Court File and Parties

COURT FILE NO.: CV-23-12

DATE: March 1, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2455379 Ontario Inc., Applicant

AND:

MacDonald Turkey Point Marina Inc., Respondent

BEFORE: MacNeil J.

COUNSEL: M. Stanton – Lawyer for the Applicant/Moving Party

D. Sinko – Lawyer for the Respondent/Responding Party

HEARD: February 24, 2023 (by videoconference)

REASONS FOR DECISION

OVERVIEW

[1] The Applicant, 2455379 Ontario Inc. (“245 Inc.”), makes this motion, on an urgent basis, for an interim, interlocutory injunction and a mandatory order requiring the Respondent, MacDonald Turkey Point Marina Inc. (“Marina Inc.”), to remove sheds affecting 245 Inc.’s right-of-way over the gravel laneway between the parties’ properties and to remove underground hydro lines located on 245 Inc.’s property.

[2] 245 Inc. contends that it needs to bring heavy equipment down the shared laneway in order to complete repair work to berms on its wetlands before March 15, 2023.

[3] Marina Inc. requests that this motion be dismissed.

BACKGROUND

[4] 245 Inc. owns 110 Clubhouse Road, Turkey Point (“the 245 Property”). It purchased the property on September 29, 2022.

[5] The 245 Property is subject to a conservation easement agreement registered against the entire property in favour of Ducks Unlimited Canada (“the DUC Conservation Easement Agreement”). The purpose of the easement is to protect, conserve and maintain the wetland ecosystem and marshlands existing on the 245 Property.

[6] Marina Inc. owns 92 Clubhouse Road, the neighbouring lands next to the 245 Property (“the Marina Property”). Marina Inc. purchased the property in or about January 2005.

[7] Between the 245 Property and the Marina Property is a finger of land that separates marshland on the 245 Property to the South and water on the Marina Property to the North. Along the finger of land is the subject gravel laneway. It is known as C Row (“C Row”). On either side of the property line running down C Row there is a registered reciprocal right-of-way that provides each of the two properties a 20-foot right-of-way over the property of the other. Part 3 on the Reference Plan 37R-960 is the part of the 245 Property over which Marina Inc. enjoys a right-of-way (“Part 3”), and Part 2 is the part of the Marina Property over which 245 Inc. enjoys a right-of-way (“Part 2”).

[8] The reciprocal right-of-way was registered as Instrument NR375576 on June 2, 1977. It reads as follows:

Together with a right-of-way, along with others entitled thereto, over along and upon Part 3 – Plan 37R-960.

Reserving thereout and therefrom a right-of-way along and upon Part 2 – Plan 37R-960.

Alleged Encroachments

[9] C Row provides vehicular access to approximately 122 boat slips and 21 boathouses at the Marina Property. Over the years, Marina Inc. has permitted its patrons to erect shed structures (and decks) on Part 2 thereby encroaching onto C Row and 245 Inc.’s right-of-way over the Marina Property. At least one of those sheds is also located on Part 3, property owned by 245 Inc.

[10] In addition, Marina Inc. has installed underground hydro-electric utility lines under the 245 Property running alongside a portion of the C Row. 245 Inc. alleges such installation happened without the knowledge or consent of it or the previous owners of the 245 Property. (The actual date of installation was unknown when the parties attended before me.)

Berm Maintenance Work

[11] 245 Inc. asserts that the berm on its property is in need of repair and that it is unable to perform the work while its access to its right-of-way over Part 2 is blocked, and while there are underground hydro lines running under its property.

[12] 245 Inc. has obtained a permit from the Long Point Region Conservation Authority that authorizes Darrin Smith, the President and sole director of 245 Inc. (“Mr. Smith”), as follows:

To repair approximately 400 m of an existing berm. The project includes the placement of material to close the breach in the berm adjacent to a Provincially Significant Wetland (“the LPRCA Permit”).

[13] The LPRCA Permit states that it is conditional on the work being done at the locations and as per the dimensions “indicated on the enclosed copy of the work permit application dated July 22, 2022 and the associated information”. The record before me does not appear to contain the entirety of application information submitted. A Permit Application – Schedule A, submitted by Mr. Smith and signed October 7, 2022, was filed with the court and it attaches a hand-sketch of the 245 Property and proposed berm repair work.

