BARRIE COURT FILE NO.: CV-21-00920-00 DATE: 20220322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Brad Horan and Jeanne Horan Plaintiffs – and – Marlwood Golf and Country Club and TPC at Marlwood Inc. and The Smardenka Group and Alex Smardenka and Sandy Smardenka. Defendants

Counsel: Matthew A. Giesinger, for the Plaintiffs Brian Chung, for the Defendants

Heard: February 15, 2022 - virtually

DECISION OF MOTION FOR INJUNCTION

sutherland J.:

Introduction

[1] The plaintiffs bring a motion seeking an injunction against the defendants concerning the use of the third hole at the defendants’ golf course, Marlwood Golf and Country Club (the Golf Course.) The plaintiffs seek an injunction permitting any golf balls to escape from the Golf Course onto the residence owned by them. The plaintiffs also seek an order preventing the trespass upon their property and an Order requiring any peace officer of the Wasaga Beach Police to assist in the execution of the injunction Order.

[2] The plaintiffs are owners of a home located by hole three on the Golf Course. The plaintiffs have resided in the home for over 20 years. They moved in around November 1, 2000.

[3] The placement of the tee position of third hole, the plaintiffs allege, facilitate golf balls constantly and consistently being struck on their property, falling in their yard, hitting their home, vehicles and at times striking or almost striking individuals in the yard, including their young grandchildren and Mr. Horan. The plaintiffs indicated that they have had issues of golf balls in their yard for around 20 years.

[4] The plaintiffs depose that they have attempted to resolve this issue with the Golf Course to no avail. The golf balls are still being struck into their yard and hitting their house.

[5] The defendants indicated that they purchased the Golf Course in 2015. The defendants dispute that the numbers of balls as suggested by the plaintiffs landed in their property or that “thousands of dollars” of damages have been incurred.

[6] The defendants submit that the plaintiffs have lived in the property for over 20 years. As far as the defendants know, no action or injunctive relief has been brought by the plaintiffs. The defendants contend that in the circumstances, the plaintiffs’ motion for injunctive relief should be dismissed.

[7] For the reasons below, I dismiss the motion of the plaintiffs.

Position of the Parties

[8] The plaintiffs depose that the third hole is a 309-yard dog leg which pivots directly behind their property. The consequence of where the tee is located is that golfers frequently attempt to aim over their property to reach the green. Often golfers are unsuccessful which results in golf balls directly landing in their yard, passing through their property or at times hitting the house or people in the backyard of the home. The plaintiffs argue that they have attempted to resolve this matter with the Golf Course to no avail. The present situation is dangerous to them or anyone in the backyard, which at times includes them and their grandchildren and, causes significant damages to their property.

[9] The defendants argue that the plaintiffs have lived with the Golf Course in existence for over 20 years. The first time the defendants state that they were aware of any issues is when the plaintiffs advised them in 2020 and they met the plaintiffs in August 2020. The defendants have taken steps to remedy the situation as best as they could. They retained the consulting services of a golf course architect, Kevin Holmes and have taken the steps recommended by the consultant. They have moved the locations of the tee. They have placed netting and erected a fence around the plaintiff’s’ property. They have planted bushes and trees. They have posted signs warning golfers of trespass, golfers that cause damage to the plaintiffs’ property would be held liable and have put employees/marshals and volunteers by the hole to instruct golfers to lay up and not attempt shots over the property. The plaintiffs were aware that their property was on a golf course and that there would be the probability of golf balls being hit in their yard. The defendants also argue that the failure of the plaintiffs to provide a written undertaking as mandated by the Rules is fatal to their request for an injunction.

Legal Framework

[10] Section 101 of the Courts of Justice Act and Rule 40.01 of the Rules of Civil Procedure authorize the Court to grant an interlocutory injunction: “where it appears to a judge of the court to be just or convenient to do so.”

[11] Rule 40.03 states that the moving party shall provide a written undertaking to abide by any order concerning damages that the Court may make “if it ultimately appears that the granting of the order has caused damages to the responding party for which the moving party ought to compensate the responding party,” unless the Court orders otherwise.

[12] A Mareva injunction is an extraordinary remedy. If granted, it, in effect, freezes assets of the recipient. Thus, it becomes a form of execution before judgment.

[13] The leading cases on temporary or final injunctions are RJR MacDonald Inc. v. Canada (Attorney General) and R. v. Canadian Broadcasting Corp. (R. v. CBC).

[14] The test to grant an injunction as set out in RJR MacDonald is well known. The criteria that the party requesting an injunction must demonstrate are:

(a) From a preliminary assessment of the merits of the case, there is a serious question to be tried.

(b) Irreparable harm will result if the relief is not granted; and

(c) Which of the parties would suffer greater harm from the granting or refusing of the injunction pending a decision on the merits.

[15] The test in RJR MacDonald was slightly modified by the Supreme Court of Canada in R. v. CBC. In R. v. CBC, the Court indicated:

The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.

The party seeking the injunction would, unless the injunction is granted, suffer irreparable harm that is not susceptible or would be difficult to be compensated in damages.

The party seeking the injunction “must show that the balance of convenience favours granting the injunction.”

[16] The Court, in R. v. CBC, emphasized that the burden upon the party seeking the injunction is to show a case of “such merit that it is very likely to succeed at trial.” The Court defined the meaning of “very likely to succeed at trial” in stating: “Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.”

