



COURT OF APPEAL FOR ONTARIO

CITATION: 1711811 Ontario Ltd.
    (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125

DATE: 20140218

DOCKET: C57291

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

1711811 Ontario Ltd. and Olga Maria Paiva,
    Operating as AdLine

Applicants (Respondents)

and

Buckley Insurance Brokers Ltd., Robert Buckley
    and 1730849 Ontario Ltd.

Respondents (Appellants)

Jonathan L. Rosenstein, for the appellants

Sara J. Erskine, for the respondents

Heard: January 22, 2014

On appeal from the order of Justice Susan G. Himel of the
    Superior Court of Justice, dated May 31, 2013, with reasons reported at 2013
    ONSC 1512.

Gillese
    J.A.:

[1]

The order that spawned this appeal is a very restrictive permanent
    injunction relating to the use of a laneway.  In my view, it was an error to
    have ordered a permanent injunction.  Consequently, I would allow the appeal.

BACKGROUND

[2]

AdLine is a t-shirt printing business in Newmarket, Ontario.  Olga Maria
    Paiva owns the business and operates it from a building located at 255 Main
    Street South. The building is owned by 1711811 Ontario Ltd.  In these reasons,
    I will refer to AdLine, Olga Maria Paiva and 1711811 Ontario Ltd. collectively
    as AdLine or the Respondents.

[3]

Robert Buckley owns Buckley Insurance Ltd., which operates out of a
    building located at 247 Main Street South in Newmarket.  1730849 Ontario Ltd
    owns the building.  I will refer to Robert Buckley, Buckley Insurance Ltd. and
    1730849 Ontario Ltd. collectively as Buckley or the Appellants.

[4]

AdLine and Buckley are neighbours. They share the use of a laneway that
    runs at the rear of their buildings.  The laneway provides both with shipping
    access.

[5]

Buckley purchased the property on which the laneway is located in 2008. 
    AdLine has a registered right of way over the laneway.

[6]

The right of way, which has existed since 1957, gives AdLine:

a free and uninterrupted right-of-way in common with all other
    persons entitled thereto for persons, animals and vehicles, in, over, along and
    upon that certain parcel of land.

[7]

The laneway runs across Buckleys property.  A portion of it passes beneath
    a ceiling that connects the buildings east and west wings.  The laneway then
    feeds into a loading bay located on the side of AdLines building. The loading
    bay is AdLines only point of access for items that it sends and receives.

[8]

In May 2009, Buckley notified AdLine that it intended to renovate the
    laneway because it was in a state of disrepair.

[9]

AdLine voiced concerns that the laneway would be obstructed during the renovation
    period, and that the clearance height of the underpass would be affected.

[10]

On
    May 15, 2009, AdLine brought an application (the Application) seeking, among
    other things, a declaration of its rights to the laneway and injunctive relief
    to prevent Buckley from constructing on, or obstructing, the laneway.

[11]

Before
    the Application was heard, the parties arrived at an agreement that resolved
    their dispute.  On May 20, 2009, Pollak J. issued a consent order based on that
    agreement (the Consent Order).

[12]

Under
    the terms of the Consent Order, Buckley would not block vehicular access during
    business hours and would give AdLine advance notice when such blockage was
    unavoidable.  The Consent Order expressly dismissed the Application.  It did not
    contain an expiry date.

[13]

The
    renovations to the laneway were completed in 2009.

THE CONTEMPT MOTION

[14]

The
    conflict between the parties subsided in the period following the Consent
    Order. However, in 2011, Buckley began further construction. Disputes again
    arose between the parties regarding the laneway. AdLine complained that Buckley
    was: obstructing its use of the laneway by allowing vehicles to park in it; leaving
    ajar the metal shipping doors that open into the laneway; engaging in
    construction that changed the clearance height of the underpass and the width
    of the laneway; and, failing to provide adequate notice of interruptions to
    vehicular access in the laneway.

[15]

AdLine
    filed a notice of motion dated October 3, 2012, within the Application
    proceeding, asking the court to find Buckley in contempt of the Consent Order and
    to grant mandatory injunctive relief beyond the terms of the Consent Order
    (the Contempt Motion).

