Court File and Parties

COURT FILE NO.: CV-21-87726 DATE: 2024/05/06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Melynda Layton, Moving Party – and – Canadian Dental Hygienists Association, Responding Party

Counsel: Melynda Layton, Self-Represented Craig O’Brien, for the Responding Party

HEARD: March 27, 2024

REasons for Decision Interlocutory Injunction Rees J.

Overview

[1] Ms. Melynda Layton and the Canadian Dental Hygienists Association own neighbouring properties. Following an acrimonious disagreement over access to her backyard parking, Ms. Layton commenced an action under the simplified procedure against the Association.

[2] In essence, Ms. Layton alleges that she has a right of way over the Association’s alleyway that permits her and her tenants to park their cars in her backyard and that permits contractors access to her building for repairs and maintenance. Ms. Layton also alleges that the Association has breached several statutes by impeding access to her backyard.

[3] The Association denies this. The Association argues that Ms. Layton’s right of way extends only part of the way over its alleyway. The Association argues that following a hearing in 2002, the land registrar issued an order that makes it clear that there is no right of way extending all the way to Ms. Layton’s backyard. The Association also denies that it has breached any statutes or city by-laws. The Association has agreed, however, to permit Ms. Layton’s contractors reasonable access through the alleyway into her backyard for repairs and maintenance to her property.

[4] The Association counterclaims for a declaration that it is the sole owner of the alleyway and seeks to permanently enjoin Ms. Layton from trespassing on what it says is its land, among other things.

[5] Ms. Layton brings this motion for an interlocutory injunction. She seeks this relief under this court’s equitable jurisdiction and as statutory relief under the Municipal Act, 2001, S.O. 2001, c. 25, the Fire Code, O. Reg. 213/07, the Road Access Act, R.S.O. 1990, c. R.34, and the Trespass to Property Act, R.S.O. 1990, c. T.21.

[6] In the result, I dismiss Ms. Layton’s motion for an interlocutory injunction.

Background

[7] Some of Ms. Layton’s causes of action are difficult to parse on the face of the Amended Amended Statement of Claim, but the causes of action appear to include breach of contract, trespass, nuisance, and “conspiracy to injure economic relations”. [1] Ms. Layton also alleges that the Association has breached the Municipal Act, 2001, the Fire Code, the Road Access Act, and the Trespass to Property Act. As for the Municipal Act, 2001, she says that the Association has breached the City of Ottawa Zoning By-Law 2008-250, Traffic and Parking By-Law 2017-301, and Property Maintenance By-Law 2005-208.

[8] The City of Ottawa was originally named a co-defendant, but following a settlement with Ms. Layton, she amended her pleadings to remove the City.

[9] The trial of the action is scheduled to commence on September 16, 2024.

Issues

[10] The motion raises the following issues:

a. Should Ms. Layton be granted a statutory injunction against the Association? b. Should Ms. Layton be granted an interlocutory injunction against the Association?

[11] I will consider each issue in turn.

Analysis

Issue 1: Should Ms. Layton be granted a statutory injunction against the Association?

[12] As discussed, Ms. Layton alleges that the Association has breached the Municipal Act, 2001, the Fire Code, the Road Access Act, and the Trespass to Property Act. She says she is entitled to a statutory injunction under those statutes.

[13] The authority for the court to issue a statutory injunction arises from legislation. Parliament or the Legislature may provide express statutory authorization for injunctions: see for e.g., Competition Act, R.S.C. 1985, c. C-34, s. 33. In some instances, the courts have also construed a statute’s broad remedial discretion to include a statutory injunction even without express statutory authority. For example, the Court of Appeal for Ontario has held that the broad discretion given to the court to fashion an oppression remedy under s. 241(3) of the Canada Business Corporation Act, R.S.C. 1985, c. C-44, includes discretion to issue an injunction to remove a director or officer of a corporation: Catalyst Fund General Partner I Inc. v. Hollinger Inc. (2006), 79 O.R. (3d) 288 (C.A.), at paras. 49-51. For a discussion of statutory injunctions, see. Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted May 4, 2024), (Toronto: Thomson Reuters, 2023), at § 3:9.

[14] It is ultimately a question of interpretation whether a statute empowers the court to grant an injunction.

