Court File and Parties

Court File No.: CV-23-00693142-0000 Date: 2024-07-26 Ontario Superior Court of Justice

Between: Mark Alchuk, Plaintiff And: 2658131 Ontario Inc., c.o.b. as “SUITE 44” and “44 TORONTO”, Defendant

Counsel: David Taub and Philip Holdsworth, for the Plaintiff Mark A. Ross and Daniel Milton, for the Defendant

Heard: June 25, 2024 Before: Parghi J.

Reasons for Decision

[1] The Plaintiff seeks injunctive and declaratory relief against the Defendant, which operates an underground venue in the downtown Toronto condominium building where the Plaintiff resides (“44 Toronto” or the “Venue”). The Venue is licensed by the City of Toronto as an “eating or drinking establishment.” The Plaintiff states that the Venue is in fact a nightclub, that it is not properly licensed as an “entertainment establishment/nightclub,” and that its loud late-night playing of amplified music has left him unable to sleep properly and constitutes a nuisance.

[2] The Plaintiff seeks a declaration that the Defendant is operating an “entertainment establishment/nightclub,” as defined in the Toronto Municipal Code by-law on licensing, contained in Chapter 545, Licensing (the “Licensing By-law”), without a license. He also seeks an order that the Defendant immediately cease operating the Venue in contravention of the Licensing By-law. I will refer to this relief sought as the statutory injunction.

[3] The request for a statutory injunction is based on s. 545-1 of the Licensing By-law (added by By-law 20-2006), which defines an “entertainment establishment/nightclub” as “[a] premises, including but not limited to a dance hall or disco, used to provide dance facilities for patrons, where seating is not provided for the majority of the patrons and where food or beverage may be offered for sale as an ancillary use.”

[4] Additionally, the Plaintiff seeks an interim and interlocutory injunction prohibiting the Defendant from causing, procuring, or permitting the emission of sound from the Venue that is audible beyond the lot limit of the Venue, between the hours of 10:00 p.m. and 9:00 a.m., pending the determination of the issues raised in the underlying litigation. I will refer to this relief sought as the injunction based in tort.

[5] For the reasons below, I find that the Defendant is operating as a nightclub without a license. I accordingly grant a declaration that the Defendant is operating an “entertainment establishment/nightclub,” as defined in the Licensing By-law, without a license to do so, together with a statutory injunction requiring the Defendant to immediately cease operating the Venue in contravention of its licensing status, which is that of an “eating or drinking establishment”.

[6] Additionally, I grant an interim and interlocutory injunction based in tort, requiring the Defendant to immediately cease carrying on its business in a manner that causes, procures, or permits the emission of sound from the Venue that is audible beyond the lot limit of the Venue, between the hours of 10:00 p.m. and 9:00 a.m., pending determination of the issues raised in the action.

The Action and the Parties

[7] The Plaintiff is retired and 71 years old. He owns and lives in a condominium unit in the same building as the Venue, on King Street West in downtown Toronto. The building is a mid-rise with over 400 residential dwelling units. The Plaintiff resides on the second floor. He purchased his unit in June 2020 and moved in the following month.

[8] The Defendant signed the lease for the Venue in September 2018. The Venue, called 44 Toronto, was constructed in 2021 and began operating in October 2021. It was not operating or even constructed at the time the Plaintiff purchased and moved into his condominium unit in 2020. The Venue is located on the P1 and P2 levels of the underground parking below the building, two and three storeys down, respectively, from the second floor, on which the Plaintiff lives. The P1/P2 unit in which the Venue operates is a freehold and is not owned by the condominium corporation to which the Plaintiff’s condominium unit belongs.

[9] The Plaintiff commenced the action in January 2023. His original action is framed in nuisance and seeks damages and an injunction based in tort. The Plaintiff amended his Statement of Claim soon afterward upon learning that the Venue did not have an “entertainment establishment/nightclub” license from the City of Toronto (the “City”). The Amended Statement of Claim asserts that the Venue’s failure to obtain such a license contravenes the Licensing By-law and seeks a statutory injunction in addition to the injunction based in tort.

[10] It is fair to say that interactions between the parties have not been harmonious. The Plaintiff’s evidence is that when the noise issue first arose, he and his neighbours tried to engage 44 Toronto, both directly and through the condominium’s concierge and property manager, but 44 Toronto was not responsive. When the Plaintiff first engaged counsel, the interactions between counsel and 44 Toronto were similar in nature. After the litigation was commenced in January 2023, counsel for the Defendant disputed service of materials, failed to attend at scheduled case conferences and cross-examinations, and did not respond to communications. The Defendant refused to defend the action for almost a year and was eventually noted in default. It engaged with the litigation only on the verge of default judgment being granted against it. When the Defendant finally engaged with the litigation, it asserted that the Plaintiff was a “straw man” litigant, acting in concert with the Venue’s landlord to try to induce a termination of the Venue’s tenancy. It also claimed that the Plaintiff was “wholly or partly to blame” for his own troubles for buying a condominium unit in the heart of Toronto’s Entertainment District.

[11] The Defendant contests the suggestion that it was unresponsive to noise complaints, and it is clear from the record that interactions improved somewhat once 44 Toronto’s current counsel were engaged. But by then, the damage was already done. There is now considerable mistrust on the part of the Plaintiff toward 44 Toronto. Each party complains that the other has behaved uncooperatively and in a way that has made resolution impossible.

The Evidence

The Evidence of the Plaintiff and his Neighbours

[12] The Plaintiff’s evidence is that he first heard the noise and felt the vibrations from 44 Toronto on October 4, 2021, starting around 9:00 p.m. He could hear loud music throughout his unit and in the hallway outside and could feel reverberations from the music through the concrete structure of the building. Starting soon thereafter, and since then, 44 Toronto has operated on Friday, Saturday, and Sunday evenings from 9:00 p.m. until 3:00 a.m., and sometimes until 5:00 a.m., with occasional weekday events as well.

[13] The Plaintiff attests that the noise from the amplified music and its accompanying vibrations have made living in his unit “torturous and unbearable.” The noise is “often intrusive, abrupt and violent” in nature. It is “sustained” and “deafening,” and of such a volume and nature that it “prevents [him] from falling asleep”. He also feels thumping vibrations reverberating through the concrete structure. He feels them through the floor while he lies in his bed. They are so intense that they rattle his closet doors and cause his floor to vibrate slightly.

[14] The Plaintiff’s evidence is that the noise and vibrations have “made it impossible” for him to enjoy his condominium unit in peace. They have rendered his home “uninhabitable.” They have caused sleep deprivation and “serious adverse consequences” for his health. They are “wearing away at [his] sanity and health, a bit more each week.” The Plaintiff suffered a stroke in 2020 from which he is still recovering. As a result, he requires a full physical rehabilitation program that involves daily exercise. His physical capacity has been affected by his sleep deprivation.

[15] The Plaintiff describes his efforts to mitigate the effects of the noise and vibrations, stating that he has tried using industrial ear protection, custom earplugs, and a noise machine, none of which made a substantial difference or offered a permanent and workable solution.

[16] He attests to his efforts to escape from the effects of the noise and vibrations by temporarily vacating his unit, describing, for example, how he stayed at a family cottage in June 2022, in a short-term rental in Toronto in September 2022, and on an air mattress in his brother’s home on Thursday through Sunday nights in October and November 2022.

[17] The Plaintiff’s upstairs neighbour, who lives one floor above him, attests to hearing noise and “very strong” vibrations from the music in her unit. She can feel the vibrations in her chest when lying in bed. The noise and vibrations continue until 3:00 a.m. and often later. When the music starts, she experiences “heightened anxiety and stress” because she knows that she will have to “endure” the noise and vibrations for the rest of the night,” as it is “almost impossible” for her to fall asleep or stay asleep due to the noise and vibration. She uses ear plugs to block out the sound, but the earplugs do not help with the vibrations. She works on weekends, and, because of the noise, “frequently” has to go to work exhausted due to lack of sleep.

[18] The Plaintiff’s next-door neighbour attests that the noise and vibrations began on October 4, 2021. When the Venue began operating a few days later, its noise and vibrations “permeated” her unit and caused her furniture to vibrate. She could hear the baseline of the music and the DJ speaking over the music. When the noise and vibrations are at their worst, it is difficult to sleep. The bass is very loud, and she can feel it through the floor. She wears noise-cancelling headphones and puts a pillow over her head to block out the sound. She has had to reorganize her life by timing her bedtime to be before the music begins, so that she can fall asleep. She also attests that the noise and vibrations in the Plaintiff’s unit are “noticeably louder” than in her unit.

[19] The Plaintiff’s across-the-hall neighbour describes the effect of the Venue’s music inside her unit as “consistently intolerable.” When the Venue is open, she hears music and noise inside her unit “at a very loud volume.” The sound is so loud and the bass vibrations so intense that objects in her unit, like her dishes, vibrate. She can hear the songs and the DJ. It is “very difficult, and sometimes impossible” to fall asleep. She sometimes is awakened from her sleep by the music. Her workday starts early, and on multiple occasions she has had to call in sick to work because the music has kept her up for all or most of the night, making it impossible to function and go to work.

[20] At the time the Plaintiff purchased his unit, the Venue was not operating and indeed had not yet been constructed. The Venue had no visible street appearance and no business sign. The Plaintiff was not made aware of any plans to open a facility like the Venue. In fact, he was not aware that there was a commercial unit located within the P1/P2 levels.

[21] He was aware at the time of what he describes as a “restaurant/supper club” located on the rooftop of the building. He spoke with the vendor’s real estate agent, his own real estate agent, the property manager, and security about the rooftop venue and came away from those discussions satisfied that there was unlikely to be any issue with noise. Similarly, he investigated the risk of noise from a restaurant in his building lobby, directly below him, and had no concerns.

