COURT OF APPEAL FOR ONTARIO

CITATION: 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125

DATE: 20140218

DOCKET: C57291

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

1711811 Ontario Ltd. and Olga Maria Paiva, Operating as AdLine

Applicants (Respondents)

and

Buckley Insurance Brokers Ltd., Robert Buckley and 1730849 Ontario Ltd.

Respondents (Appellants)

Jonathan L. Rosenstein, for the appellants

Sara J. Erskine, for the respondents

Heard: January 22, 2014

On appeal from the order of Justice Susan G. Himel of the Superior Court of Justice, dated May 31, 2013, with reasons reported at 2013 ONSC 1512.

Gillese J.A.:

[1] The order that spawned this appeal is a very restrictive permanent injunction relating to the use of a laneway. In my view, it was an error to have ordered a permanent injunction. Consequently, I would allow the appeal.

BACKGROUND

[2] AdLine is a t-shirt printing business in Newmarket, Ontario. Olga Maria Paiva owns the business and operates it from a building located at 255 Main Street South. The building is owned by 1711811 Ontario Ltd. In these reasons, I will refer to AdLine, Olga Maria Paiva and 1711811 Ontario Ltd. collectively as “AdLine” or the “Respondents”.

[3] Robert Buckley owns Buckley Insurance Ltd., which operates out of a building located at 247 Main Street South in Newmarket. 1730849 Ontario Ltd owns the building. I will refer to Robert Buckley, Buckley Insurance Ltd. and 1730849 Ontario Ltd. collectively as “Buckley” or the “Appellants”.

[4] AdLine and Buckley are neighbours. They share the use of a laneway that runs at the rear of their buildings. The laneway provides both with shipping access.

[5] Buckley purchased the property on which the laneway is located in 2008. AdLine has a registered right of way over the laneway.

[6] The right of way, which has existed since 1957, gives AdLine:

a free and uninterrupted right-of-way in common with all other persons entitled thereto for persons, animals and vehicles, in, over, along and upon that certain parcel of land….

[7] The laneway runs across Buckley’s property. A portion of it passes beneath a ceiling that connects the building’s east and west wings. The laneway then feeds into a loading bay located on the side of AdLine’s building. The loading bay is AdLine’s only point of access for items that it sends and receives.

[8] In May 2009, Buckley notified AdLine that it intended to renovate the laneway because it was in a state of disrepair.

[9] AdLine voiced concerns that the laneway would be obstructed during the renovation period, and that the clearance height of the underpass would be affected.

[10] On May 15, 2009, AdLine brought an application (the “Application”) seeking, among other things, a declaration of its rights to the laneway and injunctive relief to prevent Buckley from constructing on, or obstructing, the laneway.

[11] Before the Application was heard, the parties arrived at an agreement that resolved their dispute. On May 20, 2009, Pollak J. issued a consent order based on that agreement (the “Consent Order”).

[12] Under the terms of the Consent Order, Buckley would not block vehicular access during business hours and would give AdLine advance notice when such blockage was unavoidable. The Consent Order expressly dismissed the Application. It did not contain an expiry date.

[13] The renovations to the laneway were completed in 2009.

THE CONTEMPT MOTION

[14] The conflict between the parties subsided in the period following the Consent Order. However, in 2011, Buckley began further construction. Disputes again arose between the parties regarding the laneway. AdLine complained that Buckley was: obstructing its use of the laneway by allowing vehicles to park in it; leaving ajar the metal shipping doors that open into the laneway; engaging in construction that changed the clearance height of the underpass and the width of the laneway; and, failing to provide adequate notice of interruptions to vehicular access in the laneway.

[15] AdLine filed a notice of motion dated October 3, 2012, within the Application proceeding, asking the court to find Buckley in contempt of the Consent Order and to grant “mandatory” injunctive relief beyond the terms of the Consent Order (the “Contempt Motion”).

[16] Buckley responded with affidavit evidence which painted a dramatically different version of events. The Buckley affidavit evidence showed that Buckley had acted reasonably throughout and that it was AdLine who acted unreasonably in respect of the laneway.