[15] Nothing in the text, purpose, and context of the Road Access Act and the Trespass to Property Act leads me to conclude that they authorize the court to issue an injunction at the instance of a private party.

[16] The Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the Fire Code’s enabling statute) authorizes the relevant public authority to apply to the court for injunctive relief to restrain a breach of the Fire Code, but it does not authorize a private party to do so: s. 32.

[17] Of the statutes Ms. Layton relies on, only s. 440 of the Municipal Act, 2001 provides the court with the authority to issue an injunction at the instance of a private party, and it does so expressly. Section 440 provides:

Power to restrain

440 If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

[18] There is no dispute that Ms. Layton has standing under s. 440 as a taxpayer.

[19] The question then arises, does s. 440 authorize the court to grant interlocutory injunctions? Ms. Layton contends she may obtain an order against the Association under s. 440 pending the final determination of the dispute. She adds that under s. 440 she need only establish that the Association has contravened a by-law of the City of Ottawa or any other Act to obtain an order from this court restraining the contravention. She says she need not meet the three-part test for an interlocutory injunction under this court’s equitable jurisdiction.

[20] This court has held that interlocutory relief is available under s. 440. In doing so, the court has applied two different tests to determine when a moving party is entitled to interlocutory relief under s. 440.

[21] One line of cases applies the three-part RJR-MacDonald test when a private party is seeking the relief. See Mackenzie et al. v. Vigneswaran, 2024 ONSC 1190; JJ’s Hospitality v. Kal Tire, 2020 ONSC 6198, 37 C.E.L.R. (4th) 74; Davies v. Syed, 2020 ONSC 5732, 26 R.P.R. (6th) 145; Township of King v. 2424155 Ontario Inc., 2018 ONSC 1415, 74 M.P.L.R. (5th) 1. The RJR-MacDonald test is usually applied when an interlocutory injunction is sought under the court’s equitable jurisdiction. The RJR-MacDonald test requires the moving party to establish: (i) that there is a serious question to be tried on the merits; (ii) the moving party will suffer irreparable harm if the relief is not granted; and (iii) the balance of convenience favours granting the injunction: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334.

[22] A second line of cases under s. 440 applies a strong prima facie test when the moving party is a public authority — the municipality or local board. See The Corporation of the Town of Wasaga Beach v. Persons Unknown, 2023 ONSC 4929, 42 M.P.L.R. (6th) 275; The Corporation of the City of Windsor v. Persons Unknown, 2022 ONSC 1168, at para. 52; Automotive Parts Manufacturers’ Association v. Boak, 2022 ONSC 1001, at paras. 59-60; Armour v. 2293398 Ontario Inc et al., 2017 ONSC 6623, 71 M.P.L.R. (5th) 98; York (Regional Municipality) v. DiBlasi, 2014 ONSC 3259, 24 M.P.L.R. (5th) 269; Hamilton (City) v. Loucks (2003), 232 D.L.R. (4th) 362 (Ont. S.C.). Under this test, the municipality or local board must show that there is “a strong prima facie case that there is a breach of the by law”, but they need not establish irreparable harm nor that the balance of convenience favours granting the injunction. This is because a public authority is presumed to be acting in the public interest and a breach of the law is presumed to be irreparable harm to the public interest.

[23] In my view, when a private party seeks an interlocutory order under s. 440, it must satisfy the three-part test for an interlocutory injunction under RJR-MacDonald. I come to this conclusion for three reasons.

[24] First, the Municipal Act, 2001 does not suggest a compelling reason to depart from the RJR-MacDonald test. The Act does not set out a test for interlocutory relief. Although it expressly contemplates the granting of permanent relief following a final adjudication of the merits, it is silent about interlocutory relief. In my view, it is implied that interlocutory relief is available under s. 440. The RJR-MacDonald test is compatible with the statutory purpose at the interlocutory stage. Nothing in the text, purpose, and context of s. 440 calls for a departure from the RJR-MacDonald test. The RJR-MacDonald test is nuanced and can account for all relevant circumstances, including the statutory context. Given that the statute does not suggest a compelling reason to depart from the RJR-MacDonald test, it promotes the unity and coherence of the law to apply it.

