ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 913/13
Date: 2014/07/03
Between
Donald Thompson and Thompson’s Orchards Ltd.
T. Corbett, for the Plaintiffs
Plaintiffs
- and -
BFI Canada Inc. and Ridge (Chatham) Holdings G.P. Inc.
D. Foulds and K. Southwell, for the Defendants
Defendants
Heard: June 6, 2014
A.J. Goodman J.
REASONS FOR JUDGMENT
[1] The plaintiffs are the owners and operators of a long-standing farming business, including a retail apple market located near Chatham, Ontario. The plaintiffs seek an interim or interlocutory injunction to restrain the defendants from constructing or expanding berms on the lands along Charing Cross Road and Allison Line adjacent to the defendants’ property extending towards the apple farm business.
Background
[2] The plaintiff, Donald Thompson ("Thompson") and Elizabeth Thompson are son and mother and are the descendants of the Thompson family who have lived at the farm since 1881. Thompson, through his company, Thompson’s Orchards Ltd., operates the fruit farming operation and the retail apple market on Charing Cross Road just south of Allison Line.
[3] Many customers who purchase products from the apple market come from Chatham driving south on Charing Cross Road.
[4] The defendant, BFI Canada Inc. (“BFI”), is a limited partner in the Ridge (Chatham) Holdings limited partnership (“Ridge LP”). A landfill (the” Ridge Landfill”) is owned and operated by the general partner Ridge LP. In 2011, BFI represented to the plaintiffs, as well as the Ministry of the Environment (“MOE”) that it owns and operates the Ridge Landfill and BFI was the "proponent" under the Environmental Assessment Act, (“EAA”).
[5] The Ridge Landfill is a waste disposal facility operating near Blenheim, Ontario. The Ridge Landfill has operated since 1983, when it obtained a Certificate of Approval, as required under Ontario’s Environmental Protection Act. Currently, the Ridge Landfill is operated pursuant to an environmental compliance approval (the “Ridge ECA”), which permits Ridge LP to operate a waste disposal facility on a specific 262 hectare site.
[6] BFI owns property located adjacent to the Ridge Landfill, which lands are the subject of this motion (“the lands”). The lands do not form part of the Ridge Landfill nor are they subject to the Ridge ECA or to any prior approvals relating to the landfill. No waste disposal operations are being conducted on the lands and no approval to conduct waste disposal operations on the lands has been sought or obtained.
[7] In 1997, the original owners, Browning-Ferris, submitted an environmental assessment (the "1997 Environmental Assessment") in support of a large expansion of the landfill by which, among other things, the western boundary of the Ridge Landfill would extend west to Charing Cross Road. The expansion contemplated that the southern boundary of the Ridge Landfill, adjacent to Charing Cross Road, would be extended south to the abandoned Chesapeake and Ohio Railway Line. The proposed southern boundary extension maintained over a kilometre of separation between the southern boundary of the proposed expanded landfill and Thompsons' retail farm market along Charing Cross Road. Prior to the 1999 expansion of the Ridge Landfill, the distance between the southern and western boundaries of the landfill and Charing Cross Road acted or could be considered as a buffer (the "Buffer Lands"). According to Thompson, customers for the market were either unaware of or unconcerned about the proximity of the Ridge Landfill to the market.
[8] The 1997 Environmental Assessment was predicated on a planning period of 20 years for landfilling at the Ridge Landfill, which commenced in 1999. A very small part of the environmental assessment addressed the potential impact on the apple market. In 1999, Browning-Ferris began constructing berms along Charing Cross Road.
[9] In the course of the environmental assessment process relating to the 1998 Expansion Application, Browning-Ferris entered into an agreement with the Thompsons, (“the Thompson Agreement”) which established a process at the time by which claims regarding the impact of the expansion on the Thompsons’ farming and market operations would be determined.
[10] BFI was not a party to the Thompson Agreement and BFI did not negotiate with the Thompsons in relation to the Agreement. BFI had no involvement with the Ridge Landfill at that time.
[11] As a result of the construction of berms, there was an immediate impact on the farm market business. Almost 50% of the market business was lost. Thompson claimed that customers saw the berms and realized that the landfill was near the farm market. Browning-Ferris denied that the 1999 berms had any impact on the farm market. Consequently, the issue of this impact and potential compensation went to arbitration.