[22] The Plaintiff’s evidence is that the noise issues only began when the Venue started operation in October 2021. The evidence of his neighbours is consistent with his on this point.

[23] The Plaintiff also describes in detail the efforts he and his neighbours made to have the issue addressed by his building’s concierge staff, his condominium board of directors and property manager, the City, and the Venue itself. The Plaintiff was not alone in his concerns. In October 2021, the month in which 44 Toronto began operating, a member of the building’s concierge staff told the Plaintiff that he was the seventh person to have complained about the noise. Correspondence from his building’s property manager shows that the condominium received a number of complaints from residents about noise and vibrations that, as the property manager put it, “appeared to be emanating from” 44 Toronto. The Plaintiff describes how his neighbour spoke directly with someone from the Venue, who responded by saying that they had a business license. The Venue did not modify its practices. Ultimately, says the Plaintiff, none of his or his neighbours’ repeated efforts to have the noise and vibrations addressed by the building’s staff or board, the City, or 44 Toronto resulted in any change.

[24] The Plaintiff states that the Venue is, for all practical purposes, a nightclub. Functionally, he alleges, it is a “disco” and is “used to provide dance facilities for patrons”. It holds itself out as a nightclub. His evidence in this regard includes screenshots from the Venue’s Instagram page describing it as offering “[t]he ultimate nightlife experience” and the Venue’s website stating that 44 Toronto “offers its guests an upscale and ultimate nightlife experience” and “brings a never seen or heard experience to the Toronto nightlife scene.” The website further states:

With almost 6000 square feet of architectural design and lavish décor, the venue is fit for high-end entertainment. Featuring over 400 light fixtures, custom made for the space, and a state-of-the-art sound system shared by only two other nightclubs in the world, 44 Toronto brings a never seen or heard experience to the Toronto nightlife scene.

[25] The Plaintiff provides as evidence extensive photographs and videos from 44 Toronto’s website that show throngs of patrons dancing at the Venue, often packed shoulder-to-shoulder on the floor; DJs performing at the Venue; scantily clad waitresses providing bottle service to patrons; and light effects, smoke effects, and confetti. They do not depict people sitting and eating.

[26] The Plaintiff provides additional evidence, much of it from the Venue’s website, that he says shows that the primary activities of the Venue are those of a nightclub. The evidence indicates that the Venue offers bottle service, which appears to be purchased with booth reservations. The Venue has a high-calibre sound system and expensive lighting. It operates primarily on weekends. It does not open until 10:30 p.m. It stays in operation until at least 3:00 a.m. It charges a cover. It has a guest list. It imposes age restrictions on who may enter (generally, patrons must be 19 or older, although males must be 21 or older to enter on Fridays and 23 or older on Saturdays). Bouncers monitor the lineups of patrons waiting to enter. Metal detectors are used at the entrance. Indeed, says the Plaintiff, the Venue used to call itself a “nightclub” on its website until recently. Its website still promises “an upscale and ultimate nightlife experience.”

[27] The Plaintiff further submits that the Venue is portrayed as a nightclub in social and traditional media. His evidence includes the following:

a. An article on E! News refers to the Venue as a “nightclub” and a “club”;

b. An article on Maxim.com describes the Venue as a “top Canadian nightlife destination” and quotes one of its founders as saying that they have “successfully brought to life the experience that was missing from Toronto’s underground nightlife scene”;

c. A write-up on hiphopsince1987.com describes the Venue as “a revolutionary nightclub” that has “captivated partygoers with its unrivaled experience.” It notes that its founders were awarded “Nightclub of the Year” and that they “emphasize that opening a nightclub is a labour of love”;

d. Disrupt Magazine says about 44 Toronto that “[t]he pièce de resistance is a state-of-the-art sound system shared by only two other clubs globally. It envelops guests in crystal-clear audio with earth-shattering bass that pulses through your very being”; and

e. The website www.torontoclubs.com profiles the Venue as “the newest player joining the busy party life of Toronto,” one of the “best known and most sought out best clubs in Toronto,” and one of “the MOST DIFFICULT out of all [the] Clubs in Toronto to get into”. It describes how 44 Toronto’s founders wanted to “compete with international party venues” and “decided to bring the party back home” by “making their own club.”

[28] The Plaintiff asserts that food is offered for sale at the Venue as an ancillary use, and nothing more. 44 Toronto only began posting its menu on its website in March 2024; before then, the website contained no information about its food offerings, the culinary staff, or restaurant industry recognition, although it did discuss the availability of bottle service. Even now, the food offerings are relatively limited, consisting of four kinds of “shareable” dishes, six kinds of “mains” including pizza and chicken tenders, and a handful of sides and desserts. There is no specialized head chef at the Venue. The food is prepared by “barback” staff whose duties also involve stocking the bar and cleaning spills and garbage.

[29] The Plaintiff’s evidence is that in 2022, the Venue’s revenue from food sales was under 1.5% of total sales. Its revenue from alcohol sales was 94% of total sales. The costs to the Venue of security, DJs, tech support, entertainment, and promotors were twelve times the costs associated with “restaurant/operating supplies.”

[30] The Plaintiff has provided expert evidence from SoftdB, an acoustical engineering firm. This evidence is relevant to the claim for an injunction in tort and is discussed in that section of these Reasons.

The Evidence of the Defendant

[31] The Defendant states that it is not a “nightclub,” as defined by the Licensing By-law, and therefore is not legally required to be licensed as one. It states that the Venue offers “vibe dining,” a modern restaurant/bar concept that “takes the best aspects of a night-out and puts … all of it under one roof: good food, good drinks, good music, and a fun atmosphere.” The Defendant points to a “vibe dining venue” located in Texas as an example of the concept. It also describes the Venue as very similar in nature to other venues, both in the same building and nearby, that play music, feature similar entertainment, and are licensed as eating establishments only.

[32] The Defendant’s evidence is that 44 Toronto has a fully operational, 612 square foot kitchen that serves patrons. It hosts private dinner events and viewing parties for sports events.

[33] The Defendant submits that, while the Venue does provide dance facilities, they are not its dominant feature. It points to the Zoning By-law, which provides that an eating establishment may contain a dance floor that occupies no more than 6% of its total interior floor area, to a maximum of 50 square metres. The Venue’s dance floor measures 250 square feet (roughly 23 square metres), which is less than 5% of the Venue’s entire floor space. It thus satisfies this requirement.

[34] Moreover, states the Defendant, the Venue provides seating for the majority of its patrons, and, as such, is not a “nightclub” under the Licensing By-law, which defines a “nightclub” in part as a premises “where seating is not provided for the majority of the patrons.” The Defendant’s evidence is that the Venue’s licensed capacity is 240 people. The Defendant says the Venue can accommodate and serve up to 190 seated patrons for dinner and beverage purposes. That is over 79% of its capacity. The majority of the Venue’s floor space is covered by seating, says the Defendant, including permanently installed banquettes and tables, and movable couches, chairs, and bar stools. In support of this position, the Defendant has provided narrative descriptions of the Venue’s seating, together with a seating plan and a seating map from the Venue’s point-of-sale software, both of which identify the number and location of banquettes and tables in the Venue. The Defendant also provides photographs of some of the booths in the Venue. It has not provided evidence explaining how it arrives at its calculation that it can accommodate up to 190 seated patrons.

[35] The Defendant states that there is insufficient evidence that the Venue is the source of the noise. It points to the rooftop venue, which it says operates during the same hours as the Venue and plays loud hip hop music, features live music and DJs, has a large outdoor patio bar, and has a pool that attracts large crowds. There are also neighbouring bars and venues outside of the building. The Defendant wonders why it alone is the target of the Plaintiff’s complaints. It feels that the Plaintiff is “bent on” shutting it down.

[36] The Defendant submits that the Plaintiff’s evidence about the beginning of the noise issues coinciding with the opening of the Venue in October 2021 is not probative, because all entertainment venues in the area opened when the Venue did due to the end of COVID-related restrictions. The ambient noise almost certainly went up at that time, but only because a number of venues, not just 44 Toronto, opened at around that time.

[37] The Defendant has provided expert evidence from a firm called Veneklasen Associates. This evidence is relevant to the claim for an injunction in tort and is discussed in that section of these Reasons.

The Statutory Injunction Claim

The Legal Test

[38] The Plaintiff seeks a statutory injunction on the basis that the Venue is a nightclub and is operating without an “entertainment establishment/nightclub” license, in contravention of the Licensing By-law.

[39] The legal basis for the statutory injunction sought by the Plaintiff is the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”), which provides that a taxpayer may enforce the City’s By-laws. Section 380 of the Act establishes the right of the City or any of its taxpayers to seek an injunction to enforce municipal by-laws. It provides: “If any city by-law or by-law of a local board of the City under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the City or local board.”

[40] A statutory injunction under the Act does not require the applicant to meet the conventional test for injunctive relief set forth in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Rather, the applicant must demonstrate, on a balance of probabilities, that there has been a clear breach of a City By-law. Once this is demonstrated, the courts will generally grant the injunction to enforce the By-law, unless the responding party demonstrates that there are exceptional circumstances to justify the exercise of the court’s discretion to not grant the injunction. The party seeking the injunction need not prove irreparable harm or that the balance of convenience favours granting the injunction. This is because enforcing the by-law is presumed to be in the best interest of the public, and a breach of the law is considered an irreparable harm to the public interest (see, for example, Regional Municipality of York v. DiBlasi, 2014 ONSC 3259; Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665).

[41] Thus, the Plaintiff must show: (1) that he is a “taxpayer” under the City of Toronto Act, 2006 and therefore has standing to seek an injunction under s. 380 of the Act, and (2) that, on a balance of probabilities, there is a clear breach of the Licensing By-law. It then falls to the Defendant to demonstrate some exceptional circumstance that would justify the court exercising its discretion to not grant the injunction. The court may then either grant the statutory injunction or exercise its discretion to decline to do so.