[25] Second, as a motion judge at the interlocutory stage of proceedings, I am not well-positioned to fully evaluate the evidence and the legal rights of the parties based on an incomplete record. As the British Columbia Court of Appeal observed, “The issues of irreparable harm and balance of convenience are relevant to interlocutory injunctions precisely because the court does not, on such applications, have the ability to finally determine the matter in issue”: Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 9 B.C.L.R. (5th) 299, at para. 27.

[26] This reasoning was adopted by the Court of Appeal for Ontario in 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 315 O.A.C. 160, at paras. 78-80. It held that “[t]he RJR-Macdonald test is designed for interlocutory injunctive relief. Permanent relief can be granted only after a final adjudication. Different considerations operate and, therefore, a different test must be applied, pre- and post-trial”: at para. 80.

[27] The incomplete record is amplified where – as here – there has been no cross-examination on the affidavits filed on the motion. Ms. Layton brings this interlocutory motion in the context of an action commenced under the simplified procedure. The prohibition in r. 76.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the cross-examination of deponents on motions brought within an action under the simplified procedure only heightens my concern of an incomplete record. What I have before me is sharply differing affidavits without the benefit of cross-examination. [2]

[28] Given the incomplete record, it would be prudent to require a private litigant who seeks an order under s. 440 to satisfy the same safeguards as interlocutory injunctions granted under the court’s equitable jurisdiction. Otherwise, private litigants could too readily invoke the remedial authority of this court before a final adjudication of the merits and a thorough sifting of the evidence. Nothing in s. 440 suggests that this was the Legislature’s intention.

[29] Finally, this motion for an interlocutory injunction under s. 440 is not brought by a public authority. Rather, it is brought by a private party. Ms. Layton is presumed to be advancing her own interests rather than the public interest in bringing this motion: RJR-MacDonald, at p. 344. This too calls for the application of the RJR-MacDonald test rather than making the relief more readily available without requiring a private litigant to show that her private interest or the public interest will be irreparably harmed and that the balance of convenience favours granting the injunction.

[30] Distinguishing between interlocutory injunctions sought by private parties versus public authorities reconciles this court’s jurisprudence on interlocutory injunctions under s. 440.

[31] Because I have concluded that the three-part RJR-MacDonald test applies to interlocutory relief sought by a private party under s. 440 of the Municipal Act, 2001, it is convenient to consider the statutory and equitable relief sought by Ms. Layton together. I do so below.

[32] Although I have concluded that none of the Fire Protection and Prevention Act, 1997, the Fire Code, the Road Access Act, and the Trespass to Property Act provides the court with statutory authorization to grant injunctive relief to restrain their contravention at the instance of a private party, the court has equitable jurisdiction to grant injunctions to restrain the breach of statutes. See e.g., Attorney-General for Ontario v. Grabarchuk et al. (1976), 11 O.R. (2d) 607 (Div. Ct.) (licensing regime); Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 (human rights); and Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513 (regulated professions). The legislation may also be indirectly enforceable through s. 440 of the Municipal Act, 2001, an issue to which I will return below.

[33] Thus, I will also consider the alleged breaches of the Fire Code, the Road Access Act, and the Trespass to Property Act below.

Issue 2: Should Ms. Layton be granted an interlocutory injunction against the Association?

[34] To recap, the party seeking an interlocutory injunction must satisfy the following three-part test set out in RJR-MacDonald, at p. 334:

a. There is a serious question to be tried on the merits; b. Irreparable harm will be suffered if the injunction is not granted; and c. The balance of convenience favours granting the injunction.

[35] I will consider each in turn.

Is there a serious issue to be tried?

[36] On the first branch of the test, a moving party must satisfy the court that there is a serious issue to be tried. This is determined “on the basis of common sense and an extremely limited review of the case on the merits”: RJR-MacDonald, at p. 348. Unless the case on the merits is frivolous or vexatious, the court should then consider the second and third branches of the test for an interlocutory injunction: RJR-MacDonald, at p. 348.

[37] The Association concedes that there is a serious issue to be tried regarding the alleged trespass arising from some snow removal. But it disputes that Ms. Layton has established a serious issue on the other claims she advances.

[38] I conclude that there is a serious issue to be tried.

[39] Ms. Layton alleges that the Association breached the Fire Code by not keeping its alleyway clear. She argues that the Fire Code requires a second exit from her property and that the Association’s alleyway provides a path for egress.