[16]

Buckley
    responded with affidavit evidence which painted a dramatically different
    version of events.  The Buckley affidavit evidence showed that Buckley had acted
    reasonably throughout and that it was AdLine who acted unreasonably in respect
    of the laneway.

[17]

In
    his affidavit, Robert Buckley testified, among other things, that other
    businesses had a right to use the laneway for loading and unloading.  He said
    that he had had no difficulty with these third-party businesses, however, the
    third parties had experienced many difficulties with AdLines demands in
    respect of the laneway.  One such third party was a florist that operated at
    245 Main Street South in Newmarket.  Affidavits from the florist and one of its
    suppliers, attached to the Buckley affidavit, supported Buckleys version of
    events.

[18]

In
    his affidavit, Mr. Buckley also responded to AdLines allegations in the
    Contempt Motion.  He set out the steps that had been taken to accommodate
    AdLine during the construction period and attached supporting affidavit
    evidence to that effect from those involved in the construction.  He also gave
    evidence about his employees need to use the laneway to access their cafeteria
    and fitness facility, as well as the public parking areas at the rear of the
    building.  He denied that the opening of the metal shipping doors materially
    impedes access to the laneway.

[19]

On
    November 20, 2012, in response to what it perceived to be persistent
    obstruction of the laneway, AdLine brought an
ex parte
motion for interim
    injunctive relief and to set an expedited hearing date for the Contempt Motion. 
    Buckleys counsel was notified.

[20]

The
    parties appeared before Low J. on November 21, 2012.  The matter was adjourned
    to December 10, 2012.

[21]

On
    December 10, 2012, Stinson J. ordered interim injunctive relief, pending
    argument on the Contempt Motion, and fixed February 27, 2013, as the hearing
    date for that motion (the Interim Order).

[22]

Under
    the Interim Order, Buckley was required to provide AdLine with reasonable,
    unimpeded access to the laneway.  As well, Buckley was ordered to ensure that
    none of its employees or those under its control parked on the laneway, with a 30-minute
    exemption being made for vehicles actively delivering goods to, or receiving
    goods from, Buckleys premises.  In the event that a vehicle parked in the
    laneway in violation of the Interim Order, AdLine was to notify Buckley and
    Buckley was to take immediate steps to have the offending vehicle moved or
    removed.  If that did not occur, AdLine was given the power to tow the offending
    vehicle, with a right to recover that expense from Buckley.  Further, Buckleys
    employee entrance doors and shipping doors were required to remain closed when
    not in active use.

THE DECISION BELOW

[23]

The
    order under appeal flowed from three endorsements made by the motion judge.  In
    light of the issues raised on appeal, it is necessary to consider all three endorsements.

The First Endorsement

[24]

In
    reasons dated March 12, 2013 (the First Endorsement), the motion judge allowed
    the Contempt Motion in part; she dismissed that part of the motion seeking to
    have Buckley found to be in contempt, but she granted that part in which AdLine
    sought further injunctive relief.

[25]

The
    motion judge refused to make a finding of contempt because she was not
    satisfied beyond a reasonable doubt that the Consent Order was in effect during
    the most recent bout of conflict between the parties.  In her view, the Consent
    Order was a response to the specific circumstances concerning Buckleys proposed
    renovations to the laneway in 2009.  As she noted, if she were unable to know
    with certainty whether the Consent Order was operative after those renovations
    had been completed, how could Buckley?  And if there were no order in place,
    then contempt could not be found.

[26]

In
    relation to the order for further injunctive relief, for reasons that will
    become clear, it is necessary to consider the motion judges reasons in more
    detail.

[27]

At
    the outset of the First Endorsement, the motion judge recited that through the
    motion, AdLine sought a finding that Buckley was in contempt and a mandatory
    order concerning the use of the right of way (at para. 1). In the section
    entitled Positions of the Parties, the motion judge said that AdLine sought
    permanent injunctive relief (at para. 9).  The motion judge then applied the
    familiar three-part test for interlocutory injunctions set out in
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311 (at para. 25).

[28]

The
    motion judge concluded that she would grant AdLines request for interim and
    interlocutory injunctive relief (at para. 28).  In her view, such relief was
    needed to protect AdLines property right  a right of way existing since 1957 
    from interference.