[14] A proposal relating to the berm repair work was also submitted to the Department of Fisheries and Oceans Canada (“the DFO”). Correspondence from the DFO to Mr. Smith, dated January 23, 2023, relating to the proposal that was received on July 11, 2022 (prior to 245 Inc.’s purchase of the 245 Property), describes the proposed work as follows:

(a) Repair 13 sections of berm each measuring 20m x 6m in Ferris Marsh for a total project footprint of 1560m²; and,

(b) Install an 800mm CSP culvert that connects Lake Erie to the lowest point in each of the two wetland cells.

[15] In its letter, the DFO advises that it has reviewed the proposal to determine, among other things, its effects on the fish and listed aquatic species at risk using the area in the vicinity of where the proposed work is to be located. The DFO states, on page 2, that:

To avoid and mitigate the potential for prohibited effects to fish and fish habitat (as listed above), we recommend implementing the measures outlined in your plan, in addition to the following listed below:

• Work must be completed between February 01 – March 15, 2023 while the ground is frozen;

Provided that you incorporate these measures into your plans, the Program is of the view that your proposal will not require an authorization under the Fisheries Act or permit under the Species at Risk Act.

[16] All of the “measures outlined” in 245 Inc.’s plan and other related information, as submitted to and considered by the DFO, were not before me on this motion.

[17] Mr. Smith attests that, in order to “complete the berm works, build the trench and line it with clay”, he is required to take very large, heavy equipment down C Row, including 40-50 tonne machines, such as a bulldozer with a 12-foot wide blade, rock trucks which are each 9 feet wide and require 25 feet clearance to pass one another, and tri-axel trucks. 245 Inc. argues that it is not possible to bring the required machines and equipment down C Row with the shed structures in place.

[18] In his reply affidavit, Mr. Smith states that the fact that he has been able to bring a single excavator up and down C Row is not determinative of the issue. While he has started some of the berm works, the berm he will be working on involves digging a trench and lining it with clay and it is set to extend all the way to sheds that he asserts were constructed in 2021 and 2022 and that are located on Part 3 (“the Recently Constructed Sheds”). He further attests that, once this new berm is built, it will prohibit access through the 245 Property itself and so these sheds will “completely block the roadway”.

[19] Finally, 245 Inc. argues that it will be prevented from doing the berm maintenance work and operating heavy equipment in the area of Marina Inc.’s underground hydro wires. It contends that these hydro lines constitute a clear trespass and violation of its property rights, and also pose a dangerous hazard. A Plan of Survey, dated March 13, 2007 and signed by S.M. Ruuska OLS from the firm West and Ruuska (“the 2007 Survey”), shows that there existed, in 2007, overhead hydro lines running to the easterly end of C Row. Today, 245 Inc. argues, it appears that these lines have been buried underground on its property, unbeknownst to the owner of the 245 Property. 245 Inc. submits that, since Marina Inc. did not provide any evidence as to when the hydro lines were buried, the court can infer that it happened between 2007 and 2023.

[20] 245 Inc. is seeking an order requiring Marina Inc. to remove the shed structures located on C Row and the underground hydro lines that are located on the 245 Property on an urgent basis.

ISSUES

[21] This court must determine if 245 Inc. is entitled to an interim, interlocutory mandatory injunction against Marina Inc. requiring the immediate removal of:

a. the Recently Constructed Sheds that are located on Part 3, within the right-of-way on the 245 Property;

b. the shed structures located on Part 2, within the right-of-way on the Marina Property; and

c. the underground hydro lines installed on the 245 Property by Marina Inc.

[22] Counsel for 245 Inc. advised that it is no longer seeking the removal of the entrance gate to C Row on this motion.

[23] 245 Inc. has given an undertaking respecting damages, as required by Rule 40.03 of the Rules of Civil Procedure.

ANALYSIS

[24] 245 Inc. contends that it has a right to use the C Row’s entire width, being 40 feet, for the purpose of accessing its property. In its originating application, 245 Inc. seeks, among other things, a mandatory injunction directing and requiring Marina Inc. to remove all obstructions, encumbrances, and interferences with Part 2, including decks, sheds, parked vehicles and structures, and to reinstate the Part 2 and Part 3 rights-of-way to their original state; and directing and requiring Marina Inc. to remove or cause to be removed any and all hydro installations that have been installed on and under the 245 Property, including Part 3.

Test for a Mandatory Interlocutory Injunction

[25] In R. v. Canadian Broadcasting Corp., 2018 SCC 5 (S.C.C.), at para. 18, the Supreme Court of Canada confirmed that, where a mandatory interlocutory injunction is sought, the applicant must show a strong prima facie case at the first stage of the RJR-MacDonald test as opposed to demonstrating a “serious question to be tried”. It described the test as follows:

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing 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;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.