[40] The Association disputes this. It argues that it has not breached any provision of the Fire Code. It argues that the Association’s alleyway is not a “fire access route” within the meaning of s. 2.5.1.2(1) of the Fire Code. The Association also argues that neither its land nor Ms. Layton’s contains a “storage yard” within the meaning of ss. 3.2.1.8(5) and 3.2.2.13(2) of the Fire Code. Further, the Association maintains that Ms. Layton can comply with the Fire Code if she were to install a gate on the other side of her backyard, which would give her tenants egress through an alley to Wellington Street. Finally, the Association argues that if Ms. Layton’s current use of her property does not conform with the requirements of the Fire Code, then it is her responsibility to alter her use of the property to bring them in compliance. The Fire Code does not grant Ms. Layton a proprietary interest over the Association’s alleyway that she does not otherwise have.

[41] The merits of the parties’ respective positions will be for the trial judge. I am satisfied, based on an inspection order made against the Association by the Ottawa Fire Services on February 6, 2023, that there is a serious issue to be tried in respect of the Association’s alleged contravention of the Fire Code. The Fire Prevention Officer issued an inspection order stating that the Association breached ss. 2.7.1.7(1) and 2.7.1.8(1) of the Fire Code. It appears that the Association was found to be in breach because a snow pile prevented access for properly maintaining clear egress from Ms. Layton’s property.

[42] This satisfies the low bar on the first branch of the test.

[43] As for the tort claims advanced by Ms. Layton, I am satisfied that there is a serious issue to be tried with respect to trespass and nuisance. There is a genuine issue as to the scope of Ms. Layton’s right of way over the Association’s alleyway. Does it permit her and her tenants to park their cars in her backyard, or does it only permit access to her building for repairs and maintenance? Or is it even more limited than this, as the Association contends? Given this legal uncertainty, there is a serious issue to be tried about whether the Association has interfered with Ms. Layton’s property rights in nuisance. And as discussed, the Association has conceded that there is a serious issue to be tried regarding the claim for trespass.

[44] There is no serious issue to be tried with respect to the Road Access Act, however. Ms. Layton relies on s. 2(1), which provides that “[n]o person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless” certain conditions are met (emphasis added). The Court of Appeal for Ontario has held that “the Act implicitly allows the owner of an access road to close it without a court order as long as doing so does not prevent ‘all road access’ to another piece of property — in short, as long as there is alternate road access to the other property”: 2008795 Ontario Inc. v. Kilpatrick (2007 ONCA 586, 86 O.R. (3d) 561, at para. 24. Even on an extremely limited review of the record, I conclude that this claim is frivolous. The Association has not prevented “all road access” to Ms. Layton’s parcel of land. Ms. Layton’s property would still be accessible to motor vehicles from Wellington Street West.

[45] And I will assume, without deciding, that Ms. Layton has established a serious issue to be tried for her claims for conspiracy and intentional interference with economic relations, for the Association’s alleged contravention of various by-laws, and under the Trespass to Property Act.

Is there irreparable harm?

[46] On the second branch of the test, a moving party must satisfy the court that it will suffer irreparable harm. “Irreparable” describes the nature of the harm rather than its magnitude: RJR-MacDonald, at p. 341. It is harm that “either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”: RJR-MacDonald, at p. 341.

(a) Alleged breaches of contract, trespass, nuisance, conspiracy, and intentional interference with economic relations

[47] The alleged breaches of contract, trespass, nuisance, conspiracy, and intentional interference with economic relations are all, in principle, compensable in damages. Indeed, Ms. Layton seeks damages in her action. Further, Ms. Layton does not suggest she could not recover damages against the Association if she were to succeed at trial. Thus, the harm for these causes of action is not irreparable.

(b) Alleged contraventions of the City by-laws and the Trespass to Property Act

[48] Ms. Layton argues that she need not establish irreparable harm or that the balance of convenience favours granting the injunction for a statutory breach. As discussed, I disagree.

[49] None of the other alleged contraventions of statute constitute irreparable harm to Ms. Layton. The alleged breaches of municipal by-laws and the Trespass to Property Act would be compensable in tort if Ms. Layton were to succeed at trial. Nor, on this record, has Ms. Layton established irreparable harm to the public interest. The evidence from the City, which was previously a party to the action, does not support Ms. Layton’s position on at least some of the alleged breaches to the City’s by-laws. I have weighed the City’s evidence and the fact that it has taken no action against the Association under the Municipal Act, 2001 in considering the public interest. Although private and public law remedies can co-exist, Ms. Layton has not established on this record that the public interest is engaged. This is essentially a private dispute about a right of way.