The Licensing By-law

[42] The Licensing By-law establishes the licensing requirements for specific business activities. It is uncontested that the Defendant has obtained a license for the Venue as an “eating or drinking establishment”. Section 545-1 of the Licensing By-law defines an “eating or drinking establishment” as follows:

Whether or not any person is licensed or required to be licensed under this chapter for the carrying on of or engaging in any trade, business or occupation in respect of such eating or drinking establishment:

(a) Every place for the lodging, reception, refreshment or entertainment of the public;

(b) Every place where foodstuffs intended for human consumption are made for sale, offered for sale, stored or sold;

(c) Every victualling house, ordinary, and house where fruit, fish, oysters, clams, or victuals are sold to be eaten therein; and

(d) Any other place or premises or part thereof, named or described in § 545-2 of this chapter, where food is served in pursuance of a trade, business or occupation.

[43] The Venue is licensed as an “eating or drinking establishment” under subparagraph (c) of this definition, i.e., as a “victualling house,” a now-obsolete term used to describe a commercial establishment that serves food and drink.

[44] An “entertainment establishment/nightclub,” meanwhile, is defined under s. 545-1 of the Licensing By-law as

[a] premises, including but not limited to a dance hall or disco, used to provide dance facilities for patrons, where seating is not provided for the majority of the patrons and where food or beverage may be offered for sale as an ancillary use.

[45] Designation as an “entertainment establishment/nightclub” has important legal implications. Section 545-2(65) of the Licensing By-law prohibits an owner of an “entertainment establishment/nightclub” from carrying on business without a license. Section 545-497 requires that, when applying for or renewing its license, an “entertainment establishment/nightclub” must provide the City with a noise control plan that includes a description of the maximum volume levels for music within the establishment, the wattage of the music or sound-producing systems used in the establishment, and the sound insultation methods or mechanisms used within the building. It must also provide a crowd control plan, meet security and security guard staffing requirements under s. 545-494, and carry certain levels of insurance pursuant to s. 545-499. Additionally, under the City’s Zoning By-law 569-2013 (the “Zoning By-law”), a nightclub must be located on the first storey of its building (subclause 40.10.20.100(2)(B)). It is undisputed that the Venue does not meet all these requirements. For example, as the Defendant acknowledges, the Venue is located below grade, which means it does not comply with the Zoning By-law requirement for nightclubs.

Analysis

[46] The parties do not dispute that the Plaintiff is a “taxpayer” for the purposes of the Act, and, therefore, has standing to seek an injunction under s. 380.

[47] However, the parties disagree on whether the Plaintiff has demonstrated a breach of the Licensing By-law. The Plaintiff submits that the evidence shows that the Venue is in practice an “entertainment establishment/nightclub” and should have obtained a license as one, instead of or in addition to its license as an eating establishment. He also calls for a purposive interpretation of the Licensing By-law, which focuses on the realities of how the Venue actually operates. The Defendant submits that the evidence does not support that the Venue falls within the definition of an “entertainment establishment/nightclub,” and that it is, accordingly, complying with the Licensing By-law requirements.

[48] For the reasons below, I find that the Venue is operating as an “entertainment establishment/nightclub” for the purposes of the Licensing By-law, but without a license permitting it to do so. This is a clear breach of the Licensing By-law. The Plaintiff has established a strong prima facie case that the Venue is, in practice, an “entertainment establishment/nightclub,” as that term is defined in the Licensing By-law, based on the Venue’s provision of dance facilities for its patrons, its insufficient provision of seating, and the limited importance of food sales to the Venue. The Defendant has not satisfactorily rebutted the Plaintiff’s prima facie case that the Venue is in substance an “entertainment establishment/nightclub.” As such, I find that the Venue operates as a nightclub, even though it is not licensed as one. It is in substance, and as a matter of practice, a nightclub. It is simply implausible to suggest otherwise.

[49] The Plaintiff has established a strong prima facie case that the Venue is operating like an “entertainment establishment/nightclub” under the Licensing By-law, but without a license authorizing it to do so.

[50] The Plaintiff refers to the definition of “entertainment establishment/nightclub” under the Licensing By-law, the first part of which refers to a “premises, including but not limited to a dance hall or disco, used to provide dance facilities for patrons.” The Oxford English Dictionary defines the noun “disco” as a “ nightclub or similar venue at which recorded music is played (usually by a DJ) for dancing, typically having a powerful sound system, a dance floor, and elaborate lighting effects.” Based on the 44 Toronto website photographs and videos and other evidence before me, discussed above, the Plaintiff has established a strong prima facie case that the Venue meets these requirements: it plays recorded music for dancing (in addition to live music at times), it has DJ performances, it has a powerful sound system, it has a dance floor, and it has lighting effects. Based on that same evidence, the Plaintiff has also established a strong prima facie case that the premises of the Venue are “used to provide dance facilities for patrons.” The photographs and videos show throngs of Venue patrons dancing. They depict dancing as an extremely important, perhaps predominant, feature of what the Venue offers its patrons.

[51] The second part of the definition provides that in an “entertainment establishment/nightclub,” “seating is not provided for the majority of the patrons.” The Plaintiff has established a strong prima facie case that the Venue does not provide seating for the majority of its patrons. The record before me is replete with photographs and videos of Venue patrons standing and dancing, often packed tightly and wall-to-wall. There are photographs of some of the Venue’s booths, but few or no photographs of moveable chairs or tables or of patrons sitting. Viewing this evidence as a whole, I find that the Plaintiff has established a strong prima facie case that the Venue does not provide seating for the majority of its patrons.

[52] The definition also considers a premises that offers food for sale only as an “ancillary use” to be an “entertainment establishment/nightclub.” The Plaintiff has established a strong prima facie case that the Venue offers food for sale only as an ancillary use. The evidence that the Plaintiff relies on is discussed above, and includes the following:

a. 44 Toronto only began posting its menu on its website in March 2024, after this litigation was commenced. Before then, the website contained no information about its food offerings, the culinary staff, or restaurant industry recognition, although it did discuss the availability of bottle service;

b. There is no specialized head chef at the Venue. The food offerings are relatively limited, consisting of four kinds of “shareable” dishes, six kinds of “mains” including pizza and chicken tenders, and a handful of sides and desserts, and are prepared by “barback” staff whose duties also involve stocking the bar and cleaning spills and garbage;

c. The Venue’s website and social media profiles make no mention of any “vibe dining” concept, and write-ups about the Venue in the press make no mention of its food offerings or “vibe dining”;

d. The Venue’s revenue from food sales is minute (under 1.5% of total sales in 2022) and in fact its revenue is almost exclusively from alcohol sales (94% of total sales in 2022);

e. The Venue’s banquette tables, which comprise the bulk of its seating, are used to provide bottle service, and there is no evidence depicting the tables being used to provide meals;

f. The Venue opens at 10:30 p.m. – well past dinner time – and imposes age-based and sex-based restrictions on who may enter; and

g. The costs to the Venue in 2022 of security, DJs, tech support, entertainment, and promotors were twelve times the costs associated with “restaurant/operating supplies.”

[53] The Plaintiff has accordingly established a strong prima facie case that the Venue falls under the Licensing By-law’s definition of an “entertainment establishment/nightclub”.

[54] The burden then falls to the Venue to show otherwise. It must satisfy me that it does not fall under this definition. It has not done so.

[55] First, the Defendant has not rebutted the Plaintiff’s strong prima facie case that the Venue provides dance facilities for its patrons. Indeed, the Defendant acknowledges that its patrons dance. It states that its dance floor does not exceed the dance floor size restriction for eating establishments under the Zoning By-Law.

[56] I accept that submission. However, it is abundantly clear from the numerous photographs and videos that Venue patrons are not limiting themselves to the official dance floor when they are dancing. The space they use for dancing far exceeds the space the Venue points to as its official dance floor. The relatively small size of the official dance floor does not support the suggestion that the Venue is not used to provide dance facilities for patrons.

[57] The Defendant submits that, when characterizing the Venue’s activities, the court should not rely on photographs and videos from the Venue’s website or on media write-ups about the Venue, because those materials by necessity focus on depicting patrons enjoying themselves and do not reflect the full range of the Venue’s operations.

[58] While I accept that marketing materials are often selective in what they show, and that the Venue may not have complete control over how it is depicted in the press, I do not accept the Defendant’s argument. I have been provided with extensive narrative content, photographs, and videos from the Venue’s website. I have also been provided with a several media articles and write-ups about the Venue. Their content and flavour are consistent. As discussed above, they refer to the Venue as a “nightclub,” a “club,” a “top Canadian nightlife destination,” a “revolutionary nightclub,” “the newest player joining the busy party life of Toronto,” and one of “the MOST DIFFICULT out of all [the] Clubs in Toronto to get into.” It is reasonable to conclude, and I do so conclude, that the Venue’s website and press coverage accurately portray how the Venue sees itself and how it wishes to hold itself out to the public. Indeed, there is no suggestion that the Defendant had any concerns that its website and media coverage are out of step with its self-conception or public identity. I therefore consider this evidence to be relevant and helpful on this issue. I accordingly find that the Defendant has not rebutted the Plaintiff’s strong prima facie case that it provides dance facilities for its patrons.

[59] Second, the Defendant has not rebutted the Plaintiff’s strong prima facie case that the Defendant does not provide seating for the majority of its patrons. The Defendant urges me to not rely on images from the Venue’s website when considering the seating issue, on the view that such images will not accurately portray the seating in the Venue. If that is the Defendant’s position, then it is incumbent on the Defendant to provide evidence of some form to rebut the prima facie case established by the photographs that the Venue does not provide seating for the majority of its patrons. It has not done so.

