SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: C-253/14
Date: 2014/03/26

RE: Coalition Stop Waterloo LRT Inc., Applicant

AND:
Waterloo (Regional Municipality), Respondent

BEFORE: The Honourable Justice C. A. Tucker

COUNSEL:
Judy Hamilton, William Friedman and Patrick Bakos, for the Applicant

James H. Bennett, for the Respondent

E N D O R S E M E N T

Overview

[1] The applicant sought injunctive relief to prevent, among other things, the approval of a contract or contracts in relation to a proposed light rail transit system for the Region of Waterloo, which I dismissed giving oral reasons due to time constraints. I advised the parties that I would provide a brief written amplification of those reasons as soon as possible. These are contained in this endorsement.

My Oral Decision

[2] I found the following:

a) that the applicant’s status as a party seeking such a remedy appeared to be without merit;

b) that the applicant had no evidence of having any assets;

c) that the court had no knowledge of the constitution of the applicant or if it had any ratepayers involvement in its ownership structure;

d) that the principal of the applicant did not disclose in his affidavit that he had property that had been expropriated for the light rail transit (“LRT”) project in February of 2014.

e) that the applicant offered no undertaking for damages in the event the injunction was granted;

f) that the applicant failed in the face of undisputed facts to put forth a strong prima facie case;

g) that there was no contravention of s. 24 of the Planning Act and the environmental assessments had been properly completed; and

h) that the applicant had not shown it would suffer irreparable harm, nor did it show that the balance of convenience would favour granting the injunction.

Amplification of My Decision

[3] The central concern to the court was the status of the applicant to seek an injunction against the Region. The applicant is a company which was incorporated under the Ontario Business Corporations Act on March 12, 2014, two days before this action was started. Its ownership is unknown as are its objects. It has no apparent assets and lists its head office at the same address as the personal address of Mr. Jay A. Aissa, being 29 Northfield Road West in Waterloo. Mr. Aissa is listed as the director of the applicant. We do not have any information as to whether the company, although located in the Region, is even a ratepayer and it is clearly not a citizen. Although Mr. Aissa swears that the corporation has some 3,000 supporters, I fail to see how such could be the case. The concept or purpose of the corporation may have such support but, again, we do not know who owns the applicant company. As such, I find the corporation has no status to seek any remedy against the Region.

[4] A second issue I found is the principal of the applicant did not disclose his personal interest in the outcome of this issue. Mr. Aissa’s property has been expropriated by the Region as part of the ongoing plans to move towards the proposed rapid transit system. The granting of an injunction is an equitable and discretionary remedy and, as such, “clean hands” are imperative to the granting of relief. Failure to disclose relevant information is fatal to any such application.

[5] No undertaking was offered by the applicant to cover any damages suffered by the Region in the event any interim or other injunction was granted. Given that the applicant has no apparent assets, an undertaking would be without any value in any event. Although the applicant argued that it should be allowed to cross-examine the chief financial officer (“CFO”) of the respondent as to the damages it would suffer if an injunction was granted, it is apparent and I took judicial notice of the fact that the project has been underway for several years and that substantial costs have already been incurred and that damages would obviously be suffered by the Region in the event that the process was delayed by the granting of an injunction. I do, however, note that the CFO swore an affidavit setting out the damages which would be suffered by the Region in the event an injunction was granted, and I have no reason to doubt the validity of his figures. I acknowledge that the applicant pointed out that no evidence supporting these figures were attached to the affidavit; however I again have no reasons to question their accuracy. The balance of convenience certainly favours the Region given the potential losses it would suffer and the lack of any fiscal ability of the applicant to cover them.

[6] The respondent also argued a bias or improper motive to the applicant citing its principal, Mr. Aissa, as saying to the media that he wished to delay the project until after the municipal election in the fall of 2014. Given that the applicant did not have the opportunity to respond to this allegation, I attached no weight to it in my decision.

[7] The applicant also failed to show that it would suffer any harm, let alone irreparable harm, in the event an injunction was not granted. The applicant is a shell corporation devoid of assets with no apparent interest in this LRT project as a ratepayer or citizen. The principal of the applicant cites a personal issue with the project which is not harm to the applicant, let alone irreparable harm.

[8] The applicant centred its objection in the failure of the Region to comply with s. 24 of the Planning Act and the failure to obtain proper environmental assessment for the project. The latter argument was not pursued during submissions and for good reason as it is clear, and I do so find, that the assessment process has been properly completed or where applicable waived so that the Region is in compliance. No appeals of the assessments were launched. The argument concerning the Planning Act revolves around a suggestion that, notwithstanding the Official Plan amendment in issue here was specifically intended to deal with the formation of a rapid transit system for the Region, somehow the Planning Act has been contravened by the Region failing to comply with the same Official Plan. It appears that the moving party is suggesting that the Official Plan is a “draft” which requires further consultation and amendment prior to moving forward with the LRT project. I do not see how this argument puts forth a strong prima facie position for the applicant; merely that it is its own interpretation of the Official Plan, which I do not find to be correct. The Region’s Official Plan provides for a rapid transit system within a designated corridor and the LRT is within that corridor and therefore there is compliance, I find, with the Planning Act.

[9] In all the circumstances, for these reasons I dismissed the application for the injunction with costs, although I did not dismiss the action itself. If the parties are unable to agree as to costs, I may be spoken to.

Tucker J.

DATE: March 26, 2014

2014 ONSC 1925

COURT FILE NO.: C-253/14

DATE: 2014/03/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Coalition Stop Waterloo LRT Inc.

AND:

Waterloo (Regional Municipality)

BEFORE: Justice C. A. Tucker

COUNSEL: Judy Hamilton, William Friedman and Patrick Bakos, for the Applicant

James H. Bennett, for the Respondent

ENDORSEMENT

Tucker J.

DATE: March 26, 2014