Date: 20020814
Docket: T-1849-01
Neutral citation: 2002 FCT 862
BETWEEN:
TED AIRD, VIVIEN AIRD, GLENN ALSIP, SHIRLEY ALSIP, SHIRLEY BEATTIE, AL BOSSERT, ROGER BOYCE, PAT BOYCE, JIM COLLINS, OLIVE COLLINS, REG COOPER, PAT COOPER, BILL DAVIES, JESSIE DAVIES, ED DAVIES, ELAINE DAVIES, TONY DAVIS, JACKIE DAVIS, NELL DOORNBOSCH, WILLARD EDWARDS, ETHNA EDWARDS, PATRICIA ELLIOT, ARCHIBALD ELLIS, KURT FENGLER, ANNA FENGLER, LARRY FENGLER, RENATE FENGLER, TOM GLANCY, SHIRLEY GLANCY, JOE GRZYB, DORLES GRZYB, JOHN GUILIANA, BRITT GUILIANA, ED HOLMES, ETHEL HOLMES, HELEN HOLZWORTH, HERB HOLZWORTH, KATHY HRISHUK, MIKE HRISHUK, PETER JOHNER, HELEN JOHNER, ERNIE KAHLER, HILDA KAHLER, RON BACON, Executor of the Estate of JOSEPH KOVACS, GERRY McCARTHY, MARILYN McCARTHY, RON McCOMB, ROSE McCOMB, PETER MEISTER, INGRID MEISTER, WAYNE MITCHEL, TRUDIE MITCHEL, DIANE MOORE, JOHN MOORE, BERNIE MORRIS, JOHN MORSE, CATHERINE MORSE, ROY NEFF, DAISY NEFF, JOAN OLLIFFE, JOHN OSTENDORF, NELLIE OSTENDORF, ROXIE PARKER, KEN PATTERSON, JEFFREY PUNSHON, DOREEN PUNSHON, PAT RADBOURNE, ELAINE EBY, DOROTHY REID, LYNNE REYNAN, ED ROGOZINSKY, DELORES ROGOZINSKY, DEREK ROLPH, BETTE ROLPH, DAVID SCHELLENBERG, JOHN SNIJDERS, JANNIE SNIJDERS, RUDY SNIJDERS, JOHN SONNEVELDT, WILLIE SONNEVELDT, TOM SPANN, IRMA SPANN, HARLYN SPROULE, FAYE SPROULE, HENRY STRYD, ADRIANA STRYD, STAN TURNER, HAL WESTON, DOLORES WESTON, DON WHITTAKER, MARYANN WHITTAKER, CATHERINE KNUDSEN, HOWARD KNUDSEN, MARGARET MAKI, LEO MAKI, LORENZ LOHNINGER, HANNELORE LOHNINGER, MARGARET TIBBEN, RALPH CHURCHILL, SANDRA CHURCHILL, JANET REED, CHRIS SEABROOK, MARGARET SEABROOK, FRED HOWSE, PHYLLIS HOWSE, MACE HARRISON, IRENE HARRISON, BUD THOMPSON, MARJORIE THOMPSON, JOHANNA AUBERTIN, GORDON SIDDONS, ROSEMARY SIDDONS, RUSS GRILLS, DIANE GRILLS, BILL MILLER, GERRY MILLER, DEBORAH INNES, ARLEE MISFELDT, JANET MISFELDT, ALAN McLEAN, STANLEY BAXTER and GRACE BALES
Plaintiffs
and
COUNTRY PARK VILLAGE PROPERTIES
(MAINLAND) LTD.
Defendant
INTRODUCTION
[1] By motion to be dealt with in writing under Rule 369 of the Federal Court Rules, 1998[1], the plaintiffs, some but not all of the residents of "Country Park Village", a home park or subdivision located at or near Chilliwack, British Columbia, seek a variation of an interlocutory injunction issued in this action by my colleague, Mr. Justice Blanchard, filed the 4th of December, 2001, to prohibit the defendant from charging any of the plaintiffs any monies for recreational vehicle storage at Country Park Village. The plaintiffs' motion was filed the 20th of June, 2002.
[2] The defendant responded with a motion record that was served on the solicitor for the plaintiffs on the afternoon of Friday, the 28th of June, 2002, immediately preceding the long weekend that included Canada Day, Monday the 1st of July, 2002. Pursuant to Rule 369(3), the plaintiffs were entitled to serve and file "written representations" in reply to the respondent's motion record "...within four days after being served...". Taking into account Rule 6(3), the definition "holiday" in Rule 2 and the definition "holiday" in subsection 35(1) of the Interpretation Act[2], neither Sunday, the 30th of June, 2002 nor the immediately following Monday, Canada Day, counted against the four (4) day period for reply.