[60] The Defendant’s evidence is that the Venue’s seating accommodates 190 patrons, and thus does provide seating for the majority of its 240 patrons. However, the Defendant offers up this number without any explanation at all as to how the seating referred to in its evidence actually seats 190 patrons.

[61] Additionally, the evidence that the Defendant has provided on its seating contains significant gaps and discrepancies. For example, the evidence of the Defendant is that on the lower level of the Venue, along the length of the room on both sides, there are 13 booths or banquettes (consisting of permanently placed long sofas and tables), some number of tables with chairs, and two bar counter spaces with bar-style seating. However, I note the following:

a. The Defendant has not tendered evidence on how many patrons each of the lower- level banquettes can seat, or how many patrons the banquettes can seat in total;

b. The Defendant has tendered inconsistent evidence on how many tables there are on the lower level. The map generated by the point-of-sale software depicts four tables. The seating plan and affidavit evidence refer to two tables. Photographs from the Venue’s website show this space without any tables, to which the Plaintiff points as evidence that there are in fact no such tables. The Defendant has not tendered evidence on how many seats, if any, accompany these tables; and

c. The Defendant has tendered inconsistent evidence on how many seats there are at each of the two bar areas on the lower level: the point-of-sale map suggests there are four seats at each bar, but the seating plan does not identify any seats at either one.

[62] The evidence of the Defendant is that the upper level of the Venue has one booth, four regular tables, five high-top tables, and a bar. I note the following:

a. The Defendant has not tendered evidence on how many patrons can be seated in the upper-level booth;

b. None of the website photographs put into evidence appear to depict the regular and high-top tables on the upper level, or their accompanying seating. The Plaintiff disputes that there are four regular and five high-top tables on the upper level; he submits that there are in fact only one bench, one bench-style set of chairs, and three coffee tables. The Defendant has not tendered evidence on the number of seats at each of the regular or high-top tables. There is a notation on the seating plan that two of the tables are “standing only,” which suggests that those two tables have no chairs. The Defendant has not tendered evidence on how many patrons the tables seat in total; and

c. The Defendant has tendered inconsistent evidence on how many seats there are at the upper-level bar: the point-of-sale map suggests there are two seats at the bar, but the seating plan does not identify any seats.

[63] Accordingly, I find that the Defendant has not satisfied its burden to demonstrate that it provides seating to the majority of its patrons. I note that the evidence required to satisfy me on this point is exclusively in the control and power of the Defendant. Its failure to provide the evidence is therefore all the more conspicuous. The Defendant suggests that it was for the Plaintiff to come into the Venue, take photographs of the inadequate seating, and disprove the Defendant’s claim that it provides seats for the majority of its patrons. I am unable to accept that submission. It is neither realistic nor appropriate to expect a private citizen to do that. I imagine it would have constituted trespass if he had. He is not a municipal by-law enforcement officer with a right of access. The Plaintiff has established a prima facie case of insufficient seating. The onus then shifts to the Defendant to disprove that prima facie case, and it has failed to do so, despite all the relevant evidence being entirely within its control.

[64] Third, the Defendant has not rebutted the Plaintiff’s strong prima facie case that the Venue offers food for sale only as an ancillary use, as contemplated by the definition of “entertainment establishment/nightclub.” The Defendant has tendered evidence on its menu offerings, and anecdotal evidence of its commitment to the “vibe dining” concept. However, I do not consider that evidence to be persuasive enough to overcome the Plaintiff’s prima facie case on this issue.

[65] In considering the Plaintiff’s request for a statutory injunction, I am mindful of the requirements of the Legislation Act, 2006, SO 2006, c. 21, Sch F (the “Legislation Act”). Section 64(1) of the Legislation Act, in discussing the general rules of construction for legislation, provides that legislation “shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” This principle has been applied to all manner of legislation, including municipal by-laws (see, for example, Labrecque v. City of Toronto, 2023 ONSC 4616). As such, municipal by-laws are to be interpreted with reference to their underlying legislative purposes or the goals they are trying to achieve.

[66] With this in mind, I observe that one of the objectives of the Licensing By-law is to classify businesses and their obligations based on the nature of their operations. If a business operates as a nightclub, it should be classified as a nightclub. It should be licensed as a nightclub. It should be expressly subject to the obligations and responsibilities of a nightclub. The term “entertainment establishment/nightclub” should therefore be interpreted in a way that recognizes as a nightclub a business that functions like a nightclub, no matter what the business itself might say it is.

[67] I find, based on the evidence, that the Venue is in substance, and in practice, an “entertainment establishment/nightclub,” even though it is not licensed as one. It operates as a nightclub. It sees itself as a nightclub. It presents itself to the public as a nightclub. It is implausible to suggest that it is not a nightclub. In making this finding, I note the following:

a. The Venue provides dance facilities for its patrons, as discussed above;

b. It sees itself, and holds itself out to the public, as offering “entertainment” and “the ultimate nightlife experience,” and indeed it used to describe itself on its website as a “nightclub”;

c. It is unambiguously portrayed in social and traditional media as a nightclub, as detailed in the evidence discussed above, including articles about the Venue in publications such as E! News, Maxim.com, Disrupt Magazine, torontoclubs.com, and hiphopsince1987.com, the latter of which reports that the Venue’s own founders “emphasize that opening a nightclub is a labour of love”;

d. It has expensive and extensive lighting (its website touts over 400 light fixtures, custom made for the space), smoke effects, and confetti;

e. It has a high-end audio system, described in Disrupt Magazine as a “state-of-the-art” system that is “shared by only two other clubs globally” and which “envelops guests in crystal-clear audio with earth-shattering bass that pulses through your very being”;

f. It makes almost none of its revenue from food sales, and, as discussed above, food sales are ancillary to its overall business;

g. It offers bottle service, which appears to be purchased with booth reservations;

h. It operates primarily on weekends;

i. It does not open until 10:30 p.m. and it stays in operation until at least 3:00 a.m.;

j. It charges a cover charge;

k. It has a guest list;

l. It imposes age-based and sex-based restrictions on who may enter;

m. It deploys bouncers and metal detectors at its entrance; and

n. It generates the volumes and kinds of noise that are not associated with eating establishments and are more commonly associated with nightclubs.

[68] This is a non-exhaustive list of the ways in which the Venue’s activities are those of a nightclub. Based on these indicia, which are rooted in the actual activities of the Venue, I find that the Venue is a nightclub. It defies common sense to suggest otherwise.

[69] I also note that one of the broad purposes of a municipal licensing regime is to protect the reasonable expectations of neighbouring business and residents. Thus, someone who resides near a licensed eating establishment may reasonably expect to be subject to the noise and other inconveniences that flow from proximity to an eating establishment, but not the inconveniences associated with living near a nightclub.

[70] It is clear on the evidence that the Plaintiff had no reasonable expectation that an establishment that is, functionally, a nightclub would one day start operating in his building. Indeed, there was no business in operation on the P1/P2 levels when the Plaintiff purchased his unit. Had he known that an establishment was going to start operating in that location, he would have expected and assumed, reasonably, based on the Venue’s licensing status, that it was going to be an eating establishment. He would have reasonably expected it to operate and conduct its business as an eating establishment. He would have reasonably expected it to generate the levels of noise, and types of noise, that one would associate with an eating establishment. He would not have expected noise and vibrations of the degree and nature that he has experienced. The Licensing By-law seeks to protect these reasonable expectations and should be interpreted in a way that enables it to do so.

[71] The Plaintiff calls to the court’s attention the documented and ongoing abuse by certain business of the Licensing By-Law’s existing definition of “entertainment establishment/nightclub.” He points to a 2017 Report for Action by the City’s General Auditor entitled “A Review of the Municipal Licensing and Standards Division’s Management of Business Licenses – Part Three: Eating Establishments and Nightclubs” (the “General Auditor’s Report” or the “Report”). The General Auditor’s Report notes that eating establishments and other license categories “are not subject to the same rigorous requirements as nightclubs.” It observes that the City does not have the power to require an applicant to apply for a nightclub license, even if the City has information that the applicant’s business might operate as one. It also voices concern that charging an eating establishment with an offence for operating illegally as a nightclub is challenging, because to lay such a charge, a City enforcement officer must count the number of patrons and the number of seats in the venue during a site visit. The report urges that the Licensing By-law definition “be amended to better delineate the difference between an eating establishment and a nightclub,” and the application form be amended to include information that would “help MLS [Municipal Licensing and Standards] staff ensure businesses are being properly licensed.”

[72] The Plaintiff also provides news articles from 2022 and 2023 discussing noise complaints about downtown Toronto businesses that operate like nightclubs but are licensed only as “eating establishments” – businesses that, like 44 Toronto, appear to be engaged in the very conduct that is the focus of the General Auditor’s Report.

[73] The Plaintiff further observes that, in November 2023, the City’s Chief Planner and Executive Director, City Planning issued a report that recommended that the City amend the Licensing By-Law’s definitions to address the issues raised by the General Auditor. The City will be accordingly amending the definition of “nightclub” in the Licensing By-law. The amended, and more expansive, definition will take effect in January 2025. It will define a “nightclub/entertainment establishment” as:

A. Premises where amplified music is provided for patron entertainment or dancing.

B. Despite this definition, a premises shall be deemed an entertainment establishment/nightclub under this Chapter where it meets three or more of the following criteria:

i. The establishment offers or advertises bottle service, meaning the sale or service of liquor by the bottle;

ii. The operator refers to or advertises the establishment as a club, nightclub, disco, dance hall, dance club, or similar venue;

iii. The premises are equipped with a lighting system, sound system, or disc jockey booth greater in scope than in an eating or drinking establishment; or

iv. The premises has a dedicated stage, dance floor, or other flexible area used for patron entertainment or dancing.

