

COMMUNITY COMMITTEE and ) JOHN KIERNAN, ) Judgment Pronounced : respondents. ) April 24, 2023 EDMOND J. (Orally) Background Facts [ 1 ] As this matter is urgent and the applicants seek extraordinary relief, I propose to deliver my decision orally today.

If a copy of the transcript of the reasons for decision is ordered, I reserve the right to edit the decision for grammatical and typographical errors, but not for anything of substance. [ 2 ] The applicants filed an application seeking judicial review of decisions made by The City of Winnipeg council and the Assiniboia Community Committee respecting a subdivision and re-zoning of property on Oakdale Drive in Winnipeg. The applicants raised numerous grounds which the court reviewed. On February 1, 2023, I released reasons for decision dismissing the application with costs to the respondents ( 2023 MBKB 21 ).

On the date of the hearing, October 11, 2022, I reserved my decision and granted a temporary injunction pending the delivery of the decision.

The injunction order states in part: “… no physical construction is to be commenced with respect to By-law 25/2022 including, inter alia , any foundation work, breaking ground or tree removal, until the decision of this Honourable Court respecting this Application is made and released to the parties.” The injunction order further states “This shall not include any preliminary matters, permits, or sitework that relate to the preparatory work which may be required prior to actual construction on the site.” The parties consented as to form and content of the form of the temporary injunction, which I signed on October 24, 2022. [ 3 ] On February 1, 2023, in the reasons for decision at para. 93, I stated “The injunction that was granted at the time I reserved my decision is set aside.”

[4] On February 28, 2023, the applicants filed a motion seeking: (

a) an unconditional stay of the Judgment of Mr. Justice Edmond dismissing the application by the applicants together with costs(the “Judgment”) pending the determination of the applicants’ appeal of the Judgment; (

b) in the alternative, a stay of the Judgment on such terms as are just; [5] In support of the motion, the applicants filed an affidavit jointly sworn on March 19, 2023, by two of the applicants, ShaunaStreich and Andrea O’Meara, which provided information regarding work that has proceeded on the property on Oakdale Drive (asdefined in my decision) on and after February 6, 2023. They state in the affidavit at paragraph 17 that work on the site is taking place ona daily basis so excavation of the basements for the three multi-storey structures seems imminent.

Legal counsel for Oakdale Lands Ltd.filed the affidavit of Mr. Keith Merkel, sworn March 13, 2023. During the hearing this morning I granted leave to Oakdale Lands Ltd. tointervene as a party to make submissions as an interested party. Mr. Merkel is the President of Oakdale Lands Ltd. and he providesbackground regarding the purchase of the property and the status of construction. He states in his affidavit that upon receiving thecourt’s decision on February 1, 2023, Oakdale Lands Ltd. moved forward with issuing purchase orders for demolition, piles, steel andhollow core.

He states at paragraph 16, “The soft costs, not including the land purchase, incurred to date is at $3,471,157. Including thePurchase Orders, Oakdale Lands has made a total financial commitment of $11,691,324, not including the land purchase.” At paragraph18, Mr. Merkel references the consequences if a stay is granted until an appeal is heard and determined.

He concludes at paragraph 19stating that any further delay will lead to significant increased costs and “place Oakdale Lands in serious financial jeopardy such that itwill no longer be able to meet its obligations.” Law and Decision [6] Granting a stay of proceedings is a discretionary order governed by Kings Bench Rule 63.01.

An appeal to The Court of Appealshall not operate as a stay of execution or of proceedings under the order appealed from, but the judge who granted the order may staythe order at any time before the appeal is determined (Rule 63.01(1)). [7] Kings Bench Rule 63.01(3) states that a stay may be granted unconditionally or on such terms as are just. [8] The parties agree that the test for granting a stay is the same as or similar to the test for granting an interlocutory injunction.

Theapplicants submit that the three factors must have been met when the interlocutory injunction was granted on October 11, 2022, andtherefore a stay/injunction should be granted as the three factors have been satisfied today. [9] The test to be applied was clearly articulated by the Court of Appeal in Gateway Packers Ltd. v. Greyhound CanadaTransportation Corp., 2004 MBCA 38, [2004] M.J. No. 101 (QL), at para. 5 as follows: 5 The law relating to the granting of a stay pending appeal is clear and not disputed by the parties.

A stay of a judge's order pendingthe disposition of an appeal is a matter of judicial discretion. There is a heavy onus on the applicant since the presumption is in favour ofthe correctness of the decision of the judge.

