SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Matbar S. Enterprises Inc.

Applicant

-and-

Hourglass Workout Inc.

Defendant

BEFORE: F.L. Myers J.

COUNSEL: Lev Abramovich for the Applicant

Joel S. Kuchar and Dion R. McClean for the Respondent

HEARD: August 11, 2014

endorsement

[1] The applicant is a commercial landlord who says that the respondent, its tenant, a commercial gym business, is making so much noise that other tenants, both commercial and residential, have complained and left the building. The landlord gave the other tenants rent abatements to try to appease them, but some ultimately left or are leaving allegedly due to the persistent noise emanating from the respondent’s gym. After having given notice of default to the respondent and receiving no response, in April the landlord terminated the respondent’s lease based on alleged breaches by the respondent of clauses prohibiting loud music and nuisance. But the landlord has not taken possession of the premises. Instead it applies for a declaration that the lease is terminated and for an order that a “court bailiff” take possession of the premises.

[2] The applicant’s principal affidavit contains no first-hand admissible evidence of the applicant’s allegations of noise amounting to a nuisance. There is hearsay which, if true and admissible is telling. There are also two very brief supplemental affidavits from tenants that contain minimalist, bald first-hand accounts. There is also a form of expert’s report from an acoustics engineer that might be helpful if it qualified as expert evidence and if the facts upon which the witness’s opinion are based are proven. The applicant has not submitted the procedural prerequisites for the introduction of expert evidence.

[3] But why is the landlord here instead of exercising the re-entry provisions under the lease? The Court does not instruct bailiffs. The applicant’s counsel could not advise as to why his client has waited the better part of a year, through some periods of apparent urgency when tenants were reporting serious concerns, to now to move for relief instead of re-entering at the first available moment under the lease. Counsel advises that his client is concerned to avoid claims. Perhaps it is concerned that the use clause in the lease authorizes the respondent to operate a gym and one might argue, as the respondent does, that the approved use implicitly evidences an expectation of a certain amount of noise and nuisance so as to temper the separate prohibitions against such conduct elsewhere in the lease. Perhaps there are other concerns as to claims or potential claims that have led the landlord to seek judicial relief instead of proceeding under the lease itself. If the need for a ruling is holding back the landlord from exercising its rights, one would expect that an issue might be raised and submissions of relevant law might be contained on the issue in the landlord’s factum.

[4] Until today, the respondent’s material consists solely of an affidavit. It contains numerous unparticularized allegations of fact essentially claiming that the landlord knew that it was leasing the premises to a gym business and it represented that its building was constructed appropriately so as to house such a noisy business. The respondent blames poor construction for the sound travelling beyond the gym’s premises. Despite the document being a sworn affidavit, it contains only bald allegations and almost no admissible evidence of the facts alleged. The affidavit then goes on to say that the tenant counter-applies for a number of heads of relief to seek to remain in the premises including an interlocutory injunction pending trial. This is an application; there is no trial. There is no originating process from the respondent for its “counter application”. There is no factum. There is no notice of motion. There is no recognition that the lease has already been terminated by the landlord. Whatever it is that the respondent is trying to do in this proceeding, its initial materials as filed do not do it.

[5] Today counsel for the respondent submitted a further affidavit that sets out counsel’s opinion, in his client’s voice, that the respondent needs the complete construction file for the building, including plans, construction notes, inspection reports, sketches, drawings etc., to try to show that it is building deficiencies and not the tenant’s undue noise, that is causing the alleged nuisance. The respondent wants to examine the landlord. It wants to cross-examine the tenants who submitted their minimalist affidavits. It wants the opportunity to show that the alleged expert’s tests were not indicative of the respondent’s operations i.e. they were conducted with deep bass music played at full volume, for example. It says that it has suffered damages and there needs to be an action or a trial of the issues.

[6] The proceeding cannot be heard today. The current pleadings and proceedings prevent the intelligible assessment of the rights and obligations of the parties in an efficient and affordable manner. The applicant may wish, for example, to provide further admissible evidence. It might wish to deliver a more comprehensive proceeding by way of a statement of claim. It may wish to deliver a factum that raises the issues that it wants resolved. It may wish to consider the test for the issuance of a writ of possession. The respondent may wish to deliver an application for relief from forfeiture or a statement of claim and a motion seeking an interlocutory injunction (if it thinks it can really show tangible irreparable harm). Before deciding that whether there must be a trial of an issue relating to termination of the lease and possession, there needs to be a more clearly defined issue supported by admissible facts. It may be that cross-examination of witnesses will suffice. Moreover, production of the broad swath of documents sought by the respondent appears to be potentially abusive. Counsel and experts can define a much more narrow information request to get at the issue of sound transmission in the building.

[7] Counsel for the parties should consult with their clients and then meet in the next day or two to try to agree upon a process and schedule. Perhaps the clients will determine that their scarce funds are better spent on settlement so that the building can continue to house a gym as both sides once desired to provide revenue opportunities for each of them. Perhaps they will find it more productive and profitable to take an expensive journey through the design and construction history of the building and to throw sticks and stones at each other.

[8] The application is adjourned to my list on August 18, 2014 to allow each party to consider how to proceed. The matter will be added to my list for up to 45 minutes to discuss scheduling issues if the case is not settled. As the applicant has submitted this matter to the Court, pending further order of the Court next Monday, it is no longer open to the applicant to re-enter by self-help and it is prohibited from doing so. The order will likely be continued at least while the Court believes that the respondent is engaged in a bona fide effort to move the case forward quickly, efficiently and affordably. Costs reserved to next Monday.

________________________________ F.L. Myers J.

Date: August 11, 2014