Court File and Parties

COURT FILE NO.: CV-22-0058 (Cobourg) DATE: 2022 04 29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Elwood Andrew Quinn Applicant/Moving Party

AND:

Linda Frances Jones Respondent

BEFORE: Leibovich J

COUNSEL: Erik Savas, for the Applicant/Moving Party Jason Schmidt for the Respondent

HEARD: April 25, 2022

Reasons for Decision

[1] Mr. Quinn and Ms. Jones are involved in a dispute regarding a property located at 143 Concession Road 14 East, Municipality of Trent Hills, Ontario. Ms. Jones originally owned the property but she sold it to Mr. Quinn in 2017. Ms. Jones currently resides at the property as part of a commercial lease. There are currently three court applications with respect to the property. Mr. Franklin has Mr. Quinn’s power of attorney and has launched and responded to the various court applications on behalf of Mr. Quinn. Other motions have been brought.

[2] As stated, Ms. Jones sold the property to Mr. Quinn in 2017. At the core of their dispute is the validity of a buy back clause in that agreement of purchase and sale. The history of their dispute is helpfully set out by Lavine J. in Jones v. Quinn, 2021 ONSC 6463, dated November 4, 2021. Lavine J ordered that no further proceedings shall be commenced by either party, without leave of the court, on evidence of urgency and imminent harm to property or person, or for contempt of a court order.

[3] On December 7, 2021, Ms. Jones brought an interlocutory injunction prohibiting Mr. Quinn, and his agents from entering the property. Mr. Quinn had also launched another court application, called application 86, and Ms. Jones also sought an order consolidating that application with two others. Speyer J. consolidated the applications as requested and dismissed the injunction. Speyer J. released her reasons on March 29, 2022.

[4] Mr. Quinn has now brought his own motion. He submits that Ms. Jones is a trespasser and that she should be ordered removed from the property. He also wishes leave to commence an application for damages arising from Ms. Jones’ tenancy and her illegal entry to, and unlawful occupation of, the property.

[5] The motion was originally scheduled for April 13, 2022. Mr. Quinn’s materials were filed the day before at 4:30 pm. The respondent needed a brief amount of time to file their response. The matter was adjourned to April 25, 2022 to be argued. The parties agreed that repairs had to be made to the roof and the electricity although they disagreed who was to blame. I ordered that in the interim, Mr. Quinn shall have access to the property, upon 24 hour notice, to effect repairs to the roof and to inspect and repair the hydro and that, during this time, neither Ms. Jones nor anyone else shall be at the property. The repairs were not made. Ms. Jones and her son could not leave the property because her son had COVID and they were required to self-isolate.

[6] For the reasons set out below, Mr. Quinn’s request for leave to launch a new application is dismissed. In addition, his request for Ms. Jones to vacate the property is dismissed. However, I will set up a plan to have the roof repaired and the electricity turned on.

Facts Pertaining To This Motion

[7] On March 8, 2022, Mr. Franklin, on behalf of Mr. Quinn, served Ms. Jones with a Notice of Termination of their lease for breaching the terms of the lease. The Notice states:

The Tenant is in breach of the Rental Agreement contained in Schedule A of the Agreement of Private Purchase and Sale dated February 25th, 2017 as attached hereto, specifically in that:

a) The Tenant has refused the Landlord access to the property to perform capital repairs and maintenance of the roof,

b) The Tenant has performed repairs to the roof without the Landlord’s consent,

c) The Tenant has performed repairs to the roof that are not in a workmanlike and professional manner, and,

d) The Tenant has performed repairs to the roof in a manner not in accordance with all applicable governmental bylaws and codes.

[8] On April 4, 2022, Mr. Franklin made a formal demand that Ms. Jones vacate the property. She refused. Mr. Franklin attended the property and locked Ms. Jones out when Ms. Jones was absent from the property. According to Mr. Franklin’s affidavit, Ms. Jones returned to the property approximately 30 minutes later and parked her vehicle in front of the locked gate and sign. She then exited her vehicle, climbed over the locked chain holding the gate closed and went towards the farmhouse. Ms. Jones currently still resides at the property and refuses to vacate it. Mr. Franklin, in his affidavit stated that:

I believe there is imminent danger to persons and property because at present, there are no adequate roofing materials on the southern third of the farmhouse roof and it is open to the elements; the roof has 2 inch gaps between the horizontal stringers, a 6 to 8 inch gap along the entire roof line where the roof cap runs, and you can see down into the insulation. The northern third of the roof of the building has a tarp covering a basketball sized hole. There is no electrical service to the property and there are no water or sanitation services. There are 8 days of rain forecast in the next 10 days and April is the month in which the greatest amount of rain falls.