[17] In his affidavit, Robert Buckley testified, among other things, that other businesses had a right to use the laneway for loading and unloading. He said that he had had no difficulty with these third-party businesses, however, the third parties had experienced many difficulties with AdLine’s demands in respect of the laneway. One such third party was a florist that operated at 245 Main Street South in Newmarket. Affidavits from the florist and one of its suppliers, attached to the Buckley affidavit, supported Buckley’s version of events.

[18] In his affidavit, Mr. Buckley also responded to AdLine’s allegations in the Contempt Motion. He set out the steps that had been taken to accommodate AdLine during the construction period and attached supporting affidavit evidence to that effect from those involved in the construction. He also gave evidence about his employees’ need to use the laneway to access their cafeteria and fitness facility, as well as the public parking areas at the rear of the building. He denied that the opening of the metal shipping doors materially impedes access to the laneway.

[19] On November 20, 2012, in response to what it perceived to be persistent obstruction of the laneway, AdLine brought an ex parte motion for interim injunctive relief and to set an expedited hearing date for the Contempt Motion. Buckley’s counsel was notified.

[20] The parties appeared before Low J. on November 21, 2012. The matter was adjourned to December 10, 2012.

[21] On December 10, 2012, Stinson J. ordered interim injunctive relief, pending argument on the Contempt Motion, and fixed February 27, 2013, as the hearing date for that motion (the “Interim Order”).

[22] Under the Interim Order, Buckley was required to provide AdLine with reasonable, unimpeded access to the laneway. As well, Buckley was ordered to ensure that none of its employees or those under its control parked on the laneway, with a 30-minute exemption being made for vehicles actively delivering goods to, or receiving goods from, Buckley’s premises. In the event that a vehicle parked in the laneway in violation of the Interim Order, AdLine was to notify Buckley and Buckley was to take immediate steps to have the offending vehicle moved or removed. If that did not occur, AdLine was given the power to tow the offending vehicle, with a right to recover that expense from Buckley. Further, Buckley’s employee entrance doors and shipping doors were required to remain closed when not in active use.

THE DECISION BELOW

[23] The order under appeal flowed from three endorsements made by the motion judge. In light of the issues raised on appeal, it is necessary to consider all three endorsements.

The First Endorsement

[24] In reasons dated March 12, 2013 (the “First Endorsement”), the motion judge allowed the Contempt Motion in part; she dismissed that part of the motion seeking to have Buckley found to be in contempt, but she granted that part in which AdLine sought further injunctive relief.

[25] The motion judge refused to make a finding of contempt because she was not satisfied beyond a reasonable doubt that the Consent Order was in effect during the most recent bout of conflict between the parties. In her view, the Consent Order was a response to the specific circumstances concerning Buckley’s proposed renovations to the laneway in 2009. As she noted, if she were unable to know with certainty whether the Consent Order was operative after those renovations had been completed, how could Buckley? And if there were no order in place, then contempt could not be found.

[26] In relation to the order for further injunctive relief, for reasons that will become clear, it is necessary to consider the motion judge’s reasons in more detail.

[27] At the outset of the First Endorsement, the motion judge recited that through the motion, AdLine sought a finding that Buckley was in contempt and “a mandatory order concerning the use of the right of way” (at para. 1). In the section entitled ‘Positions of the Parties’, the motion judge said that AdLine sought “permanent injunctive relief” (at para. 9). The motion judge then applied the familiar three-part test for interlocutory injunctions set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (at para. 25).

[28] The motion judge concluded that she would grant AdLine’s request for “interim and interlocutory injunctive relief” (at para. 28). In her view, such relief was needed to protect AdLine’s property right – a right of way existing since 1957 – from interference.

[29] The motion judge recognized that Buckley also requires the use of the laneway for its business. In her view, this justified temporary blockages of the laneway for short periods of time.

[30] The motion judge then made an order with a series of detailed terms respecting the use of the laneway. The specific terms of the order can be found below in the section entitled “The Order under Appeal”.

[31] Finally, the motion judge declined to grant a mandatory order compelling Buckley to restore the clearance height of the laneway to its original dimensions. Instead, the motion judge gave Buckley four months to remedy the matter voluntarily, failing which AdLine could return to court to seek that aspect of injunctive relief.

The Second Endorsement

[32] Following the release of the First Endorsement, the parties disagreed on two of its provisions: whether written notice was required for deliveries outside of normal business hours, and the appropriate clearance height of the laneway.