[12] A 2003 arbitration decision concluded that the planned expansion of the Ridge Landfill had caused and would in the future cause damage to the retail apple market business. The arbitration determined that entire loss of the retail farm market business was caused, not by nuisance effects from the expanded landfill, such as odour or dust, but by the perception of the customers of the retail farm market that the proximity of the landfill made the plaintiffs' retail farm market an undesirable place to purchase fresh farm produce. The arbitrator concluded that the planned expansion of the Ridge Landfill had caused damage to the retail apple market business but not to the Thompsons’ farming and wholesale market operations.
[13] Following an appeal relating to the quantum of damage caused to the apple market, a 2006 decision of the Ontario Superior Court of Justice ordered Browning-Ferris pay the Thompsons the sum of $1,451,650.82 plus interest and costs as compensation for the market’s past and projected future losses resulting from the expansion of the Ridge Landfill.
[14] Although further approvals and amendments to approvals have been granted since the 1999 expansion, none of these approvals or amendments expanded the boundaries or the area approved for use for landfilling within the site.
[15] In 2011, BFI sought approval under the EAA in order to increase the tonnage of waste that could be received, on a daily basis, at the landfill. Thompson disagreed because the tonnage increase would result in a significant intensification of use by the defendants, according to the process established under the EAA. Thompson opposed BFI’s Fill Rate Modification Application and sought to have the matter referred for further study. In opposing the plaintiffs' submission to elevate the tonnage increase for further study, BFI submitted to the MOE that the proposed tonnage increase would have no impact on the plaintiffs' business because the landfill site was limited by the 1998 expansion.
[16] Specifically, the MOE denied Thompson’s request for further study, conditional on BFI filing acceptable mitigation and monitoring plans, to which BFI complied. The MOE concluded that the tonnage increase would not lead to "increased visibility of the landfill" because no change was proposed to the volume, footprint or profile currently approved for the landfill. The MOE granted approval for the requested increase in the daily and annual waste limit for the site (the “2012 Fill Rate Approval”).
[17] In the fall of 2012, BFI began to construct landscaped hills (“the berms”) on the lands. These berms were to be constructed in six phases. Phase one and the first part of phase two were completed in the fall of 2013 and the balance of phase two was scheduled to begin in June 2014.
[18] The Municipality of Chatham-Kent reviewed BFI’s plans for construction and confirmed that BFI did not require any municipal approvals or amendments to construct the berms. The ECA does not permit stockpiling elsewhere, and specifically does not permit stockpiling on the buffer lands, whether the stockpile is created by building hills or the new berms. At the same time, the MOE confirmed that construction of the berms on the subject lands is not an activity requiring regulatory intervention.
[19] In July 2013, BFI claimed to have made Thompson aware of its intentions to continue construction of phase two scheduled to commence in the spring of 2014. Thompson submits that BFI purposefully kept their intentions with regards to the new berms secret. On April 1, 2014, BFI confirmed with Thompson’s counsel that they intended to continue construction of the berms in early June 2014. On May 27, 2014, less than one week before the scheduled resumption of construction, Thompson moved for an injunction to restrain construction of these berms.
Positions of the Parties
[20] Thompson submits that Ridge ECA does not approve the new berms and specifically does not permit construction of berms on the buffer lands. The new berms will be and are being created by stockpiling soil excavated from the landfilling cells from within the landfill. Thompson alleges that the new berms constitute an expansion of the landfill beyond the approved site. The new berms will place the face of the landfill immediately adjacent to the plaintiffs' firm retail market and within the foreground of visual impacts as identified in the 1997 Environmental Assessment. The new berms will all but eliminate the buffer lands, an essential component of the Thompson agreement and representations made to the regulatory authorities.
[21] Thompson submits that the 1998 Agreement either expressly, or by necessary implication, obliged Browning-Ferris to proceed with the expansion consistently with the environmental assessment. Further, the 1998 Agreement imposes an obligation of good faith and fair dealing on the parties bound by it. It is submitted that the purpose of the 1998 Agreement was to determine the degree of impact of the landfill expansion on the plaintiffs' market. BFI is breaching the obligation to act in good faith by extending that landfill profile next door to the market. BFI is bound by the 1998 Agreement because the EAA prohibits carrying on operations inconsistent with the approved environmental assessment or changing the undertaking after receiving approval. It is submitted that under the EPA, BFI cannot use, operate, establish, alter, enlarge or extend the landfill except in accordance with the ECA, which incorporates the environmental assessment, which, in turn, incorporates the 1998 Agreement. Alternatively, Thompson argues the concept of novation; in that the defendants are bound by the 1998 Agreement, in place of Browning-Ferris. BFI is not in a position to disagree with the arbitrator's decision as a collateral attack on the award.
