COURT FILE NO.: CV-23-00707643
DATE: 20241204
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HARRIS ROSEN, Plaintiff
AND:
2740309 ONTARIO INC., a.k.a. Bar Karma, DANIEL DILAN DALIMA QUINTUS, DREWCAN ENTERPRISES LIMITED, DAVID MILLER DREWETTE and JOHN DUNCAN DREWETTE, Defendants
BEFORE: Justice Glustein
COUNSEL: Wafa Khan, for the plaintiff
Hannah Sutherns, for the defendants Drewcan Enterprises Limited, David Miller Drewette and John Duncan Drewette
Brock Turville, for the defendants 2740309 Ontario Inc. a.k.a. Bar Karma and Daniel Dilan Dalima Quintus
HEARD: November 29, 2024
reasons for decision
NATURE OF THE MOTION AND OVERVIEW
[1] The plaintiff, Harris Rosen (“Rosen”), brings this motion under rule 40.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 for an interlocutory injunction against the defendants 2740309 Ontario Inc., a.k.a. Bar Karma, and Daniel Dilan Dalima Quintus (“Quintus”) (collectively, the “Bar Karma Defendants”), and the defendants Drewcan Enterprises Limited, David Miller Drewette, and John Duncan Drewette (the “Landlord Defendants”).
[2] Rosen seeks the following orders from the court:
(i) An order that the Bar Karma Defendants immediately cease carrying on its business in a manner that causes a nuisance to Rosen, and specifically, from causing, procuring or permitting the emission of amplified sound or noise vibrations from 512 Queen Street West, between the hours of 10:00 p.m. and 9:00 a.m., where that sound is audible beyond the lot limit of 512 Queen Street West, pending a determination of the issues raised in the action.
(ii) An order that the defendants (a) install a noise limiter wherein the power to the equipment is interrupted, silencing it until the noise-limiter is reset, at Bar Karma to control the emission of amplified sound or noise vibrations, especially low-frequency sounds, from 512 Queen Street West, between the hours of 10:00 p.m. and 9:00 a.m., where that sound is audible beyond the lot limit of 512 Queen Street West, pending a determination of the issues raised in the action and (b) bear the costs of the noise limiter and installation.
(iii) An order that Toronto Police Services - 14 Division immediately respond to Rosen’s calls reporting the nuisance of permitting the emission of amplified sound or noise vibrations from 512 Queen Street West, between the hours of 10:00 p.m. and 9:00 a.m., where sound is audible beyond the lot limit of 512 Queen Street West, pending a determination of the issues raised in the action
[3] The Toronto Police Service (“TPS”) was not served with the motion record and did not appear at the hearing.
[4] For the reasons that follow, I dismiss the motion.
THE APPLICABLE TEST FOR AN INTERLOCUTORY INJUNCTION IN THE PRESENT CASE
[5] Rosen relies on the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 1994 CanLII 117, under which the plaintiff needs to establish (i) a “serious question to be tried”, (ii) irreparable harm if the injunction is not granted, and (iii) the balance of convenience favours granting the injunction.
[6] The “serious question to be tried” threshold is “low” and does not engage a detailed review of the merits of the case. As stated by the court in RJR-MacDonald, at paras. 49-50:
What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case….
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[7] Under the RJR-MacDonald test, the irreparable harm requirement provides that the plaintiff must establish “harm which either cannot be quantified in monetary terms or which cannot be cured”: RJR-MacDonald, at para. 59.
[8] The balance of convenience component requires that the court determine “which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits": RJR-MacDonald, at para. 62.
[9] When applying the RJR-MacDonald test, the court will review the irreparable harm and balance of convenience factors even if the court is of the opinion that chances of success are low. The irreparable harm and balance of convenience factors relate to each other and the strength of one part of the test can compensate for weakness of the other: Bell Canada v. Rogers Communications Inc., 2009 CanLII 39481 (ONSC), 76 C.P.R. (4th) 61, at para. 29, citing Sharpe, Injunctions and Specific Performance (looseleaf edition) at para. 2.370, 2.600.
[10] In the alternative, Rosen submits that the applicable test for the court to follow in determining whether to grant an interlocutory injunction in the present case is the test set out in Hamilton (City) v. Loucks, 2003 CanLII 64221, 232 D.L.R. (4th) 362 (Ont. S.C.). In Hamilton, the court held that if a plaintiff can establish a strong prima facie case for either interference with property rights, a breach of a municipal bylaw, or that the defendants are engaging in civil disobedience, then the RJR MacDonald test does not apply. Consequently, the court is not required to consider whether either (i) the plaintiff will suffer irreparable harm if the injunction is not granted or (ii) whether the balance of convenience favours granting the injunction.
[11] Rosen submits that under the Hamilton test, a plaintiff is only required to establish that there is a “serious question to be tried” which is a relatively low threshold under the RJR-MacDonald test. It only requires the plaintiff to establish that the merits of the action are not “frivolous or vexatious”: RJR-MacDonald, at paras. 44, 50.
