ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-42058
DATE: 2013-10-17
B E T W E E N:
JUCH-TECH INC.
C. Pye, for the Plaintiff
Plaintiff
- and -
EMPIRE COMMUNITIES (STONEY CREEK) LTD., BRANTFORD ENGINEERING AND CONSTRUCTION LTD. and CORPORATION OF THE CITY OF HAMILTON
R. Shastri, for Empire Communities (Stoney Creek) Ltd.
P. Amey and H.D. Alexander, for Brantford Engineering
G. Kuzyk, for the Corporation for the City of Hamilton
Defendants
HEARD: July 9, 2013
PARAYESKI, J.
REASONS FOR JUDGMENT
[1] On July 9th, 2013 I heard the plaintiff’s motion for an interlocutory and permanent injunction. In simple terms, the plaintiff wished to extend the interim injunction granted to it on an ex-parte basis by Reid J. on July 2nd, 2013. I dismissed the motion before me for written reasons to follow. These are those reasons.
BACKGROUND
[2] The plaintiff corporation operates satellite broadcast and internet transmission and uplink services from facilities located at 50 Green Mountain Road West in Stoney Creek, Ontario. There are 35 “earth stations” or satellite dishes and a communications tower involved. The “earth stations” are anchored into concrete foundations secured to the bedrock of the Niagara Escarpment.
[3] The defendant Empire Communities (Stoney Creek) Ltd. is a developer building a number of homes on land located at 22 Green Mountain Road West, Stoney Creek, which is essentially across the road from the property where the plaintiff’s operation is carried out.
[4] Construction of those homes and installation of attendant underground services requires excavation into the bedrock. The soil depth in the area is too shallow to accommodate that which is necessary. The defendant Empire plans to do the excavation by means of blasting. The defendant Brantford Engineering and Construction Ltd. has been retained to do the proposed blasting. The defendant Corporation of the City of Hamilton is the municipality responsible for issuing permits relative to the construction in question, including permits relating to blasting. It has issued the required permits.
[5] The plaintiff fears that vibrations from the blasting being contemplated will disrupt the services it provides by taking the “earth stations” mentioned above out of their carefully calibrated alignment.
Issue
[6] Should the injunction granted on an ex-parte basis on July 2nd, 2013 be continued and made permanent?
Analysis
[7] In order to be entitled to the relief it seeks, the plaintiff must prove “a very strong probability upon the facts that grave damage will occur to [it] in the future”. This principle derives from the House of Lords decision in Redland Bricks Ltd. v. Morris and was quoted with approval in the Supreme Court of Canada decision of Dickson C.J. in Dismantle Inc. v. Canada, reported at 1985 74 (SCC), [1985] S.C.J. No. 22. Dickson C.J. goes on in that decision to state “…the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts’ reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.”
[8] The evidence before me is that the blasting plan by which the defendants’ Empire Communities (Stoney Creek) Ltd. and Brantford Engineering and Construction Ltd. agree to be bound is such that the peak particle velocity from any blast is limited to 0.25 inches/second (7 mm/second). In his report dated April 25th, 2013, engineer D. Wayne Davidson expresses his opinion in the face of that limitation to be that “There is extremely high probability that no damages to the microwave dishes [earth stations] will occur. This probability is consistent with the “five nine’s rule” for critical communications systems design, i.e. 99.999 percent of availability. Stated differently, the probability of damage is extremely low, i.e. less than 0.001 percent.” This equates to “far less” than a 1 in 10,000 probability of damage to the plaintiff’s facilities.
[9] The plaintiff’s evidence on the likelihood of damage is much less thorough than that of engineer Davidson and lacks detailed analysis. To be blunt, it is in the nature of a prediction that “any vibration would…put the earth’s satellites out of alignment” (see the affidavit of Jeff McLeod sworn on July 1st, 2013, at paragraph 3).
[10] I note as well that the blasting plan mentioned above limits vibrations to a fraction of that allowed by the City of Hamilton through its regulatory powers.
[11] The plaintiff has failed to show that there is a likelihood on the balance of probabilities, much less that there is a “strong” probability that it will sustain the damages it fears, and thus is not entitled to have the injunction confirmed and made permanent.
[12] I am of the view that the above-noted analysis and ruling makes it unnecessary for me to consider three other potential impediments to the continuation of the junction raised by Empire Communities, these being:
issue estoppel based upon earlier executed minutes of settlement incorporated into an OMB ruling;
whether the plaintiff had made full and fair disclosure of all material evidence when it applied for the ex-parte injunction in first instance, and;
whether delay in bringing on the injunction should be considered fatal.
[13] If the parties cannot agree upon costs relative to the hearing before me and the costs reserved to me by Reid J. in his ruling dated July 2nd, 2013, they may make brief written submissions in that regard. Each set of submissions, if any, should not be more than three typewritten pages in length, not including costs outlines. The costs submissions should be forwarded to my attention at the John Sopinka Court House at Hamilton in accordance with the following schedule:
the defendant’s briefs are due on or before October 31, 2013;
the plaintiff’s submissions are due on before November 30th, 2013, and;
the plaintiff’s have the right to reply, which reply or replies are to be provided on or before December 15th, 2013.
Parayeski J.
Released: October 17, 2013
COURT FILE NO.: 13-42058
DATE: 2013-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUCH-TECH INC.
Plaintiff
- and –
EMPIRE COMMUNITIES (STONEY CREEK) LTD., BRANTFORD ENGINEERING AND CONSTRUCTION LTD. and CORPORATION OF THE CITY OF HAMILTON
Defendants
REASONS FOR JUDGMENT
PARAYESKI, J.
MDP:mw
Released: October 17, 2013