Androsoff v Waycon Investments Inc., 2019 SKCA 131

Court of Appeal for Saskatchewan Docket: CACV3429 Citation: Androsoff v Waycon Investments Inc. , 2019 SKCA 131 Date: 2019-12-03 Between: Walter Androsoff and Amanda Mercier Appellants (Defendants) And Waycon Investments Inc. Respondent (Plaintiff) Before: Richards C.J.S., Caldwell and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Tholl On Appeal From: QBG 380 of 2019, Saskatoon Appeal Heard: October 9, 2019 Counsel: Randall Klein for the Appellants Curtis Onishenko and Caroline Smith for the Respondent Richards C.J.S. I. Introduction [ 1 ] The respondent, Waycon Investments Inc. [Waycon], leased agricultural land owned by the appellants, Walter Androsoff and Amanda Mercier. The appellants entered an agreement to sell the land to a third party. Waycon then asserted a right of first refusal in relation to the sale of the land and commenced an action in the Court of Queen’s Bench against the appellants.

It was successful in obtaining an interlocutory injunction permitting it to continue farming the land pending the outcome of the trial. [ 2 ] The appellants contend the Queen’s Bench Chambers judge who issued the injunction made a number of errors in coming to her conclusions. They submit that the injunction application should not have been granted. [ 3 ] As explained below, I agree with key aspects of the appellants’ submissions. In particular, I agree that the Chambers judge made reversible errors in her assessment of the strength of Waycon’s case and of the issue of irreparable harm.

It follows that this appeal should be allowed and the injunction set aside. II. factual background [ 4 ] The land in issue [Land] consists of five quarter sections in the Blaine Lake area of Saskatchewan. Mr. Androsoff owns one of the quarter sections. He and his daughter, Ms. Mercier, jointly own, or have undivided half interests in, the other four quarters. I will refer to Mr. Androsoff and Ms. Mercier, collectively, as the appellants. [ 5 ] Waycon conducts farming operations. Allan Wishloff is a director and vice-president of Waycon and spoke for Waycon in its dealings with the appellants. [ 6 ] Mr.

Androsoff signed a written rental agreement [2016–17 Lease] with Waycon on January 26, 2016. The 2016–17 Lease provided for a cash rent payable on or before April 30 of each rental year. It also set out a “Right of Renewal” and a “Right of First Refusal” in these terms: 4. This agreement terminates on November 1, 2017 with the Tenant having first Right of Renewal on a new Rental Agreement. The Tenant will also have Right of First Refusal to purchase. [ 7 ] In or about April of 2017, Mr. Androsoff sent Waycon a note stating, “This year is the last year for renting by the Contract Nov. 1, 2017.

Could you let me know what you will be doing next”. Mr. Wishloff avers in an affidavit sworn on March 29, 2019, that he subsequently had discussions with Mr. Androsoff during which Mr. Androsoff indicated that he might wish to sell the Land. Mr. Wishloff states that Mr. Androsoff ultimately decided not to sell the Land and that he and Mr. Androsoff then “agreed that Waycon would lease the [Land] for the 2018 growing season on the same terms as in the 2016/2017 Lease”. [ 8 ] In her affidavit of March 28, 2019, Mr. Wishloff’s wife said she had spoken with Mr. Androsoff in May of 2018. She averred that she told Mr.

Androsoff that Mr. Wishloff would send him copies of “the 2018 lease” for his signature but, for unexplained reasons, this did not happen. Waycon farmed the Land in 2018. I will refer to the agreement to rent the land for 2018 as the 2018 Lease. [ 9 ] At some point in 2018, Mr. Androsoff decided to sell the Land and it was listed with a realtor in the fall of that year for $1,210,000. [ 10 ] On December 6, 2018, Waycon submitted an offer to the appellants to buy the Land for $775,000. The appellants counter- offered at $1,150,000. Waycon responded by offering to purchase two-thirds of the Land for $650,000.

