Court File and Parties
Ontario Superior Court of Justice
Between:
Saad Keval, Plaintiff
- and -
Hiep Nguyen, Defendant
Before: LeMay J.
Counsel:
- D. Dolson, for the Plaintiff
- Self-represented, for the Defendant
Heard: October 3 and October 29, 2025
Reasons for Judgment
Introduction
1The Applicant is on title as the owner of the property municipally known as 1900 Bruce Road 15 in Kincardine, Ontario ("the Property"). The Respondent currently lives at the Property but has not signed any lease for the Property and has no written ownership interest in the Property that I have been provided with. The Applicant has brought an injunction to prevent the Respondent from continuing to live at the Property. The Respondent opposes this injunction on the basis that there was an agreement between himself, the Applicant and some other individuals and that he actually owns 51% of the Property. In essence, the Respondent argues that he and the Applicant, among other people, agreed that the Property would be used as a legitimate "grow-op" for the cultivation of marijuana.
2For the reasons that follow, I have determined that the Applicant shall be granted an injunction preventing the Respondent from, inter alia, occupying the premises. Given that the Applicant is the only person on title for the Property, it is clear that there is a serious issue to be tried. The Applicant has also deposed that he is responsible for the entirety of the mortgage and cannot afford to continue to pay it. Finally, the Respondent has been charged with the improper cultivation of marijuana, so the Property cannot be used as a grow-op. Therefore, the balance of convenience favours the granting of an injunction.
Background
3I start by noting that my description of the facts is based solely on the materials that have been filed with the Court. It does not bind any judge subsequently considering the merits of this case, particularly the trial judge. As a result, I will outline the background facts only to the extent necessary to resolve the issues raised on this injunction.
a) The Parties and the Property
4The Plaintiff, Saad Keval, is a police officer employed by the Toronto Police Service. He is the sole owner listed on title for the property at 1900 Bruce Road 15 in Kincardine ("the Property"). The Defendant, Hiep Nguyen, currently resides at that property.
5The Property was originally purchased in November of 2016 by David Ly, who was apparently known to both the Plaintiff and the Defendant. As I understand it, the Plaintiff, the Defendant, Mr. Ly and a fourth individual named Kirk Salvisburg made contributions to the purchase of the Property. The Property was purchased in 2016 for $205,000.00.
6The Plaintiff deposes that he, Mr. Ly and Mr. Salvisburg paid money towards the purchase of the Property. The arrangement was that the Defendant was to obtain a license to grow marijuana for medical purposes and to sell that marijuana and would then run the operations.
7The only evidence that I have in respect of any marijuana licenses actually being obtained is as follows:
a) A license for Mr. Ly to have up to 137 marijuana plants indoors and to possess up to 6.165kg of dried marijuana. This license was for a four-month period running from September 29th, 2017, to January 17th, 2018.
b) A license for Mr. Ly to possess up to 150g of dried marijuana and to use up to 60g daily. This license was for personal use and allowed up to 219 marijuana plants to be cultivated indoors. It was a one-year license and expired on April 13th, 2020.
c) A license for Mr. Salvisburg to possess up to 150g of dried marijuana and use up to 90g daily. This license was for personal use and allowed up to 329 marijuana plants to be cultivated indoors. It was valid for one year and expired on September 7th, 2024.
8In 2021, the Plaintiff transferred the sum of $441,000 to Mr. Ly to have the title in the Property transferred to himself. Most of the funds came from a mortgage on the Property from RBC in the sum of $434,720.00. The Plaintiff has provided documentation showing that he has been making payments to RBC on account of the mortgage.
9Mr. Ly provided an Affidavit in which he stated that he requested to be bought out for the sum of $30,000.00 and that upon the sale of the Property he would be paid $30,000.00 and that the Plaintiff would be paid $130,000 and the Defendant $151,643.58. I have no evidence that the payments suggested by Mr. Ly were made or what the rationale for those payments was. I also have no explanation from the Defendant as to why the payments described in the previous paragraph were made.
10The Plaintiff's affidavit states that he received some money to cover the mortgage from Mr. Salvisburg between 2021 and 2024. However, the Plaintiff's affidavit also states that he stopped receiving this money in 2024 and that the Plaintiff is not able to continue to carry the mortgage on the Property on his own.
11The Defendant has provided evidence that he transferred $40,000 to the Plaintiff in November of 2021. The Defendant's affidavit states that this transfer was for the purposes of enabling the Plaintiff to purchase the Property and apply for financing. In reply to this evidence, the Plaintiff pointed to a number of other transfers of money to the Defendant. In further reply, the Defendant provided additional banking transaction records that he claims demonstrate that transfers were made to the Plaintiff. As will be seen, I do not need to resolve the issue of who received what money, when the money was received or for what it was received. That is a question for trial.
b) Recent Events
12As I noted above, the Plaintiff has deposed that, in January of 2024, he stopped receiving money for mortgage payments from Mr. Salvisburg. In May of 2024, Mr. Salvisburg and the Defendant were both charged with a series of crimes that include possession of cocaine for the purposes of trafficking as well as charges of illicit possession of marijuana (cannabis) for the purposes of selling it. The existence of these charges does not mean that the Defendant is guilty. However, these charges make it more difficult for him to obtain a license to cultivate marijuana for medical purposes.
13Indeed, the bail conditions for the Defendant that the Plaintiff provided in his most recent reply Affidavit made it clear that, as part of his bail, the Defendant was not permitted to contact Kirk Salvisburg or to live at the property. The condition in respect of living at the property was varied on January 10th, 2025, and the Defendant's surety permitted him to live at the property.
14The bail conditions also prohibit the Defendant from possessing any drug paraphernalia. This condition would make it very difficult for him to obtain a license to grow marijuana or to even possess it. This is especially true because one of the charges is for the illegal growing of marijuana.
15The Plaintiff has deposed that he did not take steps to address the Defendant's presence at the property because he was hoping that the criminal charges would be disposed of and that the Defendant might be incarcerated. However, the criminal charges have not proceeded to trial. It is not necessary for me to resolve any issues in respect of the bail conditions. However, their existence does inform the disposition of this motion.
16In June of 2025, the Plaintiff visited the property in the company of another friend, Mr. Camaur Blake. He alleged that the Defendant intimidated him during that visit and that, as a result, he was concerned for his family. I understand that the Defendant has two pit bulls that he keeps on the property. I also understand from the affidavits filed by both the Plaintiff and Mr. Blake that threats were made by the Defendant. In particular, the Defendant stated that he had lost his previous house to his ex-wife and would not lose this house.
17Mr. Blake returned to the property on his own in early July, and he provided an Affidavit outlining what he had seen at the time. In addition to the continued presence of the two pit bulls, he noted that:
a) The front door had been damaged.
b) The house reeked of the smell of urine.
c) There were holes in walls as well as damage to the bathroom door caused by the dogs.
d) There were marijuana plants at the back of the house.
e) There were marijuana buds in the three-car garage, which had been converted into a facility for growing marijuana.
18Finally, the Plaintiff has provided an undertaking as to damages. The Plaintiff has also agreed that one of the terms of the injunction is that he will pay the proceeds of sale from the property into Court. I am also going to set a timetable for the sale of the property.
c) The Procedural History
19A Statement of Claim was issued by the Plaintiff on July 16th, 2025. In that claim, the Plaintiff seeks possession of the Property as well as an interim and permanent injunction restraining the Defendant from entering upon or otherwise using the property or otherwise damaging the property. The Plaintiff also requests that I prohibit the Defendant from storing his personal property or keeping his dogs at the Property.
20Given the Plaintiff's concerns in respect of the Defendant's threats toward him, he requested an order for substituted service by e-mail, which was duly granted by Kurz J. on August 15th, 2025. The materials were then served on the Defendant by e-mail and regular mail to the address of the property in question. The motion for interim relief was adjourned to September 12th, 2025.
21As part of the materials that were served on the Defendant, he received both the Plaintiff's Motion Record and Supplementary Motion record. Those documents were provided to him in mid-August of this year. As a result, the Defendant has been aware, for some time, of the allegations that the Plaintiff was making.