[29]

The
    motion judge recognized that Buckley also requires the use of the laneway for
    its business. In her view, this justified temporary blockages of the laneway for
    short periods of time.

[30]

The
    motion judge then made an order with a series of detailed terms respecting the
    use of the laneway.  The specific terms of the order can be found below in the
    section entitled The Order under Appeal.

[31]

Finally,
    the motion judge declined to grant a mandatory order compelling Buckley to
    restore the clearance height of the laneway to its original dimensions. Instead,
    the motion judge gave Buckley four months to remedy the matter voluntarily,
    failing which AdLine could return to court to seek that aspect of injunctive
    relief.

The Second Endorsement

[32]

Following
    the release of the First Endorsement, the parties disagreed on two of its provisions:
    whether written notice was required for deliveries outside of normal business
    hours, and the appropriate clearance height of the laneway.

[33]

The
    motion judge heard oral submissions from the parties on these two disputed
    aspects of the order and, on May 31, 2013, she issued an endorsement in which
    she resolved them (the Second Endorsement).

[34]

In
    the Second Endorsement, the motion judge began by stating that in respect of
    AdLines motion for mandatory injunctive relief, she had been satisfied that
    the
RJR-Macdonald

test was met and thus she had ordered interim
    and interlocutory injunctive relief.  She then dealt with the two points of
    disagreement arising from the order contained in the First Endorsement.

[35]

The
    motion judge explained that the 24 hours written notice provision was intended
    to apply only to regular business hours. Outside of these hours, prior written
    notice was not required. However, the maximum total time that vehicles could deliver
    or receive goods, regardless of the day, was 120 minutes in any given day.

[36]

The
    motion judge clarified that the clearance height of the laneway was 12.2 feet.

The Third Endorsement

[37]

Following
    the release of the Second Endorsement, Buckley retained new counsel. The
    parties again disagreed on the order. Specifically, they disagreed on whether
    the injunctive relief that the motion judge had ordered was permanent or
    interlocutory.

[38]

On
    July 3, 2013, the motion judge issued a third endorsement in which she addressed
    this disputed aspect of the order (the Third Endorsement).  The Third
    Endorsement consists of four paragraphs.

[39]

In
    the first paragraph, the motion judge again recites that AdLine had sought mandatory
    injunctive relief and that she had granted interim and interlocutory
    injunctive relief.

[40]

In
    the second paragraph, the motion judge gave a brief summary of the
    circumstances surrounding the making of the Second Endorsement.

[41]

In
    the third paragraph, the motion judge explained that Buckley had retained new
    counsel and that the parties had again been unable to agree on the terms of the
    order.  She stated that counsel had appeared before her that day and made
    submissions concerning the issue and that she had signed a form of the order
    that reflected her decision.

[42]

The
    fourth paragraph contains the motion judges reasons for concluding that she
    intended to order permanent injunctive relief.  The full text of those reasons reads
    as follows:

In the signed order, I clarify that the terms of injunctive
    relief ordered with the exception of the mandatory order to remedy the height
    clearance are imposed as permanent injunctive relief.

[43]

The
    motion judge concluded the fourth paragraph by stating that the issue of the
    height clearance had not been finally determined and that the matter was adjourned,
    on terms, to enable the parties to rectify the situation.

THE ORDER UNDER APPEAL

[44]

An
    order, dated May 31, 2013, was finally taken out in this proceeding (the Order
    under Appeal).

[45]

In
    the Order under Appeal, the motion for contempt is dismissed and, in paras. 2
    and 3, injunctive relief is ordered.  The following analysis is informed by the
    nature and extent of that relief.  Thus, paras. 2 and 3 of the Order under
    Appeal are set out now.

2.  THIS COURT ORDERS that [AdLines] motion for a mandatory
    order concerning the use of the right of way described as Parts 3, 4, and 5 on
    Plan 65R-7394 (Right of Way), is hereby [granted] on the terms set out in
    paragraph 3 below.