The appellants rejected that

proposal. [ 11 ] Mr. Wishloff averred that he texted Ms. Mercier’s husband in mid-December of 2018 to start discussions about Waycon leasing the Land for the 2019 growing season if it did not sell. He proposed a three-year contract with an option for the appellants to sell after each crop was harvested. Mr. Wishloff said in his March 29, 2019, affidavit that he did this “in accordance with Waycon’s right of first refusal to lease the [Land]”. Ms. Mercier’s husband conferred with the appellants and replied to Mr. Wishloff by text message saying, “We are not renting the [Land] to you for 2019.

Can you please have your grain removed from the bins by the end of the year. Thanks”. [ 12 ] The appellants signed an agreement to sell the Land to Cadrain Farms Inc. in mid-January of 2019 for $950,000. [ 13 ] On January 22, 2019, Mr. Wishloff learned that the appellants had accepted an offer to sell the Land. Waycon then registered a miscellaneous interest against the title to the Land to protect what it saw as its right of first refusal to purchase the Land.

When Waycon received a notice to lapse the miscellaneous interest, it had a claim issued in the Court of Queen’s Bench, asserting “a right of first refusal to renew the lease” of the Land and “a right of first refusal to purchase the [Land]”. [ 14 ] On March 29, 2019, Waycon filed a notice of application in which it sought an interlocutory injunction permitting it to farm the Land until the trial of its action or until further order.

III. the decision under appeal [ 15 ] The Chambers judge reviewed the facts and then began her analysis of Waycon’s injunction application by referring to the three-part test for a mandatory interlocutory injunction spelled out by the Supreme Court of Canada in R v Canadian Broadcasting Corporation , 2018 SCC 5 at para 18 , [2018] 1 SCR 196 [ CBC ]: (

a) a strong prima facie case that the applicant will succeed at trial; (

b) irreparable harm if the injunction is not granted; and (

c) a balance of convenience favouring the applicant. [ 16 ] As for the strong prima facie case requirement, the Chambers judge observed that the 2016–17 Lease had provided for a right to renew the lease and a right of first refusal with respect to the sale of the Land. Referring to Cruickshank Construction Limited v Durrett Companies Limited , 2013 ONSC 3209 , 33 RPR (5th) 31, the Chambers judge concluded that a periodic tenancy on the same terms as provided in the 2016–17 Lease had been created when the appellants accepted the rental payment for 2018.

The implication of this conclusion, albeit unstated, was that Waycon enjoyed a right to renew the 2018 Lease and a right of first refusal with respect to the sale of the Land entitling it to continue farming the Land until the trial. [ 17 ] As for the issue of irreparable harm to Waycon if the injunction was not granted, the Chambers judge observed that the Land was adjacent to property owned by Waycon and/or Allan and Wayne Wishloff, Mr. Wishloff’s brother.

Farming the Land was thus observed by the Chambers judge to allow for convenient access to the land owned by Waycon and/or the Wishloffs and to accomodate “long term drainage plans”. Such benefits were seen by the Chambers judge as being of considerable value but as also being extremely difficult to quantify, thus making an award of damages inadequate. [ 18 ] Finally, dealing with the balance of convenience, the Chambers judge referred principally to what she saw as Waycon’s strong prima facie case and the irreparable harm it would suffer if the injunction was not issued.