[12] However, while Rosen relies on para. 36 of Hamilton for his submission, he did not refer to the balance of the reasons in Hamilton, which make it clear that the test for the merits requires proof of a strong prima facie case. In Hamilton, the court held, at paras. 37, 39, and 40:
I will add one caveat. Where the plaintiff relies on the modified traditional test the standard to be met regarding the first criterion should be higher than the standard required where all three criteria are to be considered. In the traditional case the plaintiff must show merely that the case is not frivolous or vexatious in order to satisfy the court that there is a serious question to be tried. See the RJR-Macdonald case. In my view, because of the emphasis on this criterion in the present case, the plaintiff must prove that it has a strong prima facie case. This view is consistent with the cases that have held that the plaintiff must establish a strong prima facie case where the interlocutory injunction will have the practical effect of putting an end to the action. See Injunctions and Specific Performance at paras. 2.300 and 2.310.
As discussed above the plaintiff must prove that it has a strong prima facie case with respect to the allegations of interference with property rights, breach of a municipal by-law, and civil disobedience. If so, the interlocutory injunction should be granted unless there are exceptional circumstances.
In my opinion the plaintiff has established a strong prima facie case on all three of these issues. [Emphasis added.]
[13] If the Hamilton test applies, the plaintiff must establish a strong prima facie case. As the court held in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 18 (“CBC”), the strong prima facie test requires the court to be satisfied, after an extensive review of the evidence, that there is a strong likelihood on the law and the evidence that the plaintiff will succeed.[^1]
[14] Consequently, a plaintiff under the Hamilton test must first satisfy the court that one of the bylaw, property rights, or civil disobedience factors arise in the action. If so, the plaintiff must then establish, after an extensive review of the evidence, a strong likelihood on the law and evidence that the plaintiff will succeed. It is only if both these criteria are met that the court does not need to consider the remaining two requirements of irreparable harm and balance of convenience under the RJR-MacDonald test.
[15] The Bar Karma Defendants submit that the Hamilton test does not apply to private law disputes over property rights, relying upon Isabelle v. Lahaie, [2006] O.J. No. 5030 (S.C.J.), at para. 7. Consequently, the Bar Karma Defendants submit that the Hamilton test does not apply.
[16] Instead, they submit that the CBC test applies, because Rosen seeks mandatory orders which require (i) the installation of a noise limiter, and (ii) the TPS to “immediately respond” to any call from Rosen “reporting ... the emission of amplified sound or noise vibrations.”[^2]
[17] The CBC test is a modified version of the RJR-MacDonald test and is used when mandatory relief is sought. The court must conduct an extensive review of the evidence and the plaintiff must establish a strong prima facie case that it will succeed at trial, as well as establishing the irreparable harm and balance of convenience factors: CBC, at para. 18.
[18] Neither party relied on the test for a statutory injunction as reviewed in Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665, at para. 7. Under this test, a party seeking an injunction for a breach of a bylaw, would not need to establish the irreparable harm or balance of convenience requirements. They would, however, need to meet an even higher merits-based criteria that there has been “a clear breach of the by-law.”
[19] For the purposes of my reasons, it is not necessary to determine which test applies to the interlocutory injunction before me. Even if the court accepted Rosen’s submission on the appropriate test, neither of the tests Rosen proposed (the RJR-MacDonald or Hamilton tests) supports granting an interlocutory injunction.
[20] Given that Rosen failed to meet either the RJR-MacDonald or Hamilton tests, he necessarily fails to satisfy the CBC test proposed by the defendants. The CBC test requires both (i) a strong prima facie case (also required under the Hamilton test), as well as (ii) irreparable harm and balance of convenience (as required under the RJR-MacDonald test). Since neither of these Hamilton or RJR-MacDonald requirements can be established, the CBC test cannot be met.
[21] I review the relevant evidence and then apply the law under the RJR-MacDonald and Hamilton tests.
FACTS
Evidence filed by Rosen
[22] Rosen filed an affidavit he affirmed on August 29, 2014 and a reply affidavit he affirmed on September 27, 2024.
[23] Rosen resides on the third floor of an apartment building at 514 Queen Street West (“514”) in Toronto. Rosen has lived at 514 since 2004. He has full custody of his 13 year old son.
[24] Bar Karma operates next door at 512 Queen Street West (“512”). Bar Karma is a tenant in the building owned by the defendant, Drewcan Enterprises Limited. There is a dispute in the evidence regarding whether Bar Karma operates as a bar, or a night club. None of the relief Rosen seeks turns on this distinction, so I make no finding on that issue.
[25] The tenant next door to Bar Karma is a nightclub and live music venue known as The Velvet Underground.
[26] Rosen alleges that Bar Karma has engaged in nuisance by interfering with his rights of enjoyment of his apartment.
[27] Rosen led evidence as to his personal experience living in 514, attaching numerous visual and audio recordings of sound and vibrations in his apartment. However, Rosen led no expert evidence, so the court had no evidence (i) of an objective level of sound or vibration in his apartment, or (ii) that the noise came from Bar Karma (rather than the Velvet Underground or the surrounding neighbourhood).