22Both Plaintiff's counsel and the Defendant attended before Trimble J. on September 12th, 2025. At that time, the motion was adjourned on consent, as the Defendant wanted to retain counsel. A timetable was set. The Defendant was required to serve, file and upload his materials by 4:00 p.m. on September 26th, 2025. The Plaintiff then had until 4:00 p.m. on October 1st, 2025, to serve, file and upload any reply materials. The timetable was marked peremptory on the Defendant unless he retained counsel and the parties consented to a different date.
23The Defendant's materials were not served on the Plaintiff until the afternoon of September 30th, 2025, and were not uploaded to CaseLines until after 4:00 on October 2nd, 2025. Those materials contain an Affidavit from the Defendant outlining that he is opposed to the Plaintiff's motion because he is the owner of 51% of the property. The Defendant also asserts that he has continued to contribute towards the expenses of the property. Finally, the Defendant attached a document showing that there had been a transfer from the Defendant to the Plaintiff of $40,000 around the time that the property was transferred to the Plaintiff in 2021. No other documents were provided. The Plaintiff provided a reply record that was also served late.
24Given that the Defendant is self-represented, I determined that it was appropriate for the Court to receive both his materials and the Plaintiff's reply materials, even though both were filed with the Court late and even though Trimble J.'s timetable was peremptory. The Plaintiff was not prejudiced by the late filing of the Defendant's materials.
25Having contemplated the parties' submissions and reviewed the materials in detail, I determined that it would be necessary to hear additional submissions, as there was some confusion over the test being relied upon by the Plaintiff. The Plaintiff stated that he was relying on the test for an interim injunction but also argued that there was a strong prima facie case to grant the injunction in this case. As a result, I determined that it was necessary to clarify the test that the Plaintiff was relying on and provide the Defendant with an opportunity to make submissions on it.
26Given that I was seeking additional submissions to clarify the test, I also determined that I would address the Defendant's assertion that he had additional documents but simply did not know he had to provide them for the last hearing of the motion. I provided the Defendant with leave to file additional documentation. As a result, the Defendant provided additional affidavits from himself and from David Ly, who was also involved in the business. These Affidavits have been summarized in the facts section, above. The Plaintiff also provided a responding Affidavit, which has also been summarized in the facts section above.
27The one issue that arises in this case is whether, at this point, I should grant the Applicant an injunction to provide him with possession of the property. He seeks this possession for the purposes of repairing the damage to the property and selling it. He argues that he can no longer afford the carrying costs of the property. Having heard the supplementary submissions of the parties, it is clear that what is being sought is an injunction to grant the Plaintiff exclusive possession of the property so that he can sell it.
Law and Analysis
28The parties agreed that the test that I am to apply to determine whether an injunction should be granted is as set out in [RJR Macdonald Inc. v. Canada (Attorney General), 1994). That test requires me to consider three questions:
a) Whether there is a serious issue to be tried?
b) Whether the moving party will suffer irreparable harm if an injunction is not granted?
c) Whether the balance of convenience favours granting the injunction sought?
29I will deal with each of those questions in turn. I note at the outset that these criteria are not watertight compartments. Strength in one area may compensate for a weakness in another area: Circuit World Corporation v. Lesperance et al., (1997) 33 O.R. (3d) 674 at para. 8.
a) A Serious Issue to be Tried?
30The Plaintiff suggests that what he is seeking is an interim injunction. I disagree. In my view, the Plaintiff is seeking an interlocutory injunction. Further, this interlocutory injunction will likely resolve the matter, as the Plaintiff will use his possession of the property to sell it. Therefore, I am of the view that the test requires me to determine whether the Plaintiff has a strong prima facie case. In our second hearing, the Plaintiff's counsel confirmed that it was the strong prima facie case standard that applied.
31Normally, the test on the first branch is whether there is a serious issue to be tried. However, as noted in RJR MacDonald, at paragraph 56, there is an exception to this test where the effect of the interlocutory motion will, in effect, amount to a final determination of the action. In this case, the interlocutory motion will not finally determine who owns the property and who might be entitled to any proceeds of sale that are left. However, it will determine whether the Defendant has the ability to remain on the property. If granted, the injunction will also permit the Plaintiff to sell the property.