[74] The Plaintiff states that the Defendant meets all these criteria. He further submits that the City’s upcoming amendments are intended to curtail the very mischief in which the Defendant is engaged: functioning as a nightclub but obtaining a license as an eating establishment, in order to sidestep the more onerous requirements that attach to nightclubs. His position is that the pending amendments to the definition of “nightclub” underscore the need to treat the Venue as a “nightclub” for the purposes of the Licensing By-law.

[75] Although I agree, based on the evidence before me, that the Defendant meets the criteria contained in the amended definition of “nightclub/entertainment establishment,” that view has no bearing on my decision in this case. As discussed above, I find that the Defendant operates as an “entertainment establishment/nightclub” under the current Licensing By-law, without a license as one, and my decision to grant a statutory injunction turns on that finding only. I mention the upcoming amendments only to point out the issue of the abuse of eating establishment licenses. The Defendant’s conduct, in operating like a nightclub without being licensed as one, appears to be an example of the very kind of conduct that has sparked the calls for amendment in the first place.

[76] In summary, I find that the Venue operates as a nightclub but is not licensed as one. Its license status as an eating and drinking establishment is a fiction. It cannot be reconciled with the realities of the Venue’s operations. This is a clear breach of the Licensing By-law and is appropriately subject to a statutory injunction.

[77] I accordingly grant a declaration that the Defendant is operating an “entertainment establishment/nightclub,” as defined in the Licensing By-law, without a license to do so, together with a statutory injunction requiring the Defendant to immediately cease operating the Venue in contravention of its licensing status, which is that of an “eating or drinking establishment”.

The Claim for an Injunction Based in Tort

[78] The Plaintiff further asserts that the Defendant’s loud, late-night playing of amplified music in the Venue amounts to the tort of nuisance. He says the noise and accompanying vibrations deprive the Plaintiff of the quiet enjoyment of his property, disturb him, and have resulted in sleep deprivation and other health effects. The Defendant’s activities therefore ought to be enjoined.

The Legal Test for an Injunction

[79] A party may seek an interlocutory injunction pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 40 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[80] The test for interlocutory injunctive relief is well-established: the moving party must establish that their action raises either a serious issue to be tried or a strong prima facie case, that they will suffer irreparable harm if an injunction is not granted until the completion of the trial, and that the balance of convenience favours granting the relief sought because they would suffer greater harm than the responding party if the injunction is not granted (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; R. v. Canadian Broadcasting Corporation, 2018 SCC 5, [2018] 1 S.C.R. 196). The three criteria are not to be viewed as self-contained: they are inter-related considerations, and weakness in one may be compensated for by strength in another (Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674).

The Case Law

[81] The leading case on private nuisance of the kind alleged in this case is Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594. In Antrim, the Supreme Court of Canada held that non-physical or amenity private nuisance arises when a party is responsible for an act that substantially and unreasonably interferes with the use or enjoyment of land or an interest in land. The interference may be “with the health, comfort or convenience” of the owner or occupier (at para. 23). Other cases have observed that the “unreasonableness” of interference is to be analyzed by reference to the severity of the interference (its nature, duration, and effect), the character of the locale, the utility of the defendant’s conduct, and the sensitivity of the use interfered with (Balmain Hotel Group v. 1547648 Ontario Ltd. (Ménage); 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd. (1992), 9 OR (3d) 305).

[82] Noise and vibration have been found to give rise to private nuisance in several cases. In Balmain Hotel Group, for example, a downtown Toronto hotel sued a restaurant and nightclub across the street from it. The parties were in fact located in the same neighbourhood as the parties in this case: on King Street West in downtown Toronto. The neighbourhood contains residential condominiums, other hotels, and bars and restaurants. The hotel complained of noise, particularly from the defendant’s patio. The noise included “loud music, usually with a heavy, thumping bass beat … along with announcements by D.J.’s and the voices of club patrons” (at para. 8). The court held that the noise constituted a nuisance, reasoning, “The difficulty caused [by excessive noise] to an adjacent hotel and to its guests after 11:00 p.m. is obvious. People are entitled to sleep in a hotel in reasonable peace and comfort” (at para. 53).

[83] Similarly, in Walker v. Pioneer Construction Co. (1976) Ltd. (1975), 8 OR (2d) 35 (ONSC), homeowners located next to a gravel pit and asphalt plant sued for nuisance due to the excessive noise generated by the plant’s operations. The court held that the noise generated during the day did not rise to the level of nuisance, but the noise at night did. It reasoned that the night-time and early-morning operations of the defendant “amounted to a material, undue and unreasonable interference with the plaintiff’s enjoyment of their property” (at para. 43).

Serious Issue to be Tried or Strong Prima Facie Case

The Standard to be Applied

[84] The parties disagree on the standard to be applied to the first part of the test. The Plaintiff calls for the application of the “serious issue to be tried” standard, on the basis that he is seeking a prohibitory injunction. I agree that this is a prohibitory injunction. It seeks to prohibit the Defendant from doing what it is currently doing: playing amplified music that is audible beyond the lot limit of the Venue, between the hours of 10:00 p.m. and 9:00 a.m. Accordingly, the “serious issue to be tried” standard is the one that would ordinarily apply.

[85] The Defendant states that the more onerous “strong prima facie case” standard applies because the granting of the injunction will have the effect of a final determination of the action. The Defendant relies on the principle, articulated in RJR-MacDonald, that the “strong prima facie case” standard is to be applied when the result of an interlocutory motion “will in effect amount to a final determination of the action” (at para. 51). This may be the case, for example, “when the result of the [injunction] application will impose such hardship on one party as to remove any potential benefit from proceeding to trial” (at para. 56). The Defendant states that the practical effect of the injunction sought by the Plaintiff will be to force 44 Toronto close its business. As such, the “strong prima facie case” standard should apply.

[86] I respectfully do not accept the Defendant’s position that an injunction would put it out of business. An injunction would certainly put the Defendant out of business as a nightclub. But it would not put the Defendant out of business as an ordinary eating and drinking establishment. The Defendant is licensed as an eating and drinking establishment and may continue to operate as one, even if an injunction is issued.

[87] Accordingly, I see no reason to depart from the “serious issue to be tried” standard, which is determined “on the basis of common sense and an extremely limited review of the case on the merits” (RJR-MacDonald, at para. 78). Essentially, this standard requires a determination that the case is not frivolous or vexatious (RJR-MacDonald, at para. 44).

[88] If I am wrong about the appropriate test to be applied, however, the applicable standard will be the “strong prima facie case” standard, which requires the Plaintiff to show “a case of such merit that it is very likely to succeed at trial” based on the law and the evidence presented (R. v. Canadian Broadcasting Corporation, 2018 SCC 5, at para. 17). I have also applied this standard in my analysis.

[89] As I explain below, I find that the Plaintiff has raised a serious issue to be tried as to whether the noise and vibrations he is experiencing rise to the level of nuisance, and whether the noise and vibrations are caused by the Defendant. In the alternative, I would also find that the Plaintiff has demonstrated a strong prima facie case that the noise and vibrations constitute nuisance and are caused by the Defendant. In other words, I am satisfied that that there is a strong likelihood on the law and the evidence presented that, at the hearing of the action, the Plaintiff will be ultimately successful in proving the allegations set out in his Amended Statement of Claim.

Whether the Noise and Vibrations Constitute Nuisance

[90] I find that the Plaintiff has raised a serious issue to be tried as to whether the noise he experiences constitutes a nuisance. Additionally, if I am wrong about the appropriate test to be applied, I find that he has established a strong prima facie case that the noise constitutes a nuisance.

[91] The affidavit evidence of the Plaintiff, supported by that of his neighbours, describes in clear terms the harm and disruption caused to the Plaintiff by the amplified sound permeating into his home. This evidence is summarized above. I find it to be credible, clear, and compelling. It demonstrates that what the Plaintiff has endured far transcends mere inconvenience: he has, in the words of the court in Antrim, experienced an interference with his enjoyment of his home that is both substantial and unreasonable. Indeed, the Defendant itself acknowledges that the Plaintiff’s complaints and those of his neighbours are not trivial.

[92] I outline below the ways in which the Plaintiff’s evidence establishes a strong prima facie case of nuisance, having regard to some of the indicia of nuisance summarized above.

[93] First, the Plaintiff’s evidence establishes a strong prima facie case that the noise and vibrations have interfered with the Plaintiff’s health, comfort, and convenience by making it difficult for him to fall asleep in his own home; causing sleep deprivation, a weakened physical condition, and other health sequelae; and requiring him to leave his house on occasion in search of respite, including by sleeping on an air mattress in his brother’s home. This constitutes an “interference,” as that term is understood in the law of nuisance.

[94] Second, the Plaintiff’s evidence establishes a strong prima facie case that this interference is unreasonable due to its severity. The interference is of significant duration: it has occurred several nights a week, starting at about 9:00 p.m. and continuing until at least 3:00 a.m., almost continually since October 2021. It is also significant in its effect: it has caused noise and vibrations, and, with them, sleep deprivation and other health sequelae.

[95] Third, the Plaintiff’s evidence establishes a strong prima facie case that the interference is unreasonable having regard to the character of the locale. The neighbourhood in which the building is located is home both to commercial and residential buildings. Indeed, the neighbourhood here is the same as in Balmain Hotel Group, in which the court found that a restaurant/nightclub in the King Street West area in downtown Toronto was creating a noise nuisance and preventing guests at a hotel from across the street from sleeping properly. In Walker, too, the court found that residents of a mixed-use area were entitled to be free from excessive noise during normal sleeping hours. It held that the “character of the neighbourhood is not such that the defendant can reasonably expect to indulge itself during normal sleeping hours as it does during the balance of the day” (at para. 43). The character of the neighbourhood therefore does not urge against a finding of nuisance. I pay no heed to the repeated suggestions in the Defendant’s affidavits that the Plaintiff has less of a right to complain about the interference because he lives in the Entertainment District of Toronto.