[9] Ms. Jones filed an affidavit. She did not dispute the series of events that generally led to her being locked out of her home briefly before returning. She did state that Mr. Franklin was responsible for creating additional damage to the property. She stated that:

On April 8, 2022, Mr. Franklin attended the subject property pursuant to the April 4 Notice. Contrary to the purported inspections and repairs as described therein, Mr. Franklin engaged in the following behaviour:

a. tearing roof shingles off of the roof, and cutting holes into the plywood underneath;

b. scattering the roof shingles, along with many rusty roofing nails on the lawn below, endangering the safety of myself, my animals and others walking around in that area;

c. severing hydro lines connected to the house, thereby cutting electrical power, water and heat to the subject property;

d. damaging the electrical panel and breakers in the in barn;

e. placed expanding foam in the hydro meter, disabling it;

f. removed the three (3) outdoor doors of the bunkie, exposing the furniture inside to the elements…..

Positions of the Parties

[10] Counsel for Mr. Quinn submits that they have met the test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 31, as:

The present state of the roof and the effect of the elements that will result in inevitable and irreparable harm to the century old building, and if not remedied on an urgent basis will cause catastrophic financial loss to the owner, and the ongoing danger to life and limb of any occupant, all of which is preventable by granting of the order sought, has clearly established that there is urgency and a serious issue to be tried.

[11] Counsel states that the balance of convenience test favours Mr. Quinn. Ms. Jones would have to vacate the property but this will allow for the property to be fixed which will benefit her, if she is successful in the consolidated applications before the court.

[12] Counsel for Ms. Jones submits that the request should be denied. If Mr. Quinn wants a writ of possession for a breach of the lease then he should avail himself of s. 74 of the Commercial Tenancies Act which provides the proper procedure for a landlord to pursue action against an overholding tenant where a commercial tenancy has been terminated. The moving party’s attempt to gain the relief sought through a motion for an injunction is a clear attempt to bypass Justice Lavine’s Orders that he not bring any further proceedings with respect to the property without leave of the Court. Further, Mr. Quinn has already initiated the 86 Application to obtain a writ of possession on essentially the same grounds raised in the March 8, 2022 Notice. Counsel submits that:

Further, the “imminent” damage that may occur due to the state of disrepair upon which Mr. Quinn/Mr. Franklin purport to terminate the lease and upon which they allege are grounds for the relief they request, have been created by Mr. Franklin during his attendances at the property on April 8 and 15, 2022. There is no evidence that any imminent damage would have occurred but for Mr. Franklin’s attack on the integrity of the roof on those dates.

Law and Analysis

[13] There is no dispute that the applicable test for an injunction is set out in RJR MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311, where the Supreme Court of Canada set out the following three-part test:

a. a preliminary assessment must be made of the merits of the case to ensure that there is a serious issue to be tried;

b. it must be determined that the applicant would suffer irreparable harm if the application were refused; and

c. an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[14] All three parts of the test have to be met. They are not. I do not see how Mr. Quinn would suffer irreparable harm if the injunction is not granted.

Is there a serious issue to be tried?

[15] Counsel for Mr. Quinn submits that there is clearly a serious issue to be tried. Mr. Franklin, on behalf of Mr. Quinn, lawfully and peacefully took possession of the property that Mr. Quinn owns and Ms. Jones illegally re-took possession. He submits that she is a trespasser pursuant to the Property Act. Counsel for Ms. Jones disputes that Mr. Franklin took peaceful possession of the property and disputes that Mr. Franklin has taken the proper procedural route.

[16] I agree that there are arguments for and against whether Mr. Franklin was entitled to take possession in the manner in which he did both from a legal and factual perspective. There seems to be no dispute that Mr. Franklin cut the hydro lines. Is that peaceful possession? Also, from a legal perspective no party has been able to provide me with an analogous case where there is a commercial lease but the tenant also resides at the location.

[17] I am prepared, for the purpose of this motion, to find that Mr. Quinn has met this criteria. There is a serious and rather novel legal issue to be tried.

Will there be irreparable harm if the relief is not granted?

[18] Counsel for Mr. Quinn submits that Ms. Jones and her son must permanently vacate the property so that proper repairs can be made. Counsel submits that there is a real concern that Ms. Jones will continue to let the property depreciate and that the work cannot get done with her present. Counsel submits that my interim order was not complied with and challenges the assertion by Ms. Jones that she could not vacate the property during because her son was diagnosed with COVID.