32As the Federal Court noted in Awashish v. Conseil des Atikamekw D'Opticiwan, 2019 FC 1131 at para 18:
[18] Even if I were wrong in characterizing the injunction sought as mandatory, this would not be a case where the relatively low threshold of a "serious question to be tried" applies. In RJR, the Court recognized that, in certain cases"the result of the interlocutory motion will in effect amount to a final determination of the action" (RJR, at 338). In such cases"a more extensive review of the merits of the case must be undertaken" (RJR, at 339). In other words, when the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established.
33A strong prima facie case requires the Plaintiff to demonstrate that there is a strong likelihood on the facts and the law that he will be successful at trial: University of Toronto (Governing Council of) v. Doe, 2024 ONSC 3755, (2024) 171 O.R. (3d) 161 at para. 121.
34In this case, the Plaintiff claims that he has a strong prima facie case on the basis of the tort of ejectment. The tort of ejectment, and the differences between it and trespass, are explained in Berscheid v. Ensign, at paras. 66 to 68:
[66] The tort of ejectment, now known as an action for the recovery of land, is an action to restore possession of land to a party lawfully entitled to it.
[67] The distinction between ejectment and trespass to land is that in trespass, the plaintiff always maintains possession of the land in question, as opposed to ejectment, where the plaintiff has lost possession of land lawfully his and must therefore sue for its recovery.
[68] Thus, to ground an action of ejectment, the plaintiff must first be dispossessed of property which is rightfully his. The facts demonstrating such dispossession must be pled, i.e. the plaintiff must show that lands to which he owns a possessory right are now possessed by the defendant.
35In this case, the Affidavits of both the Plaintiff and Mr. Blake make it clear that the Plaintiff is unwelcome on the property and has been unable to use it. He is the only person on title. As a result, he has a strong legal argument that he should be granted sole possession of the property. At law, it is his property to dispose of as he sees fit, at least in the first instance. It will be for the Defendant to establish both that there was an agreement in this case, and what the terms of the agreement were.
36Even if the Defendant is able to establish the existence of an agreement, on the Defendant's evidence, the Plaintiff would still have some ownership interest in the property. As a result, he would be entitled to seek partition and sale under the Partition Act, R.S.O. 1990, c. P.4. The Plaintiff, even on the Defendant's evidence has a strong prima facie basis for requesting that the Court direct the sale of the property.
37On the facts as I understand them, the agreement was to develop a site to cultivate marijuana for commercial purposes. The evidence I have shows, at least at first blush, that this agreement was never carried out as the licenses were all for personal use. The evidence also shows that, since his arrest in 2024, the Defendant has probably been incapable of legally carrying out this agreement. As a result, even if there was an agreement (or other trust claim) that would allow the Defendant to challenge the Plaintiff's legal right to the Property, that agreement does not seem to be capable of being implemented, which raises questions about the strength of the Defendant's argument.
38In short, the Plaintiff has a strong argument that he has rights to this property, and it certainly appears that he has been deprived of those rights. As Justice Sharpe noted in his book, Injunctions and Specific Performance (Toronto: Thomson Reuters Canada, 2020, s. 4.9), there is a strong presumption in favour of granting injunctive relief where there is interference with property rights:
Where there is a direct interference with the plaintiff's property constituting a trespass, the rule favouring injunctive relief is even stronger than in the nuisance cases. Especially where the trespass is deliberate and continuing, it is ordinarily difficult to justify the denial of a prohibitive injunction. A damages award in such circumstances amounts to an expropriation without legislative sanction. The courts have expressly condoned injunctive relief, even where the balance of convenience is overwhelmingly in favour of the defendant. It has also been held that where there is no arguable case against a plaintiff's right of possession, an interlocutory injunction may be granted against a trespasser without consideration of the second and third stages of the RJR MacDonald test.
39In this case, there is both a strong prima facie case and an interference with the Plaintiff's property rights. As a result, the Plaintiff has met the first branch of the test.
b) Irreparable Harm
40In this case, the Plaintiff points to three sources of irreparable harm. First, there is the fact that the Plaintiff has lost control of what happens at a property that he owns. He argues that this type of loss is an irreparable harm: University of Toronto, at para. 10. I accept that position.