She had little difficulty concluding that the balance of convenience favoured Waycon and the granting of the injunction. IV. analysis [ 19 ] The appellants submit that the Chambers judge committed a number of errors in the course of deciding to grant the injunction. First, they contend she erred in finding that Waycon had a strong prima facie case because (

a) the 2018 Lease contained no right to renew the lease and no right of first refusal in relation to the purchase of the Land, (

b) even if the 2018 Lease did contain such rights, they were void for uncertainty, (

c) the Statute of Frauds bars any claim for a right of first refusal, and (

d) in any event, any right of renewal or right of first refusal could not have survived the end date of the 2018 Lease. The appellants also submit the Chambers judge erred in her assessment of both the irreparable harm and balance of convenience issues. [ 20 ] All of these arguments must be assessed in light of the applicable standard of review. As provided by the Supreme Court in Harper v Canada (Attorney General) , 2000 SCC 57 at para 26 , [2000] 2 SCR 764, for this Court to interfere there must be “a clear mistake on the law or the evidence, or some other glaring error”. More recently, and paralleling the Supreme Court, this Court said in 101280222 Saskatchewan Ltd. v Silver Star Salvage

(1998) Ltd. , 2019 SKCA 59 at para 14 , [2019] 11 WWR 516, that it could interfere with the Queen’s Bench decision about whether to grant an injunction only if that decision “involves an error of principle, the disregard or misapprehension of a material fact, a failure to act judicially or a result that is so plainly wrong as to amount to an injustice”. See also: Fettes v Culligan Canada Ltd. , 2009 SKCA 144 at para 13 , [2010] 6 WWR 420. [ 21 ] With that by way of introduction, I will deal first with the issue of the strength of Waycon’s case and then with the issue of irreparable harm.

As will be explained, I conclude the Chambers judge made reversible errors on both fronts. A. The strong prima facie case issue [ 22 ] The appellants and Waycon both take the position that the injunction at issue in this appeal should be characterized as a mandatory injunction. Such injunctions should be granted only if, among other things, the party seeking the injunction has a strong prima facie case. This entails “showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the [statement of claim]”.

See: CBC at para 18 . [ 23 ] Waycon’s claim against the appellants turns on the idea that it enjoyed what is described in its statement of claim as a right of first refusal to renew the lease for the Land and a right of first refusal in relation to the purchase of the Land. As I understand the decision

of the Chambers judge, she concluded that Waycon has a strong prima facie case in this regard by reasoning that the 2018 Lease includedthe rights in question and that it was the start of a year-to-year periodic tenancy. Accordingly, on this line of thinking, Waycon had a rightto lease the Land for 2019 and a right of first refusal in relation to the sale of the Land. [24] I find it unnecessary to address all of the arguments presented by the appellants but, in the end, I do agree with them that theChambers judge’s assessment of the strength of Waycon’s case can be challenged or questioned on several fronts.

The first relates to herconclusion with respect to the existence of a year-to-year tenancy. The authorities provided to the Court are to the effect that, if a landlordaccepts payment from a tenant after the expiration of a lease with a fixed term of a year or more, a year-to-year tenancy is created.

Thus,for example, the Court of Appeal for Ontario said this in AIM Health Group Inc. v 40 Finchgate Limited Partnership, 2012 ONCA 795 atpara 95, 113 OR (3d) 187: Where a tenant remains in possession following the termination of a lease, or holds over, and where the landlord accepts rent from thetenant or otherwise consents, a new periodic tenancy arises at common law by implication on the same terms as the expired lease, subjectto any evidence that the parties reached a different arrangement or understanding.

If the original lease term was less than one year, thenew tenancy is deemed to be month to month, whereas if the original lease term was for more than one year, the new tenancy is deemedto be year to year. The payment and acceptance of rent is considered evidence of the parties’ intent to enter into a new tenancyarrangement. Without agreeing on other terms, it would be on the same terms as the old lease: see Olson, at pp. 3-72.1, 12-3; Halsbury’s,at para. 212. See also: S.L.

Ivans Jewellery Ltd. v Bradbrooke, (SK KB), [1997] 9 WWR 95 (Sask QB) at 96–97. [25] However, the Chambers judge failed to appreciate that the appellants did not merely accept Waycon’s rental payment for 2018.There were communications and discussions in anticipation of the expiry of the 2016–17 Lease and leading up to the 2018 Lease. Morespecifically, Mr. Androsoff sent Waycon a note in April of 2017 referring to the fact that the 2016–17 Lease would expire on November 1,2017, and asking Waycon to let him know “what you will be doing next”. On Mr.

