I. INTRODUCTION

[1] The moving party 2132135 Ontario Limited (o/a Jot Truckline) rents a commercial truck yard from the respondent 1000599184 Ontario Inc. Since November 2023, 184 has been using the property as a truck school and parking lot but hasn’t paid any rent to Jot. At the same time, 184 and its directors are facing regulatory proceedings because Jot is allegedly utilizing the property for non-approved uses.

[2] This festering dispute led to a violent robbery on October 1, 2024. As a result, Jot seeks an urgent injunction restraining 184 from interfering with its use of the property.

[3] 184 concedes, for this motion, that there’s a serious issue to be tried. As a result, the issues in dispute are: (a) irreparable harm; (b) the balance of convenience; and (c) “clean hands”.

[4] I disagree with 184’s position. At bottom, it has established no basis for remaining on the property. 184’s refusal to leave has exacerbated tensions between it and Jot, to the point that Jot has suffered irreparable harm. I endorse an interlocutory order that:

(a) 184 and its affiliates shall vacate the property on or before December 31, 2024;

(b) Jot has exclusive possession of the property;

(c) 184, its affiliates, and its officers and directors shall not interfere with Jot’s use and quiet enjoyment of the property; and

(d) the Peel Regional Police Service or the Ontario Provincial Police may provide such assistance and use such force as is reasonable in the circumstances to enforce this order.

[5] I further order that the parties shall agree, on or before January 10, 2025, on a timetable in writing for the completion of all the necessary steps to be ready to proceed with the hearing of the underlying tenancy application. The remaining steps shall be completed by February 28, 2025. The parties shall then request an attendance at Long Motion Triage Court for a hearing date.

II. BACKGROUND

A. Facts

[6] Jot is a trucking company. Ravinder Saib controls Jot. He also operates 9089365 Canada Inc. (dba CQR Logistics), another trucking company.

[7] In October 2020, Jot and the respondent Amze Holdings Limited entered into a five-year commercial lease for 2868 and 2870 Bovaird Drive W, Brampton. The defined use of the property is for “COMMERCIAL PARKING. (i.e. Truck parking, Tow Truck parking), Truck and Trailer or commercial repair in shop.”

[8] Bovaird Drive W goes northeast/southwest. Drivers can access 2868 Bovaird Drive W from a road on the north side of the road. 2870 Bovaird Drive W (labelled Axis Transportation Training Centre on the map below) has to be accessed from that same road and through 2868 Bovaird Drive W. The neighbouring property, 2774 Bovaird Drive W, is indirectly owned by The Sant Nirankari Mission Canada Incorporated, a religious organization.

[9] In September 2021, Amze threatened to terminate Jot’s lease. One of the alleged grounds for termination was that Jot had dumped gravel on Sant Nirankari’s property to create a parking lot (the area east and northeast of the pin labelled Axis Transportation in the above photo). Jot responded that Amze permitted it to expand the parking lot and fill that area with gravel. That space also can only be accessed from the 2868 Bovaird Drive W’s road.

[10] Jot started this proceeding against Amze for declarations regarding the lease and an injunction. In February 2022, Amze started a counter-application in Toronto. The parties consented to transferring this proceeding to Toronto. Justice Wilson (as she was then) nonetheless dismissed the motion. See Amze Holdings Limited v 2132135 Ontario Limited, 2022 ONSC 2150. Regional Senior Justice Ricchetti (as he was then) then ordered Amze’s counter-application be transferred to Brampton. Amze never did. In February 2023, Ricchetti RSJ ordered, on an interlocutory basis, that Amze “shall not terminate the tenancy at issue except pursuant to a court order or a written agreement between the parties.”

[11] In August 2023, 184 bought the property from Amze. 184 is also in the trucking business. It’s controlled by Jagdeep Brar and Jaswinder Khosa. 184 took assignment of the lease. 184 knew about Ricchetti RSJ’s order.

[12] Almost immediately, there was a dispute between Jot and 184. As a result, they began discussions to terminate the lease early, which resulted in closing documents being prepared by the parties’ lawyers.

[13] Around the same time as the termination documents were being finalized, 184 asked to use an office and 40 parking spots on the property. Jot agreed (Saib says reluctantly but in good faith given the pending termination of the lease). Jot says 184’s affiliate 11990357 Canada Inc. promised to pay around $20,000 in rent and half of the property expenses.

[14] On November 1, 2023, 184, 119, and several related companies, including Axis Transportation Training Centre Ltd. (a truck driving school), moved onto the property. In January 2024, 184 moved into a trailer on the property, which it used as an office. Because Jot anticipated terminating the lease in late 2023, it ended its subleases with several other trucking companies that rented parking spots.

[15] But then 184 abandoned the termination negotiations.