[26] The Supreme Court of Canada explained the reasoning for this modified test as follows (at para. 15):

… A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”. The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR-MacDonald as “extensive review of the merits” at the interlocutory stage.

[27] Both parties agree that the Canadian Broadcasting Corp. test is the one to be applied in the circumstances.

[28] However, 245 Inc. further argues that, in keeping with the approach taken in Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), the requested interlocutory injunction to prohibit interference with its property rights should be granted if it establishes a strong prima facie case, alone, and there should be no need for it to prove that it will suffer irreparable harm or for the court to consider the balance of convenience. In Loucks, the City sought an injunction to restrain protestors who refused to allow construction vehicles into the Red Hill Valley to start construction of an expressway. Henderson J. held that, in Loucks, the traditional test should be modified because the City was requesting an interlocutory injunction to prohibit interference with its property rights, to enforce a municipal by-law and to restrain civil disobedience. As a result, the Court concluded that the injunction should be granted if the City could prove that there is a serious question to be tried, without having to prove that it will suffer irreparable harm or considering the balance of convenience, unless there were exceptional circumstances. Part of the reasoning for this modification was the recognition of the sacrosanctity of property rights.

[29] While I accept Loucks as it applies to injunctions affecting real property rights, generally, I find that it is distinguishable from the situation before me since it granted an interlocutory injunction restraining the protestors and others having notice of the injunction from obstructing the construction of the project and from trespassing on the site. It did not grant a mandatory injunction requiring the taking of positive action in the form that 245 Inc. is seeking, which would involve the removal of structures and hydro installations that have existed for at least some period of time.

[30] As a result, I will apply all three prongs of the test for a mandatory injunction as set out in Canadian Broadcasting Corp.

(a) Has 245 Inc. demonstrated a strong prima facie case?

[31] I find that 245 Inc. has established a strong prima facie case in respect of its claim that Marina Inc. has encroached onto 245 Inc.’s right-of-way over Part 2 and has trespassed onto 245 Inc.’s lands.

[32] To establish trespass to land, a claimant must show that the respondent entered upon land in the possession of the claimant, and remained on the land or put something on the land for their use without legal justification; trespass to land is actionable per se without any proof of damage: see Matar v. 1201553 Ontario Ltd. et al., 2020 ONSC 2344, at paragraph 72.

[33] Marina Inc. does not seriously dispute that the Recently Constructed Sheds are located on Part 3 of C Row, being the 245 Property. Rather, it submits that the filed photographs of these newer sheds show that there is ample clearance for vehicular access around them and that 245 Inc.’s allegation that its access in this area has been “completely obstructed” is false. As well, Marina Inc. relies on the fact that 245 Inc. installed steel I-beams and cables in this same area back in the Fall of 2022 and such activity demonstrates that there was access.

[34] With respect to the other shed structures located on Part 2, Marina Inc. submits that the 2007 Survey shows numerous shed (and deck) structures along and on C Row as of 2007. It contends that many of the sheds are in the same location as they were in 2007 but some have been repaired, replaced or upgraded over the last 16 years.

[35] Marina Inc. does not dispute that the impugned underground hydro lines are located on the 245 Property. There was no evidence before me that Marina Inc. installed the lines with the consent of 245 Inc. or any of the previous owners of the 245 Property. (Marina Inc. contends that, since this motion was brought on an urgent basis, it has not had sufficient time to locate records that relate to the installation of the underground hydro lines.)

[36] I find that 245 Inc. has satisfied the first prong of the test.

(b) Has 245 Inc. demonstrated that irreparable harm will result if the relief is not granted?

[37] Irreparable harm is harm that cannot be quantified or cured. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), at para. 64, the term “irreparable” was defined as follows:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court’s decision …; where one party will suffer permanent market loss or irrevocable damage to its business reputation …; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined … The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration … [Citations omitted.]

[38] A moving party is required to put forward clear and convincing evidence of harm. Speculative evidence is not sufficient. As the court in Airport Limousine Drivers Assn. v. Greater Toronto Airports Authority, 2005 O.J. No. 3509, 141 A.C.W.S. (3d) 1028 (Ont. S.C.J.), at paragraph 132, explained:

The key element of this test requires that the party claiming injunctive relief not merely argue that harm may result, but that it must convince the Court that it will result. Expressed another way by the Divisional Court in the Kanda decision, supra, the Court said that evidence of irreparable harm must be “clear and not speculative”. (Emphasis in original.]