Wishloff’s own account, as detailed in his affidavit ofMarch 29, 2019, Mr. Androsoff indicated that he might want to sell the land and, after deciding not to sell it, “agreed that Waycon wouldlease the [Land] for the 2018 growing season on the same terms as in the 2016/2017 Lease”. Mr. Wishloff’s understanding that thearrangement for 2018 was no more than a one-year lease is reflected in his December 14, 2018, text message to Ms. Mercier’s husbandwherein Mr.

Wishloff stated, “At your earliest convieneance [sic] could get things squared away and give rental money towards next yearand get another contract in place for the 2019 crop year”.

Accordingly, on the basis of the evidence available to the Chambers judge, thiswas not a case where a landlord simply accepted a rental payment from an overholding tenant and thereby created a year-to-year tenancy.The affidavit evidence presented by Waycon itself suggests there was to be a one-year fixed term lease covering the 2018 growing season. [26] The question, therefore, would seem to be whether the 2018 Lease contained the right to renew the lease and the right of firstrefusal with respect to sale that are claimed by Waycon. There are certainly considerations pointing in this direction: (

a) In his affidavit sworn on March 29, 2019, Mr. Wishloff averred that he and Mr. Androsoff agreed that “Waycon would leasethe [Land] for the 2018 growing season on the same terms as in the 2016/2017 Lease”. Mr. Wishloff’s wife, in her affidavit of March 28,2019, stated that in early May of 2018 Mr. Androsoff told her “they had the same agreement as always, which included a right of firstrefusal on any new rental agreement and a right of first refusal to purchase the [Land]”. (

b) The listing that offered the Land for sale in 2018 noted that “[t]he tenant has the right of first refusal”. (

c) The contract of purchase and sale submitted by Waycon to the appellants on December 6, 2018, contained a handwrittennotation that “[t]he buyer is the renter of the land and if the buyer is successful in purchasing the land the rental agreement will benullified. If the buyer doesn’t buy the land the rental agreement remains in full force”.

The appellants’ counter-offer dated December 7,2018, accepted all of the “terms and conditions” of Waycon’s offer, save for the price, and took no issue with the notation. [27] However, on the other hand, there are considerations pointing in the opposite direction and counter to the points just made, i.e.,that suggest the 2018 Lease did not contain the rights claimed by Waycon: (

a) In his affidavit of March 20, 2019, Mr. Androsoff averred that “[f]ollowing the expiry of the November 1, 2017 Land RentalAgreement, Allan mailed me a cheque for the 2018 crop year. … We did not discuss never mind agree about Allan having any right topurchase the land”. Further, in his affidavit sworn on April 29, 2019, Mr. Androsoff stated that he “never had any discussions at all withAllan Wishloff or anyone else about the alleged right he claims that Waycon has to purchase my land or lease it forever” and that “I havenever had any reason to promise Waycon that they could purchase my land or farm it forever”. (

b) In his affidavit, Mike Janosotin, the real estate agent who acted for the appellants in their efforts to sell the Land, explainedwhy he had referred to a right of first refusal in the listing by stating as follows: 3. When Walter and Amanda listed their farmland for sale in the fall of 2018, I again entered into the listing that the land was subjectto a right of first refusal. Although I had believed Waycon’s right of first refusal to have expired, I contacted Allan Wishloff when I waslisting the land and he insisted that even though the written agreement had expired, he had an oral option to purchase. 4.

