Date: 20040226
Docket: T-322-04
Citation: 2004 FC 290
BETWEEN:
ROSTRUST INVESTMENTS INC. and
LES TERRASSES DE LA CHAUDIÈRE INC.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA
Defendant
REASONS FOR ORDER
PINARD J.:
[1] The plaintiffs are seeking an Order enjoining the defendant from terminating Management Agreements and the plaintiffs' services as managers, with respect to two buildings located in the National Capital Region, until final judgment has been rendered in respect of their underlying action for declaratory judgment.
[2] Assuming that, in spite of the provisions of section 22 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, this Court has jurisdiction to grant the temporary injunctive relief sought by the plaintiffs against the Crown, this appears to be an appropriate case for the tests set out in RJR-MacDonald Inc.v. Canada (A.G.), [1994] 1 S.C.R. 311.
[3] I have serious doubts as to the existence of a serious issue in this matter given the following "Time of Termination" and "Term" clauses included in the relevant Agreements:
a) section XIV of the Agreement filed as Exhibit A to the affidavit of Michael Rosenberg, in support of the motion, reads:
Time of Termination
a) This agreement shall continue and be co-terminus with the term of the Lease.
b) Notwithstanding the foregoing paragraph 1 of this Section, Her Majesty shall have and is hereby granted the privilege to exclude from Services, from and after the first of any Subsequent Operating Year, one, or more or all of the Services, such privilege to be exercised by giving to the Manager not less than 60 days notice in writing. Upon such exclusion, the excluded item or aspect shall be deemed deleted from this agreement for the remainder of the currency of this agreement, and all terms, covenants and provisions of this agreement, shall from the effective day of exclusion apply.
(Emphasis is mine.)
b) article 3 of the Agreement filed as Exhibit B to the same affidavit reads:
ARTICLE 3: TERM
3.1 Subject to the provisions herein contained, this Agreement shall commence as of the effective date hereof and shall terminate on the date of termination of the LEASE.
3.2 Notwithstanding any other provisions to the contrary, either Party may prior to the termination date contemplated in Article 3.1 hereof, cancel and terminate this Agreement for any reasons whatsoever, at its sole discretion, upon giving the other Party a one hundred and eighty day written notice. Upon the expiration of said delay, all the rights and obligations of the parties contained herein and resulting from these presents shall cease for the future.
(Emphasis is mine.)
[4] However, even assuming that the matter raises a serious issue, the motion must be dismissed on the ground that the plaintiffs have failed to establish that they will suffer irreparable harm if the requested temporary relief is not granted. Indeed, it is well established that it is incumbent upon the plaintiffs to prove that the harm that will be suffered is not compensable by an award of damages, and the evidence in that regard must be clear and must not be speculative (see, for example, Glaxo Canada Inc. v. Minister of National Health & Welfare et al. (1987), 18 C.P.R. (3d) 206). In the case at bar, the plaintiffs merely allege that they will suffer irreparable harm if their workforce is dispersed as a result of the termination of their services as managers of the two buildings concerned. The evidence in that regard is rather weak and, in my view, too speculative. In any event, I am far from being convinced that such damage, in the context of the plaintiffs' commercial activities, could not be adequately compensated by an award of damages. This is sufficient to dismiss the motion, with costs in the cause.
JUDGE
OTTAWA, ONTARIO
February 26, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-322-04
STYLE OF CAUSE: ROSTRUST INVESTMENTS INC. and LES TERRASSES DE LA CHAUDIÈRE INC. v. HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 26, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: February 26, 2004
APPEARANCES:
George J. Pollack
Mélanie Joly FOR THE PLAINTIFFS
Geoffrey S. Lester
Stéphane Lilkoff FOR THE DEFENDANT
SOLICITORS OF RECORD:
Davies Ward Phillips & Vineberg LLP FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario