ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-448867
DATE: 20120718

BETWEEN:

1107051 ONTARIO LIMITED Plaintiff – and – BLOKE & 4 TH. INC., STEFAN GEORGIEV, REZA ABEDI and MICHAEL ULLMAN Defendants

Julian Heller and Neil Foley , for the Plaintiff
Ryan Morris and Adam Lazier , for the Defendants

HEARD: June 13 and July 11, 2012

B. P. O’MARRA j.

reasons for decision

[ 1 ] The tenant operates a restaurant/night club in Toronto. The Landlord has received ongoing complaints from other commercial tenants in the building regarding excessive noise and other conduct that disturbs their use of the property.

THE ISSUE

[ 2 ] Is the Landlord entitled to interim injunctive relief?

BACKGROUND

[ 3 ] The Defendant leases the ground floor of the building. The other tenants include the following:

A) PROPER TELEVISION INC. – 2 nd and 6 th Floor

This is a television production company. Editors work around the clock in 12 hour shifts, 8.00 a.m. – 8.00 p.m. and 8.00 p.m. – 8.00 a.m.

(B) WANTED!

Operates 12 recording studios and audio/video edit suites on site. Quite typically this business operates on a 24 hour/7 day schedule for 3 or 4 months at a time. They use approximately $3. million worth of equipment and sound proofed studios on site for sound engineering work. Three composing offices are sublet on site to high-end musicians/composers. WANTED! Performs a variety of editing and sound mixing for these composers who work 24 hours a day, 7 days a week when busy.

[ 4 ] Before the Defendant’s opening night a Noise Plan was formulated to specify the maximum noise levels in order to remain compliant with municipal noise by-laws. It stipulated a sound level of 91dBA * with music playing.

Plaintiff’s Motion Record , Volume I, Tab U.

• This is a sound measurement that is recognized and used by experts retained by both parties.

[ 5 ] By-Law enforcement officers have issued three citations to the Defendants for violations of the noise by-law. Counsel advised me these will be contested.

[ 6 ] Both parties retained “sound experts” who provided evidence as to noise levels from the Defendant’s premises. There is significant contention on certain aspects. However, it is clear that between the hours of 10:00 p.m. an 2:00 a.m., four nights a week, the noise level exceeds the maximum set out in the Noise Plan.

[ 7 ] The noise from the Defendant’s space significantly interferes with the business carried on by other tenants in the building. These complaints were passed on to the Landlord.

THE BASIS FOR AN INTERIM INJUNCTION

[ 8 ] The Landlord must demonstrate each of the following:

1. There is a serious question to be tried. Where a mandatory order is sought they must show they are clearly right and almost certain to succeed. A mandatory order insists upon a positive course of action.

R.J.R. MacDonald v. Canada (A-G.) 1994 117 (SCC) , [1994] 1 S.C.R. 311 pp. 347-349;

Hennigar and Mernick v. Target et al. 2011 ONSC 2271 at para 33 , Affirmed 201 ONCA 449; Injunctions and Specific Performance , The Honourable Mr. Justice Robert Sharpe, at para. 1.410.

2. Irreparable harm.

3. The balance of convenience favours granting the interim injunction.

SERIOUS ISSUES TO BE TRIED

[ 9 ] The extensive evidence and material filed clearly demonstrate there are serious issues to be tried. The Plaintiff alleges an ongoing serious interference with the lawful use of the property by other tenants. There is expert evidence that is contentious in certain areas. Both parties submit there will be dire consequences depending on whether or not interim relief is ordered.

[ 10 ] The Landlord seeks to prohibit certain conduct as well as some mandatory relief. The latter includes the following:

• Installation of a noise monitor that is accessible remotely by a named expert.

• Causing the radio, loudspeaker or broadcast system to be set with devices such that certain levels cannot be exceeded.

• Hire a security guard for each 100 patrons on premises.

[ 11 ] The key aspect of conduct to be limited or enjoined is the lowering of music volume.

IRREPARABLE HARM

[ 12 ] This refers to injuries that cannot be adequately compensated with a damage award at trial. If the nature of the damage can be calculated in money then no matter how hard it may be to quantify damages the Court should decline to grant an injunction.

R.J.R. MacDonald , ( supra ), pp. 340-341;

Barton-Reid Canada Ltd. v. Alfresh Beverages Canada Corp .;

2002 34862 (ON SC) , [2002] O.J. No. 4116, at para. 18 (OSC).

[ 13 ] The Plaintiff claims the following irreparable harm will be done if the current noise levels continue:

• Loss of livelihood, reputation or professional standing for the Plaintiff and others.

• Other current tenants may vacate.

• New suitable tenants will be hard to attract.

• No other tenant will lease the premises as the building is slated for redevelopment in 2019.

[ 14 ] While one may be able to quantify the loss of existing tenants albeit with some difficulty, the loss of prospective tenants would be impossible to identify or quantify.

Confederation Life Insurance Co. (In Liquidation) v. Saan Stores Ltd.,

1997 Carswell Alta. 269 (Alta. Q.B.) At paras. 36-38 .

[ 15 ] There are precedents where night clubs have been ordered to turn down the noise level pursuant to injunctions.

Balmain Hotel Group L.P. v. 1547648 Ontario Ltd., 2009 Carswell Ont. 3148 ;

Holmes v. Century Holdings Ltd. 1992 Carswell P.E.I. 66 .

BALANCE OF CONVENIENCE

[ 16 ] The Defendants paint an apocalyptic vision of what will happen if they are forced to lower the maximum volume from their premises. Their business has been very successful in the months since opening in December 2011. It is highly speculative that the business will wither and die if the volume is turned down to the level set out in the Noise Plan. The Plaintiff will be bound by a broad undertaking as to damages suffered by the Defendants.

[ 17 ] On the other hand, there is significant evidence from the other tenants of significant interference with their business. Those complaints have been loudly and clearly conveyed to the Landlord. The other tenants routinely carry on their business during the hours when the noise and vibration from the music is at its zenith.

RESULT

[ 18 ] The Interlocutory Injunction is scheduled for November 23, 2012. In the interim I am satisfied that a reasonable and verifiable limit on the noise level emanating from the Defendants premises is appropriate. The level will mirror the Noise Plan.

[ 19 ] For clarity and enforcement purposes it is in the best interests of both parties that there be a monitoring system. This lone mandatory term is appropriate to provide clarity in conjunction with the conduct to be enjoined.

[ 20 ] Interim injunction is issued on the following terms:

1. The Defendants are prohibited from operating their audio, loudspeaker or broadcast system at their leased premises at 401 King Street West at a level in excess of 91dBA.

2. Within 10 days of this ruling the Defendants shall facilitate the installation of a noise monitor on their premises on the following terms:

(a) All costs related to the purchase and installation of the noise monitor shall be borne by the Plaintiff.

(b) The noise monitor shall be accessible remotely by the Plaintiff and its expert John Coulter or his designate. There shall also be remote access to an expert designated by the Defendants, if requested by them. Any costs related to remote access to Defendants’ expert shall be borne by the Defendants.

3. The Plaintiff shall be responsible to compensate the Defendants for any damages the Defendants may sustain as a result of this order.

COSTS

[ 21 ] The Plaintiff has already submitted a costs outline. I will consider written submissions of the same length from the Defendants within 21 days of the release of this Ruling.

B. P. O’Marra J.

Released: July 18, 2012

COURT FILE NO.: CV-12-448867
DATE: 20120718

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1107051 ONTARIO LIMITED Plaintiff – and – BLOKE & 4 TH. INC., STEFAN GEORGIEV, REZA ABEDI and MICHAEL ULLMAN Defendants

REASONS FOR DECISION

B. P. O’Marra J.

Released: July 18, 2012