Position of 245 Inc.

[39] In support of its argument that irreparable harm will result if the injunction is not granted, 245 Inc. has filed the evidence of Mr. Smith who attests:

(a) Smith Affidavit, at para. 14: “The berm that was built by the previous owners requires repair. It was significantly affected by the high water storms that have been occurring on Lake Erie. Without repair, there is a risk that the berm could fail and the wetland and the species it houses could be in jeopardy.”

(b) Smith Affidavit, at para. 20: “… If [the berm repair work is] left to next year, there is a risk that the wetland and marshland areas could dry up, invasive species could move in, and the fish, including species at risk, that normally inhabit the wetland could perish. I could also be in violation of the DUC Conservation Easement Agreement if there are negative effects to the wetland or if it dries up.”

(c) Smith Reply Affidavit, at para. 25: “… this motion is urgent, as, if it is not granted, harm could result to the natural environment and to me, since I am now subject to the DUC Conservation Easement Agreement requiring me to maintain the wetland on the [245] Property”. [Emphasis added.]

[40] 245 Inc. also relies on the evidence of James Granger (Mr. Granger”), who states that he is an open water habitat specialist and the previous manager of the 245 Property. Mr. Granger attests that he built a berm on the property in or around 2009 or 2010 to restore the wetland to its historical condition and to preserve it for the fish and other wildlife that inhabit it. On the issue of irreparable harm, at para. 7 of his affidavit, he states:

The berm now requires repair. Without installation of a new berm and/or repair of what is existing, the wetland areas could revert to dry land. The elimination of the wetland would put the species that inhabit it at risk, and would also violate the DUC Conservation Easement Agreement. [Emphasis added.]

Position of Marina Inc.

[41] It is Marina Inc.'s position that there is no irreparable harm. It argues that 245 Inc. has not established through admissible evidence that maintenance of the berm is necessary in order to preserve any wildlife or at risk species on the 245 Property. Rather, maintenance of the berm is something that 245 Inc. wishes to do. Marina Inc. asserts that the evidence of Mr. Smith and Mr. Granger regarding the risk of harm is merely speculative, and that neither of them is a qualified expert on matters of wetlands, invasive species, or species at risk.

[42] Further, Marina Inc. submits that 245 Inc. can perform maintenance of the berm despite the location of the sheds and underground hydro lines. It relies on the fact that 245 Inc. has already commenced maintenance of the berm and it has been able to drive an excavator the full length of C Row, past all of the sheds, and over the underground hydro lines. Marina Inc. also contends that the sheds did not prove to be an obstruction for 245 Inc. to drive and operate heavy equipment on C Row when 245 Inc. installed the steel I-beams and cables in the Fall of 2022. Marina Inc. argues that the fact that 245 Inc. has operated heavy equipment down C Row and begun the maintenance work on the berms also belies its claim that the underground hydro lines constitute a “dangerous hazard”.

Discussion

[43] Given their respective experience with and knowledge of the 245 Property, I am prepared to accept the evidence of both Mr. Smith and Mr. Granger to the effect that: (i) the berm is in need of repair, and (ii) if the berm is not repaired in a timely manner there is a potential risk that the wetlands could dry out. I am of the view that their opinion about the berm being in need of repair is supported by the granting of the LPRCA Permit.

[44] Having said that, there is very little probative evidence provided by 245 Inc. in support of its contention that it would suffer irreparable harm if an injunction is not granted at this particular time. I find the evidence that has been proffered is insufficient to meet the required “clear and convincing” threshold for the following reasons:

a. The description of the risk posed to the wetlands, as provided by both Mr. Smith and Mr. Granger, is speculative and goes no higher than “could”, which is a mere possibility.

b. The evidence filed by Marina Inc. establishes that large equipment has already successfully travelled down C Row. Photos and videos produced by Marina Inc. show heavy equipment – two excavators (one with a black arm and the second with a longer, yellow arm), and what looks to be a bulldozer pushing soil with a blade – appearing to do work on the berm, beginning as of February 5, 2023, and that there was adequate room on the laneway for this to occur.

c. In his reply affidavit, Mr. Smith admits that berm maintenance has begun. He did not provide any description of the size of the machines that have already traversed C Row as compared to any that are still to be used. There is no detailed description of what work remains to be done and what equipment is needed to complete it and why that equipment will not be able to travel the laneway when the other heavy equipment successfully did.

d. Mr. Smith did not explain why other alternate equipment cannot be used to perform the berm maintenance work if the originally-intended equipment cannot travel down C Row.

e. There is no evidence provided to explain why the trucks need to be able to pass each other and cannot have their passage staggered.

f. There is no evidence as to the size or width of the tri-axel trucks intended to be used.

g. There is insufficient evidence establishing the location of the underground hydro lines as compared to the vicinity where the berm maintenance work is needing to be completed.

h. 245 Inc. has not submitted any maps of the works proposed to extend the berm all the way to the Recently Constructed Sheds on C Row.

i. Marina Inc. has shut off the power to the underground hydro lines as of October 26, 2022.

[45] The evidence indicates that 245 Inc. has been able to get large construction equipment down the entire length of C Row, including past the Recently Constructed Sheds, and beyond any underground hydro lines, and has already commenced the berm maintenance work. There is no evidence demonstrating why other needed equipment will be unable to pass down C Row as this equipment has.

[46] There is also no evidence to establish how the underground hydro wires are interfering, or would interfere with, the berm repair work. With respect to the alleged safety risk posed by the underground hydro lines, the evidence before me is that the power to the impugned hydro lines is currently shut off. Thus, the lines would not appear to pose a safety risk in terms of live electricity at this point in time.

[47] While in his evidence Mr. Smith asserts that he also needs to construct a new berm and/or trench, the enclosures to the DFO permit application were not provided to the court and so there is nothing before me to indicate with any specificity where this new berm and culvert are going to be located vis-à-vis Part 3. As well, it is noted that the LPRCA Permit only authorizes repair to the existing berm. (The sketch of the intended berm maintenance that was attached to the LPRCA permit application refers to the work to be performed as “repair berm in marker outer cell” and “repair work to berm in marker inner cell”, and contains darker, thicker lines drawn that appear to reference the repair work areas.) Therefore, it is not clear that the construction of a new berm and/or trench, reaching to the edge of the property line abutting the Recently Constructed Sheds, has been approved by the Long Point Region Conservation Authority.

[48] For all these reasons, I am not persuaded that 245 Inc. has demonstrated clear and convincing evidence that it would suffer irreparable harm if an interlocutory injunction is not granted.

(c) Has 245 Inc. shown that the balance of convenience favours granting the injunction?

[49] In Optilinx Systems Inc. v. Fiberco Solutions Inc., 2014 ONSC 6944, at para. 13, Perell J. explained the balance of convenience exercise to be undertaken by the court as follows:

The balance of convenience analysis considers what is the effect on the parties and sometimes on third parties of the court granting or not granting the interlocutory injunction: American Cyanamid Co. v. Ethicon Ltd., 1975 CanLII 2598 (FC), [1975] A.C. 396, [1975] 1 All E.R. 504 (H.L.); Synergism Arithmetically Compounded Inc. v. 1130163 Ontario Inc., 1997 CanLII 12381 (ON SC), [1997] O.J. No. 4271, 81 C.P.R. (3d) 25 (Gen. Div.). This analysis involves a determination of which of the two parties will suffer the greater harm from the granting or the refusal to grant an interlocutory injunction pending a decision on the merits. In this context, the court will need to compare and contrast the harm that the plaintiff may suffer if the interlocutory injunction is refused with the harm that the defendant would suffer that would not be reparable by the plaintiff's undertaking as to damages if the interlocutory injunction is granted. The factors that the court may consider in assessing the balance of convenience and the weight to be given to them are indeterminate and will vary from case to case: RJR-MacDonald Inc. v. Canada (Attorney General), supra.

[50] Courts have recognized that injunctive relief is onerous and should only be granted when “truly necessary to ensure that a party is not deprived of his or her rights”: see 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, at para. 86.

Position of 245 Inc.

[51] It is 245 Inc.’s position that the balance of convenience favours it since it will suffer the greater harm if the trespass on its property is not rectified promptly, the underground hydro lines are not removed, and access to the rights-of-way over Parts 2 and 3 are not restored. 245 Inc. argues that it will be harmed if it cannot perform the berm maintenance work and that the underground hydro lines represent a significant hazard to everyone entering on the 245 Property and using C Row, for which it could be held responsible as owner and occupier of the property. If the hydro installations are not removed, serious injury, harm and damage could occur to anyone on the property using C Row or to someone working on the berm or operating heavy machinery in the area. The sheds are not permanent structures and can be moved. The hydro is currently turned off and the Marina is closed for the season so there is no ongoing activity at Marina Inc. that would require the presence of the sheds or the hydro.

Position of Marina Inc.

[52] Marina Inc. argues that the baseline historical evidence is that, since at least 2007, many of the sheds have encroached onto Part 2 and/or Part 3. Any further encroachment by the Recently Constructed Sheds is an additional 5.3 feet into Part 3 but this is not substantial and does not prevent 245 Inc. from accessing the 245 Property or performing maintenance of the berm. It also submits that the underground hydro lines have been in place for many years. The relief requested by 245 Inc. could affect up to 122 non-parties, being the boat slip owners on C Row. Marina Inc. submits that determination of the issues raised on this motion should be left for the application, to be made on a complete evidentiary record.

Discussion

[53] As the judge hearing an interlocutory injunction motion, I am only to decide what should happen in the interim, pending the determination of the issues in the application on its merits.

[54] I find that the situation involving the Recently Constructed Sheds on Part 3 is different than that of the sheds on Part 2 and the underground hydro lines on the 245 Property.

[55] I accept the field sketch prepared by M. Yeo, OLS, further to his attendance at the 245 Property on October 6, 2022, showing the location of the Recently Constructed Sheds on Part 3. The presence of the Recently Constructed Sheds on the 245 Property constitutes a trespass that does not require proof of substantial interference or damage to be actionable. The Recently Constructed Sheds are not permanent structures and can be moved to a different location. I conclude that the balance of convenience favours 245 Inc. as it relates to requiring the removal at this time of the Recently Constructed Sheds from the 245 Property.

[56] Given the conflicting evidence on the history of the shed structures located on C Row, this issue must be determined on a full documentary record and cross-examinations on the affidavit evidence. As well, in the absence of the parties agreeing on the location of the shed structures at issue, survey evidence is likely to be required to prove the current location of those structures. I am unable to make any proper findings regarding the sheds on C Row based on the nature of the evidence before me.

[57] With respect to Marina Inc.’s underground hydro lines, while I accept that the presence of such lines on the 245 Property would also constitute a trespass, unlike with the Recently Constructed Sheds, there was no evidence before me establishing the specific location of the underground hydro lines. As well, there was no sketch or survey showing their vicinity in relation to where the berm repair work is being done or needs to be done. Further, there was nothing to show if the lines are permanent or if they can be relocated with relative ease. Accordingly, I find that the balance of convenience favours the current status quo as it relates to the underground hydro lines, pending the final resolution of the application. However, in my view, the power to the underground hydro lines located on the 245 Property should remain off until after March 15, 2023, when the berm maintenance work is required to be completed.

[58] In comparing and contrasting the harm that 245 Inc. may suffer if the interlocutory injunction is not granted with the harm that Marina Inc. would suffer (that would not be reparable by the damages undertaking) if the interlocutory injunction is granted, I conclude that the balance of convenience favours 245 Inc. as it relates to the removal of the Recently Constructed Sheds only. Granting the requested injunctive relief directing the removal of the shed structures on Part 2 of C Row and the underground hydro lines on the 245 Property on this motion would effectively result in a final determination of those issues, in the absence of a proper evidentiary basis.

Conclusion

[59] For the foregoing reasons, I have determined the three issues as follows:

a. 245 Inc. is entitled to an interim, interlocutory mandatory injunction against Marina Inc. requiring the removal of the Recently Constructed Sheds that are located on Part 3, within the right-of-way on the 245 Property.

b. 245 Inc. is not entitled to an interim, interlocutory mandatory injunction against Marina Inc. requiring the removal of the shed structures located on Part 2, within the right-of-way on the Marina Property.

c. 245 Inc. is not entitled to an interim, interlocutory mandatory injunction against Marina Inc. requiring the removal of the underground hydro lines installed on the 245 Property by Marina Inc.

DISPOSITION

[60] 245 Inc.’s motion is granted, in part, and the following orders are made:

a. By 6:00 PM on Sunday, March 5, 2023, Marina Inc. shall remove the Recently Constructed Sheds that are located on Part 3, being the 245 Property, failing which 245 Inc. may remove the structures at Marina Inc.’s expense.

b. Marina Inc. shall not turn on the power to the underground hydro lines located on the 245 Property until after March 15, 2023, or unless otherwise ordered by the court.

COSTS

[61] As agreed to by the parties at the hearing, costs of this motion are reserved to the Judge hearing the application proper.

MacNEIL J.

Released: March 1, 2023