[33] The motion judge heard oral submissions from the parties on these two disputed aspects of the order and, on May 31, 2013, she issued an endorsement in which she resolved them (the “Second Endorsement”).

[34] In the Second Endorsement, the motion judge began by stating that in respect of AdLine’s motion for “mandatory injunctive relief”, she had been satisfied that the RJR-Macdonald test was met and thus she had ordered “interim and interlocutory injunctive relief”. She then dealt with the two points of disagreement arising from the order contained in the First Endorsement.

[35] The motion judge explained that the 24 hours’ written notice provision was intended to apply only to regular business hours. Outside of these hours, prior written notice was not required. However, the maximum total time that vehicles could deliver or receive goods, regardless of the day, was 120 minutes in any given day.

[36] The motion judge clarified that the clearance height of the laneway was 12.2 feet.

The Third Endorsement

[37] Following the release of the Second Endorsement, Buckley retained new counsel. The parties again disagreed on the order. Specifically, they disagreed on whether the injunctive relief that the motion judge had ordered was permanent or interlocutory.

[38] On July 3, 2013, the motion judge issued a third endorsement in which she addressed this disputed aspect of the order (the “Third Endorsement”). The Third Endorsement consists of four paragraphs.

[39] In the first paragraph, the motion judge again recites that AdLine had sought “mandatory injunctive relief” and that she had granted “interim and interlocutory injunctive relief”.

[40] In the second paragraph, the motion judge gave a brief summary of the circumstances surrounding the making of the Second Endorsement.

[41] In the third paragraph, the motion judge explained that Buckley had retained new counsel and that the parties had again been unable to agree on the terms of the order. She stated that counsel had appeared before her that day and made submissions concerning the issue and that she had signed a form of the order that reflected her decision.

[42] The fourth paragraph contains the motion judge’s reasons for concluding that she intended to order permanent injunctive relief. The full text of those reasons reads as follows:

In the signed order, I clarify that the terms of injunctive relief ordered with the exception of the mandatory order to remedy the height clearance are imposed as permanent injunctive relief.

[43] The motion judge concluded the fourth paragraph by stating that the issue of the height clearance had not been finally determined and that the matter was adjourned, on terms, to enable the parties to rectify the situation.

THE ORDER UNDER APPEAL

[44] An order, dated May 31, 2013, was finally taken out in this proceeding (the “Order under Appeal”).

[45] In the Order under Appeal, the motion for contempt is dismissed and, in paras. 2 and 3, injunctive relief is ordered. The following analysis is informed by the nature and extent of that relief. Thus, paras. 2 and 3 of the Order under Appeal are set out now.

2. THIS COURT ORDERS that [AdLine’s] motion for a mandatory order concerning the use of the right of way described as Parts 3, 4, and 5 on Plan 65R-7394 (“Right of Way”), is hereby [granted] on the terms set out in paragraph 3 below.

3. THIS COURT ORDERS that [Buckley] shall provide [AdLine] with reasonable, unimpeded access through the Right of Way in accordance with the following terms:

(a) the [Appellants] and their agents and employees are prohibited from parking vehicles in the Right of Way;

(b) the [Appellants] are permitted to allow vehicles to stop in the Right of Way that are delivering to or receiving goods from the [Appellants’] premises during the hours of 9:00 a.m. to 5:00 p.m. Monday through Friday inclusive but such activity is limited to 30 minutes or less except with prior written notice of at least 24 hours to the [Respondents];

(c) outside of regular business hours… prior written notice by the [Appellants] is not required; however, the total amount of time that vehicles may deliver to or receive goods from the [Appellants’] premises, regardless of the day, is up to 120 minutes (two hours) on any given day;

(d) the [Respondents] shall notify the [Appellants] if they learn that a vehicle has been parked in the Right of Way in violation of this order and the [Appellants] shall take immediate steps to have the vehicle removed;

(e) if the [Appellants] do not take steps to have the vehicle which is improperly parked in the Right of Way removed within 20 minutes of being notified by the [Respondents] that access is being blocked, then the [Respondents] may arrange a towing service to remove the vehicles at the expense of the [Appellants] or the owner of the vehicle;

(f) during [business hours], the employee doors and the shipping doors of the [Appellants] shall remain closed except when they are actively used; they may not be used for more than 30 minutes at a time and for a total of 120 minutes in any given day;

