COURT FILE NO.: CV-11-00442572
DATE: 20140317
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joseph Nazar, Plaintiff
AND:
Jamil Nazar, May Nazar, Sherine Nazar, Municipal Licensing and Standards Division of the City of Toronto, Noor Saeed and Shahwali Wali, Defendants
AND BETWEEN:
Jamil Nazar, Plaintiff (by way of Counterclaim)
AND:
Joseph Nazar and William D. Grey, Defendants (by way of Counterclaim)
BEFORE: Carole J. Brown J.
COUNSEL: P. Bakes, for the Plaintiff
B. Diamond, for the Defendant
HEARD: February 25, 2014
ENDORSEMENT
[1] The plaintiff seeks an interim interlocutory injunction for payment into court of all past and future revenues received as regards the subject taxi plates pending resolution by agreement or trial of this action. The issue of the ownership of the taxi plates as between the parties is the subject of the litigation. The plaintiff further seeks an order pursuant to Rule 45.02 of the Rules of Civil Procedure for interim preservation of a specific fund, namely the revenue from the subject taxi plates. The plaintiff also seeks an accounting.
[2] It is the position of the plaintiff, Joseph Nazar ("the plaintiff" or "Joseph") that the taxi plates were purchased by him in the name of his brother, the defendant, Jamil Nazar ("the defendant" or "Jamil") in order to protect the plaintiff's assets, and were managed by him, as his brother, Jamil, was traveling between their native home, Syria and Canada, with respect to Jamil's business interests in Syria. Both parties are now Canadian residents. It is further his evidence that he received the revenues from the taxi plates until recently when his brother, Jamil, withdrew the power of attorney he had granted in favour of the plaintiff. This is all disputed by the defendant.
[3] It is the position of the defendant, Jamil, that, upon his brother's request, he loaned his brother $30,000 in 1979, to be repaid with 30% interest thereon annually, which loan was never repaid. He states that it was subsequently agreed in 1982 that the amount owing, including interest, would be invested by Joseph for Jamil in taxi plates in Toronto, an investment business with which Joseph was familiar. It was further agreed that Jamil would sign a power of attorney in favour of Joseph to permit Joseph to handle the taxi plate business, given that Jamil continued to travel between Canada and Syria. The defendant maintains that, by 2009, he was concerned about Joseph's use or abuse of the power of attorney, which Joseph had apparently used, without Jamil's knowledge, to purchase properties and another taxi plate license in Jamil's name. As a result, he withdrew the power of attorney and executed another power of attorney in favour of his daughters, who the plaintiff has also sued in this action.
The Issues
[4] The issue for determination by this Court is whether interim injunctive relief should be granted pursuant to s. 101 of the Courts of Justice Act as sought by the plaintiff, and whether a preservation order pursuant to Rule 45.02 is appropriate in the circumstances of this action.
The Law and Analysis
The Interim Interlocutory Injunction
[5] The tripartite test for injunctive relief is as set forth in RJR-McDonald Inc. v Canada (AG), 1994 117 (SCC), [1994] 1 SCR 311, as follows:
whether there is a serious issue to be tried;
whether the moving party will suffer irreparable harm if the injunction is not granted;
whether the balance of convenience favours one of the parties.
Serious issue
[6] The standard for the determination of the first portion of the tripartite test is whether there is a serious issue to be tried, rather than the higher standard of a strong prima facie case. In making this determination, the court must make a preliminary assessment of the merits of the case, and will not embark upon a prolonged examination of the merits. The threshold for this question is low. Where the court is satisfied that the application is neither frivolous nor vexatious, the motions judge should proceed to consider the second and third branches of the test.
[7] I am of the view that the issue of the ownership of the taxi plates is a serious issue to be tried, and this aspect of the test has been met.
Irreparable Harm
[8] In determining whether the moving party will suffer irreparable harm if the injunction is not granted, it is the nature of the harm suffered which is to be considered rather than its magnitude, as was recognized in Morguard Corp. v InnVest Properties Ottawa GP Limited, 2012 ONSC 80. As stated in RJR MacDonald, irreparable harm is harm that "cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other… The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration": RJR MacDonald, supra.