Out of an abundance of caution I listed the land as subject to a right of first refusal. 5. Walter and Amanda told me that Waycon did not have a right of first refusal, and that if Waycon ever had a right of first refusal itexpired in the fall of 2017. (

c) With respect to the contract of purchase and sale prepared by Waycon, the reference to the rental agreement remaining inplace can be seen as a mere assertion and not something in relation to which the appellants were obliged to reply. Certainly the appellantshad no reason to care one way or the other about a rental agreement if a sale was concluded. This could explain why they took no issuewith the notation about the rental agreement in their counter-offer. [28] In short, it is far from clear that the 2018 Lease, if seen as a fixed one-year tenancy, would be found at trial to include either the

right to renew the lease or the right of first refusal in relation to a sale asserted by Waycon. [29] Further, I note that, even if the Chambers judge was correct in finding that a year-to-year tenancy had been created, it is anopen question as to whether the rights asserted by Waycon would be found at trial to be part of that tenancy. I say this because there isconsiderable authority to the effect that options of the sort claimed by Waycon reside outside of the relationship between landlord andtenant.

As such, the authorities provided to the Court suggest such options are not seen as terms of the original tenancy that areautomatically incorporated into the terms of a year-to-year tenancy of the sort said by the Chambers judge to have been created after theexpiration of the 2016–17 Lease. See: Devine v Ferguson (1946), (ON SC), [1947] 1 DLR 76 (Ont H Ct

J) at 78; BudgetCar Rentals Toronto Ltd. v Petro-Canada Inc. (1989), (ON SC), 60 DLR (4th) 751 (Ont CA) at 756. [30] The point here, overall, is simply that the legal and evidentiary waters of this case are, at a minimum, considerably murkierthan the Chambers judge recognized. Given that murkiness, it is simply not possible to conclude Waycon has a strong prima facie caseagainst the appellants. In saying this, I of course express no view as to whether Waycon should succeed at trial. That will depend on theevidence and the arguments presented to the trial judge.

My point is only that, on the basis of the law and the evidence currently on thetable, Waycon’s case is not strong enough to warrant the grant of an interlocutory injunction. [31] As a bottom line, I conclude the Chambers judge made reversible errors in her assessment of the issues involved in the meritsof Waycon’s claim. It cannot be said that Waycon has a strong prima facie case against the appellants. That, of course, is a sufficient basisfor allowing this appeal. I will nonetheless consider the arguments made about irreparable harm. B.

The irreparable harm issue [32] In order to be granted an injunction against the appellants, Waycon must also address the issue of irreparable harm. In generalterms, this concept refers to harm that cannot be compensated or remedied by way of an award of damages after trial. See: Mr. JusticeRobert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Rel 27, Nov 2018) (Toronto: Thomson Reuters, 2017) at para 2.390. [33] The evidence advanced by Waycon in relation to the irreparable harm question was not extensive. In his affidavit of March 29,2019, Mr. Wishloff averred as follows: 5.

Relying on its right of first refusal to purchase the [Land], Waycon has been a very good steward of the [Land]. When Wayconstarted farming the [Land] in 2010 there had been consecutive years of no crop production and the soil was excessively fertilizer-deficient.Waycon retained Guy Keeler of Northland Agronomy to assist it in raising the productivity of the [Land]. Waycon used excessivefertilizer application, prudent crop management, and herbicide application to significantly raise the productivity of the [Land] to where itis today.

Waycon also made extensive efforts to reclaim flooded land and put it into production. 6. The [Land] is an integral piece of land for Waycon’s farming operation. Waycon has included it in its 2019 crop plan and made itsseed and chemical purchases with the assumption that Waycon would be farming it. I am not aware of any other farmland that Wayconcan rent in the area for 2019. [34] Then, in a supplementary affidavit sworn on April 10, 2019, Mr. Wishloff set out a map showing the Land and property ownedby him, his brother Wayne and/or Waycon in the area of the Land.

Some of the property owned by Waycon and the Wishloffs is adjacentto the Land. Mr. Wishloff stated as follows: 7. If we can no longer farm the [Land], it will become harder to farm our other land in the area, especially the perimeter croplands inNE Sec 10 Twp 44 Rge 06 W3. It would be difficult to estimate the value of the losses Waycon, Wayne, and I would suffer as a result ofloss of access to the [Land]. [35] In an affidavit sworn on April 12, 2019, Ms.