[96] The Plaintiff’s expert evidence further supports his strong prima facie case. He has provided expert evidence from SoftdB, an acoustical engineering firm. The reports are authored by Romain Dumoulin, an engineer who has trained in architectural and environmental acoustics at the Sorbonne University. Mr. Dumoulin has extensive professional experience with the management and control of potential noise nuisances, including those associated with entertainment establishments.

[97] I find that the SoftdB analysis further establishes a strong prima facie case that the noise experienced by the Plaintiff constitutes a nuisance. One of the analyses SoftdB performed involved measuring the amplified sound permeating into the Plaintiff’s unit. SoftdB collected data measuring the noise from monitoring stations installed in the Plaintiff’s unit over eight different weekends in 2021 and 2022. On seven of those weekends, the Venue was operating, and amplified sound was present. On the remaining weekend, the Venue was not operating, and measurements were taken to capture background sound levels. Prior to analyzing the data, SoftdB “post-treated” the data to remove any contributions to the noise from miscellaneous activities such as HVAC, mechanical equipment, or human activities.

[98] SoftdB measured the noise based on the criteria set forth in the Toronto Municipal Code by-law on noise, contained in Chapter 591 (the “Noise By-law”). The Noise By-law establishes limits on the emission of amplified sound, such as music from an entertainment venue. It does so using both A-weighted decibels (“dBA”), which measure the ordinary frequency spectrum audible to the average person, and C-weighted decibels (“dBC”), which are intended to more accurately capture sound with bass content, which is lower in frequency.

[99] Between the hours of 11:00 p.m. and 7:00 a.m., the Noise By-law prohibits the emission of amplified sound, such as music from an entertainment venue, exceeding 45 dBA or 60 dBC. SoftdB’s analysis included 16 noise measurements from within the Plaintiff’s unit. While none of these measurements exceeded the 45 dBA limit established in the Noise By-law, notably, six of them were at or above the 60 dBC limit. The Plaintiff characterizes this as “intermittent non-compliance” with the Noise By-law.

[100] SoftdB also performed an aural analysis of the noise inside the Plaintiff’s suite, at other locations in the Plaintiff’s building, and in the SoftdB office based on audio clips. This analysis was qualitative in nature. Through the aural analysis, SoftdB concluded that the nature of the amplified sound permeating into the Plaintiff’s apartment – namely, that it was information bearing (it consisted of songs that have lyrics), was varied in nature, and had significant bass (low frequency) content – created a “very high” potential for noise disturbance and sleep disruption. I find that the aural analysis explains and underscores the degree of discomfort experienced by the Plaintiff due to the noise. Having regard to the legal test for nuisance, it further demonstrates the unreasonableness of the interference experienced by the Plaintiff.

[101] Based on the evidence described, I find that the Plaintiff has established a serious issue to be tried as to whether the noise constitutes a nuisance, and, if I am wrong about the appropriate test to be applied, a strong prima facie case that the noise constitutes a nuisance.

[102] The Defendant raises several criticisms of the SoftdB evidence and tenders its own expert evidence on this issue. I find that the Defendant’s arguments do not undermine the Plaintiff’s strong prima facie case that the noise constitutes a nuisance. The Defendant will be able to raise these various arguments at trial. However, based on the evidence tendered on this motion, the Defendant’s arguments do not cause me to doubt that the Plaintiff will be successful at trial on this issue.

[103] The Defendant disputes SoftdB’s methodology and analysis. It submits that Mr. Dumoulin, who authored the SoftdB report, was not physically present at the Venue when SoftdB technicians measured the sounds on which his analysis is based. As such, his report his hearsay. Furthermore, the SoftdB report does not contain, and the Plaintiff is no longer able to produce, the raw data that were recorded by SoftdB from the Plaintiff’s building. Additionally, the Defendant voices concern with Mr. Dumoulin’s evidence that there is no specific methodology for the “post-treatment” of the data, meaning the steps taken by SoftdB to extract from the data any amounts of noise believed to be correlated with “outside noise” from sources other than the Venue.

[104] I find that these arguments do not undermine the Plaintiff’s strong prima facie case that the noise constitutes nuisance. Mr. Dumoulin has performed and attested to the SoftdB analysis and has given evidence that the analysis is based on raw data that were collected by his team members, who are trained professionals and whom he trusts. The absence of raw data is therefore of limited import. Moreover, the raw data are unavailable because Mr. Dumoulin is no longer with SoftdB. Without assigning any blame for the passage of time in this litigation, I do note that the Defendant took some time to engage meaningfully with the action, and that, in any event, it has always been open to the Defendant to pursue production of the raw data from SoftdB if it considers the data important for its defence. Finally, I note that, during Mr. Dumoulin’s cross-examination, he provided evidence on the approach that is typically taken to post-treat data. I therefore find that the Defendant’s arguments do not undermine the Plaintiff’s strong prima facie case that the noise constitutes nuisance.

[105] The Defendant submits that the Venue was not violating the Noise By-law and therefore cannot be found to have been engaged in nuisance. It states that the Noise By-law articulates community expectations; as such, if an entity generates noise that complies with the Noise By-law, it cannot be said to be committing nuisance.

[106] In making this argument, the Defendant relies on expert evidence from Veneklasen Associates (“Veneklasen”). The Veneklasen report is authored by Todd Busch, who has a master’s degree in mechanical engineering with a focus on acoustics. He is an acoustical consultant and has worked in various sectors, including environmental noise analysis and mitigation.

[107] The Veneklasen report measured sound levels in the hallway outside the Plaintiff’s condominium unit and in two locations in the hallway on the 14th floor of the building. It concluded that the sound levels in the hallway by the Plaintiff’s unit complied with the Noise By-law limits, when measured in both dBA and dBC.

[108] I find that this argument does not undermine the Plaintiff’s strong prima facie case that the noise constitutes nuisance. The Veneklasen measurements were taken in the hallway outside the Plaintiff’s unit, whereas the SoftdB measurements were taken within the Plaintiff’s unit itself. The Plaintiff’s unit is the very location in which he experiences the noise at issue. I therefore find that it is a clearly preferable location from which to evaluate the noise. Indeed, in Balmain Hotel Group, one of the bases on which the court voiced concern with the defendant’s expert noise measurements was that they were taken only from the defendant’s patio (the source of the noise) and from the laneway between the defendant’s restaurant/nightclub and the plaintiff hotel; none were taken from inside the plaintiff hotel itself (at para. 20). As discussed above, based on the SoftdB measurements, I do not find that the Defendant consistently complied with the Noise By-law.

[109] In any event, I am not of the view that compliance, or non-compliance, with Noise By-law limits is in itself determinative on the issue of nuisance. Such compliance may inform whether a particular noise constitutes nuisance but does not determine the question. Statutory limits are, by nature, blunt and absolute instruments, designed to establish hard-and-fast quantitative parameters on behaviour so that enforcement officials need not engage in subjective adjudication when measuring compliance. Tort law standards do not, and should not, involve that same approach. They demand that the decision-maker engage in a more holistic analysis, weighing all the evidence, both quantitative and qualitative, when considering if a tort has taken place. The Noise By-law is one of potentially many pieces of evidence that may factor into the analysis. This approach finds support in the case law (see, for example, Balmain Hotel Group, at para. 56) and the academic literature. [1] Based on the evidence as a whole, including but not limited to the evidence about the Venue’s adherence or non-adherence to the Noise By-law limits, I am still of the view that the Plaintiff has established a strong prima facie case.

[110] The Defendant further asserts that the SoftdB report does not contextualize how a person experiences a sound of 60 dBC. As such, says the Defendant, the dBC values recorded from the Plaintiff’s unit cannot ground a claim in nuisance.

[111] I observe that the Noise By-law, which the Defendant describes as a reflection of community standards, establishes a limit of 60 dBC during the hours of 11:00 p.m. to 7:00 a.m. Presumably, on the Defendant’s logic, the Noise By-law standard reflects the community view that a person experiences a sound of 60 dBC with such discomfort that a sound of such a level should be prohibited. In any event, the Plaintiff has provided clear, credible, and compelling evidence as to how he experiences the amplified sounds in his home, and that evidence supports his strong prima facie case that the noise constitutes nuisance. I therefore find that this argument does not undermine the Plaintiff’s strong prima facie case that the noise constitutes nuisance.

[112] Finally, the Defendant submits that the highest dBA level detected by SoftdB in the Plaintiff’s unit was 36 dBA, which is inaudible to the human ear according to SoftdB’s own report, and therefore cannot ground a finding of nuisance.

[113] In fact, however, the scales in the SoftdB report do not suggest that sounds at 36 dBA are inaudible to humans. Rather, they indicate that sounds at 30 dBA are “very quiet,” and sounds at 90 dBA are “very loud.” Sounds at 36 dBA, while closer to the “very quiet” end of the range, are certainly audible. Moreover, because the scale is logarithmic, and not linear, the difference in sound between one decibel level and the next is significant. I therefore find that this argument does not undermine the Plaintiff’s strong prima facie case that the noise constitutes nuisance.

[114] I further find that the Plaintiff has raised a serious issue to be tried as to whether the vibrations he experiences, which are associated with the amplified music, constitute a nuisance. Additionally, if I am wrong about the appropriate test to be applied, I find that he has established a strong prima facie case that the vibrations constitute a nuisance.