The court must carefully consider three principles in determining whether to grant a stay ofthe judge's order pending the disposition of an appeal: (1) whether there is an arguable case that the order sought to be appealed from is wrong; (2) whether the applicant could, unless the stay is granted, suffer irreparable harm, namely, harm that is not susceptible or is difficult tobe compensated in damages; and (3) on the balance of convenience, which of the parties involved would suffer the greater harm from the granting or the refusal to grant astay pending the disposition of the appeal on its merits.

See Chicago Blower Co. v. 141209 Canada Ltd. and Transregent Holdings Ltd. et al. (1990), (MB CA), 63 Man.R.(2d) 241 (C.A.), and RJR - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. [10] Prior to reviewing the test that is applied to determine whether to grant a stay, it is necessary to consider the temporary injunctionin its proper context. The temporary injunction expired when the reasons for decision were delivered on February 1, 2023. It does notfollow that if a stay is granted, the temporary injunction continues or would remain in place.

I am not satisfied that a stay pending appealalone would provide the applicants with the relief they seek. In effect, they are seeking a further interlocutory injunction enjoining anyfurther development of the property pending the hearing of any appeal they intend to advance. [11] In Truro Development Corp. v. IPCF Properties Inc., 1997 NSCA 125, 1997 CarswellNS 688, the Nova Scotia Court of Appealaddressed a request for a stay of execution of the Nova Scotia Utility and Review Board’s decision pending appeal.

The Nova ScotiaUtility and Review Board dismissed the appeal and affirmed the February 3, 1997 decision of council of the town of Truro to enter into adevelopment agreement with the respondent, IPCF Properties Inc., permitting the construction of a Superstore in downtown Truro. TheCourt of Appeal considered Rule 62.10, which is similar to Kings Bench Rule 63.01. The Court of Appeal stated at para. 8 “I agree withthe respondents that the appellant is, in essence, seeking an injunction, preventing the progress of the Superstore construction.”

[12] Further, at para. 10 the court stated: I sympathize with the appellant’s concern that if the Superstore is constructed prior to disposition of this appeal, it may face a potentiallyinsurmountable hurdle. In the appellant’s submission, the appeal will be rendered moot because it is unlikely that the store would beordered demolished. On the other hand, however, my threshold concern, is that the stay sought, if granted, would not effect the desiredinjunctive relief.

On Thursday, July 31, 1997, the Board having affirmed the Town’s decision consistent with s. 75 of the Planning Act,the Town of Truro and IPCF Properties Inc. entered into the development agreement. A stay of the Board’s decision dismissing theappeal would leave the development agreement unaffected. Only if I attached a condition enjoining further action on the developmentpermit, would the stay have the impact sought. [13] The Nova Scotia Court of Appeal went on to cite with approval, the decision of Apotex Inc. v. Attorney General for Ontario etal. (1986), (ON CA), 54 O.R. (2d) 286, [1986] O.J. No. 250 (Ont.

C.A.) (QL). In that case, the appellant applied forjudicial review of a regulation removing a drug from the Ontario Drug Plan. The appellant’s application was dismissed and the appellantsought an order staying the decision of the divisional court pending appeal to the Court of Appeal, that the drug remain listed. FinlaysonJ.A. in Chambers, considered the application of Ontario Court Rule 63.02(1) and stated: In my opinion rule 63.02 contemplates that terms may be imposed on the applicant seeking the indulgence as a condition of receivingsuch indulgence.

A stay is by its nature negative and not affirmative and I have great difficulty in contemplating how in thecircumstances of this case a stay, however framed, could bring about the result the applicant seeks. In my opinion I have no authorityunder rule 63.02 to impose the condition on the respondents which the applicant seeks. [14] The same reasoning applies in this case. The application for judicial review was dismissed.

By-law 25/2022 was passed byelected officials and I am satisfied that I must proceed on the assumption that the By-law was passed and is directed to the public goodand serves a valid public purpose. (See Harper v.

Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764) Further, as stated inthe Gateway Packers Ltd. case, there is a heavy onus on the applicants since there is a presumption in favour of the correctness of thedecision of the judge. [15] Granting a stay is by its nature negative and not affirmative and therefore I adopt the reasoning articulated by Finlayson J.A. andhave great difficulty accepting that granting a stay in the circumstances of this case could bring about the result the applicants seek. [16] The injunction granted was temporary and was set aside when the reasons for decision were delivered.

I am not persuaded thatgranting a stay in this case without a further injunctive condition provides the applicants with the form of relief sought.