[22] Thompson submits that there is no absence of privity to avoid BFI’s obligations under the 1998 Agreement. The principled exception to the privity rule applies and the benefits of the 1998 Agreement must pass to the plaintiffs. Further, the "conditional benefit and burden principle" applies to bind the defendants since BFI took the benefit of the 1998 Agreement, and must therefore accept the direct obligations associated with it. It is submitted that the "conditional principle" is to be distinguished from the "pure benefit and burden principle", by which contractual burdens may be imposed on contracting parties, even though the burden is independent of the benefit.
[23] Thompson submits that the elements of the tort of negligent misrepresentation have been made out. A duty of care was established by the proximate relationship of the plaintiffs and defendants; including BFI’s inaccurate representations in that the landfill would operate consistently with the 1997 Environmental Assessment, particularly as it related to the proximity of the plaintiffs’ market. BFI paid no attention to the impact of the construction of the new berms and the plaintiffs have reasonably relied on the continuing representations that the landfill would be operated in compliance with the environmental assessment.
[24] Thompson argues that BFI obtained the approval for the tonnage increase in 2011 representing that there would be no change to the landfill's footprint or profile that would affect the market. The defendants represented that there was still a "substantial woodlot" between the landfill and the market and that the "presence of the landfill site" would not be altered, such that there would be no impact on the market. The MOE adopted the defendants' submission and permitted the tonnage increase because it would not lead to increased visibility of the landfill from the market. Thus, BFI deliberately kept their intentions to build the new berms secret and mislead the authorities. Thompson adds that he only learned of the new berms when construction commenced in October 2012. The action commenced on May 16, 2013. The plaintiffs sought to hold discoveries as quickly as possible and that they wanted document discovery and examinations conducted before any berms construction resumed. BFI delayed producing documentation and did not divulge the timing for berms construction until after they finally provided their documents in March 2014.
[25] Thompson submits that the construction of these berms will cause irreparable harm and the balance of convenience favours the plaintiff in that the new berms are intended to be constructed in phases. It is alleged that the new berms are stockpiles of excavated soils. As 50% of the market's business was lost in 1999 because of the construction of the berms (not because of landfilling behind the berms), the impact of these new berms on the market, logically, must be the same. Thompson submits that the resulting damage will be difficult to quantify and could readily destroy the apple market business. However new information is becoming available that suggests that the new berms could have a significant impact on the plaintiffs' retail fruit farming.
[26] BFI submits that the MOE takes the position that if the new berms were built on the approved landfill site, then an amendment to the ECA would be required. However, the MOE specifically advised that no ECA or amendment to the existing ECA is required to build the new berms on the buffer lands. The fact that Thompson disagrees with the MOE decision is not a valid reason to grant an injunction.
[27] BFI submits that they are not parties to the 1998 Agreement and therefore not bound by it. BFI further disputes the plaintiffs’ claim that they have any liability associated with the 1998 Agreement or that it is binding on them, and that their actions violated that agreement, by breaching a term, either express or implied, requiring that the landfill would operate in accordance with the 1997 Environmental Assessment.
[28] BFI disputes that there is an implicit or explicit obligation of good faith required the defendants have regard to the plaintiffs’ concerns about the effect of the proximity and operations of the landfill on the market or any liability associated with the imposition of the duty of care arising out of a series of representations that the landfill would be operated consistently with the 1997 Environmental Assessment. BFI vigorously disputes, albeit concedes that at best, there may be a potential action in nuisance that can be remedied by an award of damages.
[29] BFI submits that Thompson has not demonstrated any irreparable harm that cannot be otherwise compensated by an award of damages and that the balance of convenience favours the defendants.
Legal Principles
[30] The test to be met for the granting of an interim or interlocutory injunction has been set out by the Supreme Court of Canada in its seminal case of RJR MacDonald Inc. v. Canada (Attorney General), 1 S.C.R. 311. The moving party must demonstrate:
a. that there is a serious issue to be tried;
b. that the moving party will suffer irreparable harm if the injunction is not granted; and
c. that the balance of convenience favours the granting of the injunction.