[115] The evidence of the Plaintiff about the vibrations, supported by that of his neighbours, is described above and is credible, detailed, and compelling. The evidence is that the vibrations cause a substantial and unreasonable interference with his enjoyment of his home. They interfere with his comfort and convenience, are serious in nature, and have been going on since October 2021. I find that, based on the criteria for nuisance established in the jurisprudence, the Plaintiff’s affidavit evidence establishes a strong prima facie case that the vibrations are a nuisance.

[116] The Defendant appears to question the Plaintiff’s allegations about vibrations based on the Veneklasen report, which states that only sound levels of roughly 65 or 70 dBC or higher may result in perceptible vibrations, and that, below that threshold, perceptible vibrations will not result. The Defendant notes that testing conducted outside the Plaintiff’s unit did not generally reach these levels.

[117] I find that the Plaintiff’s strong prima facie case that the vibrations constitute a nuisance is not undermined by this discussion in the Veneklasen report. The Plaintiff’s evidence about the vibrations he experiences in his home is clear and compelling, and the Veneklasen report does not lead me to question his credibility on this point. In any event, the Veneklasen report appears to base its analysis on standards issued by the HVAC industry. There is no persuasive explanation before me as to whether or on what basis industrial standards on vibrations attributable to HVAC activity readily transfer over to this context, which involves vibrations due to amplified sound. As such, I am still satisfied that the Plaintiff has demonstrated a strong prima facie case.

[118] I accordingly find that the Plaintiff has raised a serious issue to be tried as to whether the noise and vibrations he experiences constitute nuisance, and, if necessary, has demonstrated a strong prima facie case that the vibrations constitute nuisance. I am satisfied that that there is a strong likelihood on the law and the evidence presented that, at the hearing of the action, the Plaintiff will be ultimately successful in proving the allegations set out in his Amended Statement of Claim.

Whether the Noise and Vibrations are Caused by the Defendant

[119] I further find that the Plaintiff has raised a serious issue to be tried as to whether the noise and associated vibrations are caused by the Defendant. Additionally, if I am wrong about the appropriate test to be applied, I find that he has established a strong prima facie case that the noise and vibrations are caused by the Defendant.

[120] The Plaintiff’s expert evidence establishes a strong prima facie case that the noise and vibrations are caused by the Defendant. SoftdB performed a correlation analysis that simultaneously measured amplified music sounds in both the Plaintiff’s unit (in a room with no windows, to minimize airborne noise intrusion) and directly next to the Venue’s back doors on the P1 and P2 levels. SoftdB removed any extraneous noise that was not from 44 Toronto and then analyzed the data to assess whether the sounds in the Plaintiff’s unit became louder when the music in the Venue (as measured from just outside the Venue doors) became louder, and softer when the music in the Venue became softer. SoftdB also assessed whether the sound from the Venue was similar in nature to the sound permeating into the Plaintiff’s home. The SoftdB analysis found the following:

a. That low frequency thumps from the Venue could be identified in the audio signal recorded in the Plaintiff’s home;

b. That, when there was no bass content in the music in the Venue, there was no bass content in the music in the Plaintiff’s home;

c. That, when the bass content in the music in the Venue increased, so did the bass content in the sounds heard in the Plaintiff’s home; and

d. That most information-bearing sound (meaning, music with lyrics) heard in the Plaintiff’s unit could be recognized and correlated with the Venue’s measured sound.

[121] This evidence establishes a strong prima facie case that the noise and vibrations are caused by the Defendant. It is clear and direct evidence on the quantitative and qualitative link between the noise emanating from the Venue, on the one hand, and the noise experienced in the Plaintiff’s home, on the other. Indeed, it is the only expert evidence grounded in noise measurements from within the Plaintiff’s home.

[122] The Defendant raises several criticisms of the SoftdB evidence and tenders its own expert evidence on whether the Defendant is the cause of the noise and vibrations. I find that the Defendant’s arguments do not undermine the Plaintiff’s strong prima facie case that the noise and vibrations are caused by the Defendant. The Defendant will be able to raise these various arguments at trial. However, based on the evidence tendered on this motion, the Defendant’s arguments do not cause me to doubt that the Plaintiff will be successful at trial on this issue.

[123] For example, the Defendant faults the SoftdB correlation analysis for relying on sound measurements taken immediately outside the Venue’s back doors, and states that the Veneklasen analysis, which captured sound levels within the Venue itself, should be preferred.

[124] I do not see how taking sound measurements from inside the Venue, rather than immediately outside its back doors, would have made a difference. The noise levels captured by SoftdB just outside the Venue doors would, if anything, have been lower than the noise levels captured inside the Venue. Importantly, those lower noise levels still correlated with the noise levels in the Plaintiff’s unit. Thus, SoftdB’s approach cannot plausibly be said to have affected the result, except perhaps in a way that undermined the Plaintiff’s position. I also accept Mr. Dumoulin’s evidence that it was reasonable, as a matter of methodology, to record the sounds from outside the Venue doors, to avoid any risk of the Venue changing its sound levels for the purpose of the testing. For these reasons, it is highly unlikely that the Defendant will be able to prove that the Veneklasen correlation analysis should be preferred over that of SoftdB. I therefore find that this argument does not undermine the Plaintiff’s strong prima facie case that the noise and vibrations are caused by the Defendant.

[125] Additionally, the Defendant submits that SoftdB’s graphic depiction of the correlation analysis is incorrect and cannot be relied on. The graph purports to show the correlation between the recorded sounds from outside the Venue doors and those from inside the Plaintiff’s home. However, the time markings along the x-axis of the graph are all identical, which Mr. Dumoulin has acknowledged is an error. As a consequence, states the Defendant, the timings of the various data points on the graph cannot be discerned, and the graph cannot be relied upon.

[126] I find that nothing turns on this graphing error. The graph merely captures what was identified in the data and described elsewhere in the SoftdB report. The result of the correlation analysis is set forth in narrative form in the SoftdB report and is affirmed by Mr. Dumoulin. In any event, changing the values on the x-axis of the graph would result in either a sharpening or flattening out of the curve showing correlation, but would not undermine the finding of correlation itself. The underlying pattern – that the bass levels in the sound outside the Venue doors and the bass levels in the sound from the Plaintiff’s home move together – would remain unchanged. I therefore find that this argument does not undermine the Plaintiff’s strong prima facie case that the noise and vibrations are caused by the Defendant.

[127] The Defendant further disputes the correlation analysis in the SoftdB report on the basis that correlation does not mean causation. As Mr. Busch puts it, the purported correlation analysis does not mean that the Venue is the source of any noise. Rather, it shows that the location outside the Venue doors where the readings were taken, and the Plaintiff’s unit, “ are experiencing similar noises, regardless of the source. This is typical for units in the same building.”

[128] I agree that correlation does not necessarily mean causation. However, there is no plausible evidence to support the suggestion that this is an issue of mere correlation, rather than causation. In particular, there is no plausible evidence of what the “similar noises” might be that the Venue and the Plaintiff are both experiencing, other than noise from the Venue itself. Mr. Busch offers that the rooftop venue might be the shared source of these “similar noises” – that is, that the rooftop venue could somehow be responsible for the noise levels that SoftdB captured immediately outside the Venue doors 14 and 15 storeys down, and in the Plaintiff’s apartment 12 storeys down, when the Venue’s sound system is in operation. It is extremely unlikely that the Defendant will be able to prove this at trial. Certainly, the Defendant has offered no concrete evidence, about the rooftop venue’s noise generation or at all, that would support this claim. The most the Defendant has done is offered noise measurements from the hallway of the 14th floor, as I discuss below. But that evidence conveys nothing about the rooftop bar’s actual noise generation. The much more plausible view, grounded in the evidence and common sense, is that the noise levels measured immediately outside the Venue doors come from the Venue itself, and that the noise levels measured in the Plaintiff’s unit come from the Venue, two or three storeys down. The SoftdB correlation analysis strongly supports this conclusion. I find that the Defendant’s arguments about correlation versus causation do nothing to undermine it. I am still of the view that the Plaintiff has a strong prima facie case that the noise and vibrations are caused by the Defendant.

[129] The Defendant further asserts that the analysis of causation in the Veneklasen report is to be preferred over the one in the SoftdB report. The Veneklasen report describes how Mr. Busch tested the noise in the hallway outside the Plaintiff’s unit both when the sound system in the Venue was on and when it was off. He observed that when the Venue’s sound system was turned on, the sound levels inside the Venue increased by approximately 20 to 30 dBA and 30 to 40 dBC, but the measurements taken outside the Plaintiff’s unit remained largely consistent. He thereby determined that there was no appreciable difference in the noise experienced outside the Plaintiff’s unit when the Venue’s sound system was on, compared to when it was off.

[130] The Veneklasen report also found that the noise levels were far greater in the hallway on the 14th floor of the building than in the hallway on the second floor, where the Plaintiff resides. The 14th floor is the top floor of the building, and accordingly the farthest floor from the Venue. It is also where the rooftop venue discussed above is located. Mr. Busch measured the sound levels in the hallway outside the Plaintiff’s unit and in the hallway on the 14th floor, at approximately the same time. He found that the 14th floor had higher dBA and dBC noise levels than the Plaintiff’s floor. Mr. Busch opines that the fact that the Venue’s sound system made no perceptible difference to sound levels outside the Plaintiff’s unit, combined with the fact that there are higher dBC levels in the same building on the 14th floor, farther away from 44 Toronto, is “a strong basis to conclude that 44 Toronto is not the primary source of any noise issues experienced” in the Plaintiff’s unit.