(g) employees of the [Appellants] shall be directed to make way for delivery vehicles which require access through the Right of Way to the [Respondent’s] premises. The [Appellants] are also required to direct their customers and others not to park in the Right of Way;

(h) any future construction work to the Right of Way shall be done on notice of 24 hours to the [Respondents] and shall be carried out in a way to allow vehicle access to 255 Main Street during business hours of 9:00 a.m. to 5:00 p.m., Monday through Friday inclusive each week; and

(i) there shall be no material change to the Right of Way that will restrict access to 255 Main Street by vans and vehicles as exists as of the date of this order unless there is agreement of both owners of 247 Main Street and 255 Main Street.

[46] It will be noted that the Order under Appeal does not expressly state that the injunctive relief is permanent. In fact, as can be readily seen, para. 2 of the Order under Appeal refers to AdLine’s motion for a “mandatory” order, not a permanent order. However, the Third Endorsement makes it clear that the motion judge intended to impose permanent injunctive relief.

THE ISSUES

[47] Buckley accepts that the motion judge had the power to grant interlocutory injunctive relief. The error, it contends, was in making the injunctive relief permanent. Specifically, Buckley submits that the motion judge erred by:

1. changing the order from an interlocutory injunction to a permanent injunction without explanation;

2. imposing a permanent injunction on the basis of the test for an interlocutory injunction;

3. making findings of fact not available on the motion; and,

4. ordering a permanent injunction despite the absence of an underlying legal proceeding.

[48] A lack of precision in the terminology associated with injunctive relief appears to have contributed to some confusion in these proceedings. Thus, the key terms will be clarified before I address the issues.

KEY TERMS RELATING TO INJUNCTIONS

[49] Various types of injunctive relief have been sought or ordered in this proceeding: interim, interlocutory, mandatory and permanent. What do each of those terms mean and how do they differ from one another?

[50] Let us first consider interim and interlocutory injunctions. While motions for pre-trial injunctive relief often term the relief that is sought as both interim and interlocutory, some distinctions can be drawn between the two.

[51] A motion for an interim injunction can be made ex parte or on notice. Argument on the motion is generally quite limited and, if an order is made for interim injunctive relief, the order is typically for a brief, specified period of time: see Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Canada Law Book, 2013), at para. 2.15. If an interim injunction is granted on an ex parte basis, the moving party must normally bring a further motion to have the interim injunction continued

[52] An interlocutory injunction, like an interim injunction, is a pre-trial form of relief. It is an order restraining the defendant for a limited period, such as until trial or other disposition of the action: see Sharpe, at para. 2.15. Interlocutory injunctive relief typically follows much more thorough argument than that for an interim injunction, by both parties, and is generally for a longer duration than an interim injunction.

[53] The present case provides an example of both an interim and an interlocutory injunction.

[54] The Interim Order is an example of an interim injunction. AdLine originally moved for interim injunctive relief on an ex parte basis. However, both parties were present when the motion for interim relief was argued. Justice Stinson opened his endorsement by emphasizing the very limited nature of the question before him: should interim injunctive relief be granted pending the scheduled hearing of the Contempt Motion? The injunctive relief granted in the Interim Order was specified to last for that period of slightly less than two months.

[55] The Consent Order, on the other hand, was the product of both parties’ participation, and the duration of the injunctive relief restraining Buckley’s use of the laneway, while not clear on the face of the Consent Order, appears to have been for the period of the laneway’s renovation in 2009.

[56] The next useful distinction to be drawn is between interlocutory and permanent injunctions. Interlocutory injunctions are imposed in ongoing cases whereas permanent injunctions are granted after a final adjudication of rights: see Sharpe, at para. 1.40, citing Liu v. Matrikon Inc., 2007 ABCA 310, 422 A.R. 165, at para. 26. As will be seen, this conceptual distinction features prominently in the present case, where a key issue is whether the court must apply a different test for permanent injunctions than for interlocutory injunctions.

[57] It is also important to distinguish between mandatory and permanent injunctions. A mandatory injunction is one that requires the defendant to act positively. It may require the defendant to take certain steps to repair the situation consistent with the plaintiff’s rights, or it may require the defendant to carry out an unperformed duty to act in the future: see Sharpe, at para. 1.10. Mandatory injunctions are rarely ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts.