[28] Rosen tendered evidence of tests he conducted of noise levels, using “Noise Sentry RT sound level meters.” These devices were provided to him by an organization called “No More Noise Toronto.” The sound meters were installed “in the second-floor apartment in the middle of 514”, not in Rosen’s third floor apartment. Rosen did not ensure that the Noise Sentry sound meters were calibrated prior to use.
[29] Rosen attached emails and complaints from neighbours to the City of Toronto about noise from Bar Karma. None of those neighbours filed affidavits in support of the motion.
[30] Rosen filed evidence of charges pending against Bar Karma for breach of the “Noise Bylaw” under the Toronto Municipal Code, Chapter 591, Noise.
[31] Rosen’s evidence is that since “[s]ince July 2020, Bar Karma has consistently emitted and permitted continuous amplified sound and unreasonable and persistent noise heard indoors and outdoors of my home. The occurrences commence as early as 3:00 pm and last until 5:00 am.”
[32] Rosen’s evidence is that “[s]ince July 2020, I have experienced periods of severe mental distress, suffering and torment due to the persistent amplified noise emanating from the indoor and outdoor areas of Bar Karma.”
[33] Rosen also filed a one paragraph note from Dr. Esho, addressed “To Whom It May Concern” and dated July 27, 2021. In the note, Dr. Esho stated that as Rosen’s family physician, it was his opinion that “the stress and aggravation from living next to a bar which is creating a noise disturbance is negatively affecting [Rosen’s] health” and that the “city must step in or my patient which (sic) suffer serious and irreparable negative health impacts”. Rosen provided no medical records to support Dr. Esho’s comments in the July 27, 2021 note.
[34] Rosen attached a document described as an “Affidavit of Dr. David Esho” sworn December 12, 2023 as an exhibit to his affidavit. However, Rosen did not file an affidavit from Dr. Esho as evidence on the motion and thus shielded Dr. Esho from cross-examination.
Evidence filed by the Bar Karma Defendants
[35] The Bar Karma Defendants filed an affidavit sworn on September 20, 2024 from the defendant Daniel Dilan Dalima Quintus (“Quintus”), the owner and operator of Bar Karma.
[36] Quintus acknowledged that there had been noise complaints about Bar Karma’s operations. His evidence was (quoted verbatim):
Due to the ongoing complaints from the Plaintiff, I retained GTA Environmental to conduct a noise level survey at the Bar on March 16, March 18 and May 18, 2023. GTA Environmental issued a report dated June 13, 2023.
On page 7 of the report, certain recommendations were made to Bar Karma with respect to noise levels, including that keeping the speakers on the first floor to the 25% volume setting would ensure that noise levels at the interior of the Bar would be 84 dBA or below, and would be at the allowable decibel limit permitted by the noise bylaw at the property line.
Following receipt of the GTA Environmental report, Bar Karma took steps to ensure that the speakers on the first floor were set at the 25% volume setting by instructing staff and DJs to leave the speakers to the pre-set volume of 25%. Bar Karma does not increase the volume settings of the speakers beyond the 25% setting.
In or about May 2023, I also began renting a dual limiter from Long and McQuade to further assist with monitoring the sound from our audio equipment.
[37] GTA Environmental also conducted tests in a second floor apartment at 512 that established that if the speakers at Bar Karma were played at 25%, the audible sound in that apartment would be within the acceptable range.
[38] Rosen filed no expert evidence to contradict the findings in the GTA Environmental report. Instead, under a heading in his affidavit entitled “The GTA Environmental Report is Problematic”, Rosen tendered his own critique of the report. He filed a webpage article from “NoiseMeters Inc.” and used it to conclude that GTA Environmental should have used decibel ratings under the “C” scale instead of under the “A” scale.
[39] Quintus also led direct evidence about the steps Bar Karma took to ensure compliance with the Noise Bylaw. He stated:
I am aware that there is a Toronto noise bylaw with states that noise must be limited to 50 dBA or 65 bDC (sic) at the property line from 7:00 a.m. to 11:00 p.m. and from 45 dBA or 60 dBC from 11:00 p.m. to 7:00 a.m.
Bar Karma regularly monitors its noise levels to ensure compliance with the municipal noise bylaw. On or about November 18, 2021, Bar Karma acquired a digital sound level meter manufactured by Protmex, with model number PT6708 (the “Protmex meter”).
Since on or about November 18, 2021 to present, the Protmex meter is used by staff to record noise levels at the entrance of Bar Karma, the rear patio, and the third floor landing at 9:00 pm, 11:00 pm and 1:00 am.
Prior to November 18, 2021, Bar Karma used to monitor its noise levels using a similar noise reader to the Protmex meter under a different model which was recommended by a sound technician from Velvet Underground. I no longer remember the model type, nor name of this device.
[40] The Bar Karma Defendants provided evidence of nightly noise level testing, three times per night, from August 2021 to September 2024.
