2017 ONSC 6735, 2017 ONSC 6735

CITATION : 9402209 Canada Inc. v. 2434989 Ontario Inc., 2017 ONSC 6735 COURT FILE NO.: 17-74262 DATE: 2017/11/13 SUPERIOR COURT OF JUSTICE - ONTARIO RE: 9402209 Canada Inc. and Novera Homes Corp., Plaintiffs AND 2434989 Ontario Inc., Emad Memish, and Sign It Signs Inc., Defendants BEFORE: Aitken J. COUNSEL: Teena L. Belland, Counsel for the Plaintiffs Miriam Vale Peters, Counsel for the Defendants HEARD: November 3, 2017 ENDORSEMENT Nature of the Proceedings [ 1 ] The Plaintiff Numbered Corporation (“Plaintiff Corporation”) owns 1625 Bank Street, Ottawa.

The Plaintiff Corporation retained Novera Homes Corp. (“Novera”) to construct a 3-storey, retail building on this property. Construction commenced in the fall of 2016 and will be completely shortly. It is anticipated that there will be tenants in the building by December 2017. [ 2 ] The Defendant Numbered Corporation (“Defendant Corporation”) owns the neighbouring property at 1637 Bank Street, Ottawa. Emad Memish (“Memish”) has been retained to construct a building on this property. Construction commenced in the spring of 2017 and continues.

As part of the construction process, Memish has installed brackets and work platforms on the side of the building immediately adjacent to 1625 Bank.

Those brackets and work platforms encroach on 1625 Bank by anywhere from .25 to .26 meters (with one small area of encroachment at the back being .39 meters). [ 3 ] The Plaintiffs are seeking an interlocutory injunction (1) requiring the Defendants to remove any part of the brackets and work platforms attached to the building at 1637 Bank that hang over and encroach on the property at 1625 Bank, and (2) preventing the Defendants from installing any equipment that would trespass upon 1625 Bank, without further court order or a written agreement between the parties.

Defendants [ 4 ] There is no evidence that Sign It Signs, Inc. has any interest in 1637 Bank or any involvement in the construction of the building on that property. Sign It Signs, Inc. is removed as a Defendant in these proceedings. Additional Facts [ 5 ] There is very limited space between the two buildings. The Plaintiffs have 1.3 meters between their building foundation and the property line. The Defendants have only 0.5 meters between their building and the property line. [ 6 ] The Defendants installed the brackets and work platforms in August or September 2017.

The Defendants require brackets and a work platform to complete work on the wall of their building adjacent to 1625 Bank. [ 7 ] On September 7, 2017, the Plaintiffs served a Notice of Trespass on Memish and the Defendant Corporation requesting the immediate removal of those parts of the brackets and work platforms that overhang the property line into 1625 Bank. To date, those brackets and work platforms have not been removed. Law [ 8 ] The Courts of Justice Act , R.S.O. 1990, c. C. 43, s. 101 reads:

(1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted …, where it appears to a judge of the court to be just or convenient to do so.

(2) An Order under subsection (1) may include such terms as are considered just.

[9] Rule 40.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, reads: An interlocutory injunction or mandatory order under

section 101 or 102 of the Courts of Justice Act may be obtained on motion to ajudge by a party to a pending or intended proceeding. [10] The Plaintiffs have not yet served the Defendants with a Statement of Claim but have indicated their intention to do so. [11] The test for the granting of an interlocutory injunction was set out in RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, at para. 40, and is three-pronged: • Is there a serious question to be tried? (the claim must not be frivolous or vexatious) • Will the moving party, if unsuccessful, suffer irreparable harm which cannot be compensated other than through the granting of theinjunction? • Does the balance of convenience favour the moving party? (Who will suffer the greater harm from the granting or refusal of aninterlocutory injunction, pending a decision on the merits?) Issue One: Is there a serious question to be tried? [12] The first part of the test has easily been met.

There is no dispute that the brackets and work platforms installed on the buildingbeing constructed at 1637 Bank encroach on the property at 1625 Bank. This raises the issue of trespass. A trespass is not a trivialmatter in that it impacts the owner’s ability to deal with the property (Earle v. Martin, [1998] N.J. No. 353 (T.D.), at para. 30).

