COURT FILE NO.: CV-18-77889
DATE: 2024/01/16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rolf Baumann
Plaintiff
– and –
Gregory Capello and 1693876 Ontario Inc
Defendants
J.F. Lalonde, for the Plaintiff
Michael Rappaport, for the Defendants
HEARD: June 5-9, 2023
ORAL DECISION GIVEN: June 6, 2023
REES J. (orally)
REASONS FOR DECISION
CLAIM FOR INJUNCTIVE RELIEF UNDER RULE 76
[1] This is an action for nuisance and the tort in Rylands v Fletcher, brought under the simplified procedure in Rule 76. In essence, the plaintiff alleges that the defendants’ development of their property caused and is causing ongoing damage to his own property.
[2] In the defendants’ opening statement and through a factum filed in response to the plaintiff’s motion to strike the defendants’ expert’s affidavit, the defendants seek, for the first time, an order striking the plaintiff’s claim for mandatory or injunctive relief in the plaintiff’s Amended Statement of Claim because this action is brought by way of simplified procedure. The defendants argue that the action was improperly commenced under Rule 76 and is an abuse of process. In the alternative, the defendants contend that the plaintiff is disentitled to mandatory or injunctive relief in proceedings under Rule 76 and contend that this is a reason such relief should be denied.
[3] To be clear, the defendants have brought no motion. It is simply an argument raised by them, and yet their factum on the plaintiff’s motion to strike their affidavit seeks an order striking the plaintiff’s claim for mandatory or injunctive relief.
[4] The defendants raise two other grounds for why the plaintiff’s claim for mandatory or injunctive relief ought to be denied: (1) the relief sought lacks the necessary specificity to allow the defendants to know how to comply; and (2) this court lacks jurisdiction to issue the relief because it is the same issue dealt with under the Provincial Offences Act, R.S.O. 1990, c P. 33 and that is within the exclusive jurisdiction of the Ontario Court of Justice.
[5] I advised the parties that that I would address these two other grounds following further submissions at the conclusion of trial. However, because the defendants seek to strike the plaintiff’s claim for mandatory or injunctive relief and argue that the proceedings were improperly commenced under Rule 76, I determined that it would be fair to the parties to address this submission at the outset of trial. The plaintiff agreed.
[6] The plaintiff commenced this action under Rule 76 on September 21, 2018. Following the defendant Mr. Capello’s transfer of ownership of 283 Kirchoffer Avenue to 1693876 Ontario Inc. (“169”), the plaintiff amended his statement of claim with leave to add the corporate defendant, among other things. The Amended Statement of Claim is dated on January 27, 2022.
[7] At one point in oral submissions counsel for the defendants suggested that 169 had not been properly served with the Amended Statement of Claim and that he had not been counsel for the parties at the time but had been acting as a “friend of the court”. This is the first time this allegation was aired. In any event, counsel for the defendants did not press the service issue and acknowledged that the defendants are one in the same and that he represents both parties at this time. I note parenthetically that there was no order on the record appointing Mr. Rappaport as a friend of the court in these proceedings.
[8] The defendants made no objection under Rule 76.02(5)(a). Nor was an objection raised at any of the parties’ previous appearances on the way to trial. It was not raised before Justice MacLeod at the return of the plaintiff’s motion for an interlocutory injunction on November 29, 2019. It was not raised before Justice Robert Smith on February 21, 2020 at a later return for a motion for interlocutory relief.
[9] It was not raised at the June 16, 2021, case conference before Associate Justice Kaufman, as he was then. It was not raised before Justice Patrick Hurley at a further return of a motion for interlocutory injunctive relief on October 15, 2021. It was not raised at the trial management conference before Justice Gomery on February 15, 2023. And it was not raised at the pre-trial conference before Justice MacLeod on April 25, 2023.
[10] Instead, as discussed, the defendants spring this issue on the plaintiff in their opening statement and their factum responding to the plaintiff’s motion to strike the defendants’ expert’s affidavit, which was brought on June 1, 2023, four days before the start of trial.
[11] The defendants rely on De Rose & Associates v. Cariati, 2007 CanLII 46707 (Ont. Div. Ct.) and Gensteel Doors Ontario Inc. v. All Can Doors & Hardware Inc., 2016 ONSC 2026 (per Master Muir). The defendants argue that I am bound by De Rose and that it is dispositive.