[41] Without any expert evidence, Rosen criticized the Bar Karma monitoring approach and use of the Protmex devices. Rosen expressed his opinion that:
The Protmex device used by Daniel to take sound measurements is unreliable. Unlike the Noise Sentry RT sound level meters, the Protmex is not in constant use, readings can be influenced by human factors such as intentional noise reduction to take readings, and is incapable of generating direct reports, which reduces its reliability and accuracy.”
[42] Rosen attached an “Amazon page” as an exhibit to support his opinion that “the [Protmex] device cannot generate a report directly.”
[43] Quintus filed additional evidence relevant to the issue of noise from Bar Karma (quoted verbatim):
(i) Until approximately 2022, Bar Karma also operated on the second floor for up to 50 patrons. Since then Bar Karma has ceased regular operation of the business on the second floor. It has been used a handful of times for private events, and once for a Christmas event.
(ii) The third floor is used by staff only as an administrative office/storage area.
(iii) [T]he Plaintiff’s residential unit is located on the third floor, closest to Bar Karma’s administrative office/storage area.
(iv) Since 2022, Bar Karma has limited operations on the back patio by ending bar service on the back patio by 11:00 p.m. There are no speakers installed on the patio.
(v) Sometime in 2021, the Plaintiff began making complaints and allegations of excessive noise being emitted from Bar Karma.
(vi) In response to the Plaintiff’s complaints, I took steps to have the second and third floors of Bar Karma modified to reduce sound carrying to the Plaintiff’s property. Again, the modifications included installing foam materials and insulation, and sound insulating drywall to the walls of the second and third floor.
(vii) There are no functional audio speakers on the third floor of Bar Karma.
(viii) There are no permanent audio speakers on the second floor of Bar Karma. When the space has been rented for a private event on a handful of times, a single mid-size audio speaker is brought onto the second floor and set up at the furthest point from the adjoining wall closest to the Plaintiff’s unit and low volumes are maintained so that patrons can continue to be conversational.
(ix) Following the Plaintiff’s complaints, I also took steps to move the audio speakers on the first floor. There are four mid-size speakers located on the first floor. The speakers were reinstalled by a floating bracket in order to minimize noise and vibrations alongside the adjacent wall to the Plaintiff’s residential unit. The speakers are faced downwards to reduce noise traveling up towards the third floor.
(x) In 2022, I took steps to install a second fire door on the indoor portion of the Bar, in the hallway that leads to the outdoor patio to further reduce sound travelling from Bar Karma.
(xi) On at least one occasion, I believe the Plaintiff initiated a complaint to municipal by-law officers related to noise when Bar Karma had not yet begun its operations for the day. On the day in question, Velvet Underground had a live music performance which was continuing throughout the evening with doors having opened at 8 pm. A by-law officer attended Bar Karma and then left without any ticket being issued to Bar Karma or any warning provided.
(xii) I have made several attempts to work amicably with the Plaintiff to address his complaints, including attending a meeting at the Toronto Police Services Division 14 Station on or about October 1, 2021 (“Meeting”).
(xiii) At this Meeting, I offered to assist with costs associated with relocating the Plaintiff to a nearby condominium unit which was not adjacent to Bar Karma. It was the Plaintiff who rejected this offer
Evidence filed by the Landlord Defendants
[44] The Landlord Defendants filed evidence from a legal assistant at the law firm representing them on this motion. That affidavit attached the lease agreement dated February 4, 2020 (the “Lease Agreement”) which provides that:
(i) The lease is to be “completely carefree and that the Tenant shall be responsible during the term of the Lease for any costs, charges, expenses and outlays of any nature whatsoever in respect of the Leased Premises.”
(ii) The Lease allows the tenant to use the property as a licensed dining room or tavern, retail sales shop, internet provider and licensed internet cafe with respect to the main floor and second floor. The third floor may be used for any lawful purpose which complies with all governmental requirements.
(iii) The terms of the Lease also specify that “the Tenant shall peaceably possess the Leased Premises for the term hereby granted without any disturbance from the Landlord or any other person or entity.”
ANALYSIS
Analysis under the RJR-MacDonald test
[45] Rosen seeks mandatory relief compelling Bar Karma to install a noise-limiter. He also seeks to compel the TPS to immediately respond to any reports in the future that Rosen may make about emission of amplified sound or noise from a source which Rosen claims is Bar Karma.
[46] I do not find that the caselaw reviewed in footnote 2 above supports the submission that the RJR-MacDonald test applies, given the mandatory relief set out at paras. 2(ii) and 2(iii) above. However, even if the RJR-MacDonald test applied to the entire injunction or to the prohibitory relief as set out at para. 2(i) above, Rosen has not met the RJR-MacDonald test.
[47] For the purposes of this analysis, I will assume that Rosen can meet the much lower threshold on the merits. He is only required to establish that his action is not frivolous or vexatious, without an extensive review of the merits of his claim by the court. My comments as to the weaknesses of the evidence are set out in my analysis of the Hamilton test below, which requires the plaintiff to establish a strong prima facie case.