This isparticularly so when the owner has limited space on the side of its building and may have to use every inch of that space in order toaccess that side of the building. [13] In addition to the physical land, the owner of property also has the right to control the use of the airspace above that property(Carriere v. Bourre, 2009 CarswellOnt 4268, 44 C.E.L.R. (3d) 287, at paras. 10-11; Earle). [14] The Defendants allege that there was an agreement between the parties allowing each to encroach on the property of the otherduring the construction phase of both buildings for the mutual benefit of the parties.

The Defendants allege that the parties agreed tocompensate each other for any such encroachment. No written document was produced to corroborate this allegation. This is somethingbest left to trial, when oral evidence can be tendered. This allegation is not sufficient to render the question of trespass frivolous.

Issue Two: Will the Plaintiffs suffer irreparable harm if the injunction is notgranted? [15] The Plaintiffs cannot meet this prong of the test. [16] According to the evidence of Daniel Ladouceur (“Ladouceur”), a director and officer of Novera, construction on the side ofthe building at 1625 Bank adjacent to 1637 Bank has already been completed.

Ladouceur’s evidence is that this work was not done asoriginally contemplated, namely with a scissor lift, because due to the presence of the overhanging brackets and work platforms, therewas inadequate space between the wall and the lot line to accommodate the scissor lift. Instead, a swing scaffold was used. Accordingto Ladouceur, the need to use a swing stage, rather than the scissor lift, resulted in a one-month delay in the completion of 1625 Bank. The Plaintiffs intend to sue the Defendants for damages to cover their increased expenses caused by the encroachment and trespass.

Thisis a form of acknowledgement that the harm caused to the Plaintiffs by the Defendants can be compensated in a fashion other than aninterlocutory injunction. [17] It is also to be noted that the trespass and encroachment is not a permanent feature but, instead, will presumably cease whenconstruction of the side of the building at 1637 Bank adjacent to 1625 Bank is completed. The evidence of Memish, the project managerfor the construction of 1637 Bank, is that the building should be completed by April 2018.

This differentiates this case from otherswhere an injunction was granted in the face of what was anticipated as being a permanent encroachment. [18] I am not persuaded by the Plaintiffs’ arguments that their workers are put at particular jeopardy as a result of theencroachment on their property. Ladouceur’s evidence is that work on that side of the building has been completed, aside from filling inthe excavation which, according to the evidence, may not be able to occur on 1625 Bank until the excavation on the side of the propertyline at 1637 Bank is also being filled.

Issue Three: Does the balance of convenience favour the

Plaintiffs? [ 19 ] Although unnecessary, I will discuss the third issue. Even if I had found in favour of the Plaintiffs on the second issue, I would have denied them an interlocutory injunction based on the third prong of the test. [ 20 ] The balance of convenience favours the Defendants. The evidence of Memish is that, if the Defendants were required to dissemble the brackets and work platforms as requested by the Plaintiffs, the Defendants would not be able to complete construction of the exterior wall of the building abutting the Plaintiffs’ property.

Memish is not aware of any other available method of construction. There is no evidence to the contrary. [ 21 ] As well, Memish challenges the assertion of Ladouceur that the Defendants could simply reduce the width of the brackets and work platforms to ensure that they did not encroach on the Plaintiffs’ property. His evidence is that the usable portion of the work platforms on which the workers have to move, while carrying materials, is 24 inches.

I think it is within the realm of common sense to conclude that reducing the width of the brackets and work platforms to the extent that they did not encroach on the Plaintiffs’ property could be hazardous to the safety of the Defendants’ workers without, in any significant way, reducing the potential hazard of the structure to the Plaintiffs’ workers or tenants. Disposition [ 22 ] The Plaintiffs motion for an interlocutory injunction is dismissed. Aitken J. Date: November 13, 2017 CITATION : 9402209 Canada Inc. v. 2434989 Ontario Inc., 2017 ONSC 6735 COURT FILE NO.: 17-74262 DATE: 2017/11/13

ONTARIO SUPERIOR COURT OF JUSTICE RE: 9402209 Canada Inc. and Novera Homes Corp., Plaintiffs AND 2434989 Ontario Inc., Emad Memish, and Sign It Signs Inc., Defendants BEFORE: Madam Justice C. Aitken COUNSEL: Teena L. Belland, Counsel for the Plaintiffs Miriam Vale Peters, Counsel for the Defendants ENDORSEMENT Aitken J. Released: November 13, 2017