2016 ONSC 2137
COURT FILE NO.: 15-66839
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ottawa Convention Centre Corporation
Plaintiff (Respondent on Motion)
– and –
Treefort Hip Productions Inc.
Defendant (Moving Party)
Andrew J.F. Lenz, for the Plaintiff
K. Scott McLean and Fraser Mackinnon Blair, for the Defendant
HEARD: March 2, 2016 (Ottawa)
REASONS FOR DECISION
Parfett J.
[1] The Defendant, Treefort Hip Productions (Treefort), requests an interlocutory injunction restraining the Plaintiff, Ottawa Convention Centre Corporation (OCCC) from irrevocably licensing or booking the first two weekends in November 2016 & 2017. The Defendant also requests an expedited timetable for the hearing of the trial of this matter. The Plaintiff is not opposed to this latter request and thus, an expedited timetable will be granted.
[2] For the reasons set out below, the motion is dismissed.
Background
[3] Treefort is the company that operates the Ottawa Wine and Food Festival (Festival). The Festival was originally called the Ottawa Wine and Food Show and has been a fixture in the city of Ottawa for 30 years. In 2008, the owner of Treefort, Joan Culliton bought the assets of the company that originally ran the Festival. She continued to organise and run the Festival from Lansdowne Park. At that time, the Convention Centre – where the Festival had traditionally been held – was undergoing renovations. The Festival did not return to the Convention Centre – now called the Shaw Centre – until 2011.
[4] Over the course of its thirty year history, the Festival was run on either the first or second weekend of November. According to Ms. Culliton this timing is important because it is the run-up to Christmas and it coordinates with the Toronto Wine and Food Festival, which is held during the third week of November. Many of the exhibitors attend both Festivals. Evidence filed with the court indicated that this timing has only varied twice and on both occasions the Festival coincided with Hallowe’en.
[5] The return of the Festival to the Shaw Centre has been fraught with difficulties. In 2011, the Board of Directors of the OCCC decided to give the Festival notice that 2012 would be the last year they would host the Festival because of perceived issues with security, rowdiness and underage drinking. Ultimately, the OCCC relented and the Festival continued to be held at the Shaw Centre in 2013, 2014 and 2015. However, the OCCC was very unhappy with the organization of the Festival in 2015. According to Dan Young, the Vice-President of Finance of the OCCC, there was a resurgence of security issues, drunkenness, underage drinking and rowdiness, culminating in an email from the Ottawa Police Service outlining their concerns with the management of the crowds given the level of drunkenness. These problems were exacerbated by the fact the OCCC alleged the Festival had failed to pay its bills. The Festival was no happier with the OCCC as they had advised the Festival that it could not have its preferred 2015 dates and would have to proceed over the Hallowe’en weekend. According to Ms. Culliton, this fact had a devastating impact on revenues. In addition, the OCCC had raised its fees significantly between the 2011 and 2012 Festivals. According to the Defendant that increase reduced the profitability of the Festival.
[6] Mr. Young outlined in his evidence how events are scheduled at the Shaw Centre. There are two categories of events: first tier events such as large national or international conventions that are booked years in advance, and second tier events such as trade shows, galas and other local events that are booked only a year in advance. First tier events are always given preference over second tier events. Second tier events – and the Festival is such an event – may have a hold placed on their preferred dates many years ahead, but they are not guaranteed those dates until a licensing agreement is signed. A licensing agreement is signed no earlier than one year before the next event.
[7] Both parties agree that generally, the OCCC and the Festival would negotiate a licensing agreement for the following year within two weeks of the Festival’s conclusion. This period was also when the Festival would learn if they would get one of their two preferred dates. As noted earlier, throughout the history of the Festival and with only two exceptions one of those being 2015, the Festival received one of its two preferred dates.
[8] After the conclusion of the 2015 Festival, the OCCC demanded payment of the outstanding invoice. It also tied the negotiations for the 2016 Festival to the payment of that invoice. On the other hand, the Festival took the position that no money was owed and insisted that the 2016 negotiations go forward leaving the issue of monies allegedly owed to be dealt with separately. No contract for 2016 has been concluded. The OCCC started litigation to recover the monies it alleges are owed and the Festival has counterclaimed for damages for breach of contract.
[9] The OCCC has advised the Festival that dates on hold for 2016 and more importantly, 2017 have been given away to other events. Consequently, the Festival has brought this motion for injunctive relief.