[58] Because of their very nature, mandatory injunctions are often permanent. However, permanent injunctions are not necessarily mandatory. An example illustrates this point. If, after trial, a court orders that a defendant can never build on a right of way, it will have made a permanent order enjoining the defendant from building on the right of way. But, the injunction would not be mandatory because it does not require the defendant to perform a positive act.

[59] In short, the words “mandatory” and “permanent” are not synonymous, especially in the context of injunctive relief.

ANALYSIS

Issue 1 – Did the Motion Judge Change the Order Without Explanation?

[60] The first issue arises because in the Third Endorsement, the motion judge altered the order that she had made in the First Endorsement, and granted permanent, rather than interlocutory, injunctive relief.

[61] Buckley says that ordering permanent injunctive relief was not a clarification, as the motion judge said, but a change. Buckley concedes that the motion judge had the authority to change the order because it had not yet been formally filed with the court. However, Buckley submits, reasons must be given for such a change and, in this case, the motion judge failed in that regard.

[62] AdLine submits that the motion judge did not change her order; rather, she simply clarified it. AdLine says that the motion judge’s references to interlocutory injunctions in the First and Second Endorsements were inadvertent and that the motion judge had always intended to grant permanent injunctive relief. Consequently, AdLine maintains, the motion judge sufficiently explained the change in her order by stating that it was a clarification.

[63] I would accept Buckley’s submission on this issue.

[64] As Buckley conceded, until the order was formally entered, the motion judge had a broad discretion to change it: see Montague v. Bank of Nova Scotia (2004), 2004 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), at para. 34.

[65] The first question, therefore, is whether making the order for injunctive relief permanent rather than interlocutory was a change. In my view, there can be no doubt that it was.

[66] The First Endorsement contains the motion judge’s reasons for granting relief. In it, the motion judge sets out and applies the RJR-MacDonald test, which she identifies as the test for an interlocutory injunction. The motion judge makes no mention of the test for permanent injunctions nor did she consider whether that test had been met.

[67] Having found that the test for an interlocutory injunction had been met, the motion judge then expressly granted relief in those terms, saying at para. 28 of the First Endorsement, “The request for interim and interlocutory relief is granted with reference to the right of way, legally described as….”

[68] The sole reference to permanent relief in the First Endorsement is in para. 9, where the motion judge sets out AdLine’s position and says it sought “permanent injunctive relief”. However, according to the record, AdLine did not seek permanent injunctive relief. The word “permanent” does not appear in its notice of motion for the Contempt Motion. While AdLine repeatedly asked for mandatory injunctive relief in its notice of motion, as we have seen, the words mandatory and permanent have very different meanings in respect of injunctions.

[69] Furthermore, in the first paragraph of each of the Second and Third Endorsements, the motion judge repeated that she was satisfied that the RJR-MacDonald test had been met and thus she had granted “interim and interlocutory relief” in respect of the right of way.

[70] Having found that the motion judge made a change to the order, we must consider whether she explained the change. In my view, she did not.

[71] As I have explained, the sole reason given for the change is that it was a clarification. Having made an order that the injunctive relief was interlocutory, when the motion judge declared it to be permanent, she was not clarifying the order, she was changing it. Thus, saying it was a clarification does not amount to a reason for changing the order.

[72] As Montague points out, the onus to explain any change to an order is significant. The seriousness of the change in this case underscores that onus. If the Order under Appeal stands, Buckley and anyone who might later take title from Buckley will be permanently, seriously restricted in the use of its own laneway. A consideration of just one component of the Order under Appeal makes this clear: Buckley – and any subsequent owner – would have to ensure that the cumulative time in which delivery vehicles are on the laneway never exceeded 120 minutes in a day. This prohibition would extend to every day of the week, no matter the circumstances, and would remain so long as the right of way exists, even if AdLine were no longer operating from its premises. It is one thing for Buckley to face an order restricting its use for a limited period. It is quite another to contemplate such restrictions on a permanent basis, including if and when Buckley wished to sell its property.

[73] A clear explanation for the change to the order was required so that the parties, and this court on review, could know the reason for the change. It was an error to fail to give that explanation.

