Arnold Tucker Plaintiff And: THE registrar of the supreme court as ADMINISTRATOR OF THE ESTATE v. EFFECTS OF, 2018 NLSC 254

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Tucker v. The Registrar of the Supreme Court , 2018 NLSC 254 Date : December 13, 2018 Docket : 1991012552 Between: Arnold Tucker Plaintiff And: THE registrar of the supreme court as ADMINISTRATOR OF THE ESTATE AND EFFECTS OF MARY REBECCA HAWKINS, DECEASED Defendant Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 16, 2018 Appearances: Timothy Young Appearing on behalf of the Plaintiff Karl W. G. Dlugosch Appearing on behalf of the Defendant Authorities Cited:

CASES CONSIDERED: Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46; Hickey v. Walsh (1997), (NL SC), 154 Nfld. & P.E.I.R. 59 (Nfld. S.C. (T.D.)); King v. King, 2015 NLTD(G) 130; Cleary v. King, 2014 NLCA 33;Clarke v. Johnson, 2014 ONCA 237; RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R.311. STATUTES CONSIDERED: Public Trustee Act, 2009, S.N.L. 2009 c. P-46.1; Adult Protection Act, S.N.L. 2011 c. A-4.01; ChattelsReal Act, R.S.N.L. 1990 c. C-11; Statute of Frauds, 1677, 29 Car. II, c. 3 (U.K.). RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42,

Schedule D. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Defendant is the Applicant in this interlocutory application for vacant possession. The Defendant was named inpleadings as the Registrar of the Supreme Court as administrator of the estate and effects of Mary Rebecca Hawkins, deceased. Inaccordance with the Public Trustee Act, 2009, S.N.L. 2009 c. P-46.1,

section 26, the Public Trustee has taken over the Registrar’s role,and the Public Trustee is now considered to be the Administrator, C.T.A., D.B.N. of the estate and effects of the late Mary RebeccaHawkins. The Public Trustee is therefore now considered to be the Defendant. [2] The Plaintiff is the Respondent in this application. The Plaintiff, Arnold Tucker, is one of the seven children of the late MaryRebecca Hawkins. [3] In 1955, Mary Rebecca Hawkins purchased property located at 13 Belbin’s Road, in the Town of Portugal Cove-St. Phillips(the “Property”).

She raised her children in the family home on the Property. In the 1980s the Plaintiff was the only child who livedwith his mother in the family home.

The Plaintiff has been the sole occupant of the Property since his mother died in 1989. [4] The Defendant’s interlocutory application seeks an order requiring the Plaintiff to give up vacant possession of the Property. [5] The Defendant seeks vacant possession by way of an order for a permanent injunction evicting the Plaintiff from theProperty, so as to allow the Defendant to sell the Property. [6] The Defendant alternatively seeks an interim injunction prohibiting the Plaintiff from continuing to reside on the Property,until he proves his claim to the Property.

BACKGROUND [7] Mary Rebecca Hawkins (also referred to as the “Deceased”) died on June 18, 1989. At the time of her death, Mary RebeccaHawkins owned the Property upon which the family home was situate. The Plaintiff lived in the family home with Mary RebeccaHawkins prior to her death; and he continued to reside in the home after his mother’s death. [8] In her Last Will and Testament, which was executed on August 24, 1984, the Deceased appointed her daughter, ClotildaGodden, as executrix.

The Will states, as follows: … I give, devise and bequeath all property of whatsoever kind and wheresoever situate, of which I die possessed to my Executrix in trust,to sell the same as soon as convenient after my death, and to divide the net proceeds of such sale equally among my seven children. [9] On September 8, 1989, letters of probate to Mary Rebecca Hawkins’ Last Will and Testament were granted to her daughter,Clotilda Godden. [10] On July 31, 1991, the Plaintiff commenced action against Clotilda Godden, in her capacity as executrix of the estate of MaryRebecca Hawkins.

In the statement of claim, the Plaintiff stated that Mary Rebecca Hawkins had, by her representations, made an oralcontract with him to transfer ownership of the Property by conveyance, or devise. The Plaintiff requested specific performance of thealleged oral contract.