[16] The parties tried co-existing on the property. Jot continued paying rent under the lease. 184 and 119 didn’t pay rent for the space they were using. In May 2024, Jot learned that 184 or 119 had been subletting the parking spaces to other trucking companies.

[17] In April 2024, 184, Brar, and Khosa were charged with several offences under the Planning Act, RSO 1990, c P.13. The City of Brampton is alleging that the property isn’t zoned for the storage and operation of a logistics company.

[18] One of the other issues raised by the City was that Jot was using 0 Bovaird Drive W (which is either the same as or next to Sant Nirankari’s property) to park its trucks. That is the land used to expand the parking lot when Amze was the landlord. In November 2023, the City ordered Sant Nirankari to remove the trucks and restore the site to its original condition. Sant Nirankari, in turn, asked Saib and Brar to take these steps. Brar and Khosa weren’t satisfied that Sant Nirankari owns this plot. Sant Nirankari then issued a trespass notice to 184 and CQR.

[19] These regulatory events seem to have reignited tensions between Jot and 184.

[20] In June 2024, Jot demanded that 184 pay the unpaid rent or it would lock 184 out of the property. 184 responded that Jot hadn’t paid four months’ rent, and gave it 24 hours to vacate the property. Jot replied that it had paid all rent, and demanded that 184 vacate the property. 184 says it defaulted on its business loan because Jot didn’t pay rent. Further, 184 told the City that Jot was to blame for the ongoing non-compliance. This skirmish led to further negotiations. Jot contended that it would pay the August and September rent but if 184 cashed the cheque, Jot would lock them out of the property.

[21] Meanwhile, the City’s position was that even if 0 Bovaird Drive W were remediated, the property was zoned for motor vehicle repair operations and associated storage, not a logistics operation or outside storage of trucks and trailers, meaning that Jot couldn’t operate its business from the property.

[22] In October, matters escalated further. Three men violently broke into Jot’s offices in the middle of the night and looted the place. Brar is seen on camera with the men. The next day, 184 changed the locks and blocked the property’s front gate with a truck on the ground that CQR was trespassing.

[23] In late October, Justice Ricchetti added 184 as a party to this proceeding, and scheduled Jot’s urgent motion for an injunction for December 4, 2024. He also ordered that: (a) Jot will continue paying rent; and (b) 184 shall ensure that Jot has “quiet possession” of the property, which the police can enforce.

[24] There’s an uneasy peace between the parties. Jot is paying rent. 184 is using the space to park trucks and for its driving school. The trial of the Planning Act charges starts in January 2025.

B. Credibility

[25] On a motion for an interlocutory injunction, the motion judge can weigh the competing evidence and make factual findings. That said, if there’s conflicting evidence in the case, and credibility will play “a large role in making the necessary findings of fact”, those findings of fact should be made by the trial judge. See 1711811 Ontario Ltd. (AdLine) v Buckley Insurance Brokers Ltd., 2014 ONCA 125, at paras 82-84. It’s not always a “simple task to assess credibility on a written record.” If it can’t be done, that should be a sign that oral evidence or a trial is required. See Trotter Estate, 2014 ONCA 841, at para 55.

C. Preliminary Issues

[26] The parties raised several preliminary issues. First, 184 served an affidavit from Brar after the time limit ordered by Justice Ricchetti. Jot says this affidavit should be given no weight. Though it could’ve cross-examined on the affidavit, it didn’t do so because, in its view, the affidavit was both irrelevant and out of time. I don’t rely on this affidavit. Justice Ricchetti’s timetable was established to ensure the orderly conduct of this motion. It’s unfair for parties to deliver evidence late. Jot was in an unenviable position—if it cross-examined Brar on the affidavit or served a reply affidavit, 184 would’ve argued that there was no prejudice to Jot.

[27] Second, 184’s factum didn’t include any law—it only stated the facts. The night before the hearing, 184 emailed a 50-page “Hearing Submissions”, which argued both the facts and the law. There’s no bar on a party providing the court with an aide-mémoir to help its oral submissions. But this document was intended to fill in gaps in the factum, presumably because 184 ran out of time. The late delivery of this faux factum was unfair to Jot and the court. 184 remedied the unfairness to the court by ceding it’s time for oral argument so the court could review the document. And Jot didn’t ask for a recess or an adjournment to review the “Hearing Submissions”. As a result, I accepted the “Hearing Submissions”.

[28] Third, 184 has asked for several declaratory orders as counter-relief. There seems to have been some confusion whether Jot was seeking an interlocutory order or a final order. Though Justice Ricchetti’s endorsement refers to the “hearing of this application”, there’s no doubt that Jot was moving for an interlocutory order because of recent developments, and not a final order. As a result, I only considered Jot’s motion.