3.  THIS COURT ORDERS that [Buckley] shall provide [AdLine]
    with reasonable, unimpeded access through the Right of Way in accordance with
    the following terms:

(a) the [Appellants] and their agents and employees are
    prohibited from parking vehicles in the Right of Way;

(b) the [Appellants] are permitted to allow vehicles to stop
    in the Right of Way that are delivering to or receiving goods from the
    [Appellants] premises during the hours of 9:00 a.m. to 5:00 p.m. Monday
    through Friday inclusive but such activity is limited to 30 minutes or less
    except with prior written notice of at least 24 hours to the [Respondents];

(c) outside of regular business hours prior written notice
    by the [Appellants] is not required; however, the total amount of time that
    vehicles may deliver to or receive goods from the [Appellants] premises,
    regardless of the day, is up to 120 minutes (two hours) on any given day;

(d) the [Respondents] shall notify the [Appellants] if they
    learn that a vehicle has been parked in the Right of Way in violation of this
    order and the [Appellants] shall take immediate steps to have the vehicle
    removed;

(e) if the [Appellants] do not take steps to have the
    vehicle which is improperly parked in the Right of Way removed within 20
    minutes of being notified by the [Respondents] that access is being blocked,
    then the [Respondents] may arrange a towing service to remove the vehicles at
    the expense of the [Appellants] or the owner of the vehicle;

(f) during [business hours], the employee doors and the
    shipping doors of the [Appellants] shall remain closed except when they are
    actively used; they may not be used for more than 30 minutes at a time and for
    a total of 120 minutes in any given day;

(g) employees of the [Appellants] shall be directed to make
    way for delivery vehicles which require access through the Right of Way to the
    [Respondents] premises. The [Appellants] are also required to direct their
    customers and others not to park in the Right of Way;

(h) any future construction work to the Right of Way shall
    be done on notice of 24 hours to the [Respondents] and shall be carried out in
    a way to allow vehicle access to 255 Main Street during business hours of 9:00
    a.m. to 5:00 p.m., Monday through Friday inclusive each week; and

(i) there shall be no material change to the Right of Way
    that will restrict access to 255 Main Street by vans and vehicles as exists as
    of the date of this order unless there is agreement of both owners of 247 Main
    Street and 255 Main Street.

[46]

It
    will be noted that the Order under Appeal does not expressly state that the injunctive
    relief is permanent.  In fact, as can be readily seen, para. 2 of the Order
    under Appeal refers to AdLines motion for a mandatory order, not a permanent
    order.  However, the Third Endorsement makes it clear that the motion judge
    intended to impose permanent injunctive relief.

THE ISSUES

[47]

Buckley
    accepts that the motion judge had the power to grant interlocutory injunctive
    relief.  The error, it contends, was in making the injunctive relief
    permanent.  Specifically, Buckley submits that the motion judge erred by:

1.

changing the
    order from an interlocutory injunction to a permanent injunction without
    explanation;

2.

imposing a
    permanent injunction on the basis of the test for an interlocutory injunction;

3.

making findings
    of fact not available on the motion; and,

4.

ordering a
    permanent injunction despite the absence of an underlying legal proceeding.

[48]

A
    lack of precision in the terminology associated with injunctive relief appears
    to have contributed to some confusion in these proceedings.  Thus, the key
    terms will be clarified before I address the issues.

KEY TERMS RELATING TO INJUNCTIONS

[49]

Various
    types of injunctive relief have been sought or ordered in this proceeding: 
    interim, interlocutory, mandatory and permanent.  What do each of those terms
    mean and how do they differ from one another?

[50]

Let
    us first consider interim and interlocutory injunctions.  While motions for
    pre-trial injunctive relief often term the relief that is sought as both
    interim and interlocutory, some distinctions can be drawn between the two.

[51]

A
    motion for an interim injunction can be made
ex parte
or on notice. 
    Argument on the motion is generally quite limited and, if an order is made for
    interim injunctive relief, the order is typically for a brief, specified period
    of time: see
Robert J. Sharpe,
Injunctions
    and Specific Performance
, loose-leaf
    (Toronto: Canada Law Book, 2013), at para. 2.15.
I
f an interim injunction is granted on an
ex parte
basis,
    the moving party must normally bring a further motion to have the interim
    injunction continued

[52]

An interlocutory injunction, like an interim
    injunction, is a pre-trial form of relief.  It is an order restraining the
    defendant for a limited period, such as until trial or other disposition of the
    action:
see Sharpe, at para.
2.15.  Interlocutory
    injunctive relief typically follows much more thorough argument than that for
    an interim injunction, by both parties, and is generally for a longer duration
    than an interim injunction.