Analysis
[31] While there may be an issue as to ultimate ownership and related responsibility for the Ridge Landfill, for all intents and purposes, in this motion BFI admits that it is the proper party and operates the site.
[32] Counsel for Thompson submits that this court ought to apply a purposive analysis of the criteria and assess their collective impact: Morguard Corp. v. Inn Vest Properties Ottawa GP Ltd., 2012 ONSC 80. I am not persuaded that the approach proffered by plaintiffs’ counsel is authoritative. Nonetheless, I need not delve into whether the “traditional” methodology to the RJR MacDonald criteria ought to be imposed or whether I may consider a more holistic or collective view of the evidence, as I am confident that my conclusion would be similar with adoption of either approach in my assessment of the issues.
Serious issue to be tried
[33] The Supreme Court directed that, generally, the standard to be applied when considering whether there is a serious question to be tried is not an onerous one. The judge must make a preliminary assessment of the merits of the case in order to determine whether the application is either vexatious or frivolous.
[34] Thompson and BFI are in a sufficient relationship of proximity to justify imposition of the common law duty of care. BFI is aware of Thompson’s concerns about the expansion of the landfill profile and the new berms construction towards the farm market. BFI was undoubtedly aware of the arbitration proceedings when they acquired the landfill. There are no policy reasons why a duty of care ought not to be recognized.
[35] The plaintiffs' claim is for the most part premised on economic loss. Other than the category of negligent misrepresentation, discussed below, there is no established category of negligence for this loss. However, where the proposed duty of care is analogous as a recognized category imposing a duty of care for economic loss, the duty of care is established without the need to proceed to the second stage policy analysis for duty of care. Thompson submits that the duty in this case is analogous to the duty in negligent misrepresentation.
[36] The first three of Thompson’s four claims rely on the premise that the construction of the berms violates the Ridge ECA. At this stage, this claim is somewhat tenuous because the constructions of these berms do not appear to violate the Ridge ECA or the 1997 Environmental Assessment. The lands on which the berms are being constructed are not subject to the Ridge ECA or the Environmental Assessment. According to the evidence, the berms are not being constructed on the Ridge Landfill site. They are being constructed on lands entirely distinct from, although adjacent to, the Ridge Landfill. I accept that the MOE has clearly stated that these berms are not part of the landfill operation and do not constitute an expansion of the Ridge Landfill, and are not regulated by any environmental approvals relating to the site. I note that the plaintiffs have stated that they disagree with the MOE’s decision not to intervene in relation to the construction of the berms and have asserted that the berms are part of the landfill operation and constitute an expansion of the landfill beyond the approved site.
[37] In Thompson’s factum there is considerable emphasis on provisions relating to stockpiling of soil and berm construction that are contained in the Operations and Development Report prepared as part of the 1998 Expansion Application process (“the Report”). However, these provisions clearly relate exclusively to activities being carried out on the landfill site. They do not purport to restrain, restrict, or otherwise direct activities that are not being carried out on the site. In particular, language permitting clean soil to be stockpiled on the site and specifying where such stockpiling shall occur cannot be interpreted as prohibiting clean soil from being placed on lands which do not form part of the site; language directing where, and in what manner, berms will be constructed on the site cannot be reasonably interpreted as prohibiting berms from being constructed on lands which do not form part of the site. Nothing in the Report states or implies that it is intended to have application to lands other than the Ridge Landfill.
[38] In my view, it is speculation to assert that BFI is constructing the new berms for the purpose of a future expansion of the Ridge Landfill. BFI has made no application for such an expansion. In any event, were BFI to apply to expand the Ridge Landfill, it would be required to do so in compliance with the Environmental Protection Act. Thompson would have the same opportunity to participate fully in the application process. Moreover, Thompson’s assertion that these berms are being constructed with the fill from the Ridge Landfill is entirely without foundation.
[39] For the purpose of this motion, I am satisfied that BFI is not bound by the Thompson Agreement. As noted above, BFI was not a party to Thompson Agreement, and BFI had no interest in the Ridge Landfill at the time of the Thompson Agreement, the Expansion Application, or the 1999 Expansion Approval. I am not persuaded by Thompson’s argument on the application of contract law and related obligations of the parties. As noted by Cronk J.A. in the Ontario Court of Appeal case of Brown v Belleville (City), 2013 ONCA 148 at para 77, “[t]he common law doctrine of privity of contract, an established principle of contract law, stands for the proposition that no one but the parties to a contract can be bound by it or entitled under it”.