[29] Finally, Sant Nirankari sought to make submissions at the motion. Usually, non-parties don’t have standing to participate in a motion (that’s why they’re not parties). Rule 37.07(1) requires that the notice of motion be “served on any party or other person who will be affected by the order sought”. If an interlocutory injunction is granted without notice, rule 40.02(2) requires that an extension be on notice to “every party affected by the order”.

[30] But if the moving party doesn’t serve a person, the non-party can’t just show up at the hearing of the motion and start making demands or submissions. Instead, Sant Nirankari should have started its own proceeding or sought leave to intervene under Rule 13.

[31] In any event, the parties consented to Sant Nirankari making brief submissions. As it turns out, 184 seems to have misled Sant Nirankari into believing that Ricchetti RSJ’s interim order barred Sant Nirankari from building a fence on its property. There’s nothing in Ricchetti RSJ’s order that does any such thing. If Sant Nirankari builds its fence on the wrong side of the property line, 184 has its legal remedies.

III. ANALYSIS AND DISPOSITION

[32] The test for an injunction is:

(a) whether there is a serious issue to be tried;

(b) whether the moving party will suffer irreparable harm; and

See RJR-MacDonald Inc. v Canada (AG), 1994 CanLII 117 (SCC), [1994] 1 SCR 311.

[33] 184 also argues the “clean hands” doctrine: the moving party must come to court with “clean hands” regarding the transaction it bases its claim on. See Buduchnist Credit Union Limited v 2321197 Ontario Inc., 2024 ONCA 57, at para 49.

A. Is there a serious issue to be tried?

[34] At the first stage, the motion judge must undertake a preliminary investigation of the merits to decide whether the moving party shows a “serious question to be tried”, in the sense that the motion is neither frivolous nor vexatious. See R v Canadian Broadcasting Corp, 2018 SCC 5, at para 12.

[35] 184 doesn’t dispute, for this motion, that Jot’s request is neither frivolous nor vexatious.

B. Will Jot suffer irreparable harm?

[36] The moving party must show an immediate risk of harm that will occur before the case reaches trial and that cannot be compensated or remedied other than through the granting of an interlocutory injunction. See RJR-MacDonald Inc., at 341.

[37] Injunctive relief is “strongly favoured” when the moving party complains of interference with property rights:

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award. It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right. Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price. Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved. A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff’s property.

See 1465152 Ontario Limited v Amexon Development Inc., 2015 ONCA 86, at para 23, citing Robert J Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Canada Law Book, 2014), at 4.10 and 4.20.

[38] Amexon is a case about a permanent injunction. In SusGlobal Energy Corp. v Hamaliuk, 2021 ONSC 7199, at para 34, Justice Vermette suggested that Amexon didn’t apply to interlocutory injunctions. That said, Amexon or Justice Sharpe’s looseleaf has been cited in several motions for interlocutory relief. See University of Toronto (Governing Council) v Doe, 2024 ONSC 3755, at para 130; 2100 Bridletowne Inc. v Ding, 2021 ONSC 2119, at paras 38-40; 6056628 Canada Inc. v 2350894 Ontario Inc., 2019 ONSC 1329, at para 40.

[39] In my view, Amexon applies to interlocutory injunctions in so far as it holds that depriving a tenant of property without its consent for fair market rent is an example of irreparable harm.

[40] Jot points to several other harms that it says can’t be quantified:

• the lockout on October 1st has led to one of Jot’s customers raising the spectre of “huge money losses”

• Jot believes its business reputation is being harmed in the Brampton business community

• its inability to collect rent either from 184 or subtenants puts it at financial risk

• Axis Training’s use of the property creates a safety risk

• there are limited commercial truck parking lots in Brampton

[41] The case is much simpler than all that. 184 has failed to explain how it can continue squatting on the property. It moved onto the property in November 2023, and now won’t leave. Brar’s affidavit evidence says that there’s no sublet agreement between Jot and 184. But then Brar says that Jot allowed it to use the property “without charge”. Then, in cross-examination, Brar says that Jot agreed that any rent would be set-off against 184’s affiliates doing work for Jot or CQR.

[42] Even if there’s some validity to 184’s evidence about an oral agreement, Jot has a right to terminate that agreement given that the parties obviously can’t coexist. The robbery and lockout are a good example.

[43] At around 140am on October 1, 2024, three men, one of them masked, broke into Jot’s office. They violently kicked open the doors and tried to smash the security camera. The men damaged fixtures and stole Jot’s equipment. Brar walked into the opened office a few minutes later—he calmly took a video of the scene, and then nonchalantly interacted with the crooks. After the police arrived, Saib says that Khosa threatened him.