[12] De Rose is an appeal from a trial judge’s decision. The appellant took issue with the trial judge’s refusal to order a reference and in calculating damages. The appellant also appealed the trial judge’s refusal to award punitive damages. Finally, the appellant sought leave to appeal the trial judge’s refusal to order costs in favour of the appellant because the action should have proceeded under the simplified rules.
[13] In brief oral reasons, the Divisional Court (per Swinton J.) dismissed the damages appeal, granted leave to appeal the costs order, and allowed the costs appeal. The Divisional Court held the trial judge erred in not awarding costs because of Rule 76.13(3) for two reasons. First, the court held, “there was a claim in the Statement of Claim for relief other than monetary - for example, a request for injunctive relief was included and a request for a declaration of trust. Therefore, the action was appropriately started under the regular rules” (at para 6). Second, the court held, “A substantial counterclaim was issued claiming well in excess of $50,000. That counterclaim was not withdrawn until the first day of trial. It was then too late to expect a conversion to the simplified procedure” (at para. 7). Rule 76.13(3) does not apply if the rule was unavailable because of the counterclaim, crossclaim or third party claim of another party: Rule 76.13(5).
[14] Gensteel was a motion, among other things, setting aside a noting in default and for the continuation of the action under the ordinary rules rather than under the simplified procedure. Relying on De Rose, Master Muir held that “Although the monetary relief sought is clearly less than $100,000.00, the related declaratory relief and mandatory orders would appear to bring this proceeding outside of the ambit of the Rule 76 simplified procedure” (at para. 12).
[15] In discharging his duty of candour, counsel for the plaintiff also brought Hanisch v. McKean, 2013 ONSC 5086, to my attention. Hanisch are reasons on costs. The Superior Court rejected an argument that the costs sanctions under Rule 76.13(3) ought to apply because the claim should have been brought as a simplified proceeding. The court held that the regular procedure was appropriate and that the simplified procedure did not apply to claims for declaratory relief or to claims for injunctive relief (at para. 40). It also held that the costs sanctions did not apply because of a counterclaim for declaratory relief, injunctive relief, and punitive and aggravated damages all took the action outside of rule 76 (at para. 42).
[16] Neither De Rose nor Hanisch apply here. They consider the application of Rule 76.13(3) to bar recovery of costs in scenarios where the plaintiff chose not to proceed by way of simplified procedure. They do not speak to a scenario where – as here – the plaintiff has opted into the simplified procedure and no objection was taken by the defendant. Similarly, Gensteel does not apply. It considered an objection by the defendant that the action proceed under the ordinary procedure rather than the simplified procedure. It did not consider the situation which confronts us here, that is where the plaintiff has opted into the simplified procedure and no objection was taken by the defendants.
[17] The issue was most recently considered by Justice de Sa in Sapex Canada Inc. v. 2264233 Ontario Inc., 2022 ONSC 187. In Sapex, the court was asked to grant a Mareva injunction. The defendants argued that Rule 76.02(1) limited the jurisdiction of the court to matters involving “money, real property, and personal property”. If the plaintiff seeks an injunction, the defendants argued that the action must proceed by way of the ordinary procedure.
[18] Justice de Sa held while the simplified procedure is mandatory for matters which are under $200,000 where the claim is exclusively for money, real property, and personal property, it remains available for other matters under Rule 76.02(3), subject to subrules (4) to (9). It is only those matters specified in 76.01(1) that are precluded from proceeding under the simplified procedure.
[19] Justice de Sa further disagreed that the main action must be removed from the simplified procedure when ancillary relief like an injunction is sought. This, the court held, “would not only waste judicial resources and be a source of inefficiency but would have the effect of actively discouraging the public from utilizing the simplified procedure,” contrary to the intention of increasing the monetary limit to $200,000 (at para. 32).
[20] Finally, Justice de Sa held (at para. 33):
Regardless, even if the provision were interpreted in the way suggested by the Defendants, it would not limit this Court’s jurisdiction to grant injunctive relief where warranted. The rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04 of the Rules of Civil Procedure.
[21] I fully agree with Justice de Sa’s analysis. Plaintiffs seeking mandatory orders or injunctive relief may opt to bring their action by way of simplified procedure under Rule 76.02(3), provided it is not foreclosed by Rule 76.01(1) and provided the claim otherwise complies with the requirements of subrules 76.02 (4) to (9).