Issue 2 – Is the Test for a Permanent Injunction Different than the Test for an Interlocutory Injunction?

[74] The test for interlocutory injunctions is the familiar three-part inquiry set out in RJR-MacDonald: is there a serious issue to be tried; would the moving party otherwise suffer irreparable harm; and, does the balance of convenience favour granting the injunction.

[75] Does that same test apply when the court is deciding whether to grant permanent injunctive relief? AdLine contends that it does and points to cases such as Hanisch v. McKean, 2013 ONSC 2727, at para. 111, and Poersch v. Aetna, 2000 22613 (Ont. S.C.), at para. 103, where the courts have expressly applied the test when deciding whether to grant permanent injunctive relief.

[76] I would not accept this submission. In my view, a different test must apply.

[77] The British Columbia Court of Appeal recently considered the test for a permanent injunction and its relationship to the test for an interlocutory injunction. In the decision under review in Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based on the test for an interlocutory injunction. Despite the parties’ agreement that the trial judge correctly set out the test, the British Columbia Court of Appeal held that the wrong test had been applied and reversed the trial decision.

[78] Justice Groberman, writing for the court, explained that the RJR-Macdonald test is for interlocutory – not final or permanent – injunctions. At para. 24 of Cambie Surgeries, he explained that the RJR-Macdonald test is designed to address situations in which the court does not have the ability to finally determine the merits of the case but, nonetheless, must decide whether interim relief is necessary to protect the applicant’s interests.

[79] In paras. 27-28 of Cambie Surgeries, Groberman J.A. explained:

Neither the usual nor the modified test discussed in RJR-MacDonald has application when a court is making a final (as opposed to interlocutory) determination as to whether an injunction should be granted. The issues of irreparable harm and balance of convenience are relevant to interlocutory injunctions precisely because the court does not, on such applications, have the ability to finally determine the matter in issue. A court considering an application for a final injunction, on the other hand, will fully evaluate the legal rights of the parties.

In order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.

[80] I would adopt this reasoning. The RJR-Macdonald test is designed for interlocutory injunctive relief. Permanent relief can be granted only after a final adjudication. Different considerations operate and, therefore, a different test must be applied, pre- and post-trial.

Issue 3 – Did the Motion Judge err by making Findings of Fact not available on the Motion?

[81] In this case, there was no dispute that AdLine had a right of way over the laneway. The questions for the motion judge were whether Buckley was infringing AdLine’s rights in the laneway and, if so, what type of interlocutory injunctive relief was appropriate.

[82] To decide these questions, the motion judge had to weigh the competing evidence and make factual findings about the extent, if any, of Buckley’s interference with AdLine’s right of way.

[83] It will be recalled that AdLine and Buckley offered dramatically competing versions of events. One version or the other had to be preferred in order to decide whether Buckley had infringed AdLine’s rights. In this regard, I note that the motion judge’s reasons do not refer to Buckley’s contrary evidence and there is no indication why the motion judge accepted AdLine’s evidence and (implicitly) rejected that given by Buckley.

[84] Given the nature of the conflicting evidence in this case, credibility would play a large role in making the necessary factual findings. In my view, it is hard to conceive of how such credibility findings could be made without a trial.

[85] There is a second reason why the factual findings in this case were not available, namely, the nature of the relief ordered.

[86] In general terms, injunctive relief is onerous. It is available only when truly necessary to ensure that a party is not deprived of his or her rights. Even when injunctive relief is appropriate, the particulars of that relief must be determined so as to ensure a proper balancing of the parties’ respective interests. That also demands a careful weighing of the evidence.

[87] The detailed restrictions imposed by the Order under Appeal demonstrate this point. Under that order, not only is Buckley prohibited from using the laneway except under strictly supervised times and manners, it has been placed under a positive obligation to monitor third-party use of the laneway and has been made responsible for the costs of removing third-party vehicles parked on the laneway.

[88] The motion judge gave no reasons for why she selected the particular terms of injunctive relief that she did. There is no evidence in the record to indicate why the terms in the Order under Appeal were selected nor how the motion judge determined that they constituted a fair and reasonable balancing of the parties’ respective rights and interests in the laneway. Again, given the nature and extent of the conflicting evidence, it is hard to conceive of how such relief could be fashioned without a trial.

