ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-534007
DATE: 20150930
BETWEEN:
LIXO INVESTMENTS LIMITED
Applicant
– and –
FCHT HOLDINGS (ONTARIO) CORPORATION ET AL.
Respondent
Counsel:
Al Burton for the Applicant
Molly Reynolds for FCHT Holdings (Ontario) Corporation
Diana Dimmer for the City of Toronto
ENDORSEMENT
DIAMOND J.:
[1] This application was scheduled to be heard by me on September 17, 2015. On that date, counsel for the applicant advised that due to (a) ongoing settlement negotiations which apparently broke down right before the hearing date, and (b) the late delivery of responding materials from the respondent City of Toronto (“City”), the applicant required an adjournment of its own application to permit cross-examination upon the City`s materials. The respondent FCHT Holdings (Ontario) Corporation (“FCHT”) was ready to proceed on September 17, 2015.
[2] In a handwritten endorsement, I granted the applicants request for an adjournment but upon strict terms. The application was adjourned until September 29, 2015. In my endorsement, I stated that the purpose of the adjournment was to permit the applicant to conduct a cross-examination of the Citys representative, and that the cross-examination was to be completed on or before September 23, 2015.
[3] I further granted interim injunctive relief restraining FCHT from any demolition or shoring work related to the shared wall between the properties owned by the applicant and FCHT until the disposition of this application to be heard on September 29, 2015.
[4] In the evening of September 29, 2015, I received e-mail correspondence from counsel for FCHT advising that (a) as a result of the applicant failing to file its confirmation to the court office, the application did not proceed on September 29, 2015, and (b) the applicant never proceeded with a cross-examination of the City`s representative.
[5] Counsel for FCHT thus requested confirmation whether the interim injunctive relief was still in full force and effect. In response, counsel for the applicant confirmed that he did not cross-examine the City`s affiant citing that the parties had been (once again) “involved in extensive settlement negotiations which appeared to have broken down late today”.
[6] The parties have confirmed that an attendance in Civil Practice Court is currently scheduled for this Friday, October 2, 2015 for the purpose of rescheduling the application.
[7] Normally, I would have directed the parties to the provisions of Rule 1.09 of the Rules of Civil Procedure and refused to entertain this request. However, I do believe that in the unique circumstances in which the parties, and in particular FCHT, find themselves, they are in need of clarification on an urgent basis as to the continuing effect, if any, of my original endorsement.
[8] The applicant`s request to adjourn its own application was premised upon a stated desire to cross-examine the City’s representative. As I explained in Court that day, the relief being sought by the applicant is, in effect, a permanent quia timet injunction. Leaving aside whether such permanent relief can be granted, the relevant jurisprudence is clear that quia timet injunctions are rarely granted. As stated by Justice Dickson in Operation Dismantle Inc. v. Canada 1985 74 (SCC), [1985] 1 S.C.R. 441:
“It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of the harm is not probable.”
[9] The cross-examination did not take place. The application did not proceed on September 29, 2015. The terms of my endorsement were clear, and the basis upon which I granted the adjournment has now evaporated. As such, the interim injunctive relief expired on September 29, 2015 and is no longer in effect.
[10] This endorsement is without prejudice to the applicant seeking further interim injunctive relief, either in Civil Practice Court on October 2, 2015 or some other date upon which the parties may agree or the Court may order.
Diamond J.
Released: September 30, 2015
COURT FILE NO.: CV-15-534007
DATE: 20150930
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LIXO INVESTMENTS LIMITED
Applicant
– and –
FCHT HOLDINGS (ONTARIO) CORPORATION ET AL.
Defendants
ENDORSEMENT
Diamond J.
Released: September 30, 2015