[40] On a plain reading of the Thompson Agreement, it is also clear that the agreement does not impose any generalized duty of good faith or care on either the signatories to the Thompson Agreement and particularly on the successor-in-title, BFI. The Thompson Agreement did not release any broader claims or impose any broader obligations on the signatories.
[41] It is true that the EAA provides that the defendants cannot operate the landfill in a manner inconsistent with a condition imposed by the Minister or that if the proponent "wishes to change an undertaking after receiving approval to proceed with it, the proposed change to the undertaking shall be deemed to be an undertaking for the purposes" of the EAA. However, I am not convinced that BFI must undergo another environmental assessment, whether reinforced by the incorporation of the 1997 Environmental Assessment into the ECA for the landfill or not.
[42] BFI has never represented to anyone that it would not construct the berms on the lands. Thompson’s claims in this regard are vague, but they appear to amount to an allegation that BFI was negligent by not conducting a new environmental assessment before beginning construction of the berms. Respectfully, I disagree with this assertion.
[43] In my view, Thompson’s strongest suit is in a claim for nuisance. Nuisance may take two different forms: allegations of physical injury to property; or substantial interference with use or enjoyment of property, often called "amenity nuisance". Here, the plaintiffs allege that the berms will cause substantial interference with use or enjoyment of the market.
[44] The "substantial interference" concept is a two-part test; and the interference must be both substantial and unreasonable. "Substantial" interference is interference that is not trivial and amounts to more than a slight annoyance or trifling interference. The potential of significant economic impact on the market satisfies the "substantial" test.
[45] A substantial interference is one that "substantially alter[s] the nature of the claimant's property itself" or interferes “to a significant extent with the actual use being made of the property”. As the Supreme Court has stated, substantial nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”, and not claims based “on the prompting of excessive ‘delicacy and fastidiousness’”.
[46] The reasonableness of the interference by the defendant is assessed by balancing the competing factors, including the nature of the interference and the character of the surrounding area. In the context of this case, it is important to note that even if BFI’s use of this property complies with municipal and regulatory, a requirement that does not resolve the issue of nuisance. The issue is whether, in the circumstances, the harm or interference is unreasonable and substantial, and while the fact that damage has not yet occurred and is only prospective, does not bar the claim for injunctive relief. The categories of nuisance are not closed and are subject to some flexibility in order to reflect societal changes. A defendant can be liable for unreasonable interference. A plaintiff's economic loss in nuisance can be based upon loss of business caused by the impact of the defendant's activity on third parties.
[47] Thompson’s claim in nuisance is the only claim not predicated on the assertion that BFI is in violation of the Ridge ECA, including the 1997 Environmental Assessment. Thompson alleges that the construction of the new berms has caused and will cause a substantial interference with the plaintiffs’ use or enjoyment of their land. In order to prove this kind of nuisance, the plaintiffs must prove that the construction of the berms has caused interference that is both substantial and unreasonable.
[48] While it may be left for another day as to whether the berms will substantially alter the plaintiffs’ use of their property, the berms are not an expansion of the Ridge Landfill. On the evidence, it seems that the berms have no potential to emit odour, attract birds, or disperse litter. Indeed, it is equally plausible that these berms will likely mitigate the potential for such impacts from the existing landfill operations and present a landscaped barrier, screening the Ridge Landfill from the general public, including the retail apple market’s potential customers.
[49] I agree with BFI that Thompson’s theory of nuisance is based on a series of tenuous assumptions in that the apple market customers may assume that the new berms are associated with the Ridge Landfill; or that these customers may believe that the Ridge Landfill is moving closer to the market; or that these customers may believe that the quality of the apples will be affected if the Ridge Landfill moves closer to the market; and, that these customers may be less inclined to patronize the apple market as a result.
[50] Each of these tenuous assumptions is premised on the concept of a public stigma. Various courts have repeatedly held that mere unfounded concern of this nature cannot found a successful claim in nuisance. The historical and seminal case on stigma is Shuttleworth v. Vancouver General Hospital, 1927 489 (BC SC), [1927] B.C.J. No. 71 (Sup. Ct.). In Shuttleworth, the plaintiff sought a quia timet injunction to restrain the establishment of an infectious diseases hospital in his neighborhood. One of the origins for the plaintiff’s nuisance claim was the perceived danger of infection to members of the plaintiff’s household from being in close proximity to the hospital. The court accepted that the members of the household and other neighbours entertained a real fear of being infected and even that this was a fear that was shared by people in general. However, the court held that the plaintiff must go further and prove not only widespread belief that there was a risk, but also that such belief was well-founded in fact.