Alternatively, the Plaintiff claimed compensation for the value of labour and materials allegedly incorporated byhim into the Property, in reliance upon the alleged oral contract, plus a further amount to be assessed representing compensation on aquantum meruit basis. [11] On December 6, 1991, the Court ordered that Clotilda Godden be removed as executrix of her mother’s estate.

Shortlythereafter, on December 20, 1991, the Registrar of the Supreme Court was appointed as Administrator, C.T.A., D.B.N. of the estate andeffects of the late Mary Rebecca Hawkins. [12] On November 2, 1992 the Registrar of the Supreme Court filed a defence and counterclaim. The counterclaim included aclaim against the Plaintiff for vacant possession of the Property. A defence was not been filed to the counterclaim.

[ 13 ] A notice of trial was filed on October 8, 1993; however, the matter did not proceed to trial. [ 14 ] Prior to this current application, the last document filed in this matter was a property inspection report which was filed with the Supreme Court registry on December 13, 1993.

That report was filed pursuant to an order granted by Justice Schwartz on November 16, 1993, granting an application by the Defendant. [ 15 ] There was nothing further filed with the Court in relation to this proceeding after December 13, 1993 up to and including November 20, 2017. [ 16 ] On November 21, 2017 the Defendant filed a notice of intention to proceed pursuant to Rule 3.04 of Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42,

Schedule D. [ 17 ] On January 8, 2018 the Defendant filed this application seeking an order for vacant possession of the Property.

THE APPLICATION [ 18 ] In support of the application, the Public Trustee filed two affidavits; one sworn by Karen Lawlor, an estates officer with the Office of the Public Trustee, and another sworn by Walter Tucker, the Plaintiff’s brother. [ 19 ] Karen Lawlor’s affidavit indicates that by letter dated May 26, 2017, the Defendant informed the Plaintiff it would be winding up the Deceased’s estate by placing the Property for sale; and the Defendant requested that the Plaintiff vacate the Property by no later than July 4, 2017.

The letter indicated that after July 4, 2017, the Defendant would list the Property for sale. [ 20 ] Ms. Lawlor’s affidavit states that she then met with the Plaintiff, and three other beneficiaries, at which time the Plaintiff agreed to vacate the Property. The Pubic Trustee then proceeded to obtain a survey of the Property, and an appraisal. The appraisal valued the Property at $210,000. [ 21 ] Ms.

Lawlor’s affidavit further indicates that on September 27, 2017 the Defendant sent the Plaintiff correspondence indicating that an offer had been received for the appraised value of the Property, and that it was the Defendant’s intention to accept the offer. However, on October 11, 2017 the Plaintiff attended at the Public Trustee’s office to inform that he would not vacate the Property. Ms. Lawlor stated in her affidavit that the Public Trustee was not able to sell the Property until the Plaintiff vacated it. [ 22 ] Ms.

Lawlor’s affidavit further referred to the deplorable condition of the dwelling on the Property, in which the Plaintiff resides. Ms. Lawlor’s affidavit indicated that the Defendant had “grave concerns” for the Plaintiff’s welfare; that the Plaintiff does not have “sanitary facilities in the residence”, and that he “lacks even basic necessities”. [ 23 ] In Walter Tucker’s affidavit, he stated that the Plaintiff moved back to Newfoundland in 1980, and lived with their mother in the dwelling on the Property.

According to Walter Tucker’s affidavit, the Plaintiff neither paid rent, nor contributed to the maintenance of the Property. [ 24 ] Walter Tucker further stated in his affidavit that his mother had her Will drafted in 1984; and the Will was read to his family members, including the Plaintiff. [ 25 ] Walter Tucker then indicated in his affidavit that at the time of Mary Rebecca Hawkins’ death in 1989, he and his other brother, Peter Tucker, decided to allow the Plaintiff to continue living on the Property, due to the Plaintiff having nowhere else to live and no means to support himself.

He added that over the years, the Plaintiff has lived rent free on the Property; and Walter Tucker, along with neighbours and strangers, fed and clothed the Plaintiff. Walter Tucker’s affidavit further indicated that if the Plaintiff had been forced out of the Property, the Plaintiff would have had to “live in a group home with potentially mentally ill people”. [ 26 ] Walter Tucker’s affidavit expanded on the deplorable state of the dwelling. He provided numerous pictures to support his statement that the Plaintiff had failed to maintain the property.