[9] Joseph maintains that Jamil may choose to return to Syria and also that it is unlikely Jamil would be able to pay, as he has insufficient funds to pay any award of damages which may be granted to Joseph. It is the position of the defendant that there is no evidence to this effect and that the plaintiff's assertion is merely speculative.
[10] I am of the view that Joseph's assertions regarding "irreparable" harm are not supported by the evidence before the Court, are speculative, and that any harm which may be suffered is compensable in damages. I do not find that this branch of the test has been met.
Balance of Convenience
[11] In determining the third leg of the tripartite test, balance of convenience, consideration must be had for the relative impact on the parties of granting or withholding an injunction. This court must determine whether the harm suffered by the moving party if an order were not granted would outweigh any harm suffered by the responding party if an order were granted.
[12] The moving party states that the balance of convenience favours him, that Jamil should not be able to collect rental income while ownership is in dispute and that the money should simply be preserved in court. On the other hand, Jamil, who is now in his 70s, states that, at his age, he depends on the income from the plates for his and his family's daily needs and would be harmed if the income flow did not continue.
[13] Based on all the evidence before me, I do not find that the balance of convenience favours the plaintiff. Jamil has been receiving the revenue from the taxi plates for several years. The plaintiff has not demonstrated anything that would tip the balance of convenience in his favour. I am of the view that the plaintiff's assertions, as set forth above, are not sufficient to establish balance of convenience and that the test is not met.
Rule 45.02: Interim Preservation of a Specific Fund
[14] The plaintiff further, or in the alternative, seeks an Order that the revenue derived from the taxi plates, both past and future, be paid into court pursuant to Rule 45.02.
[15] Rule 45.02 provides that where the right of a party to a specific fund is in question, the court may order the funds to be paid into court or otherwise secured on such terms as are just.
[16] The tests to be met pursuant to Rule 45.02 are as follows:
The plaintiff claims a right to a specific fund;
There is a serious issue to be tried regarding the plaintiff's claim to that fund;
The balance of convenience favours granting the relief sought by the plaintiff.
Sadie Moranis Realty Corporation v 1667038 Ontario Inc. (2012), 2012 ONCA 475, 111 O.R. (3d) 401
[17] Thus, in order to obtain an Order pursuant to Rule 45.02, the moving party must establish that he or she has a right to a specific fund; there is a strong prima facie case and that the balance of convenience requires the court to inquire into the potential harm that would be incurred by the moving party if the relief were not granted.
[18] "Specific fund" refers to a reasonably identifiable fund earmarked for the pending litigation: Rotin v Lechcier-Kimel [1985] O.J. No. 466, 3 C P.C. (2d) 15. To succeed on a motion pursuant to Rule 45.02, a specific fund must be in existence. Where the fund is no longer available, the Rule does not authorize the court to require a party to obtain funds from other sources or from his or her own resources: American Axle & Manufacturing Inc. v Durable Release Coaters Limited, 2007 20094 (ON SC), [2007] O.J. No. 2138, 86 O.R. (3d) 53.
[19] In this case, I am not satisfied, based on the evidence, that a specific fund is in existence. There is no evidence before this Court that past revenue is currently in existence, nor evidence that past revenue is in a reasonably identifiable fund earmarked for the pending litigation such that it can be subject to a Rule 45.02 order.
[20] What is sought to be preserved is an ongoing flow of future revenues from taxi plates, which monies are not currently in existence. Anticipated monthly rental revenue does not constitute a specific fund: Toronto Port Authority v Canada Autoparks-Queenspark Ltd., [2000] O.J. No. 4297, 3C.P.C. (5th) 104 . Accordingly, this Court declines to make an order pursuant to Rule 45.02 as the first part of test for such, namely the existence of a specific fund, has not been met.
[21] I do not analyze the second and third parts of the test, as the plaintiff has failed to establish the first part, namely that there is a specific fund to be preserved.
[22] This Court makes no order for an accounting.
[23] Based on all of the foregoing, this motion is dismissed.
Costs
[24] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown J.
Date: March 17, 2014