[131] I do not consider the Veneklasen correlation analysis to be helpful, or the measurements from the 14th floor to be relevant. The Veneklasen correlation analysis merely serves to suggest that the hallway outside the Plaintiff’s unit is unaffected by the Venue’s operations. Even if this is true, it is not relevant. The issue is the noise in the Plaintiff’s home itself. As discussed above, noise measurements taken in the Plaintiff’s home offer the best way to understand and analyze the noise he experiences in his home. Similarly, the measurements taken from the 14th floor merely serve to suggest that the hallways in the building are noisy and the 14th floor hallway is noisier than the 2nd floor hallway, but that, too, is not the issue before me. I therefore find that the Veneklasen correlation analysis does not undermine the Plaintiff’s strong prima facie case that the noise and vibrations are caused by the Defendant.

[132] Based on the above, I find that the Plaintiff has raised a serious issue to be tried as to whether the noise and vibrations he experiences in his home constitute nuisance, and whether they are caused by the Defendant. In the alternative, I would also find that the Plaintiff has demonstrated a strong prima facie case that the noise and vibrations constitute nuisance and are caused by the Defendant. I am satisfied that that there is a strong likelihood on the law and the evidence presented that, at the hearing of the action, the Plaintiff will be ultimately successful in proving the allegations set out in his Amended Statement of Claim. It is highly unlikely that the Defendant will be able to prove that the noise and vibrations experienced by the Plaintiff are not a nuisance, or that it is not the cause of the noise and vibrations.

Irreparable Harm

[133] I must also assess whether irreparable harm will result if the injunction is not granted. The burden is on the Plaintiff to place sufficient evidence before me to show that he will suffer irreparable harm, which is harm that “either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other” (RJR MacDonald, at para. 64). The word “irreparable” describes the nature of the harm, rather than its magnitude (RJR MacDonald, at para. 59). I am to consider the question of irreparable harm in the context of the specific facts of this case. That context includes my assessment that the Plaintiff has demonstrated a strong prima facie case that the noise and vibrations constitute nuisance and are caused by the Defendant.

[134] The courts have held that damages may be given in substitution for an injunction where the injury to the plaintiff’s legal rights is small, is capable of being estimated in money, and can be adequately compensated by a small money payment, and the case is one in which it would be oppressive to the defendant to grant an injunction (see, for example, Walker, at paras. 49-51). The principle informs the analysis of when, under RJR MacDonald, harm “cannot be quantified in monetary terms.”

[135] The Plaintiff states that the harm he experiences due to the noise and vibrations cannot be quantified in monetary terms. In support of this position, he points to case law that stands for the proposition that, when excessive noise prevents someone from sleeping, this is a harm that cannot be sufficiently remedied by monetary damages. In Walker, for instance, the court found that the plaintiffs’ inability to sleep due to the continuous night-time disturbance from the defendant construction business was appropriately the subject of an injunction. The court held: “Having found that the noise at night is an inconvenience materially interfering with the ordinary comfort of the plaintiffs so as to be actionable, I cannot find that it is ‘small’” (at para. 52). In Balmain Hotel Group, the court likewise determined that injunctive relief was appropriate, based in part on its concern that “a noise which during the early morning hours prevent[s] someone from sleeping in comfort and peace is not a trivial thing” (at para. 59).

[136] The Defendant submits that irreparable harm has not been shown because there is insufficient evidence that the Venue is the cause of the noise. There is therefore “a high degree of concern that the harm complained of will continue” even if an injunction is issued.

[137] I am unable to accept this submission. As discussed above, I find that there is a strong prima facie case that the Defendant is the cause of the noise and vibrations. I therefore do not agree that there is a high degree of concern that the noise and vibrations will continue if an injunction is granted.

[138] The Defendant also reiterates that the Venue was complying with the Noise By-law and that therefore irreparable harm for noise nuisance cannot be found. He cites Balmain Hotel Group, in which the court held that a breach of a noise by-law is not in itself sufficient to give rise to nuisance (at para. 56).

[139] I do not disagree with the Defendant’s characterization of this finding from Balmain Hotel Group. As discussed above, liability for nuisance is to be determined based on a range of criteria, of which compliance or non-compliance with a noise by-law is only one. However, I do not accept the Defendant’s underlying assertion that the Venue was complying with the Noise By-law. As discussed above, the SoftdB analysis, which I prefer over the Veneklasen report, took 16 noise measurements in the Plaintiff’s unit, six of which were at or above the Noise By-law limit. This cannot be characterized as compliance. Indeed, in Balmain Hotel Group, the defendant was found to have breached the Noise By-law (at paras. 21 and 38) and to be liable for nuisance (at para. 55). As such, I find that this argument does not undermine my finding that irreparable harm will result if the Plaintiff is not granted an injunction.

[140] The Defendant further states that the Plaintiff cannot demonstrate irreparable harm because the harm here could be cured if the Plaintiff were more cooperative. He states that the Plaintiff’s own expert has alluded to a solution to the noise, which the Plaintiff refuses to share with the Defendant. He further states that the Plaintiff will not give the Venue a chance to see if changing its sound settings would cure the issue.

[141] It is not clear to me, as I read the evidence, that there is in fact any “cure” that Mr. Dumoulin has proposed and which is being concealed from the Defendant. The only “cure” I see referred is to turn the music down, which is a common-sense cure that the Venue has had the option of implementing ever since the Plaintiff and his neighbours first tried to engage with the Venue in the fall of 2021. I also find, based on the record before me, that it was not until earlier this spring, fully two-and-a-half years after the noise issues began, that the Defendant tried to constructively engage the Plaintiff in finding a solution. Even if the Plaintiff did rebuff those late-in-the-day efforts, nothing was stopping the Defendant from trying to implement solutions from its side in an effort to reduce its amplified sound emissions and render this motion unnecessary. As such, I am not persuaded by this argument. Even if I did accept the suggestion that non-cooperation in eleventh-hour efforts to address nuisance undermines the irreparable harm claim – and I do not, in the circumstances of this case – this would not, in my view, outweigh the other considerations pointing to irreparable harm discussed above.

The Balance of Convenience

[142] Finally, I must assess the balance of convenience. The Supreme Court of Canada has held that the question to be asked at this stage of the inquiry is 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 (Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, at para. 35).

[143] I find that the balance of convenience favours granting the injunction. I acknowledge that the Venue is, by all accounts, a thriving enterprise that has 100 full- and part-time staff and has obligations to its landlord, suppliers, and contracted performers. I appreciate these concerns and take them seriously. However, the Plaintiff has a legal right to live comfortably and sleep properly in his home, free of the noise and vibrations and the various discomforts, disruptions, and health consequences that they have entailed for more than two and a half years. The balance of convenience favours granting the Plaintiff his remedy.

Undertaking on Damages

[144] The Defendant asserts that the Plaintiff has provided inadequate evidence on his ability to satisfy his undertaking as to damages, and, on that basis alone, could be denied the injunctive relief he now seeks.

[145] I do not agree. The undertaking on damages under Rule 40.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is an undertaking given to the court, not the responding party. It is intended to cover any damage caused by a wrongly granted injunction. The court exacts the undertaking. The court conducts any damages inquiry for the benefit of the defendant (United States of America v. Yemec, 2013 ONSC 50, at para. 14). The Plaintiff has given the required undertaking. He has also provided evidence that he is a retired Crown lawyer, that he owns his condominium unit, and that he has a half interest in a cottage. I am satisfied with this evidence and with the undertaking itself. I further note that the cases in which the courts have dismissed motions for injunctive relief based on inadequate damages undertakings have generally involved corporate plaintiffs, not individual plaintiffs, as is the case here.

Conclusion

[146] For the reasons above, I find that the Plaintiff has raised a serious issue to be tried as to whether the noise and vibrations he experiences in his home constitute nuisance, and whether they are caused by the Defendant. In the alternative, I would also find that the Plaintiff has demonstrated a strong prima facie case that the noise and vibrations constitute nuisance and are caused by the Defendant. I also find that irreparable harm will result if the injunction is not granted, and that the balance of convenience favours granting the injunction.

[147] Accordingly, I order an interim and interlocutory injunction based in tort, requiring the Defendant to immediately cease carrying on its business in a manner that causes, procures, or permits the emission of sound from the Venue that is audible beyond the lot limit of the Venue, between the hours of 10:00 p.m. and 9:00 a.m., pending determination of the issues raised in the action.

[148] I close by once again noting the Defendant’s assertion that it will be put out of business if this injunction issues. I respectfully do not accept that submission. The injunction will certainly put the Defendant out of business as a nightclub. That is its intention. But the injunction will not put the Defendant out of business as an ordinary eating and drinking establishment. An ordinary eating and drinking establishment typically does not emit sound beyond its lot limits between 10:00 p.m. and 9:00 a.m. The Defendant is licensed as an ordinary eating and drinking establishment and may continue to operate as one.

Order Granted

[149] I declare that the Defendant, 44 Toronto, is operating an “entertainment establishment/nightclub,” as defined in the Licensing By-law, without a license to do so.

[150] I order the following:

a. The Defendant shall immediately cease operating the Venue in contravention of its licensing status, which is that of an “eating or drinking establishment.”

b. The Defendant shall immediately cease carrying on its business in a manner that causes, procures, or permits the emission of sound from the Venue that is audible beyond the lot limit of the Venue, between the hours of 10:00 p.m. and 9:00 a.m., pending determination of the issues raised in the action.

[151] If the parties are unable to agree on costs, they may provide me with brief written cost submissions of no longer than four pages by August 12, 2024.

Parghi J. Released: 2024-07-26

[1] See, for example, Ernest Weinrib, Reciprocal Freedom: Private Law and Public Right (Oxford: Oxford University Press, 2022) at 133: “Statutes that promote safety and penalize those who endanger others regulate the same behaviour that private law addresses. These statutes may not only be enforced in their own terms but may also, where appropriate, influence the setting of private law standards. In Canada, for instance, such statutes are regarded not as formulating a per se standard or as grounding a distinct tort of statutory breach, but as providing evidence for determining whether the defendant should be considered negligent under the general principles of tort law.”