[53]

The
    present case provides an example of both an interim and an interlocutory
    injunction.

[54]

The
    Interim Order is an example of an interim injunction.  AdLine originally moved
    for interim injunctive relief on an
ex parte

basis.  However,
    both parties were present when the motion for interim relief was argued. 
    Justice Stinson opened his endorsement by emphasizing the very limited nature
    of the question before him: should interim injunctive relief be granted pending
    the scheduled hearing of the Contempt Motion?  The injunctive relief granted in
    the Interim Order was specified to last for that period of slightly less than
    two months.

[55]

The
    Consent Order, on the other hand, was the product of both parties
    participation, and the duration of the injunctive relief restraining Buckleys
    use of the laneway, while not clear on the face of the Consent Order, appears
    to have been for the period of the laneways renovation in 2009.

[56]

The
    next useful distinction to be drawn is between interlocutory and permanent
    injunctions.  Interlocutory injunctions are imposed in ongoing cases whereas
    permanent injunctions are granted after a final adjudication of rights: see Sharpe,
    at para.
1.40, citing
Liu v. Matrikon
    Inc.
, 2007 ABCA 310, 422 A.R. 165, at para.
    26. As will be seen, this conceptual distinction features prominently in the
    present case, where a key issue is whether the court must apply a different
    test for permanent injunctions than for interlocutory injunctions.

[57]

It
    is also important to distinguish between mandatory and permanent injunctions. A
    mandatory injunction is one that requires the defendant to act positively. It
    may require the defendant to take certain steps to repair the situation
    consistent with the plaintiffs rights, or it may require the defendant to
    carry out an unperformed duty to act in the future: see Sharpe, at para.
1.10.  Mandatory injunctions are rarely ordered and
    must be contrasted with the usual type of injunctive relief, which prohibits
    certain specified acts.

[58]

Because
    of their very nature, mandatory injunctions are often permanent.  However, permanent
    injunctions are not necessarily mandatory.  An example illustrates this point. 
    If, after trial, a court orders that a defendant can never build on a right of
    way, it will have made a permanent order enjoining the defendant from building
    on the right of way.  But, the injunction would not be mandatory because it
    does not require the defendant to perform a positive act.

[59]

In
    short, the words mandatory and permanent are not synonymous, especially in
    the context of injunctive relief.

ANALYSIS

Issue 1  Did the Motion Judge Change
    the Order Without    Explanation?

[60]

The
    first issue arises because in the Third Endorsement, the motion judge altered the
    order that she had made in the First Endorsement, and granted permanent, rather
    than interlocutory, injunctive relief.

[61]

Buckley
    says that ordering permanent injunctive relief was not a clarification, as the
    motion judge said, but a change.  Buckley concedes that the motion judge had
    the authority to change the order because it had not yet been formally filed
    with the court.  However, Buckley submits, reasons must be given for such a change
    and, in this case, the motion judge failed in that regard.

[62]

AdLine
    submits that the motion judge did not change her order; rather, she simply
    clarified it.  AdLine says that the motion judges references to interlocutory
    injunctions in the First and Second Endorsements were inadvertent and that the
    motion judge had always intended to grant permanent injunctive relief. 
    Consequently, AdLine maintains, the motion judge sufficiently explained the
    change in her order by stating that it was a clarification.

[63]

I
    would accept Buckleys submission on this issue.

[64]

As
    Buckley conceded, until the order was formally entered, the motion judge had a
    broad discretion to change it: see
Montague v. Bank of Nova Scotia
(2004),
    69 O.R. (3d) 87 (C.A.), at para. 34.  However, a judge exercising that
    discretion bears a significant onus to explain the change:
Montague
,
    at para. 40.

[65]

The
    first question, therefore, is whether making the order for injunctive relief
    permanent rather than interlocutory was a change.  In my view, there can be no
    doubt that it was.

[66]

The
    First Endorsement contains the motion judges reasons for granting relief.  In
    it, the motion judge sets out and applies the
RJR-MacDonald

test,
    which she identifies as the test for an interlocutory injunction.  The motion
    judge makes no mention of the test for permanent injunctions nor did she
    consider whether that test had been met.