[48] Rosen has not satisfied the requirements of irreparable harm and balance of convenience. Further, given the weaknesses of Rosen’s case set out below, this case does not present a situation where there are such strong merits that affect the importance of the irreparable harm and balance of convenience requirements under the RJR-MacDonald test.
Irreparable harm
[49] The test for irreparable harm is strict. It requires clear and non-speculative evidence proving the plaintiff will suffer harm that cannot be quantified in monetary terms or compensated through a damages award: Lee v. Agnelo, 2021 ONSC 8188, at para. 22.
[50] The plaintiff has the onus to lead sufficient evidence to establish that irreparable harm will result from not granting an interlocutory injunction. As the court held in Panahiannigjeh et al. v. Vosoughian et al., 2022 ONSC 5298, at para. 59:
The onus is on the party seeking an injunction to place sufficient financial and other evidence before the court showing that irreparable harm will result. The onus is on the plaintiff or applicant to show that if made to wait for a hearing where damages are awarded, then he or she will suffer irreparable harm. If damages or some other trial remedy would come too late or be inadequate to repair the harm or be insufficient to do justice, then the harm may be said to be irreparable. Evidence of irreparable harm must be clear and not speculative. [Emphasis added; references omitted.]
[51] In Lee, the court, at para. 22, emphasized the importance of proper evidence:
Bald allegations or general beliefs or concerns, without factual underpinning establishing a reasonable likelihood of irreparable harm does not satisfy the requirement. In other cases, courts have required ‘a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result.’ [Emphasis added; references omitted.]
[52] In the present case, the evidence does not establish irreparable harm to Rosen if the injunction is not granted.
[53] The key evidence on the lack of irreparable harm comes from Rosen’s affidavit evidence. There, he states:
Since July 2020, Bar Karma has consistently emitted and permitted continuous amplified sound and unreasonable and persistent noise heard indoors and outdoors of my home. The occurrences commence as early as 3:00 pm and last until 5:00 am.
[54] Consequently, for more than four years, Rosen has lived with the nuisance he alleges is taking place on a nightly basis.
[55] In addition, even if the medical note of Dr. Esho was accepted, for the truth of its contents and as proper evidence, it does not assist under the RJR-MacDonald test in establishing irreparable harm.[^3] The note states that by July 2021, Rosen was suffering “serious and irreparable negative health impacts” from the noise allegedly emitted from Bar Karma. Consequently, Rosen’s own medical evidence establishes that he has lived with the alleged “irreparable” harm for more than three years.
[56] There is no basis to find that Rosen’s circumstances have changed at any point since July 2020. Consequently, there is no basis to find irreparable harm if the interlocutory injunction is not granted.
[57] In Cardinal v. Cleveland Indians Baseball Co. Limited Partnership, 2016 ONSC 6929, 134 O.R. (3d) 340, the court dismissed the motion for an interlocutory injunction based on the delay in bringing the motion. The court held, at para. 73:
I further agree with the Cleveland Team that this case is similar to that of Hearing Clinic (Niagara Falls) Inc. v. the Ellesmere Hearing Centre Ltd. [2008] O.J. No. 5271 (S.C.) in which the court found that the applicant had failed to demonstrate irreparable harm in part because of its delay in bringing the injunction application:
Finally, it must also be noted that there has been considerable delay in bringing this motion forward. The plaintiff was aware of the difficulties concerning competing overtures to his alleged client base as early as the spring of 2007, yet did not bring this motion until October 2008. Although it is true that certain pieces of evidence did not surface until recently, that evidence did not suddenly transform the plaintiff’s claim to one of urgency justifying interlocutory relief. Delay in injunction cases usually negates or undermines allegations of irreparable harm. As stated in Justice Sharpe’s text, Injunction and Specific Performance, at para. 1.990:
The very fact of delay by the plaintiff, quite apart from any question of prejudice to the defendant, may often serve as evidence that the risk is not significant enough to warrant interlocutory relief. [Emphasis in original text.]
In all of these circumstances, Mr. Cardinal has failed to demonstrate that he would suffer irreparable harm if the injunction was not granted.
[58] I adopt the analysis in Cardinal and find that Rosen has not established irreparable harm based on the delay in the present action.
[59] As I discuss above, Rosen produced no medical records. Attaching Dr. Esho’s affidavit as an exhibit to Rosen’s affidavit means there is only hearsay evidence of the effects of the alleged nuisance on Rosen’s health. Dr. Esho was shielded from cross-examination by not filing an affidavit for the motion.
[60] In any event, the delay in the present case refutes Dr. Esho’s medical note in July 2021 (more than three years ago) that states that Rosen was suffering “irreparable” harm, a conclusion which is legal in nature and not medical.
[61] For the above reasons, Rosen has failed to establish the irreparable harm requirement under the RJR-MacDonald test.
Balance of convenience
[62] I also find that Rosen has failed to establish that the balance of convenience favours granting the injunction.
[63] In the present case, Rosen seeks an interlocutory injunction until trial that would preclude Bar Karma emitting any amplified sound or noise vibrations between 10 pm and 9am that is “audible beyond the lot limit of 512 Queen Street West”. The Noise Bylaw only requires that noise must be limited to 50 dBA or 65 dBC at the property line from 7:00 a.m. to 11:00 p.m. and from 45 dBA or 60 dBC from 11:00 p.m. to 7:00 a.m.