The pictures depict a dilapidated house in a state of disrepair; and the interior of the dwelling is filthy. [ 27 ] Walter Tucker further indicated in his affidavit that the Property contained a hidden second chimney which could prove dangerous in the event that firefighters had to enter the home. He indicated in his affidavit that he raised this issue with the Town of Portugal Cove-St. Phillips. In correspondence to the Town from Walter and Peter Tucker, which was attached to the affidavit, an inspection was sought based on the conditions of the house and concerns as to Arnold Tucker’s safety.

Correspondence from the Town in response stated that the Town does not complete electrical inspections or assessment of social conditions; and the correspondence from the Town referred Walter Tucker to Eastern Health (Social Conditions), the Department of Advanced Education, Skills and Labour (Social Conditions) and Service NL (Electrical Inspections). [ 28 ] Walter Tucker expressed concerns in his affidavit about the Plaintiff’s “mental health and living conditions”. [ 29 ] Based upon the contents of the affidavits filed by the Defendant, in appearances on June 22, 2018 and July 6, 2018, the Court requested that the issue of the Plaintiff’s capacity be addressed, and whether the Plaintiff was an adult in need of protection in accordance with the Adult Protection Act , S.N.L. 2011 c.

A-4.01. [ 30 ] In response to the Court’s request, and in a subsequent court appearance on September 10, 2018, legal counsel relayed to the Court communications with Eastern Health, and referred the Court to correspondence received from Gertie Hunt, registered psychologist. Counsel were all satisfied that the Plaintiff was not an adult in need of protection, and that he had the requisite capacity; and based on the representations of Counsel, the Court was persuaded of same.

The Defendant’s application was set down to proceed to a hearing on October 16, 2018. [ 31 ] The Plaintiff then proceeded to file an affidavit in response to the application. According to his affidavit, his mother purchased

the Property and she lived there with her seven children. The Plaintiff lived in the home on the subject Property continuously from about 1957 to 1974. He then worked in Labrador for about four or five months in 1974, and then he returned to live on the Property. He then seasonally worked around the Avalon Peninsula. According to the Plaintiff, while working in Labrador and on the Avalon Peninsula, he would send his mother money to pay for expenses and maintenance related to the Property. [ 32 ] According to the Plaintiff’s affidavit, he relocated to Alberta for work from 1977 to 1980.

He indicates that during that period he again sent money to his mother to pay for property related expenses and maintenance around the house. [ 33 ] The Plaintiff further states in his affidavit that his mother married in 1980, at which time she asked the Plaintiff to return to the Property to live there to maintain the house in her absence. The Plaintiff was the sole inhabitant of the house from 1980 to 1982. In 1982 his mother separated from her husband, and she moved back into the home on the Property, with the Plaintiff.

His mother became ill in 1984; and the Plaintiff states that he remained with her, on the Property, caring for her throughout her illness, and until she died on June 18, 1989. [ 34 ] Further, according to the Plaintiff’s affidavit, from at least 1974 and up to the time of his mother’s death in 1989, he was solely responsible for the expenses related to the Property. His affidavit evidence was that he had been promised the subject Property by his mother, and in reliance upon his mother’s promises he assumed responsibility for the expenses related to the Property.

In addition to bearing responsibility for property related expenses, the Plaintiff indicated that he has maintained a small vegetable garden on the Property from which he has obtained a modest income from sales. Further, he indicated that he has developed several inventions and proprietary systems which he stores on the Property, and which he considers to be his life’s work.

He added that in 1982 he built a garage on the Property as a space for his work and general storage. [ 35 ] The Plaintiff’s affidavit confirmed that after the court ordered property inspection report was filed (on December 13, 1993), no further action was taken in the matter. His affidavit evidence indicated that his understanding was his siblings had decided that he would own the Property, and on that basis he continued to live on the Property as he considered it to be his.

He further claims that from December 13, 1993 to the present, his possession of the Property has been continuous, open, exclusive and notorious. [ 36 ] The Plaintiff’s affidavit evidence also stated that his limited income prevented him from putting money into the Property; however, he has managed to live on the Property “for 25 years without want, need, or disturbance to others”. In addition, his affidavit suggests that he would suffer social and financial hardship in the event that he was uprooted from the Property.