[44] Brar denies that he had anything to do with the break-in. He claims that CQR may have taken the equipment because they knew that 184 would blockade the yard the next day (i.e., the men were either openly engaged by CQR or conducting a “false flag” operation). He explains that he took the video only “to make sure they don’t harm anything”, and then he told them to “go out”.

[45] Later that day, Brar, Khosa, and several other people blocked the property’s gates with a truck and changed the locks to allegedly stop CQR from using the property. Of course, these actions also had the effect of blocking Jot from accessing the property that day. It lost an entire day’s revenues.

[46] Jot is the tenant. Under the lease, it has the right to occupy the property until November 1, 2025. I accept that Brar has introduced some evidence of an agreement between Jot and 184. To the extent there’s an agreement, 184 has provided me no law that would prevent Jot from now terminating that agreement given the undisputed facts: an ongoing rent dispute, non-permitted use of the property for a driving school, interference with Jot’s quite enjoyment of the property, and an alleged robbery.

[47] The observations of Justice Sharpe are appropriate here. If I were to find that a damages award will suffice, 184 could continue using the property without Jot’s consent and without compensation, both of which interfere with Jot’s tenancy rights.

[48] As a result, I find that 184’s continuous interference with a property has caused Jot irreparable harm.

C. Whom does the balance of convenience favour?

[49] The balance of convenience involves determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending final disposition of the proceeding. See Temagami (Municipality) v Temagami Barge Limited, 2024 ONCA 859, at para 26.

[50] Jot points to several instances of Brar allegedly lying. I can’t make credibility findings on this motion, so that argument doesn’t assist. That said, on the record before me, Jot’s case looks strong. The video showing Brar cooperating with the robbers and his evidence that he didn’t know them is inconsistent.

[51] In contrast, 184 hasn’t identified any harms. It says that it and its directors are facing a prosecution in January 2025 that was caused by Jot. But I don’t see how allowing 184 to remain on the property until at least then mitigates this harm.

[52] As a result, the balance of convenience favours Jot.

D. Does Jot have “clean hands”?

[53] 184 relies on the maxim “one who comes to equity must come with clean hands”. I don’t find its arguments persuasive.

[54] First, 184 submits that Jot breached the lease by failing to pay rent and refusing to ensure that Sant Nirankari’s property was remedied. Even if Jot breached the lease, that’s not grounds for 184 to squat on the property indefinitely. Instead, 184 should be taking steps under the Commercial Tenancies Act, RSO 1990, c L.7, to forfeit the lease.

[55] Second, 184 argues that Jot shouldn’t be granted relief against forfeiture. That puts the cart before the horse. 184 hasn’t tried to enforce a right of forfeiture yet, and Jot isn’t asking for relief against forfeiture. See Commercial Tenancies Act, s 20(1). See also Courts of Justice Act, RSO 1990, c C.43, s 98.

E. Summary

[56] An interlocutory injunction is a just remedy here. 184 and its affiliates must vacate the property, including the office and parking spaces, by December 31, 2024. It can’t interfere with Jot’s quite use and enjoyment of the property. If necessary, Jot can call on the police to enforce these orders.

IV. COSTS

[57] Jot seeks full indemnity costs, fixed in the amount of $80,000. 184 submits that costs should be in the cause. As there has been no final determination of the parties’ rights, the preferable course is to reserve the question of costs to the trial judge. See Parkland Corporation v 2615669 Ontario Inc., 2024 ONSC 3724, at para 46. I endorse an order that the costs of this motion shall be in the cause of the application.

Agarwal J

Released: December 23, 2024

Corrected Decision: I inadvertently failed to include Mr. Gora as co-counsel to the applicant (moving party). I appreciate senior counsel advising me of my oversight.

The practice of senior counsel sharing a portion of oral argument with more junior counsel contributes to the vibrancy of the court as a public institution, increases public confidence in the justice system, and enhances training and mentorship for new advocates. See Statement from the Chief Justice of Ontario and the Associate Chief Justice of Ontario Regarding Submissions from Counsel https://www.ontariocourts.ca/coa/how-to-proceed-court/statement-regarding-submissions-from-counsel/.

To the extent that junior counsel appear on a matter and are inadvertently left off the court’s endorsement or reasons, senior counsel shoudn’t hesitate, as here, to ask the court to release a corrected decision.

2132135 Ontario Limited v. Amze Holdings Limited, 2024 ONSC 7147

Case Summary

I. INTRODUCTION

II. BACKGROUND

A. Facts

B. Credibility

C. Preliminary Issues

III. ANALYSIS AND DISPOSITION

A. Is there a serious issue to be tried?

B. Will Jot suffer irreparable harm?

E. Summary

IV. COSTS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3