[22] Those conditions are met in the case before me. Nothing in Rule 76.01(1) forbids the bringing of a claim for mandatory orders or injunctive relief.
[23] Subrules 76.02 (4) to (9) were also complied with. The defendants did not object in their statement of defence under paragraph 76.02(5)(a). The defendants can’t lie in wait until the first day of trial to object. That is unfair to the plaintiff who as waited over four years and eight months to have this action heard by a court. It would not be in the interests of justice to strike the plaintiff’s claim for mandatory or injunctive relief, or to adjourn this matter so that it could be continued under ordinary procedure.
[24] In any event, I conclude that Rule 76 cannot limit this court’s equitable jurisdiction as a superior court and under s. 96 of the Courts of Justice Act, R.S.O. 1990, c C.43.
[25] I am further supported in my conclusion by a number of cases in which the superior court has issued permanent injunctions or mandatory orders in actions under the simplified rules. Although it does not appear from these cases that the issue was argued, it is implicit that the court concluded it had jurisdiction to order permanent mandatory or injunctive relief in an action tried by way of simplified procedure.
[26] In Keryluk v. Lamarche, 2006 CarswellOnt 8389, which was an action brought under the simplified procedure for nuisance caused by changes to the defendants lot which caused flooding on the plaintiffs’ property, Justice Hackland ordered a permanent injunction directing the defendants to refrain from conducting any excavations on the right of way and enjoining them from taking any actions on their property which are likely to direct surface water drainage onto the plaintiff’s lot. Further, the court ordered that the defendants were to maintain the existing swale on their lot running along the property line with the plaintiffs’ lot. The defendants appealed the liability finding. While the availability of injunctive relief in a simplified action was not raised on appeal, I note that the Court of Appeal affirmed Justice Hackland’s “thorough and considered reasons for judgment” (2008 ONCA 281 at para 1) and dismissed the appeal. I find Keryluk particularly apposite.
[27] In at least two other actions under the simplified procedure the superior court has issued permanent injunctions against the defendant: Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 O.R. (3d) 663 (S.C.J.); and Daboll v. DeMarco, 2011 ONSC 1.
[28] Finally, the defendants contend that they are prejudiced by having to respond to the expert evidence under the simplified rules because they lose the right to cross-examine on the expert’s affidavit before trial, a right they say they would have in proceedings under the ordinary rules.
[29] I had some difficulty understanding the basis for this submission. It seems to rest on a misapprehension that affidavits from experts would be served and filed in a regular trial, and that the party opposite would be entitled to cross-examine on the affidavit out of court. But this is not how things proceed in the ordinary course. In an action under ordinary proceedings, expert reports are served on the party opposite, but no affidavits served or filed with the court (except with leave). Expert evidence is normally led at trial by the party tendering the evidence in examination in chief and the party opposite then cross-examines. This is to be contrasted by the summary trial under the simplified rules in which evidence in chief is led by way of affidavit and cross-examination occurs viva voce at trial.
[30] The bottom line is that there is no prejudice to the defendants. Yes, the hearing proceeds in a more summary way and time limits for cross-examination may be more rigorously applied, but this is not prejudice in any real sense. It is a proportionate procedure tailored to the nature and amount of the claim. This is a relatively straightforward claim for nuisance and the tort in Rylands v Fletcher. Nothing about the injunctive relief sought makes proceeding by way of simplified procedure disproportionate or unfair. In any event, I will be mindful to allow the defendants full and fair cross-examination in this proceeding that is proportionate to the issues.
[31] In closing, I have been mindful of the interpretive principles set out in subrules 1.04(1) and (1.1):
Interpretation
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
I am also mindful of the admonition of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, at paras 1-2:
[1] Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre- trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[32] These words were written about summary judgment motions, but the concern behind them is equally applicable here. I have been mindful of the need to ensure proportional procedures tailored to the needs of the particular case. I am satisfied that proceeding under the simplified rules works no unfairness to the defendants. By contrast, striking the plaintiff’s claim for injunctive or mandatory relief or adjourning to proceed under ordinary procedure would not be fair and just to the plaintiff.
Released: January 16, 2024
Released: January 16, 2024
COURT FILE NO.: CV-19-77889
DATE: 2024/01/16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rolf Baumann
Plaintiff
– and –
Gregory Capello and 1693876 Ont. Inc.
Defendants
REASONS FOR DECISION
CLAIM FOR INJUNCTIVE RELIEF UNDER RULE 76
Rees J.