Analysis

Should a Mareva injunction be granted?

[17] I conclude that the injunction requested by the plaintiffs should not be granted for the plaintiffs’ failure to provide an undertaking concerning damages and further the motion fails in not satisfying the test for such an injunction.

Undertaking

[18] Rule 40.03 is clear. An undertaking shall be provided unless the Court orders otherwise.

[19] The plaintiffs did not request in their Notice of Motion an order that they would not have to comply the mandatory obligation.

[20] I agree with both Mew J. in Mandel v. Morguard Corporation and Glustein J. in The Catalyst Capital Group Inc. v. Moyse. The Court has no authority to order a party seeking the extraordinary remedy to provide an undertaking. The Rule mandates such an undertaking. The best a Court can do is decline the relief claimed on an injunction.

[21] The remedy requested by the plaintiff is an injunction, that is, ordering the defendants to do something with failure to do so will result in police involvement or an order of this Court for contempt. To request such a remedy, the plaintiffs are required to comply with Rule 40.03. They have not done so. The motion is dismissed on this basis alone.

Injunction Criteria

[22] I would also dismiss the motion of the plaintiffs on the basis that they have not satisfied the requirement of irreparable harm or that the balance of convenience favours them.

[23] The plaintiffs have resided in the property for over 20 years. Since their ownership, the Golf Course has been in existence and used as a golf course. I am not satisfied that the plaintiffs have shown a substantial risk of irreparable harm. The plaintiffs have their action for damages. They may continue with their action seeking damages. But the plaintiffs have not shown that their action for damages is not an adequate remedy, there is some irreparable harm that exits and that damages by way of a monetary compensation is somehow insufficient. I am not persuaded that an irreparable harm exits that compels the Court to intervene and provide injunctive relief.

[24] On the evidence provided by the plaintiffs in their motion, no such irreparable harm has been shown.

[25] In addition, there is the report the defendant obtained from Mr. Holmes which sets out measures that can be taken to decrease any damages caused to the plaintiffs’ property. The plaintiffs did not provide any report from a professional third party that contravenes or contradicts the measures recommended by Mr Holmes or that the defendants’ implementation of the recommendations was deficient.

[26] All the Court had from the plaintiffs’ evidence is that the measures were not done or were done ineffectually. Mr. Holmes in his follow up report stated that the recommendations were implemented and that the Golf Course meets industry standards.

[27] The onus in on the plaintiffs to satisfy the Court that irreparable has been shown. The plaintiffs have failed to meet that onus.

[28] In addition, the balance of convenience sides with the defendants. The defendants have been running the Golf Course for years. The defendants did not ignore the plaintiffs concerns and took steps to attempt to ameliorate the plaintiffs’ concerns.

[29] To grant the relief requested by the plaintiffs, the defendants’ business will be negatively affected. The third hole may have to be closed. Patrons of the defendants would be subject to the Court Order and as such could be subject to police involvement or damages if the golf ball they hit goes into the property of the plaintiffs.

[30] I echo the statement of Strathy J. (as he then was) in Tangelwood (Sierra Homes) Inc. v. Munro Gold Ltd: “golf is a game of eighteen holes and to prevent the owner from offering less than a full course would be a serious interference with its business and would likely cause damage to the course’s reputation and a loss of clientele.”

[31] The plaintiffs conceded that they were aware that by purchasing the property on a golf course, they would be subject to golf balls entering their property.

[32] There was no evidence before the Court that the present situation of the plaintiffs was either substantially different from the 15 years that the plaintiffs lived at the property, that is before the defendants purchased the Golf Course.

[33] Consequently, I am not persuaded that the balance of convenience favours the plaintiffs. I am of the view that the balance of convenience favours the defendants.

[34] I therefore conclude that the plaintiffs have not satisfied the criteria of the balance of convenience.

Disposition

[35] I conclude that the plaintiffs have failed to meet their onus to show that an injunction should be granted in their favour and as such, I dismiss their motion.

Costs

[36] The plaintiffs seek costs in the amount on a partial indemnity basis in the amount of $13,083.25.

[37] The defendants seek costs in the amount of $28,903.16 on a partial indemnity basis. The defendants seek costs in the amount of $5,062.50 for their attendance on July 27, 2021, where the defendants requested an adjournment that was originally contested and then agreed to on the day of the motion. The defendants also seek $3,631.50 for attendance on September 1, 2021, because the plaintiffs served a 177page supplemental affidavit just days prior to the return date of the motion. And the defendants seek $20,209.16 for the argument and work required for the motion itself.

[38] The successful party is presumptively entitled to costs. The defendants are the successful party.

[39] The Court is to assess costs not as a mechanical exercise of calculating hourly rates and hours charged but is to take a holistic approach and award costs that are fair and reasonable for the unsuccessful party to pay in the circumstances. The purpose of costs is to encourage settlement and to discourage or sanction inappropriate behaviour by litigants. Serra v. Serra and Boucher et al. v. Public Accountants Council for the Province of Ontario.

[40] Having reviewed the Bill of Costs submitted by the defendants, I find that a fair and reasonable amount for plaintiffs to pay the defendants in costs is $15,000.

[41] I therefore order that the plaintiffs pay the defendants costs in the amount of $15,000 in 30 days.

Released: March 22, 2022