[89] It is for these reasons that I accept that in this case, the findings of fact that were made were not available on the motion.

Issue 4 – Did the Motion Judge err in Ordering a Permanent Injunction in the Absence of an Underlying Legal Proceeding?

[90] Buckley submits that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 do not contemplate free-standing motions “unmoored” from a legal proceeding, extant or contemplated. It points to Rule 1.03(1), in which “motion” is defined to mean a motion in a proceeding or an intended proceeding. Because the Application had been explicitly dismissed by the Consent Order, and no effort had been made to revive it, amend it, or commence a new proceeding, Buckley says there was no proceeding within which to bring the motion for permanent injunctive relief.

[91] Further, Buckley argues, to the extent that Rule 60.11(1) presupposes the existence of a proceeding when a party makes a motion for a contempt order, the motion judge exceeded the scope of the powers conferred by Rule 60.11(5) to make “such order as is just” when she purported to grant AdLine a permanent injunction.

[92] I agree that the motion judge did not have the jurisdiction to grant permanent injunctive relief, but for somewhat different reasons.

[93] In the Contempt Motion, AdLine sought two types of relief: a finding of contempt and further injunctive relief. Thus, Rule 60.11 was in play.

[94] Rule 60.11(1) stipulates that a motion for contempt is to be brought in the proceeding in which the order to be enforced was made. It reads as follows:

60.11(1) Motion for contempt order — A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made. [Emphasis added.]

[95] The Contempt Motion was to enforce the Consent Order. The Consent Order was made in the Application. Thus, pursuant to Rule 60.11(1), AdLine properly brought the Contempt Motion in the Application proceeding, even though the Application had been dismissed.

[96] Rule 60.11(5) allows a judge hearing a motion under Rule 60.11(1) to make orders short of a finding of contempt. The language of the rule is broad and contemplates any order that is “just”: see L.(S.) v. B.(N.) (2005), 2005 11391 (ON CA), 252 D.L.R. (4th) 508 (Ont. C.A.), at para. 22 .

[97] The relevant part of Rule. 60.11 (5) reads as follows:

(5) Content of order — In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt … [Emphasis added.]

[98] Accordingly, although the motion judge declined to find Buckley in contempt of the Consent Order, she retained the authority to make any order that was “just”.

[99] The question then becomes: did the scope of the motion judge’s powers under Rule 60.11(5) encompass the right to make an order for permanent injunctive relief? In my view, it did not.

[100] Rule 60.11(5) gives the judge the power to make such orders as are just when “disposing of a motion under subrule (1)”. In this case, the motion was brought within the Application proceeding because the Consent Order had been made in that proceeding, and it was the Consent Order which AdLine sought to have enforced. But, AdLine could not rely on either the Consent Order or the Application for that part of its motion in which it sought further injunctive relief. On the findings of the motion judge, the Consent Order was spent because it related to the 2009 renovation. And, the Application had been dismissed. Consequently, there was no extant legal proceeding in which permanent injunctive relief had been sought. Put another way, once the motion judge found that the Consent Order was spent, that part of the Contempt Motion in which AdLine sought further injunctive relief was unmoored from a legal proceeding.

[101] The requirement that a motion be brought within a legal proceeding is a matter of substance, not form. A proceeding creates the framework within which the issues are defined and sufficient evidence is adduced such that the court can make a proper adjudication. The absence of such a framework in this case demonstrates precisely why a proceeding is necessary as the foundation for a motion. Because there was no proceeding, the evidence necessary to decide whether to grant permanent injunctive relief and, if so, the terms of that relief, was not before the court.

[102] Accordingly, it was an error to order permanent injunctive relief in the absence of an underlying proceeding.

DISPOSITION

[103] For these reasons, I would allow the appeal and set aside paras. 2 and 3 of the Order under Appeal.

[104] I would order costs of the appeal in favour of Buckley, fixed in the amount of $15,000, all-inclusive. The parties agreed that if this were the result on appeal, the costs order in para. 7 of the Order under Appeal should be set aside and costs of the Contempt Motion should be in the cause. I would so order.

Released: February 18, 2014 (“J.C.M.”)

“E.E. Gillese J.A.”

“I agree. J.C. MacPherson J.A.”

“I agree. C.W. Hourigan J.A.”