While KingsBench Rule 63.01(3) provides authority to grant a stay on such terms as are just, I am not satisfied that attaching the condition sought ofenjoining or prohibiting construction or action on the approved DASZ application which permitted the development and re-zoning of theproperty is just in the circumstances. [17] While the applicants technically did not file a motion seeking an injunction, I will nevertheless, assess the relevant factors as, inmy view, the applicants clearly seek a stay on such terms as are just and the responding parties had notice of the relief sought whichincluded continuing the temporary injunction.

Concerning the first factor, the applicants have not yet filed a Notice of Appeal and thereis nothing filed in the affidavit relied upon by the applicants to assess whether there is an arguable case that the order or judgment soughtto be appealed from is wrong. The applicants referenced the notice of motion which states the documentary evidence relied uponincludes the affidavit of Robert Arthur sworn May 3, 2022. The threshold for meeting the first stage of the test is a low one, butreferencing an affidavit considered in support of the application is, in my view, insufficient.

Some evidence must be filed to support thesubmission that the there is an arguable case that the order to be appealed from is wrong.

Assuming for the moment, that the firstquestion may be met because the threshold is low, the next question is whether the applicants will suffer irreparable harm if theinjunction is not granted. [18] While there is some basis to assess whether irreparable harm may result to the applicants if an injunction is not granted, certainconstruction has already commenced and without further evidence, I am not convinced the applicants have met the onus of proving theywill suffer irreparable harm if construction continues until the appeal is heard and decided. [19] Further, I am not satisfied that the balance of convenience favours granting an injunction pending the disposition of the appeal. [20] The evidence filed establishes that construction is underway and I agree with the submission of the respondents that there is not alegal basis to support the applicants’ right to request that a court prevent Oakdale Lands, the owner of the property, from proceeding withthe development of its property.

Some of the concerns raised by the applicants in their application included the removal of trees andincreased traffic in the neighbourhood. The evidence filed states that at least 100 mature trees have already been cut down prior to todayto permit construction to proceed and therefore, granting a stay with conditions or an injunction would not change that fact. Further, theissue of increased traffic will not become a reality until construction is completed and tenants move into the units that are beingconstructed.

Assuming the applicants can advance an arguable case that the judgment or order sought to be appealed is wrong, I do notagree that proceeding with the appeal has been rendered moot. [21] The property owner has assumed the risk that the applicants may be successful on an appeal and arguably, there is a possibilitythat By-law 25/2022 may be quashed and construction may be stopped or delayed. By-law 25/2022 permits the re-zoning anddevelopment of the property and the application for judicial review was dismissed.

Although I agree the development may impact theapplicants, they have no legal interest in the property being developed. I considered the impact and inconvenience that may be sustained

by the property owner, Oakdale Lands as one factor to determine whether an interlocutory injunction should be granted. The evidence filed satisfies me that the impact that may be sustained by Oakdale Lands, if an injunction is granted, is significant. During submissions, counsel for the applicants acknowledged that the applicants do not have the resources to post security to cover the increased costs of construction that may be incurred by Oakdale Lands if an injunction is granted.

The applicants submit that there is a public interest basis to this case and therefore no security is appropriate in the circumstances. [ 22 ] Kings Bench Rule 40.03 states: 40.03 On a motion for an interlocutory injunction, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. [ 23 ] In my view, it would not be appropriate to waive the requirement to provide an undertaking for damages.

The applicants must be prepared to undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the injunction has caused damage to the responding party, in this case, Oakdale Lands. Since the damages that may be caused are significant, and the applicants may not be in a position to satisfy such an undertaking, I have a concern that such an undertaking will not provide a basis to compensate Oakdale Lands if the injunction is granted and the appeal fails.

That is another factor I considered in exercising my discretion to dismiss the request for an injunction pending the hearing of an appeal. [ 24 ] Overall, I am not persuaded that it would be just and equitable to grant a stay with conditions attached or an injunction pending the hearing of the appeal. If the applicants intend to appeal the decision, they should do so without delay and take steps to expedite the hearing of the appeal. The reasons for decision were delivered on February 1, 2023.

The judgment granted should be filed today and if the applicants intend to appeal the decision, the Notice of Appeal and Appeal Books can be filed right away. Given the concerns expressed, the applicants’ factum should be filed without further delay so as to

schedule an appeal hearing as soon as possible. [ 25 ] Accordingly, the request for a stay pending appeal or an injunction pending the hearing of an appeal is dismissed with costs to the respondents. J.