Issue
[10] The issue in this matter is straightforward: whether the circumstances of this case meet the test required for the issuance of injunctive relief.
Legal Principles
[11] The test for injunctive relief was settled in the seminal case, R.J.R. MacDonald Inc. v. Canada (Attorney-General).[^1] It is a three part test. First, is there a serious issue to be tried? Second, would the moving party suffer irreparable harm from refusing the remedy and three, which party would suffer the greater harm if the motion is granted?
Analysis
Serious issue to be tried
[12] The Plaintiff argues that the Defendant is seeking a mandatory injunction and thus the first question to be answered is not whether there is a serious issue to be tried but rather whether the Defendant’s case is ‘unusually strong and clear’.[^2]
[13] The distinction between whether the injunction sought is prohibitory or mandatory revolves around the effect of the injunction on the issues to be tried. In granting a prohibitory injunction, the court
[D]oes no more than prevent for the future the continuance or repetition of the conduct of which the plaintiff complains. The injunction does not attempt to deal with what has happened in the past; that is left for the trial, to be dealt with by damages or otherwise. On the other hand, a mandatory injunction tends at least in part to look to the past, in that it is often a means of undoing what has already been done, so far as that is possible. Furthermore, whereas a prohibitory injunction merely requires abstention from acting, a mandatory injunction requires the taking of positive steps.[^3] [Emphasis added]
[14] In RJR MacDonald, the SCC did allow for exceptions to the rule the applicant need only show there was a serious issue to be tried. As noted in the Boehringer case, “the first of these arises when the result of the interlocutory motion will in effect amount to a final determination of the action.”[^4]
[15] Whether the test in this case is that of a serious issue to be tried or requires an unusually strong and clear case depends entirely on one’s perspective of the case. The Defendant states that it only seeks to confirm the status quo. From the Defendant’s perspective the status quo is an ongoing contract between the Plaintiff and the Defendant that guarantees the provision of space to the Festival at the OCCC on one of the first two weekends in November. In the Defendant’s view, that guarantee is subject only to the provision of reasonable notice to terminate, which has not been provided in this case. This perspective underlies the Defendant’s counterclaim for damages for breach of contract.
[16] On the other hand, the Plaintiff’s perspective of what constitutes the status quo is that there is no ongoing contract between the OCCC and the Festival that would guarantee space within a given timeframe. Rather, the Plaintiff alleges that in the past there has been a series of contracts signed on an annual basis. The Plaintiff contends the ‘guarantee of space’ is no more than an agreement by them to hold the space subject to two caveats as follows:
• No event that is higher up the pecking order (ie a first tier event) seeks the same space in one or both of the first two weekends in November. If that occurs, then the Festival must find either another time or another location; or
• A contract is concluded between the OCCC and the Festival before a contract is concluded with another event that seeks the same time and space.
[17] The Plaintiff notes that currently, there is no space available on either of the first two weekends in November 2016 because other events were slotted in when the Festival and the OCCC failed to sign a contract before these other events came along. With respect to 2017, the Plaintiff states that again neither of the first two weekends in November remains available and both of the scheduled events are ‘first tier’ events. Consequently, an injunction requiring the OCCC to make space available in both these years during one of the first two weekends in November would require the OCCC to move the present incumbents or deny them space already allotted to them. In short, it would require altering the status quo and undoing actions already taken by the OCCC. According to the Plaintiff, it would also require the court to essentially give effect to the Defendant’s claim that they have an ongoing contract with the OCCC. Consequently, the Plaintiff asserts the appropriate test is the one set out in Shepherd Homes and the Defendant must demonstrate they have an unusually strong and clear case.
[18] The Court is not in a position to resolve this issue. In effect, the resolution of this issue requires a determination of the issues in the case as a whole. Regardless of how these issues will ultimately resolved, the issue of whether injunctive relief ought to be granted can be dealt with in the next section.
Irreparable harm
[19] The next issue is whether the party requesting the injunction will suffer irreparable harm if it is not granted.