[67]

Having
    found that the test for an interlocutory injunction had been met, the motion
    judge then expressly granted relief in those terms, saying at para. 28 of the
    First Endorsement, The request for interim and interlocutory relief is granted
    with reference to the right of way, legally described as.

[68]

The
    sole reference to permanent relief in the First Endorsement is in para. 9,
    where the motion judge sets out AdLines position and says it sought permanent
    injunctive relief.  However, according to the record, AdLine did not seek permanent
    injunctive relief.  The word permanent does not appear in its notice of
    motion for the Contempt Motion.  While AdLine repeatedly asked for mandatory
    injunctive relief in its notice of motion, as we have seen, the words mandatory
    and permanent have very different meanings in respect of injunctions.

[69]

Furthermore,
    in the first paragraph of each of the Second and Third Endorsements, the motion
    judge repeated that she was satisfied that the
RJR-MacDonald
test had
    been met and thus she had granted interim and interlocutory relief in respect
    of the right of way.

[70]

Having
    found that the motion judge made a change to the order, we must consider
    whether she explained the change.  In my view, she did not.

[71]

As
    I have explained, the sole reason given for the change is that it was a
    clarification.  Having made an order that the injunctive relief was interlocutory,
    when the motion judge declared it to be permanent, she was not clarifying the order,
    she was changing it.  Thus, saying it was a clarification does not amount to a
    reason for changing the order.

[72]

As
Montague

points out, the onus to explain any change to an order
    is significant.   The seriousness of the change in this case underscores that
    onus.  If the Order under Appeal stands, Buckley and anyone who might later
    take title from Buckley will be permanently, seriously restricted in the use of
    its own laneway.  A consideration of just one component of the Order under
    Appeal makes this clear: Buckley  and any subsequent owner  would have to
    ensure that the cumulative time in which delivery vehicles are on the laneway
    never exceeded 120 minutes in a day.  This prohibition would extend to every
    day of the week, no matter the circumstances, and would remain so long as the
    right of way exists, even if AdLine were no longer operating from its premises. 
    It is one thing for Buckley to face an order restricting its use for a limited
    period. It is quite another to contemplate such restrictions on a permanent
    basis, including if and when Buckley wished to sell its property.

[73]

A
    clear explanation for the change to the order was required so that the parties,
    and this court on review, could know the reason for the change.  It was an
    error to fail to give that explanation.

Issue 2  Is the Test for a
    Permanent Injunction Different than the Test for an Interlocutory Injunction?

[74]

The
    test for interlocutory injunctions is the familiar three-part inquiry set out
    in
RJR-MacDonald
:  is there a serious issue to be tried; would the
    moving party otherwise suffer irreparable harm; and, does the balance of
    convenience favour granting the injunction.

[75]

Does
    that same test apply when the court is deciding whether to grant permanent
    injunctive relief? AdLine contends that it does and points to cases such as
Hanisch
    v. McKean
, 2013 ONSC 2727, at para. 111, and
Poersch v. Aetna
,
    2000 CanLII 22613 (Ont. S.C.), at para. 103, where the courts have expressly
    applied the test when deciding whether to grant permanent injunctive relief.

[76]

I
    would not accept this submission.  In my view, a different test must apply.

[77]

The
    British Columbia Court of Appeal recently considered the test for a permanent
    injunction and its relationship to the test for an interlocutory injunction. In
    the decision under review in
Cambie Surgeries Corp. v. British Columbia
    (Medical Services Commission)
, 2010 BCCA
    396, 323 D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based
    on the test for an interlocutory injunction.  Despite the parties agreement
    that the trial judge correctly set out the test, the British Columbia Court of
    Appeal held that the wrong test had been applied and reversed the trial
    decision.

[78]

Justice Groberman, writing for the court, explained
    that the
RJR-Macdonald

test is for interlocutory  not final or permanent 
    injunctions.  At para. 24 of
Cambie Surgeries
, he explained that the
RJR-Macdonald

test is designed
    to address situations in which the court does not have the ability to finally
    determine the merits of the case but, nonetheless, must decide whether interim
    relief is necessary to protect the applicants interests.