[3] The plaintiffs served and filed no written representations in reply. Rather, by a further motion filed the 5th of July, 2002, the plaintiffs seek a one week extension of the time to reply to the defendant's record, with that one week extension to commence from the date of any order granting the extension, and further, leave to file an affidavit or affidavits in reply. In support of the second motion, one of the plaintiffs attests:
I need at least one week to speak with all of the people noted in paragraphs 13-15 [some of the plaintiffs] of [the defendant's deponent's affidavit...] . I need to review with these people what ads they saw, what the park managers told them, if they saw the disclosure statement, whether or not their contracts contain clauses dealing with storage.
[4] These reasons briefly outline my rationale for dismissing both of the plaintiffs' motions.
BACKGROUND
[5] This action arises out of what appears to this judge to be a rather heated rental dispute between the plaintiffs and the defendant, their landlord. The defendant is the lessee of the lands comprising Country Park Village by assignment to it of a head lease from her Majesty the Queen in Right of Canada, as represented by the Ministry of Indian Affairs and Northern Development, apparently on behalf of a member of the Skowkale Band who was in lawful possession of the lands.
[6] The substance of the interlocutory injunction granted by my colleague, Mr. Justice Blanchard, earlier referred to, is in the following terms:
[15] This Court orders that:
(a) An injunction issue prohibiting the Defendant from terminating any of the Sub-Leases pending the assessment of the "Fair Market Rent" by this Court as at March 1, 2000, conditional upon the Plaintiffs, severally, paying their monthly rent to the Defendant on the due date, at the same level or rate as rent payable on February 29, 2000.
(b) Should any one of the Plaintiffs fail to make their monthly rent, as provided for in subparagraph 15(a) above, the Defendant, on 72 hours notice to the defaulting Plaintiff, may apply to this Court to have the injunction lifted against the said Plaintiff.
...
[7] By notices dated the 29th of April , 2002, the defendant notified at least certain of the plaintiffs to the following effect:
As you are aware, recreational vehicle storage has been provided to you previously free of charge as a service. As you are not paying Fair Market Rent as set March 1, 2000 and you have additional rent outstanding, we must cease this service.
We are not prepared to absorb the recreational vehicle storage costs any further. Effective May 1, 2002 you will be charged $450.00 per annum per space for recreational vehicle storage.
Please remit full payment in the amount of ... by May 15, 2002. Should you choose not to use our RV Storage, please remove your recreational vehicle from our property by May 31, 2002. If no payment is made by that date, we will arrange to have your recreational vehicle removed at your expense. [emphasis in the original]
The dollar amount which is left blank in the foregoing quote varies, I assume dependant on the number of recreational vehicle storage spaces occupied by the addressee.
ANALYSIS
1) The Plaintiffs' motion for an extension of time to reply and for leave to file
affidavits in reply
[8] As earlier noted, Rule 369(3) provides for the filing of "written representations in reply", not for reply affidavits. In Vlahou v.Minister of Manpower and Immigration[3], Mr. Justice Pratte, for the Court, wrote:
Counsel for the applicant seems to have assumed that he could file an application for leave to appeal pursuant to Rule 324 [a predecessor to Rule 369] with the understanding that it would not be disposed of until he could support it by adequate material and written representations. This, in my view, is a misapprehension. If one is unable to support a motion by adequate material and representations, one should refrain from making it. As a rule, a motion is disposed of on the basis of the evidence and representations made at the time of its presentation. When a motion is made under Rule 324, it is presented at the time it is filed with the letter requesting that it be disposed of without personal appearance. It is, therefore, at that time that the applicant's representations and the affidavit evidence supporting the application must be submitted; if they are not, the motion will, as a rule, be summarily dismissed. [emphasis added]
[9] As exhibits to affidavits filed in support of motions to extend the scope of the interlocutory injunction herein, the plaintiffs filed what appear to be advertisements extracted from various publications which the plaintiffs allege demonstrate an undertaking to potential tenants of Country Park Village that free recreational vehicle parking will be included. The defendant replies by affidavit indicating that certain of the plaintiffs acquired their units at Country Park Village by sub-leases and others acquired their sub-leases after the period of time to which the advertisements principally relate. In relation to these sworn allegations on behalf of the defendant, the plaintiffs' affiant as to a need to consult and reply by further affidavit or affidavits as previously noted .