[20] As noted in RJR Macdonald, “at the second stage, the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. ‘Irreparable’ refers to the nature of the harm rather than its magnitude.”[^5]
[21] The Defendant claims that the Festival can only be held at the OCCC and that it must occur in one of the first two weeks of November. The logic behind the timing is that this period is the lead up to Christmas and also ensures the Festival is held before the equivalent Toronto Festival. The issue of the location is more problematic. According to Ms. Culliton, historically “the Convention Centre and the owners of the OWFS understood and accepted that the Centre was the only venue in Ottawa that could appropriately host the Show.”[^6] In explaining why she accepted a sharp increase in costs imposed by the OCCC in 2012, Ms. Culliton indicated that the Festival had “no other options as it was the only facility in Ottawa that was capable of hosting the Festival.”[^7]
[22] She indicates that, in her view, the Centre believed that the Festival was a good fit, had a good target market and made money. She also stated that it was useful to have the event downtown, where there was public transit, hotels, restaurants and other commercial and public amenities. During the renovation period, from 2008-2010, the Festival was held in the arena at Lansdowne Park. Ms. Culliton noted that the expenses of the Festival were higher when it took place at Lansdowne Park. In addition, Ms. Culliton has stated “the magnitude and nature of the Festival is that there is only one venue in Ottawa which is capable of hosting it: the Convention centre. The redevelopment of Lansdowne Park has reduced the foot print of the Civic Centre arena below what would be necessary to accommodate the Festival. The only other venue that has a sufficient amount of square footage – the EY Centre, is not located near the downtown core.”[^8]
[23] The Plaintiff’s response to these assertions by the Defendant is as follows:
To the best of my knowledge and belief the OWFF could operate at a number of facilities including Lansdowne Park, the EY Centre near the airport, the Ottawa Conference and Meeting Centre on Coventry Road, the conference facilities at Casino Lac Leamy or the Palais des Congrès in downtown Gatineau. Several of these [facilities] are in downtown locations and are on rapid transit lines.[^9]
[24] The Defendant did not provide any further evidence indicating why some of the other facilities mentioned by the Plaintiff were inappropriate to hold the Festival. Furthermore, the Defendant did not demonstrate that the Festival would ‘die’ if it could not be held at the OCCC as argued by their counsel.
[25] Clearly, there is the possibility that there may be more expenses associated with other locations or alternatively, less revenue, but this type of harm is compensable in damages.
[26] Consequently, in my view, the Defendant has failed to discharge their burden of demonstrating there would be irreparable harm if the Festival was held in another downtown location as suggested by the Plaintiff and their motion must therefore, be denied.
Balance of convenience
[27] Although, given the finding with respect to irreparable harm, there is no need to address this issue I note that the balance of convenience would also not favour the Defendant. For better or worse, the Plaintiff has concluded contracts with most of the events now scheduled for November 2016 and 2017. There is no evidence the Festival could somehow be shoe-horned into any remaining space and consequently, the Plaintiff would be left in a position where they might have to breach other contracts or negotiate other dates for events already scheduled. Consequently, the balance of convenience lies with the refusal of the injunction.
Conclusion
[28] For the reasons set out above, the motion is dismissed.
Costs
[29] Both parties provided the court with sealed envelopes outlining their costs of this motion. The parties should attempt to resolve the issue of costs themselves; however, if the parties cannot resolve the issue of costs, brief written submissions of no more than one page, with attachments including Offers to Settle, are to be provided with 15 days with a right of reply within a further five days.
Madam Justice Julianne Parfett
Released: April 4, 2016
2016 ONSC 2137
COURT FILE NO.: 15-66839
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ottawa Convention Centre Corporation
Plaintiff (Respondent on Motion)
– and –
Treefort Hip Productions Inc.
Defendant (Moving Party)
REASONS FOR Decision
Parfett J.
Released: April 4, 2016
[^1]: 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [^2]: Boehringer Ingelheim (Canada) Inc. v. Bristol-Myers Squibb Canada Inc., 1998 CanLII 14794 (ON SC), [1998] O.J. No. 4007 (OCJ – GD) at paras. 48-51. [^3]: Shepherd Homes v. Sandham, [1970] 3 All E.R. 402 at 409. [^4]: Boehringer at para. 51. [^5]: At p. 348. [^6]: Tab 2, Defendant’s Motion Record at paragraph 15 of Culliton’s affidavit. [^7]: At para. 47 of Culliton’s affidavit. [^8]: At para. 114 of Culliton’s affidavit. [^9]: Responding Party’s Motion Record at tab A, para. 65.