Mercier exhibited an aerial photograph of the Land and surrounding area andaverred that all of the Wishloff and Waycon land in issue was accessible otherwise than by travelling over the Land. She stated as follows: 17. With respect to the Supplementary Affidavit sworn by Allan Wishloff on the 10th day of April, 2019, I deny the allegations set outwith respect to the farming of the NE Sec 10 Twp 44 Rge 06 W3, or any of the other Wishloff or Waycon land. 18.

As can be seen in the Google Maps aerial photographs attached as Exhibit “A” and Exhibit “B” to this Affidavit, all of the Wishloffand Waycon land is accessible otherwise than over our land. Specfically, most of the NE Sec 10 Twp 44 Rge 06 W3 can only be accessedfrom the roadways to the North and West of the parcel and cannot be accessed from our land because of trees and ponds. 19. Also, it appears from a search of the title to the NE Sec 10 Twp 44 Rge 06 W3, attached as Exhibit “C” to this Affidavit, that theWishloffs have farmed this land since at least 1988 and perhaps for over 40 years.

This is long before they ever started farming any of thefarmland that is the subject matter of this application. [36] In apparent response, Wayne Wishloff filed an affidavit sworn on April 27, 2019. He averred that if water levels are high, twoportions of a particular quarter totalling approximately 23 acres are not accessible by road and would be cut off and inaccessible if Wayconcannot farm the Land. Wayne Wishloff also explained a long-term Waycon plan aimed at controlling water levels: 5. Ms. Mercier is correct that my family has farmed the Northeast Quarter for many years.

Access to the two portions of theNortheast Quarter described above was not a problem until around 2004 or 2005. Prior to 2004, the [Land] was farmed by Kuzma andWalter; in 2004, Kuzma and Walter stopped farming and instead let the [Land] lie fallow. The [Land] lay fallow from 2004 until 2010,when Waycon began farming it. Kuzma and Walter’s decision to leave the [Land] fallow not only rendered the [Land] excessivelyfertilizer-deficient and increased the salinity of its soil, but also raised the water table on the [Land].

More water ran off from the [Land]onto the Northeast Quarter than before, making access to certain portions of the Northeast Quarter difficult. From 2004 to 2009 Wayconaccessed the otherwise inaccessible portions of the Northeast Quarter from the [Land] with Kuzma and Walter’s permission. 6. Since Waycon started farming the [Land], the water table has started to drop back to normal levels and the Northeast Quarter has

not been as wet, but access is still a problem at times. Waycon’s long-term plan is to have all of its land connected and to implement practices that will bring the soil moisture down to optimum levels. One of the things Waycon is doing to this end is installing a tile drainage system to remove excess water from below the surface of the land. Waycon has spent approximately $30,000 to $40,000 to date on the equipment required to implement this system. [ 37 ] The essence of the Chambers judge’s assessment of the irreparable harm issue was brief.

She wrote as follows: [ 38 ] In considering this issue in the current case, the most compelling factor for this court is the ability Waycon has to farm adjoining land. The [Land] is adjacent to several parcels of land owned by Waycon and/or Allan and Wayne Wishloff. This enables convenient access, less time and cost incurred in moving machinery in both seeding and harvest, and long term drainage plans.

Such benefits are of considerable value to farmers, yet extremely difficult to quantify, thus making an award of damages inadequate. [38] In my respectful view, the Chambers judge’s reasoning involved a clear mistake in relation to the evidence. More specifically, I see nothing in the affidavits filed that would have allowed the Chambers judge to conclude as she did. [ 39 ] Let me deal first with the idea that farming the Land gives Waycon “convenient access”. Mr.