[79]

In paras. 27-28 of
Cambie Surgeries
, Groberman J.A. explained:

Neither the usual nor the modified test discussed in
RJR-MacDonald
has application when a court is making a final (as opposed to interlocutory)
    determination as to whether an injunction should be granted. The issues of
    irreparable harm and balance of convenience are relevant to interlocutory
    injunctions precisely because the court does not, on such applications, have
    the ability to finally determine the matter in issue. A court considering an
    application for a final injunction, on the other hand, will fully evaluate the
    legal rights of the parties.

In order to obtain final injunctive relief, a party is required
    to establish its legal rights. The court must then determine whether an
    injunction is an appropriate remedy. Irreparable harm and balance of
    convenience are not,
per se
, relevant to the granting of a final
    injunction, though some of the evidence that a court would use to evaluate
    those issues on an interlocutory injunction application might also be
    considered in evaluating whether the court ought to exercise its discretion to
    grant final injunctive relief.

[80]

I would adopt this reasoning. The
RJR-Macdonald

test is
    designed for interlocutory injunctive relief. Permanent relief can be granted only
    after a final adjudication.  Different considerations operate and, therefore, a
    different test must be applied, pre- and post-trial.

Issue 3  Did the Motion Judge err
    by making Findings of Fact not available on the Motion?

[81]

In
    this case, there was no dispute that AdLine had a right of way over the
    laneway.  The questions for the motion judge were whether Buckley was
    infringing AdLines rights in the laneway and, if so, what type of interlocutory
    injunctive relief was appropriate.

[82]

To
    decide these questions, the motion judge had to weigh the competing evidence
    and make factual findings about the extent, if any, of Buckleys interference
    with AdLines right of way.

[83]

It
    will be recalled that AdLine and Buckley offered dramatically competing
    versions of events.  One version or the other had to be preferred in order to
    decide whether Buckley had infringed AdLines rights. In this regard, I note
    that the motion judges reasons do not refer to Buckleys contrary evidence and
    there is no indication why the motion judge accepted AdLines evidence and (implicitly)
    rejected that given by Buckley.

[84]

Given
    the nature of the conflicting evidence in this case, credibility would play a
    large role in making the necessary factual findings.  In my view, it is hard to
    conceive of how such credibility findings could be made without a trial.

[85]

There
    is a second reason why the factual findings in this case were not available,
    namely, the nature of the relief ordered.

[86]

In
    general terms, injunctive relief is onerous.  It is available only when truly
    necessary to ensure that a party is not deprived of his or her rights.  Even when
    injunctive relief is appropriate, the particulars of that relief must be
    determined so as to ensure a proper balancing of the parties respective
    interests.  That also demands a careful weighing of the evidence.

[87]

The
    detailed restrictions imposed by the Order under Appeal demonstrate this
    point.  Under that order, not only is Buckley prohibited from using the laneway
    except under strictly supervised times and manners, it has been placed under a
    positive obligation to monitor third-party use of the laneway and has been made
    responsible for the costs of removing third-party vehicles parked on the
    laneway.

[88]

The
    motion judge gave no reasons for why she selected the particular terms of
    injunctive relief that she did.  There is no evidence in the record to indicate
    why the terms in the Order under Appeal were selected nor how the motion judge
    determined that they constituted a fair and reasonable balancing of the
    parties respective rights and interests in the laneway.  Again, given the
    nature and extent of the conflicting evidence, it is hard to conceive of how
    such relief could be fashioned without a trial.

[89]

It
    is for these reasons that I accept that in this case, the findings of fact that
    were made were not available on the motion.

Issue 4  Did the Motion Judge err
    in Ordering a Permanent Injunction in the Absence of an Underlying Legal
    Proceeding?

[90]

Buckley submits that
the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 do not contemplate free-standing motions
    unmoored from a legal proceeding, extant or contemplated.  It points to Rule
    1.03(1), in which motion is defined to mean a motion in a proceeding or an
    intended proceeding.  Because the Application had been explicitly dismissed by
    the Consent Order, and no effort had been made to revive it, amend it, or
    commence a new proceeding, Buckley says there was no proceeding within which to
    bring the motion for permanent injunctive relief.