[19] I accept, based on the documentary evidence that has been filed, that Ms. Jones’ son had COVID and that is why she and her son were unable to leave the property. Furthermore, there appears to be no dispute that they had no contact with Mr. Franklin and the others. It is unclear to me, from the record filed, why some of the repairs could not be made.

[20] I agree with both parties that repairs are needed. Mr. Franklin has filed an affidavit setting out the damages to the property and blames Ms. Jones. Ms. Jones has asserted in her affidavit that Mr. Franklin caused further damages when he attended on April 8th. None of the affiants have been cross-examined. It is impossible on this record to determine exactly who is responsible for what damages, although I accept that clearly repairs were needed to the roof prior to Mr. Franklin’s April 8th visit. Mr. Fisher in his affidavit stated that it was his view, based upon his inspection on April 8th, that the roof needed to be completely removed and redone. Mr. Fisher also stated that his tool bag and safety belt were taken. Ms. Jones does not address this in her responding affidavit, although it would have been quite simple for her to do so.

[21] I do not however agree that it is necessary for Ms. Jones to be dislodged from her residence for the repairs to be made. I can and will make an order that Ms. Jones and her son be absent for the repairs to be made. Those repairs can happen during the day and Ms. Jones and her son can return at night. I do not accept counsel for Ms. Jones’ suggestion that Mr. Franklin be forbidden to attend with workers. This was the subject of the motion before Justice Speyer. She dismissed that request. Mr. Franklin stands in the shoes of the owner. He has a right, with reasonable notice, to attend the property to effect repairs as he is required to do so. The notion that the various trades people can simply attend and make the necessary repairs without the owner there is not practical.

[22] It is not lost on me that the remedy sought in this case by Mr. Quinn, for Ms. Jones to be removed from the property, is similar to the remedy sought in CV-21-86. It is clear that Mr. Quinn wants Ms. Jones gone from the property but he will have to wait until the applications are heard and decided. I do not accept that there will be irreparable harm if Ms. Jones is not ordered to vacate the property. Less draconian measures are available.

Leave Request for an Additional Application

[23] Mr. Quinn also wishes leave to commence an application for damages arising from Ms. Jones’ tenancy and her illegal entry to and unlawful occupation of the property. Such an application covers ground that is the subject matter of the current applications before the court. Justice Speyer, in consolidating the 86 application with the others, ruled that:

To hear the 86 application separately would waste the resources of the parties and the court. All three applications seek a determination of the parties' respective rights in relation to the property. Those rights are governed by a single contract. At root, all three applications are concerned with the interpretation and enforcement of the agreement made by the parties in 2017. They concern the same set of circumstances, subject matter, and parties. While the 86 application brought by Mr. Quinn seeks to enforce his asserted rights as a landlord, the determination of that application will require, like the 48 and 68 applications, consideration of their contract and the nature of the relationship created by the contract. All three applications raise common questions of fact and law.

[24] Justice Speyer’s comments apply with equal force to the current leave request. Additional court proceedings helps no one. The request for leave is denied.

Conclusion

[25] The request to “grant leave to Mr. Quinn to commence an Application for damages arising from the Ms. Jones’ tenancy and her illegal entry to, and unlawful occupation of, the property” is denied. The request that “Linda Frances Jones shall immediately vacate the PROPERTY on receipt of this Order by her and or her Counsel” and related relief requests are also denied.

[26] However, I will grant the moving party a means by which to make the repairs to the roof and electricity. I therefore order the following:

1. Counsel for Mr. Quinn shall provide to counsel for Ms. Jones a work plan within 48 hours of attending the property. The work plan shall detail the work that is to be done, the access that is needed and shall list who is attending the property. For sake of clarity, Mr. Franklin is allowed to attend the property. His family members are not. Also for the sake of clarity, Ms. Jones does not have the right to debate the work plan;

2. Ms. Jones and her son shall be absent from the property when the work is being done;

3. The work shall not commence before 8:30 am and shall not be done after 5:00 pm. No work shall be done on the weekends or statutory holidays; and

4. All communications regarding the work plan or any issue related to the property must be done through counsel. For sake of clarity Mr. Franklin shall not communicate directly with Ms. Jones or counsel for Ms. Jones. He shall communicate through his counsel.

Costs

[27] I will not order costs as there has been mixed success on this motion. In addition, both parties have behaved poorly. There is a genuine dispute between the parties with respect to the interpretation and enforcement of the 2017 agreement. Instead of working towards either the settlement of that issue or the final litigation of the issue both parties appear content to try to make the other miserable. That is not the purpose of litigation or the court system.

LEIBOVICH J Released: April 29, 2022