[10] I am satisfied that all of the questions that the plaintiffs' affiant wishes to review with certain of her co-plaintiffs reflect knowledge available to the plaintiffs before their motion for extension of the injunction was filed. As Mr. Justice Pratte noted in Vlahou, supra, as a general rule, it is when a motion to be dealt with in writing is filed that the applicant's representations and affidavit evidence supporting the application must be submitted. If such were not the case, the advantages flowing from dealing with motions in writing would potentially be lost and respondents on such motions would be potentially subjected to litigation by ambush where applicants withhold sworn testimony in support of a motion only to file it after the respondent's opportunity to reply has gone by. Where, as here, the applicant simply failed to put all of what they now consider to be the relevant evidence before the Court at the first opportunity, and no explanation as to extraordinary circumstances justifying that failure is provided, as I find to be the case, the Court's discretion to vary from the procedure contemplated by the rules should not be exercised in their favour.
[11] In the result, leave to file a supplementary affidavit or affidavits will be denied.
[12] Additionally, an extension of time to reply will also be denied. The plaintiffs emphasized the "hardship" imposed on them by service on their solicitor of the respondent's record on a Friday afternoon preceding a long weekend. The Rules of this Court as to computation of time accommodate such a circumstance, albeit perhaps not to the satisfaction of the plaintiffs. No special case for a variation of those Rules is made out on the material before me.
2) The Plaintiffs' Motion to extend the scope of the existing
Interlocutory Injunction
[13] As Mr. Justice Blanchard noted at paragraph 5 of his reasons in support of the grant of the interlocutory injunction in this matter:
In RJR-Macdonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.), the Supreme Court of Canada adopted the three-stage test for courts to apply when considering an application for an interlocutory injunction. Citing the test already articulated in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, the court stated at page 400 of its decision:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[14] The three elements of the test are conjunctive.
[15] Mr. Justice Blanchard found that there is a serious issue to be tried in this action. I defer to the finding of my colleague in that regard.
[16] This motion by the applicants fails on the second element of the test, that is to say, irreparable harm. The applicants' submissions relating to irreparable harm are briefly stated in the following terms:
The Plaintiffs will suffer "irreparable harm" if the injunction is not varied. It is evident from the Defendant's actions in the past that if the Plaintiffs do not pay the recreational vehicle storage charges, the Defendant will apply to set aside the injunction which is currently in place, terminate the subleases and/or seize the recreational vehicles. If the injunction is set aside very substantial arrears will immediately be owing by all Plaintiffs, and the Defendant has demonstrated in the past that it will move quickly to terminate leases when arrears are outstanding. There will undoubtedly be termination of the Sub-Leases, and the Lands currently occupied by the Plaintiffs will be lost for all time, which amounts to irreparable harm.
[17] All of the foregoing is speculative. If the defendant moves to set aside the current interlocutory injunction on the basis of failure to pay additional rent for recreational vehicle storage, the impact of such a relief can be evaluated in the light of all of the evidence before the Court at that time. Certainly, there is nothing now before the Court to indicate that the defendant contemplates taking such a step in the context of this litigation. Indeed, the evidence is to the contrary. Notices given to certain of the plaintiffs indicate that if they are not prepared to pay additional rent for recreational vehicle storage, they should remove their recreational vehicles. If they fail to do so, the defendant indicates that it will arrange to have the recreational vehicles moved at the owners' expense. In the affidavit filed on behalf of the defendant, its affiant attests:
"No termination of lease is threatened." Similarly, there is no evidence before the Court to support, as other than mere speculation, the allegation that the defendant might "...seize the recreational vehicles".
[18] Irreparable harm is simply not established by the material now before the Court. In the result, the tri-part test being conjunctive, I need not move on to consider the third element of the test for an interlocutory injunction, the balance of convenience.
[19] Relief in the form of a variation of the existing interlocutory injunction will also be denied.
CONCLUSION
[20] In the result, both motions on behalf of the plaintiffs that are now before the Court will be dismissed. While the defendant has been successful on both motions, I am satisfied that the atmosphere surrounding this litigation is such that it would be inappropriate at this time to attempt to evaluate the merits supporting the plaintiffs in the bringing of these motions. In the result, costs on both motions will be in the cause.
________________________________
J. F.C.C.
Ottawa, Ontario
Wednesday, August 14, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1849-01
STYLE OF CAUSE: Ted Aird and others -and- Country Park Village
Properties (Mainland) Ltd.
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR Order : The Honourable Mr. Justice Gibson
DATED: August 14, 2002
WRITTEN REPRESENTATIONS BY:
Ian D. MacKinnon FOR PLAINTIFF
G. E. H. Cadman, Q. C. FOR DEFENDANT
SOLICITORS OF RECORD:
Robertson Downe & Mullally
Abbotsford, B. C. FOR PLAINTIFF
Boughton Peterson
Yang & Anderson
Abbotsford, B. C. FOR DEFENDANT