[91]

Further,
    Buckley argues, to the extent that Rule 60.11(1) presupposes the existence of a
    proceeding when a party makes a motion for a contempt order, the motion judge
    exceeded the scope of the powers conferred by Rule 60.11(5) to make such order
    as is just when she purported to grant AdLine a permanent injunction.

[92]

I
    agree that the motion judge did not have the jurisdiction to grant permanent
    injunctive relief, but for somewhat different reasons.

[93]

In
    the Contempt Motion, AdLine sought two types of relief: a finding of contempt
    and further injunctive relief.  Thus, Rule 60.11 was in play.

[94]

Rule
    60.11(1) stipulates that a motion for contempt is to be brought in the
    proceeding in which the order to be enforced was made.  It reads as follows:

60.11(1) Motion for contempt order 
A contempt
    order to enforce an order
requiring a person to do an act, other than the
    payment of money, or to abstain from doing an act,
may be obtained only on
    motion to a judge in the proceeding in which the order to be enforced was made
. 
    [Emphasis added.]

[95]

The
    Contempt Motion was to enforce the Consent Order.  The Consent Order was made
    in the Application.  Thus, pursuant to Rule 60.11(1), AdLine properly brought the
    Contempt Motion in the Application proceeding, even though the Application had
    been dismissed.

[96]

Rule
    60.11(5) allows a judge hearing a motion under Rule 60.11(1) to make orders
    short of a finding of contempt.  The language of the rule is broad and
    contemplates any order that is just: see
L.(S.) v. B.(N.)
(2005), 252
    D.L.R. (4th) 508 (Ont. C.A.), at para. 22 .

[97]

The
    relevant part of Rule. 60.11 (5) reads as follows:

(5) Content of order  In disposing of a motion under
    subrule (1)
the judge may make such order as is just,
and where a
    finding of contempt is made, the judge may order that the person in contempt 
    [Emphasis added.]

[98]

Accordingly,
    although the motion judge declined to find Buckley in contempt of the Consent
    Order, she retained the authority to make any order that was just.

[99]

The
    question then becomes: did the scope of the motion judges powers under Rule
    60.11(5) encompass the right to make an order for permanent injunctive relief? 
    In my view, it did not.

[100]

Rule 60.11(5) gives
    the judge the power to make such orders as are just when disposing of a motion
    under subrule (1).  In this case, the motion was brought within the Application
    proceeding because the Consent Order had been made in that proceeding, and it
    was the Consent Order which AdLine sought to have enforced.  But, AdLine could
    not rely on either the Consent Order or the Application for that part of its
    motion in which it sought further injunctive relief.  On the findings of the
    motion judge, the Consent Order was spent because it related to the 2009
    renovation.  And, the Application had been dismissed.  Consequently, there was
    no extant legal proceeding in which permanent injunctive relief had been
    sought.  Put another way, once the motion judge found that the Consent Order
    was spent, that part of the Contempt Motion in which AdLine sought further
    injunctive relief was unmoored from a legal proceeding.

[101]

The requirement
    that a motion be brought within a legal proceeding is a matter of substance,
    not form.  A proceeding creates the framework within which the issues are
    defined and sufficient evidence is adduced such that the court can make a
    proper adjudication.  The absence of such a framework in this case demonstrates
    precisely why a proceeding is necessary as the foundation for a motion. 
    Because there was no proceeding, the evidence necessary to decide whether to
    grant permanent injunctive relief and, if so, the terms of that relief, was not
    before the court.

[102]

Accordingly, it
    was an error to order permanent injunctive relief in the absence of an
    underlying proceeding.

DISPOSITION

[103]

For these
    reasons, I would allow the appeal and set aside paras. 2 and 3 of the Order
    under Appeal.

[104]

I would order
    costs of the appeal in favour of Buckley, fixed in the amount of $15,000, all-inclusive. 
    The parties agreed that if this were the result on appeal, the costs order in
    para. 7 of the Order under Appeal should be set aside and costs of the Contempt
    Motion should be in the cause.  I would so order.

Released: February 18, 2014 (J.C.M.)

E.E. Gillese
    J.A.

I agree. J.C. MacPherson J.A.

I agree. C.W. Hourigan J.A.