[51] In the Ontario Court of Appeal case of Smith v. Inco, 2011 ONCA 628, the plaintiffs claimed that Inco was liable in nuisance because nickel and other chemicals had been emitted and had subsequently settled on nearby properties. Although the nickel did not pose any health risk, the plaintiffs claimed that widespread fears of such a health risk had reduced their property values. Ultimately, the court held that such a truly held but unfounded concern cannot ground an action in nuisance. At para. 59, the court stated that allowing such a nuisance claim would “extend the tort of private nuisance beyond claims based on substantial actual injury to another's land to claims based on concerns, no matter when they develop and no matter how valid, that there may have been substantial, actual injury caused to another’s land.”
[52] While Smith was heard in the context of an allegation of physical injury to property, and not in the context of substantial interference with property, the appellate court’s statements about allowing a nuisance claim based on unfounded concerns are instructive.
[53] In their factum, the plaintiffs cite 16313700 Ontario Inc. v. 805352 Ontario Inc. 2012 ONSC 2271, Nor-Video Services Ltd. v. Ontario Hydro, 1978 1567 (ON SC), [1978] O.J. No. 3287 (H.C.) and Antrim Truck Centre Ltd v. Ontario), 2013 SCC 13 for the propositions that:
a. a flexible approach to nuisance is required;
b. a defendant can be liable in nuisance for unreasonable interference with a business interest; and
c. a plaintiff can recover damages for economic loss caused by the defendant in relation to third parties.
[54] These propositions are valid, although, each case can be distinguished. For example, in 163 Ontario, the plaintiff filed expert evidence which demonstrated that the fears which had been raised about the activities which they sought to enjoin were well-founded. No such evidence or anything approaching cogent and reliable evidence has been filed by the Thompson in this motion. It is also noteworthy that, in 163 Ontario, the court ultimately dismissed the plaintiffs’ claim and granted summary judgment for the defendants on the basis that the claim in nuisance did not raise a genuine issue requiring a trial.
[55] Even if Thompson succeeds in proving that the apple market customers have a real fear that the new berms indicate greater likelihood that the apples will be tainted by the Ridge Landfill; the plaintiffs face a substantial evidential burden to substantiate such a fear is well-founded in fact. The Ridge Landfill operations per se, are not moving closer to the apple market or the farming operations, and the new berms do not present any increase in risk that apples will be otherwise tainted.
[56] I am entirely mindful that I am not trying this action. Indeed, perception and stigma is difficult, albeit not impossible to substantiate. While I have expressed some trepidation about the issues to be tried, for this motion, I accept Thompson’s position that this action involves a serious question to be tried in a claim for nuisance. That being said, at this juncture, I agree with Mr. Foulds that the evidence proffered for this motion just barely meets the threshold in establishing a serious issue to be tried. Whether the extent and nature of the duty owed to the plaintiff as well as the relief sought for damages is properly a matter for trial, Thompson has satisfied the first branch of the RJR-MacDonald test.
Irreparable Harm
[57] In RJR-MacDonald, the Supreme Court of Canada had defined “irreparable harm” as the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples include instances where one party will be put out of business by the court’s decision; where one party will suffer permanent market loss; or irrevocable damage to its business reputation. An injunction is an extraordinary remedy that should only be issued to restrain a clear breach of legal obligations.
[58] To succeed on an application for an interlocutory injunction, the moving party must establish that it would, unless the injunction is granted, suffer irreparable harm. The moving party must show that a refusal to grant the relief sought would so adversely affect its own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the motion, RJR-Macdonald, at para. 63.
[59] It is important to note that in order to establish irreparable harm the moving party’s evidence must be clear and not speculative. Absent clear evidence that irreparable harm will result, an interlocutory injunction should not issue. Ciba-Geigy Canada Ltd. v. Novopharm Ltd., 1994 CarswellOnt 700 (F.C.T.D.) at para. 118.
[60] An assertion that a plaintiff is likely to suffer irreparable harm is insufficient to warrant the granting of an interlocutory injunction. It is necessary for the evidence to support a finding that the defendant would suffer irreparable harm. The onus is on the party seeking an injunction to place sufficient financial and other evidence before the court on which such a finding can be made.