Wishloff, in his affidavit of April 10, 2019, stated that, if Waycon no longer farmed the Land, “it will become harder to farm our other land in the area, especially the perimeter croplands in NE Sec 10 Twp 44 Rge 06 W3”. Wayne Wishloff provided specifics of these concerns in his affidavit by explaining that some 23 acres of the quarter

section referred to by his brother would not be accessible, without going across the Land, if water levels were high. Accepting this problem with access to be the reality of the situation, there is no prospect of irreparable harm to Waycon. This can be readily demonstrated. Assume that, pending the trial, water levels are high and the 23 acres are inaccessible. Waycon’s damages, if it were to succeed at trial, would include the profit that it would have generated from the 23 acres.

The amount of those damages would be a reasonably straightforward calculation given that Waycon has relevant cost and revenue information gained from having farmed those same acres from 2016 to 2018 and given that it will continue to farm land in the near vicinity. [ 40 ] What then of the Chambers judge’s view that not being able to farm the Land would lead to irreparable harm to Waycon because farming the Land involves “less time and cost incurred in moving machinery in both seeding and harvest”? In my view, the Chambers judge erred here too.

There was nothing in the Wishloffs’ affidavits that spoke to this issue. The closest either of them came to this point was Mr. Wishloff stating in his April 10, 2019, affidavit that, if Waycon no longer farmed the Land, “it will become harder to farm our other land in the area”. But, Mr. Wishloff said nothing about the cost or convenience of moving machinery. Read in context, his comment appears to relate to the ability to access land, especially NE Sec 10 Twp 44 Rge 06 W3, rather than to problems in moving machinery.

It is of course possible to imagine, in the abstract, efficiencies of some kind that might flow from the ability to take machinery from one parcel of land to another without having to put it in “transport” mode. However, it would seem that, given the locations of the various pieces of land in issue here, any such savings would be so modest as to be of a de minimis nature.

In any event, and to reiterate, I conclude that the Chambers judge erred to the extent she based her finding of irreparable harm on a consideration for which there was no adequate evidentiary underpinning. [ 41 ] The Chambers judge also referred to “long term drainage plans” as a basis for finding irreparable harm. Again, I respectfully conclude this was a reversible error. The affidavits filed on behalf of Waycon established nothing more than that it had a plan to improve water management and that it had spent $30,000 to $40,000 on a tile drainage system.

It is difficult to see any irreparable harm attaching to any of that. To the extent drainage initiatives had improved the productivity of the Land, that increased productivity would be reflected in higher yields and higher lost profits that could be recovered as damages if Waycon is successful at trial. Further, there is no suggestion of any sort in the affidavits filed by Waycon that the drainage system would somehow degrade or deteriorate pending trial if Waycon did not farm the Land.

Even if that were to be the case, the cost of any necessary repairs would seem to be readily ascertainable and hence not something in the nature of irreparable harm. [ 42 ] In the interest of completeness, I also observe that the affidavits filed on behalf of Waycon also refer to fertilizer and herbicide application from 2015 to 2018 aimed at increasing the productivity of the Land. There is no apparent element of irreparable harm in any of this either. Good farming practices will increase yields.

The loss of an opportunity to farm the Land and take advantage of the profits generated by those increased yields is something that would be reflected in an award of damages should Waycon succeed at trial. Relatedly, Waycon was said to have purchased seed and chemicals in early 2019 in anticipation of farming the Land. Any losses associated with those purchases would also be readily compensable by way of damages if Waycon succeeds at trial. [ 43 ] In

summary, therefore, I conclude that the Chambers judge made reversible errors in her assessment of the irreparable harm issue. Waycon failed to demonstrate any harm that could not be compensated for by way of an award of damages after trial. V. conclusion [ 44 ] I conclude that this appeal must be allowed and the injunction granted by the Chambers judge set aside. Waycon has not demonstrated a strong prima facie case or identified irreparable harm that will be suffered if it cannot farm the Land pending the trial of its action. [ 45 ] The appellants are entitled to costs on Column 2. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Tholl J.A.” Tholl J.A.