In Horan v. Marlwood Golf and Country Club, 2022 ONSC 1806 (CanLII), the plaintiffs commenced an action against the defendants seeking damages as a result of golf balls that were landing on their property from the defendants’ neighbouring golf course.
The plaintiffs then brought a motion seeking an interlocutory injunction against the defendants regarding the use of the third hole at the defendants’ golf course. The plaintiffs also sought an order preventing trespass onto their property, and requiring a peace officer of the Wasaga Beach Police to assist in the execution of the injunction order.
The plaintiffs’ motion was dismissed.
For over 20 years, the plaintiffs owned a home located near hole 3 of the defendants’ golf course. The plaintiffs alleged that the tee position of the third hole was placed such that golf balls consistently came onto their property, striking their home, vehicles and even individuals (including children) in their yard.
The plaintiffs submitted that they had attempted to resolve these issues previously with the defendants, however, the problems had continued.
The defendants submitted that they took over the golf course in 2015. However, they were not made aware of any issues involving the plaintiffs until 2020. In an effort to remediate the issues, the defendants retained a golf course architect and made changes to the course, which included moving the location of the tee, erecting a fence and netting around the plaintiff’s property, planting foliage and posted warning signs for golfers to instruct them not to attempt shots over the plaintiffs’ property.
The defendants disputed the plaintiffs’ motion, arguing that the number of golf balls suggested by the plaintiffs that had landed on their property, and the amount of damage caused (which was referred to as “thousands of dollars”) did not satisfy the test for an injunction. In addition, the defendants argued that the plaintiffs’ failure to deliver a written undertaking as mandated by the Rules of Civil Procedure when seeking an injunction, was fatal.
Justice Sutherland reviewed the requirements under Rule 40 of the Rules of Civil Procedure, which authorizes the Court to grant an interlocutory injunction where it appears just or convenient to do so.
Specifically, Justice Sutherland reviewed Rule 40.03, which states:
40.03 On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.
Justice Sutherland noted that in order to request an injunction as a remedy, the plaintiffs must comply with Rule 40.03, and that the plaintiffs did not request in their Notice of Motion an order that they would not have to comply with the mandatory obligation. As such, the plaintiffs failed to comply with the requisite undertaking, such that the motion would be dismissed on this criteria alone.
In addition, Justice Sutherland reviewed whether the plaintiffs had satisfied the criteria for an injunction, as set out in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC) and modified by the Supreme Court in R v. CBC, 2018 SCC 5. These criteria include that the Court consider whether irreparable harm would result if the relief is not granted and that the party seeking the injunction must show that the balance of convenience favours granting the injunction.
Justice Sutherland determined that, even if the plaintiffs had satisfied the requirement under the Rules for an undertaking, they had not satisfied these factors supporting an injunction.
Justice Sutherland reasoned that the plaintiffs had resided at their property for over 20 years, and the golf course had been operating that entire time. As such, he stated that the plaintiffs had not shown that their action for damages was not an adequate remedy itself, and they failed to demonstrate that there was some irreparable harm that existed such that damages by way of monetary compensation would be insufficient.
In addition, Justice Sutherland commented on the defendants’ report of the architect, which set out measures to decrease damages to the plaintiffs’ property. The report also noted that the golf course met industry standards. Justice Sutherland stated that the plaintiffs had not provided a responding report or suggested that these recommended measures were deficient.
Justice Sutherland also noted that the balance of convenience sided with the defendants, as they had been operating the golf course for several years, did not ignore the plaintiffs’ concerns and took steps to ameliorate their concerns. He also considered that to grant the injunction would negatively affect the defendants’ business, as the third hole would need to be closed and patrons would be subject to a Court order that could necessitate police involvement. Justice Sutherland also highlighted that to offer less than a full golf course would seriously interfere with the defendants’ business and reputation.
Furthermore, there was no evidence that the plaintiffs’ position was different than it had been when they first purchased the property.
The plaintiffs’ motion was dismissed. The defendants sought nearly $29,000 in partial indemnity costs. Following review of the Bill of Costs, Justice Sutherland determined a fair and reasonable amount for the plaintiffs to pay the defendants was $15,000, and ordered same.
A party seeking an injunction must provide a written undertaking to abide by any order concerning damages that the Court may make, if it ultimately appears that the granting of the order has caused damages to the responding party for which the moving party ought to compensate the responding party. The absence of this undertaking is fatal to the motion.
See also Tanglewood (Sierra Homes) Inc. v. Munro Golf Limited, 2009 CanLII 20713 (ON SC), which involved similar issues between a plaintiff’s abutting property on a golf course. The plaintiff’s motion for an injunction was also dismissed, as the plaintiffs failed to establish irreparable harm, and that the balance of convenience favoured the defendants.