[61] Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Irreparable harm is more than merely harm which is difficult to quantify. Instead, it is well established that irreparable harm is not made out simply because damages may be difficult to quantify. The plaintiffs must prove that the alleged harm cannot be quantified in monetary terms. As Epstein J. noted in 754223 Ontario Ltd v. R-M Trust Co., [1997] O.J. No. 282 (Gen. Div.) at para. 40: “Irreparable harm cannot be founded upon mere speculation. This evidence must be sufficient to support a finding that the moving party would suffer such harm not that it is merely likely.”
[62] Frankly, Thompson's evidence in support of irreparable harm is not very compelling. Thompson argues that the new berms eliminate the land buffers and that there is no reason to suspect that what happened in 1999 will not happen again. Aside from references to the 1998-1999 Assessments, I do not have reliable evidence to support the plaintiffs’ position. While the arbitrator found that the construction of berms in 1999 destroyed 50% of the market's business, I am not persuaded that the arbitration and the facts that existed at that time suffice as evidence sufficient to substantiate irreparable harm at this juncture.
[63] Overall, Thompson has not adduced reliable evidence that the construction of the berms has to date caused or will in the future cause harm to the plaintiffs, much less irreparable harm. In fact, Thompson’s own records show that in 2013, following the completion of approximately 700 metres of berms, the apple market had its best sales results to date. Even if construction of the new berms were to cause harm to the apple market, Thompson’s own experience following a past expansion of the Ridge Landfill demonstrates that such damages can be ascertained and compensated with an award of monetary damages.
[64] Moreover, the statement of claim makes it clear that the plaintiffs believe they can be compensated by money. Thompson is seeking $3 million in damages. In particular, para. 85 of the statement of claim explicitly seeks damages, as a remedy for the nuisance allegedly caused by the new berms. As mentioned, a monetary award was sufficient to compensate the plaintiffs for their losses, to the tune of $1.4 million. As a previous monetary award was a sufficient remedy, there is every reason to believe that such an award, if successful at trial, would also be an appropriate remedy for any harm that may be caused by the construction of the berms.
[65] BFI began constructing the berms on the lands in the fall of 2012. These berms are seeded with grass and will be landscaped. The photographs presented in the affidavits depict that the berms are set back a considerable distance from the road at a gradual slope.
[66] No complaint was made with respect to the completed Phase 1 construction. Although Thompson asserts that the construction of the new berms has already caused damage, the plaintiffs have adduced no evidence whatsoever that this is truly the case. Given that this motion can be viewed as a quia timet injunction, the evidentiary burden on the plaintiffs is even higher. In addition to proving that the plaintiffs will suffer irreparable harm if the injunction is not granted, Thompson must also prove that the harm is imminent and that there is a very high degree of probability or a strong probability almost amounting to moral certainty that the apprehended mischief will, in fact, arise. Again, the evidence before me falls short in that regard.
[67] Without being overly repetitive, the plaintiffs’ evidence in support of the relief sought for this motion is based on conjecture. Various and repeated references to the arbitration proceedings and findings are not convincing. Thompson has produced only one unaudited financial statement, which is from 2012. Significantly, Thompson chose to leave out of their materials more recent records of sales for the apple market which demonstrates that, far from the berms presenting an “actual and real danger”, the apple market appears to have had significant success.
[68] Based on the plaintiffs’ sales records for the apple market, it is apparent that in 2013, after the berms had been constructed along Charing Cross Road to a point less than 300 metres from the front door of the market, the company had its best sales year ever. In that year, the apple market achieved cash sales of $142,680.12. Thompson’s own evidence is that the apple market’s customers travel from the Chatham, along Charing Cross Road and past the Ridge Landfill site and the newly constructed berms. These sales figures suggest that the construction of the berms has not had a negative impact on the retail business.
[69] I am not satisfied that the current expansion or the berms proposed to be under construction will cause customers to become aware or more aware of the existence of the Ridge Landfill or that, as a result, those customers will be less likely to patronize the apple market. I conclude that Thompson has failed to discharge his burden to demonstrate irreparable harm.