He also expressed the opinion that the value of the Property is more than the $210,000 appraisal. ISSUES [ 37 ] The Defendant’s memorandum indicates that vacant possession is sought by way of injunction evicting the Plaintiff from the Property. The issues to be considered are: 1. Should the Defendant be granted a permanent injunction? 2. Alternatively, should the Defendant be granted an interim injunction?

ANALYSIS Issue 1 – Should the Defendant be granted a permanent injunction? [ 38 ] As stated, the Defendant seeks vacant possession by way of a permanent injunction evicting the Plaintiff from the Property for the purpose of selling the Property. Alternatively, the Defendant seeks an interim injunction evicting the Plaintiff until he proves his claim. [ 39 ] In the leading case of Nalcor Energy v. NunatuKavut Community Council Inc ., 2014 NLCA 46 , Chief Justice Green (as he then was), described the difference between a permanent injunction and an interim injunction.

He indicated that when facts are in dispute, a permanent injunction can only be considered after a cause of action has been proven at trial; whereas an interim injunction merely requires consideration of the cause of action on a preliminary basis, and in the context of assessing if there is a serious issue to be tried.

Chief Justice Green stated this at paragraph 9 of Nalcor Energy , as follows: 9 Even though the choice of procedure is not engaged as a ground of appeal, it is nevertheless worth mentioning because the impression that is left is that the choice of procedure may have shaped the approach of the parties and the court towards the analysis of the case; in particular, it seems to have deflected the parties from fully recognizing that the claim for a perpetual injunction in the enforcement of private rights is a claim that can only be considered, where the facts are in dispute, after a trial has been held on the issue of whether a cause of action has been proven.

It is unlike an application for an interim or interlocutory injunction where the case is determined usually on an urgent basis where the underlying cause of action only has to be considered in a preliminary way for the purpose of determining whether there is a serious issue to be tried. The focus in an application for an interim or interlocutory injunction is on issues relating to the appropriateness of granting the requested remedy.

While matters relating to the appropriateness of granting the requested injunction must, of course, be considered in respect of a claim for a permanent injunction as well (though usually involving different considerations), the court cannot proceed to those issues until a decision is made on a balance of probabilities that a cause of action has been established. [ 40 ] Further, at paragraph 74 of the Nalcor decision, Chief Justice Green sets forth the analytical approach to be undertaken when determining whether a permanent injunction should be granted as a remedy. He stated, as follows:

74 I will conclude this analysis by saying that the proper approach to determining whether a perpetual injunction should be grantedas a remedy for a claimed private law wrong is to answer the following questions: (

i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suitshould be dismissed); (ii) Has the claimant established to the satisfaction of the court that the wrong(

s) that have been proven are sufficiently likely tooccur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (Ifnot, the injunction claim should be dismissed); (iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against thethreat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy); (iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship)affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, thoseconsiderations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny theinjunctive remedy.); (

v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms thatshould be imposed on the claimant as a condition of being granted the injunction? (vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be soas to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has beenproven or threatened or to effect compliance with its intent? [41] In this case, the Defendant asserts that trespass is the cause of action to be considered by the Court for the purposes ofassessing the appropriateness of the remedy of a permanent injunction.

The Defendant’s submission suggests that there are no validfactual or legal issues in dispute, and therefore a permanent injunction may be considered in this application. [42] The Defendant’s defence and counterclaim does not specifically claim trespass, but does state as follows, at paragraph 8: 8.

The Defendant says that contrary to the Last Will and Testament of the Deceased, the Plaintiff has unlawfully and without payingconsideration retained possession of the Deceased’s lands and dwelling and the contents thereof and the use and occupation of same fromthe date of the Deceased’s death to the date hereof. [43] In this application, the Defendant now characterizes the trespass as arising in 2017, when the Public Trustee renewed itsinvolvement in the matter, and when the Plaintiff refused to accede to the Defendant’s request to vacate the Property. [44] To elaborate, the Defendant characterizes the facts as a circumstance in which the Deceased’s Property had vested in theExecutrix (and now the Public Trustee), by way of the Chattels Real Act, R.S.N.L. 1990 c.