[64] Consequently, Rosen seeks an order imposing a requirement beyond the Noise Bylaw on Bar Karma. Such a result is disproportionate to any harm Rosen might suffer if the injunction is not granted, particularly given the lack of any evidence (including medical evidence) of irreparable harm and the more than four year delay in bringing the motion.
[65] Further, the order requested would require the TPS to attend at Bar Karma for any complaint, regardless of its merit. Such a result would impose severe inconvenience on the TPS. An interlocutory injunction would also impose severe inconvenience on Bar Karma, who would be required to respond to the TPS’ inquiries about any complaint. This inconvenience would arise upon every complaint Rosen makes about audible noise at the lot line, regardless of whether there is any breach of the Noise Bylaw and regardless of any sound in Rosen’s apartment.
[66] For the above reasons, Rosen has failed to establish the balance of convenience requirement under the RJR-MacDonald test.
[67] Having failed to establish irreparable harm or the balance of convenience, and given the weaknesses in Rosen’s evidence, I would not grant an interlocutory injunction under the RJR-MacDonald test even if it applied in the present case.
Analysis under the Hamilton test
[68] For the reasons that follow, I find that Rosen has not met the requirement for an interlocutory injunction under the Hamilton test, if it applies.
[69] Rosen has failed to establish a strong prima facie case of nuisance. The evidence does not support a strong likelihood that Rosen will succeed.
[70] The Bar Karma Defendants ask the court to strike the Rosen affidavit, or in the alternative give it little weight. The Bar Karma Defendants submit that the Rosen affidavits are replete with hearsay and opinion evidence, argument, and irrelevant, frivolous and vexatious statements.
[71] The Bar Karma Defendants further submit that Rosen improperly split his case. They argue that his reply affidavit raises numerous matters that ought to have been raised in his initial motion record and as such is an “[attempt] to backfill obvious holes in his first affidavit after receiving the defendants’ responding motion records”, either to obtain a “tactical advantage”, or because “key issues were simply overlooked.”
[72] I agree with many of the criticisms set out above. However, instead of striking the Rosen affidavits, I find that even if I accept the evidence summarized above, it does not approach the high threshold required to establish a strong prima facie case under the Hamilton test.
[73] Rosen’s claim is based in nuisance, The law of nuisance was summarized in St. Lawrence Cement Inc., v Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 77:
At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569). The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536).
[74] In the present case, the evidence set out above fails to establish a strong prima facie case of nuisance. I rely on the following:
(i) Rosen led no evidence of any sound measurement from his apartment on the third floor.
(ii) The only evidence of sound measurement was from the second floor, with Rosen using sound meters provided to him by another individual, and no evidence as to where the devices were previously used or how they were calibrated.
(iii) In contrast, the Bar Karma Defendants filed expert evidence with proof of proper calibration, and evidence that the recommendations in the expert report were followed and tested frequently.
(iv) Rosen’s criticism of GTA Environmental’s use of db(A) rather than db(C) measurements has no expert support and is based on a webpage article.
(v) Rosen provides no support (let alone expert evidence) for his critique of Bar Karma’s Protmex measurement device as unreliable, except for an “Amazon page” to support his opinion that “the [Protmex] device cannot generate a report directly.”
(vi) Rosen’s video and audio recordings from his apartment are not proper evidence for the court to conclude that there is a strong likelihood that he will establish the tort of nuisance. Many of the videos were taken outside Rosen’s apartment. In any event, the videos do not establish where the sound in the videos comes from or the objective level of sound in Rosen’s apartment.
(vii) Further, the court should not make a subjective assessment based on an audio or video recording without an expert opinion to address the actual sound level or the source of the noise: Thomson, at para. 11.
(viii) The expert evidence is that the sound level was within acceptable levels at the second floor apartment (let alone on the third floor where Rosen resides) if Bar Karma played its speakers at 25%.
[75] The above evidence does not meet the high threshold required under the Hamilton test. Satisfying this threshold is necessary because an interlocutory injunction can be ordered under the Hamilton test, without any need to establish irreparable harm or balance of convenience.
[76] Rosen relies heavily on the decisions in Alchuk v. 44 Toronto, 2024 ONSC 4174 and Balmain Hotel Group LP v. 1547648 Ontario Ltd. (Menage), 2009 CanLII 28199, 60 M.P.L.R. (4th) 262 (Ont. S.C.). In these decisions, tenants and a hotel successfully obtained interlocutory injunctions against nightclubs.
[77] However, unlike the present case, the plaintiffs in Alchuk and Balmain retained qualified experts who conducted thorough testing and analyses. Those plaintiffs also led affidavit evidence from other tenants or guests, which corroborated and supported the plaintiffs’ evidence. This is dissimilar to the present case, where Rosen attached emails and complaints from neighbours without any direct affidavit evidence before the court.
