ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GREEY REALTY HOLDINGS LIMITED and JON WILLIAMS
Plaintiffs
- and -
GREEY ESPLANADE LIMITED and LORRAINE GREEY, Estate Trustee for the Estate of PHILIP GREEY
Defendants
- and -
LAURA BRANDON, GAY GOODERHAM, DAVID N. GREEY, JANET GREEY, STEPHEN R. GREEY, Estate of SUZANNE T. GREEY, PHILIP POOLE, MARY SIEMIESZ, LUCILLE C. TULLOCH, DOUGLAS RICHMOND, and Estate of ALFRED RICHMOND
Third Parties
Glenn Zacher and Daniel S. Murdoch, for the Plaintiffs
Joyce Harris and Jenny Friedland, for the Defendants
HEARD at Toronto: September 24, 2008
LEAVE TO APPEAL
1The plaintiffs seek leave to appeal from a decision of J. Macdonald J., dated July 4, 2008. He granted an interlocutory injunction in favour of the defendants.
BACKGROUND
2The plaintiff and defendant companies are co-landlords under a lease with the LCBO at Davisville and Yonge in the City of Toronto. The learned motions court judge concluded that:
There is a strong and clear case that GRHL (the plaintiff) has, and continues to engage in extraordinary and high handed conduct by which it intends to cripple GEL (the defendant) and to subjugate it and its assets to GRHL’s predatory ambitions.
3The action involves, as J. Macdonald J. observed, trench warfare between two companies owned by dueling branches of an extended family. These companies each owned part of the land subject to the LCBO lease.
4For many years, the LCBO lease had been paying rents, pursuant to a written direction in the amount of 61.5% payable to the defendant company and 38.5% payable to the plaintiff company. Some time after the death of the patriarch of the family involved in both companies, the plaintiffs began questioning the division of rents, the management of the affairs of the companies, and other issues.
5The plaintiffs unilaterally revoked the direction concerning payments of rent to the LCBO and directed that the LCBO pay one combined rent payment. The plaintiffs then, over the next nineteen months, refused to cash the rent cheques. The inability to resolve this impasse resulted in the defendants’ request for injunctive relief.
THE ISSUES
6The plaintiffs seek leave to appeal from the decision of J. Macdonald J. on two grounds:
First, they allege that J. Macdonald J. failed to fairly weigh the evidence in his conclusion that the defendants would suffer irreparable harm if the relief requested was not granted.
Second, the plaintiffs assert that the learned motion court judge exceeded his jurisdiction in his conclusion that the plaintiffs’ conduct was illegal.
7The plaintiffs’ counsel argues that the injunctive relief involves matters of such importance and public policy that leave to appeal to the Divisional Court ought to be granted.
ARGUMENT ONE – IRREPARABLE HARM
8J. Macdonald J. correctly applied the test enunciated in the Courts of Justice Act, s.101 as interpreted in the case law, including Ticketnet Corp. v. Air Canada [1987] O.J. No. 782 (Ont. H.C.) as well as RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. He concluded that the defendants had met the test of irreparable harm.
9The nub of his conclusions with respect to irreparable harm are found in paragraph 21 of his reasons:
In my opinion, GEL’s evidence that it is “cash poor”, has difficulty paying legal bills and has little cash on hand with which to repay a mortgage is insufficient to establish that GEL has been harmed irreparably. However, that is not all of the evidence relevant to this issue. There is strong and convincing proof that GRHL’s predatory intention is to force GEL into submission through destitution so that GRHL may take what belongs to GEL, namely, its real property and the rents it derives therefrom. What is the likelihood in the future of GEL suffering the loss of its real property, and thereby suffering irreparable harm? The standard of proof in respect of future issues is less than the balance of probability. I find that there is a real possibility, a substantial chance of a significant dimension, that GEL will fall prey to GRHL and thereby lose its real property to GRHL, if GRHL is permitted to continue its course of action. I find that is likely to happen before the parties get to trial. Looking at all the relevant evidence, I find that there is a strong and clear case of imminent irreparable harm. [emphasis added]
10Ms. Lorraine Greey, was examined by counsel for the plaintiff in conjunction with the injunction. She refused to provide certain documents requested, including the mortgage mentioned by J. Macdonald J., as well as the financial statements of the defendant company. Counsel for the plaintiffs suggested that no weight should be placed by the learned motions court judge upon her affidavit material due to her refusal to provide the financial documents. The learned motions court judge rejected this submission and accepted the affidavit evidence of Ms. Greey.