41Second, the Plaintiff alleges that he is unable to continue to carry the costs of this property. There was some dispute between the Plaintiff and the Defendant about who has paid the mortgage in the past. However, there does not seem to be any dispute that the Plaintiff is now entirely responsible for paying the mortgage. The Plaintiff does not have the benefit of the property. Given that fact, I accept that it would be a significant financial burden for the Plaintiff to carry the property and that this can cause irreparable harm.
42Finally, Mr. Blake's evidence indicates that marijuana plants are being grown on the property as of August of 2025. This is illegal in two respects. First, the Defendant's bail conditions prevent the possession of any drug paraphernalia. Marijuana plants are arguably paraphernalia and, therefore, a violation of bail conditions. Second, under the Cannabis Act, S.C. 2018, c. 16, a person cannot possess more than three marijuana plants without a permit. In the absence of a permit, which does not exist here, there is a risk of forfeiture of property. Mr. Blake's Affidavit, which the Defendant did not challenge in any meaningful way, makes it clear that there are numerous plants (well in excess of three) on the property.
43The fact that there is probably illegal activity taking place on the property is, in and of itself, irreparable harm. Without the intervention of the Court, the Plaintiff would be at risk of the property being seized. Given the other issues raised by the Plaintiff, I am of the view that the irreparable harm branch of the test has been met.
c) The Balance of Convenience
44This branch of the test requires me to balance the harm that would be caused to the Defendant by granting the injunction versus the harm that would be caused to the Plaintiff if I were not to grant the injunction. The harms to the Plaintiff are significant and are discussed in the previous section.
45The Defendant identifies two separate harms that he would suffer if I grant the injunction. First, he argues that the sale of the property would result in him having nowhere to live. Second, he argues that the sale of the property would mean that the agreement that he had made with the Plaintiff, among others, cannot be enforced.
46Any issues that I have in respect of the balance of convenience favouring the Defendant in this case can be managed by two specific orders. First, the Defendant should not be immediately required to move out of the property. He has been living here and should be given some time to find other accommodation. Thirty (30) days is an appropriate amount of time for him to do so.
47Second, the harms caused by not being able to carry out the alleged agreement may be addressed by having the Plaintiff give an undertaking as to damages (which he has done) and by having the net proceeds of sale paid into Court. The sale of the property should also be done on a timetable, and not simply when the Defendant wishes to have it sold. As I have pointed out in the irreparable harm section, it does not appear to me that the agreement that the Defendant alleges exists is capable of being carried out at this point.
48Once these two steps are taken, the harm to the Plaintiff in not granting the injunction will significantly outweigh the harm to the Defendant if the injunction is granted. As a result, the balance of convenience favours granting the injunction and it will be granted.
Conclusion
49For the foregoing reasons, an injunction is to issue in the form sought by the Plaintiff in paragraphs 3 (a) to (g) of his proposed order. However, this injunction will be subject to the following additional terms:
a) The injunction preventing the Defendant from being on the property shall not come into effect until thirty (30) days from today's date. The no-contact terms of the injunction come into effect immediately and remain in effect as long as the Plaintiff has counsel or until varied by further Order of this Court.
b) The Plaintiff shall not enter into the Property until thirty-one (31) days from today's date.
c) The Plaintiff shall promptly ready the property for sale and shall list the property for sale within five (5) months of today's date.
d) The Plaintiff shall pay the net proceeds of sale, after the payment of reasonable real estate commissions, the mortgage and any other closing expenses, into Court. The monies shall remain in Court until further Order of this Court.
e) The Plaintiff's undertaking as to damages shall apply.
50This brings me to the subject of costs. Normally, costs follow the cause and the Plaintiff might be entitled to costs of this motion at this point. However, much is still unknown about this case. In particular, I cannot determine the merits of the case. It is possible that the trial judge will find that there is an agreement between the Plaintiff and the Defendant, and that the Defendant had expectations of being able to remain in the property for a further period of time. As a result, the costs of this motion are to be determined by the judge deciding the merits of the claims.
51If there is any issue in respect of the form and content of the Order, I may be spoken to by making an appointment through the Trial Office in Walkerton.
LeMay J.
Released: October 30, 2025