[78] In Alchuk, the plaintiff’s expert took 16 sound measurements over eight different weekends in the plaintiff’s unit, 6 of which were above the Noise Bylaw. The expert also post-treated data to remove additional noise from the environment like human activities and mechanical equipment. The expert analyzed data to determine whether sounds in the plaintiff’s unit became louder when music in the nightclub, measured from outside the doors, became louder and vice versa. The expert concluded there was a very high potential for noise disturbance and sleep disruption: Alchuk, at paras. 97, 100, 120 and 139.
[79] Consequently, the court in Alchuk specifically held that the plaintiff’s evidence was credible, clear, and compelling: at paras. 91, 111 and 115. In the present case, the evidence does not support such a conclusion.
[80] In Balmain, the expert attended the hotel over two days and took sound measurements in seven different hotel rooms and a public laneway between the hotel and the nightclub. The expert concluded that the noise level was of sufficient severity within hotel rooms to be disturbing and interfere with sleep. The plaintiff also hired a licenced investigator who walked the neighbourhood and heard no noise from nearby establishments: Balmain, at paras. 13, 26-29.
[81] Rosen also relies upon the case of Walker et al. v. Pioneer Construction Co. (1967) Ltd., 1975 CanLII 481, 8 O.R. (2d) 35 (S.C.). In Walker, the court relied on direct evidence from five neighbours to conclude that the noisy operation of an asphalt plant located in a gravel pit, between the hours of nine in the evening and seven in the morning, constituted a material, undue and unreasonable interference with the enjoyment of the plaintiff’s property.
[82] No evidence similar to the materials relied upon in the above case law was led in the present case.
[83] Further, bylaw compliance is only one factor that courts must consider in a tort claim.[^4] A holistic review of the evidence is required: Alchuk, at para. 109.
[84] Finally, Rosen provided no reliable evidence regarding the source or level of sound in his apartment. This is a matter of a technical nature where expert evidence is required to assist the court: R. v. Johnson, 2019 ONCA 145, 145 O.R. (3d) 453, at para. 53.
[85] For all of the above reasons, I find that Rosen has not established a strong prima facie case in nuisance. I am not satisfied, after a review of the evidence, that there is a strong likelihood on the law and the evidence that the plaintiff will succeed.
[86] Consequently, even if the Hamilton test applied, I would not grant the interlocutory injunction sought in the present case.
Undertaking under rule 40.03
[87] In addition to splitting his case, Rosen filed no evidence in either affidavit regarding his obligation under rule 40.03 to “undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.”
[88] After the Bar Karma Defendants raised the absence of an undertaking in their factum as a further basis to deny the injunction, Rosen filed an “Undertaking As To Damages” dated November 23, 2024. This document was signed by Rosen, but not affirmed. Rosen did not seek leave to file additional affidavit evidence, as required by rule 39.02(2), despite the importance of providing an undertaking by affidavit: Guelph Taxi v. Guelph Police Service, 2016 ONSC 3671, at para. 17.
[89] Rosen’s late filing of an “Undertaking” had the effect of attempting to shield him from cross-examination on whether he had the financial means to provide such an undertaking.
[90] It should not have been any surprise to Rosen that an undertaking was required, as it was a basis for the injunction granted in Alchuk. Rosen relied heavily upon this case in his written submissions and at the hearing: Alchuk, at paras. 144-45.
[91] A few days before the hearing, Rosen also filed a certificate from Ontario Works to establish that he receives assistance. At the hearing, Rosen relied on that evidence to submit that no undertaking should be ordered. Again, the late filing of the certificate, after all motion records had been exchanged, cross-examinations had been completed, and factums exchanged, left the defendants without an opportunity to cross-examine Rosen on his financial condition.
[92] The purported undertaking provides no evidence on Rosen’s financial means and ability to pay damages arising from an interlocutory injunction. Rosen’s counsel advised at the hearing that he had the financial means to post $35,000 in security as an undertaking, if ordered to do so, as an alternative argument if the court required Rosen to provide an undertaking. Again, the last-minute filing of the purported undertaking, and the proposed security offered at the hearing, did not provide an opportunity for cross-examination on this issue.
[93] Given my findings that the plaintiff has failed to establish the requirements under either the RJR-MacDonald or Hamilton tests, I do not need to determine the myriad of issues associated with the last-minute undertaking. These issues include whether (i) the proposed undertaking is valid without an affidavit, (ii) if not, whether leave should be granted to file a new affidavit, (iii) if leave would be granted, would additional cross-examination be appropriate, (iv) whether the undertaking provided is sufficient (or would be considered sufficient after cross-examination), or (v) whether an undertaking is required either the RJR-MacDonald or Hamilton tests.
[94] Consequently, I do not address these issues in my reasons. I make no finding that the proposed undertaking would suffice to permit an injunction even if the RJR-MacDonald or Hamilton tests were met.
Injunctive relief against the Landlord Defendants
[95] Since I do not order an interlocutory injunction against the Bar Karma Defendants, there is no basis to order injunctive relief against the Landlord Defendants.