Balance of Convenience
[70] There are numerous factors that must be considered in addressing this prong of the RJR-MacDonald test. In Parker v Canadian Tire Corp, [1998] O.J. No. 1720 (Gen. Div.), Sharpe J. canvassed a scenario in which delay in bringing the injunction motion was a strong factor weighing against granting an injunction. At para 15 , the learned jurist held:
I would add two further discretionary factors which also favour the defendants in denying the injunction. The first is the question of delay or laches. The plaintiff has known since October of the defendant's intention not to renew the contract. As noted, this action was not commenced until April 8th, only days before the termination of April 13th. The action was commenced on a Wednesday of the week which included Good Friday, and the termination date was Easter Monday, when the courts are closed. The matter first came before the court on April 9th. In my view the delay has not been adequately explained. Counsel submitted that it was the plaintiffs' hope that matters would be worked out as they had in the past. However, there is no evidence of any efforts in that regard, certainly not at or near the time the action was commenced. There is no evidence that any suggestion was made to the defendant that the plaintiff would have access to the courts. As a result, the defendant was faced with a last minute application and in a situation where the defendant would suffer prejudice as arrangements were in place for the takeover of the store by another Dealer. In my view the delay here is a strong factor which runs against the entitlement to injunctive relief.
[71] I am satisfied that the plaintiffs have known since July 2013 that construction of the berms would resume in the spring of 2014 and would continue down Charing Cross Road in the direction of their market. BFI never provided any assurances that they would halt or otherwise alter its plans in relation to the berms. On April 1, 2014, BFI’s counsel expressly advised that BFI intended to resume construction of the berms in June.
[72] Although the plaintiffs have been aware of BFI’s intentions for almost a year and, while both counsel for the parties have specifically communicated about the scheduled commencement of construction and the potential of an injunction, Thompson chose to wait to bring this motion on a date returnable less than a week before construction was scheduled to begin. I am not satisfied with the plaintiffs’ explanation for the delay in bringing this motion. I can only surmise that it was brought at the last minute to gain strategic advantage and cause some prejudice to BFI in relation to the scheduled commencement of construction.
[73] Delay on the part of the moving party is a factor that the court will consider in determining whether the moving party has satisfied the requirement to show irreparable harm. If the moving party, in fact, was suffering irreparable harm, then it should move for injunctive relief expeditiously. A plaintiff who is entitled to an injunction may lose that right on account of delay in asserting the claim as the nature of injunctive relief begs for a plaintiff to proceed with dispatch. I find that such is the case here.
[73] In my opinion, if the requested injunction is granted, BFI will effectively be forced to cease all berm construction, as they will be unable to begin construction in any of the other planned berms locations. This moratorium on construction would substantially delay the planned construction of the berms, perhaps for several years until the ultimate hearing of this action.
[74] While a permanent injunction may be the preferable remedy in cases in where a nuisance is proven, I have considered all of the issues including, but not limited to, the adequacy of damages, and that nuisance is alleged. On balance, I am satisfied that the balance of convenience weighs in favour of BFI.
Conclusion
[75] Thompson has failed to establish that they will suffer and will continue to suffer greater harm if an injunction is not granted. In my opinion, any detrimental consequences damages flowing from BFI’s actions can be remedied by an appropriate award of damages. Given the absence of any evidence of irreparable harm, the plaintiffs’ delay in bringing this motion, and their tenuous cause of action in nuisance or otherwise, I find that Thompson cannot meet the burden required to obtain the extraordinary remedy of an interim or interlocutory injunction. For all of the aforementioned reasons, the plaintiffs have ailed to demonstrate that they have met the test for interim or interlocutory injunctive relief.
[76] Therefore, the motion for an interim or interlocutory injunction is dismissed.
[77] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed three pages in length, (not including any bill of costs or offers to settle). BFI shall file their costs submissions within 15 days of the date of this judgment. Thompson may file his costs submissions within 15 days of the receipt of the respondent’s materials. BFI may file a reply within 10 days thereafter.
[78] I wish to express my gratitude to counsel for their helpful submissions and comprehensive arguments expressed through their respective materials.
“Justice A. J. Goodman”
Justice A. J. Goodman
Date: July 3, 2014
COURT FILE NO.: 913/13
DATE: 2014/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Thompson and Thompson’s Orchards Ltd
Plaintiffs
- and –
BFI Canada Inc. and Ridge (Chatham) Holdings G.P. Inc.
Defendants
REASONS FOR JUDGMENT
A.J. Goodman J.
Released: July 3, 2014