C-11; and that the Plaintiff’s occupation ofthe Property following his mother’s death was ultimately with his siblings’ consent, permission or licence. The Defendant asserts thatthe siblings’ consent was revoked in 2017 which, as stated, was when the Public Trustee renewed its involvement in the matter for thepurpose of the sale of the Property, and requested that the Plaintiff vacate the Property. [45] As submitted by the Defendant, to establish trespass, the Defendant need only establish, on the balance of probabilities, that ithas a better right to possess than the Plaintiff; Hickey v.

Walsh (1997), (NL SC), 154 Nfld. & P.E.I.R. 59 (Nfld. S.C.(T.D.)), at paragraph 3. The Defendant submits that it has a better right to possess the Property, and therefore the Plaintiff has beentrespassing from the time the sibling’s consent (licence) was revoked. [46] Further, the Defendant denies that the Plaintiff had any entitlement to the Property arising in the course of the time that he livedwith his mother. The Defendant relies on the Statute of Frauds, 1677, 29 Car.

II, c. 3 (U.K.), and the absence of any written contract orother evidence of an agreement to transfer the Property to the Plaintiff. [47] On this point, the Defendant referred to Justice Orsborn’s decision in King v. King, 2015 NLTD(G) 130, and the Defendantsubmitted that in that case, Justice Orsborn stated that equitable considerations may persuade a court to complete an imperfect transfer ofproperty. These equitable considerations could include extensively improving the land, or expending large sums of money (seeparagraphs 47 to 50 of King v. King).

The Defendant submitted that there were no equitable considerations in this matter to persuade theCourt to perfect a transfer of the Property to the Plaintiff. [48] By contrast, the Plaintiff’s position is that there are valid factual and legal issues in dispute; and therefore, the Defendant’srequest for a permanent injunction is premature.

The Plaintiff relies on the comments of Chief Justice Green in the Nalcor decision, andsubmits that the prematurity is due to the requirement that a trial be first held on the issue of whether the cause of action of trespass hasbeen established, on the balance of probabilities. The remedy of a permanent injunction can only be considered if the cause of action is

first established. [49] In my view, the Plaintiff’s affidavit filed in response to the application does indeed set forth valid factual and legal disputesregarding whether the Plaintiff’s occupation of the Property was with the consent of his siblings, or whether his occupation could becharacterized as adverse possession.

Specifically, the contents of his affidavit implicitly suggest a claim of adverse possession on hispart as he asserts that his occupation of the Property has been continuous, open, exclusive and notorious; and that subsequent toDecember 13, 1993, the Plaintiff had understood that his occupation of the Property was due to his siblings deciding that he would ownthe Property. [50] Further, as submitted by the Plaintiff’s Counsel, there is a valid legal dispute as to whether the doctrine of part performanceapplies, notwithstanding the Statute of Frauds.

The doctrine of part performance was recently applied in Cleary v. King, 2014 NLCA 33,where the doctrine is described as requiring that there be acts which suggest an oral contract, and that those acts be consistent with thecontract alleged (paragraph 12 of Cleary v. King). [51] The Plaintiff supported his claim for the doctrine of part performance by asserting in his affidavit, and his statement of claim,that his mother promised him the home; and that he paid expenses in reliance on the promise, and moved back home and cared for hismother.

A valid factual and legal dispute for trial will be whether the Plaintiff’s acts occurred as described in his affidavit, and whethersuch acts circumvent the Statute of Frauds. [52] The Plaintiff further submitted as a valid legal issue for trial the question of whether the doctrine of proprietary estoppelentitled him to an interest in the Property. On this point, the Plaintiff relied on the decision in Clarke v. Johnson, 2014 ONCA 237, inwhich the Ontario Court of Appeal indicated that the modern approach to proprietary estoppel is the preferred approach (see paragraph61 of Clarke v.