11It is an undisputed fact that by the time this case came to court that the defendants were owed approximately $900,000.00 in rent arrears representing the 61.5% division of rent that had been used for several years.
12The learned motions court judge accepted that there were cash flow problems and concluded that the defendants refused to produce confidential documents partly to stave off the plaintiff’s “extra legal onslaught”.
13The learned motions court judge exercised his discretion and drew reasonable inferences from the written record before him. He concluded that the defendants had met the test of irreparable harm.
14I find no merit with respect to the plaintiffs’ submissions on this issue.
ARGUMENT TWO – THE LEARNED MOTIONS COURT JUDGE EXCEEDED HIS JURISDICTION
15Counsel for the plaintiff argues that J. Macdonald J. made a final binding order in the context of this interlocutory motion that was improper, as it is the subject matter of the outstanding action between the parties.
16J. Macdonald J. states at paragraph 16:
GRHL’s conduct was illegal because it did not have the legal right, on its own, to give directions to the LCBO in relation to the lease.
17Ms. Harris, on behalf of the defendants, argues that this statement must be read in the context of paragraph 15 which refers to the test of “a strong and clear case that the plaintiffs’ conduct amounts to intentional interference with the defendants’ contractual relations under the lease”. In any event, even if the two paragraphs are disjunctive she acknowledges that the finding of fact in paragraph 16 is for the purpose of the injunction motion only, and is not a final finding of fact with respect to the outstanding proceeding.
18I find no merit with respect to the second argument raised by the plaintiffs.
CONCLUSION
19I conclude that there is no reason to doubt the correctness of the learned motions court judge’s decision granting the injunctive relief. I agree with his decision.
20This matter does not raise issues of such public importance that would justify this matter being heard by the full panel of the Divisional Court. The test for granting mandatory relief is clear. There are no conflicting decisions with respect to the appropriate test. Caution must be exercised in granting leave to appeal to the Divisional Court as clearly outlined in the decision Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div Ct.), as well as the decision in H. L. Staebler Co. v. Allan [2004] O.J. No. 3320.
21I therefore conclude that the request for leave to appeal pursuant to both s. 62.02(4)(a) and 62.04(b) should be dismissed.
COSTS
22Ms. Harris initially suggested that there should be substantial indemnity costs payable by the plaintiffs to the defendants as there is an outstanding offer that was relevant to this proceeding. Upon reviewing the letter in question, it is clear that the offer expired five minutes after the argument began before J. Macdonald J. I conclude that there are no offers outstanding that would warrant an award of substantial indemnity costs on this motion for leave to appeal.
23I have reviewed the proposed Bill of Costs submitted by the defendants and I have heard submissions from counsel. I fix costs with respect to this motion for leave to appeal in the amount of $13,000.00 inclusive, payable by the plaintiffs to the defendants forthwith.
24I thank counsel for their helpful submissions.
JANET WILSON J.
Date of Reasons for Judgment: September 24, 2008
Date of Release: September 29, 2008
COURT FILE NO.: 477/08
DATE: 20080924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GREEY REALTY HOLDINGS LIMITED and JON WILLIAMS
Plaintiffs
- and -
GREEY ESPLANADE LIMITED and LORRAINE GREEY, Estate Trustee for the Estate of PHILIP GREEY
Defendants
- and -
LAURA BRANDON, GAY GOODERHAM, DAVID N. GREEY, JANET GREEY, STEPHEN R. GREEY, Estate of SUZANNE T. GREEY, PHILIP POOLE, MARY SIEMIESZ, LUCILLE C. TULLOCH, DOUGLAS RICHMOND, and Estate of ALFRED RICHMOND
Third Parties
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: September 24, 2008
Date of Release: September 29, 2008