[96] However, even if I ordered injunctive relief against the Bar Karma Defendants, there would still be no basis to order injunctive relief against the Landlord Defendants. The Lease Agreement establishes that the Landlord Defendants have no role in the operations of 512. No such orders were made against the landlords in either Alchuk or Balmain.
ORDER AND COSTS
[97] For the above reasons, I dismiss the motion.
[98] The Bar Karma Defendants provided a costs outline and set out costs of $42,309.92[^5] on a partial indemnity scale, and $70,516.52 on full indemnity scale (which would amount to $63,464.87 on a substantial indemnity basis at 90% of full indemnity costs). The Bar Karma Defendants seek partial indemnity costs in the amount of $42,309.92.
[99] The Landlord Defendants provided a costs outline and set out costs of $10,466.91 on a substantial indemnity scale and $7,676,12 for partial indemnity costs. The Landlord Defendants seek partial indemnity costs in the amount of $7,676.12.
[100] Rosen provided a costs outline and set out costs of $24,558.16 on a full indemnity scale, which would amount to $14,734.90 on a partial indemnity scale (at 60% of full indemnity costs) and $22,102.34 on a substantial indemnity scale (at 90% of the full indemnity rate). Rosen submitted that if he was successful on the motion, the defendants should pay substantial indemnity costs of $22,102.34.
[101] Given the success of the defendants, there is no request for substantial indemnity costs that needs to be considered. The defendants only seek partial indemnity costs from Rosen. However, I note that I do not find egregious conduct that would warrant an order of substantial indemnity costs. There was no improper conduct during the litigation or vexatious positions taken by the parties.
[102] Rosen does not challenge the quantum of costs sought by the Landlord Defendants. I agree that such costs reflect what an unsuccessful party would expect to pay. Consequently, I fix the costs of the Landlord Defendants in the partial indemnity amount of $7,676.12.
[103] Rosen challenges the $42,309.92 in costs the Bar Karma Defendants seek. He submits that the quantum is excessive and does not reflect the amount an unsuccessful party would reasonably expect to pay. I agree.
[104] It would be reasonable to expect the parties to incur some significant costs. The parties prepared lengthy factums reviewing the evidence and case law, drafted thorough affidavits, and engaged in cross-examinations. The issue was of considerable importance to both parties.
[105] However, the Bar Karma Defendants used eight different timekeepers on the file, even though counsel on the motion, who was called in 2020, was very capable. The additional timekeepers included more senior counsel who did not attend on the motion. The Bar Karma Defendants incurred 214.4 hours on the file. This is more than double the 96.4 hours Rosen incurred. Rosen used one principal timekeeper (counsel on the motion) and only one other timekeeper. It would not be reasonable for an unsuccessful party to expect that a motion of this nature would require the time and costs that the Bar Karma Defendants incurred.
[106] For the above reasons, I order Rosen to pay partial indemnity costs to the Bar Karma Defendants in the amount of $25,000, inclusive of taxes and disbursements.
[107] All costs are to be paid within 90 days of this order. Rosen requested additional time to pay and the request was not opposed by the defendants.
GLUSTEIN J.
Date: 20241204
COURT FILE NO.: CV-23-00707643-0000
DATE: 20241204
ONTARIO
SUPERIOR COURT OF JUSTICE
HARRIS ROSEN
Plaintiffs
-and-
2740309 ONTARIO INC., a.k.a. Bar Karma, DANIEL DILAN DALIMA QUINTUS, DREWCAN ENTERPRISES LIMITED, DAVID MILLER DREWETTE and JOHN DUNCAN DREWETTE.
Defendants
REASONS FOR DECISION
Glustein J.
Released: December 4, 2024
[^1]: In CBC, the strong prima facie test was applied in the context of obtaining a mandatory injunction. The same strong prima facie standard is applied under the Hamilton test to establish interference with property rights, breach of a municipal bylaw, or that the defendants are engaging in civil disobedience,
[^2]: The Bar Karma Defendants also submit that if a plaintiff seeks both mandatory and prohibitory relief, the moving party must satisfy the higher threshold of a strong prima facie case: University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755, at para. 120; Thomson v. Benjamin, 2021 ONSC 5485, at paras. 6-7. Rosen submits that if the court does not apply the RJR-MacDonald test to the entirety of the injunction, then in the alternative the court should apply different tests depending on the nature of the relief sought. For the prohibitory relief sought as described at para. 2(i) above, Rosen submits that the RJR-MacDonald test applies and for the mandatory relief sought as described at paras. 2(ii) and 2(iii) above, Rosen submits that the Hamilton test (or in the further alternative, the CBC test) would apply. Rosen provided no authority to support a hybrid merits test when prohibitory and mandatory orders are both sought in the same injunction.
[^3]: Also, setting aside the hearsay nature of this evidence that arises in the absence of an affidavit from Dr. Esho.
[^4]: There is no evidence before the court that Bar Karma failed to comply with the Noise Bylaw.
[^5]: All references to amounts in my analysis of costs are inclusive of disbursements and taxes.