Johnson); and the Ontario Court of Appeal (at paragraph 52) described the modern approach as requiring three elementsto be established, as follows: 52 … (

i) the owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit overthe property; (ii) in reliance upon his belief, the claimant acts to his detriment to the knowledge of the owner; and (iii) the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected toreceive; … [53] The Plaintiff supported the validity of the legal dispute by submitting the following alleged factual considerations as relevant tothe application of the doctrine of proprietary estoppel in this case: Mary Hawkins’ alleged invitation to the Plaintiff to move home fromAlberta under the representation that he would be conveyed the Property; the Plaintiff moving home allegedly in reliance on therepresentation, and allegedly investing time and money in the Property; and the Deceased’s representative then seeking to deny thePlaintiff the Property, and instead seeking to obtain vacant possession. [54] The Plaintiff further asserted that if the Court ultimately found that the Defendant does indeed have a better title, or right topossess, than the Plaintiff, then the Plaintiff can validly argue at trial forbearance and acquiescence on the part of the Defendant.Specifically, the Plaintiff will alternatively assert that in reliance on the representations of his siblings that he could remain on theProperty, the Plaintiff did not pursue his claim after 1993.

By failing to pursue his claim, the Plaintiff is now, 25 years later, suffering adetriment as much of the evidence related to his claim is lost. The Plaintiff further raised for consideration the legal issue of laches. [55] After considering the submissions of both Counsel in light of the case law, and the affidavit evidence, I am satisfied that thePlaintiff has raised valid legal issues for which there are facts validly in dispute, and which remain to be determined at trial.

In otherwords, the legal issues and factual disputes raised by the Plaintiff in his claim, and in response to the Defendant’s application, are neitherfrivolous nor vexatious, and remain to be determined at trial. The claim of trespass cannot be established in the context of thisapplication, based on the materials before me.

Rather, the claim of trespass remains to be determined at trial, on the balance ofprobabilities. [56] Applying the Nalcor analysis, I therefore find that the Defendant’s request for a permanent injunction is premature because theelements of the cause of action of trespass remain to be established at trial, on the balance of probabilities. [57] The Defendant’s request for a permanent injunction is denied. Issue 2 – Alternatively, should the Defendant be granted an interim injunction? [58] The Defendant alternatively seeks an interim injunction. The Supreme Court of Canada in RJR – MacDonald Inc. v.

Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311, at pages 347 to 349, stated that a party seeking interim injunctiverelief must establish as follows: first, that there is a serious issue to be tried; second, that the claimant will suffer irreparable harm if theinjunction is not granted; and third, that the balance of convenience favours the injunction. [59] Both parties acknowledged that there is a serious issue to be tried, being who has the better right to possess the Property.

Basedon the foregoing analysis, the case law, and the affidavit evidence, and the submissions of Counsel, I accept that there is indeed a seriousissue to be tried.

[60] The Defendant asserted that it would suffer irreparable harm if injunctive relief is denied. The Defendant explained that apurchaser, being a family member, has been found for the Property; and if the Plaintiff is permitted to continue to reside on the Propertyand the sales transaction falls through, then the Defendant will incur a pecuniary loss.

The Defendant will then seek damages from thePlaintiff; however, the Plaintiff is virtually impecunious. [61] The Plaintiff does not deny that he is currently impecunious, but notes that he would ultimately be the recipient of a one-seventh share of his mother’s estate in the event that he was unsuccessful in establishing his claim. Therefore, in the event that there wasa deficiency between a future sale price, and the current purchase price, then the Plaintiff would be able to pay the difference out of hisshare of the estate.

As a result, there would be no irreparable harm suffered by the Defendant. [62] The Defendant replied that one-seventh of the value of the Deceased’s estate would not be sufficient to cover off damages. [63] The Plaintiff submitted that because the Defendant’s loss would be quantifiable in monetary terms, it is not considered to be“irreparable harm”. In support of this submission, the Plaintiff referred to RJR-MacDonald Inc. at page 341, where the Supreme Court ofCanada stated, as follows: "Irreparable" refers to the nature of the harm suffered rather than its magnitude.

It is harm which either cannot be quantified inmonetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the formerinclude instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), (SK KB), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its businessreputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity isnot enjoined (MacMillan Bloedel Ltd. v.

Mullin, (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.)). The fact that one partymay be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able tocollect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)). [64] Based on the above from RJR-MacDonald Inc., it is clear that the Plaintiff’s admitted impecuniosity does not “automaticallydetermine” irreparable harm; however, it may be a “relevant consideration”.