(c) The Fire Code

[50] It is spring. The trial is scheduled for September. Although snowfall is unlikely, there is some evidence that at one time the Association intended to erect a fence blocking access between the alleyway and Ms. Layton’s property. Whether by piling up snow, erecting a fence, or some other means, impeding egress could harm the lives and safety of occupants of Ms. Layton’s properties. This is irreparable harm in the sense required under the second branch of the test.

Does the balance of convenience favour granting the injunction?

[51] Only the alleged Fire Code contravention remains to be considered under this branch of the test. Granting an interlocutory injunction prohibiting the Association from obstructing passage through the alleyway to permit egress from Ms. Layton’s property does little if anything to inconvenience the Association. By contrast, it protects the lives and safety of the occupants of Ms. Layton’s property.

[52] If this were all that remained to be considered, I would conclude that the balance of convenience favours granting an interlocutory injunction. But given that Ms. Layton is invoking this court’s equitable jurisdiction to enforce a statute, the jurisdiction should be exercised carefully. As the British Columbia Court of Appeal has cautioned, “Where… there is a clear method of enforcement set out in the statute, the court should not grant injunctive relief unless the statutory provision is shown to be inadequate in some respect.”: Cambie Surgeries, at para. 34.

[53] The Fire Code’s enabling statute, the Fire Protection and Prevention Act, 1997, provides a clear method of enforcement. Part VII of the Act makes it an offence to fail to comply with an inspection order: s. 30. Further, the Fire Marshal, an assistant to the Fire Marshal or a fire chief may apply to a judge of the Superior Court of Justice for an order requiring a person to comply with an inspection order or requiring a person to remedy any contravention of a provision of the Fire Code: s. 32. An inspector may also apply to the Fire Safety Commission for an order authorizing him or her to cause the thing to be done in the inspection order: s. 33.

[54] The Legislature has created a comprehensive enforcement scheme, including provision for the public authority to apply to the court for injunctive relief. I conclude that the statutory scheme is not inadequate. Absent exceptional circumstances – which are not present here – the court ought to respect the Legislature’s decision not to provide private parties with standing to seek court orders enforcing the Fire Code. The court should act with restraint lest it disturb the regulatory balance struck by the Legislature.

[55] All the more so because, according to the City’s Division Chief of Fire Prevention, if Fire Services receives a new complaint, it will assess the complaint and respond appropriately. The ongoing enforcement of the Fire Code is better left to Fire Services than through an interlocutory injunction. Although Ms. Layton suggests that Fire Services in not properly enforcing the Fire Code, I am not persuaded that this is the case.

[56] I reach the same result when I consider the relief sought under s. 440 of the Municipal Act, 2001. Where legislation – here the Fire Protection and Prevention Act, 1997 – has a comprehensive enforcement scheme, I do not read the Legislature as having intended to alter that scheme by way of indirect enforcement by a private party under the Municipal Act, 2001. Put otherwise, I give effect to the specific over the general.

[57] Accordingly, I decline to grant an interlocutory order preventing the alleged contravention of the Fire Code by the Association.

Disposition

[58] The motion for an interlocutory injunction is dismissed.

[59] Costs of the motion are reserved to the trial judge.

Justice Owen Rees Date: May 6, 2024

COURT FILE NO.: CV-21-87726 DATE: 2024/05/06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Melynda Layton Moving Party – AND – Canadian Dental Hygienists Association Responding Party REasons for Decision Interlocutory Injunction Rees J Released: May 06, 2024

[1] It is not clear on its face whether the claim is for conspiracy or intentional interference with economic relations, which are distinct torts. For convenience, I will consider both.

[2] The Association has not objected in its statement of defence under r. 76.02(5)(a) to Ms. Layton proceeding under the simplified procedure, even though she seeks permanent and interlocutory injunctive relief. Given this, there is no procedural bar to Ms. Layton seeking injunctive relief in an action under the simplified proceeding: Baumann v. Capello, 2024 ONSC 335.