Nevertheless, in my view the Defendant has not establishedthat the Plaintiff’s impecuniosity permits the Court to conclude that the Defendant will likely suffer irreparable harm if the interiminjunction is not granted. Rather, the Defendant has merely asserted that one-seventh of the value of the Deceased’s estate would not beenough money to cover off the potential damages. Such assertion is speculative and is made without an evidentiary basis as to what thepotential damages may be.

The Defendant has therefore not established why the Plaintiff’s impecuniosity is relevant when he would beentitled to a one-seventh share of his mother’s estate, in the event that he does not establish his claims. I conclude that the Defendant hasnot established that it will suffer irreparable harm. [65] Further, with respect to the balance of convenience, the Defendant submitted that the balance of convenience favours grantingthe injunction in order to permit the Defendant to sell the Property.

Such, according to the Defendant, will put all parties involved in abetter position; and the Plaintiff will still be in a position to pursue his claim in damages, while at the same time allowing the Defendantto carry out the wishes of the Deceased under her Last Will and Testament. [66] Further, the Defendant submitted that refusing to grant the injunction, in effect, favours one beneficiary over the remaining six. As well, the Defendant submitted that the Property is in such an advanced state of deterioration that the house is, in essence,uninhabitable.

The Plaintiff’s living conditions are unsanitary, and the Defendant submitted that the family has a genuine concern forthe Plaintiff’s well-being. The Defendant suggested that the Plaintiff could ultimately use his share of the estate, being approximately$20,000, to find suitable and healthy living accommodations. Further, the Defendant suggested that the house will make the Plaintiff ill,and that there are concerns as to his safety in the event of fire due to a serious structural defect. [67] The Plaintiff responded by submitting that the balance of convenience favours denial of the interim injunction.

The Plaintiffrelied upon the Supreme Court of Canada’s comments on the balance of convenience test in RJR-MacDonald at pages 342 and 343, asfollows: The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as:"a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction,pending a decision on the merits".

In light of the relatively low threshold of the first test and the difficulties in applying the test ofirreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage. The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individualcase. In American Cyanamid, Lord Diplock cautioned, at p. 408, that: [i]t would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where thebalance lies, let alone to suggest the relative weight to be attached to them.

These will vary from case to case. He added, at p. 409, that "there may be many other special factors to be taken into consideration in the particular circumstances ofindividual cases." [68] The Plaintiff submitted that the granting of an interim injunction would cause greater harm to the Plaintiff than to theDefendant. The Plaintiff has lived continuously in the house on the Property for almost 40 years. Vacant possession is being sought by

the Defendant for the purpose of sale. If the Property is sold, then the Plaintiff’s claim for specific performance will have been frustrated. Refusing to grant the interim injunction will preserve the Property until the matter is determined on its merits at trial. [ 69 ] I accept and agree with the Plaintiff’s submissions and conclude that the balance of convenience favours denying the interim injunction.

In my view, the inconvenience to the Plaintiff caused by an order of vacant possession would far outweigh the inconvenience to the Defendant caused by delaying the winding up of the estate until after the cause of action has been determined. Further, considering that the matter has been dormant from mid-December of 1993 to November of 2017, there is no apparent urgency. Arnold Tucker has resided in the dwelling on the Property since his mother’s death in 1989, and indeed for most of his life; and the parties’ claims should be determined before the prospect of vacant possession is considered.

It would be unjust to grant the Defendant’s request for an interim injunction. [ 70 ] I add and repeat that both Counsel had agreed that the Plaintiff’s capacity was not in issue, and that the Plaintiff was not an adult in need of protection. Further, there was no evidence presented of a definite alternate plan for living arrangements for the Plaintiff.

While the Plaintiff’s current living conditions do indeed appear deplorable, the Defendant has not presented any authority to persuade the Court to eject the Plaintiff from his home on that basis, and in the context of the current application. [ 71 ] In conclusion, after considering the submissions of the parties, the case law and the evidence before the Court, I find that the Defendant has not satisfied the Court that an interim injunction should be granted. CONCLUSION [ 72 ] The Defendant’s application is dismissed in its entirety.

The Plaintiff shall be awarded costs on a Column 3 basis. _____________________________ Valerie L. Marshall Justice