Irreparable Harm - Re Meaning of

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1121
Page Categories:	[Legal Principles], [Definitions (Re: Legal Usage)]
Citation:	Irreparable Harm - Re Meaning of, CLNP 1121, <https://rvt.link/ds>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/10/27

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Limbada et al v 2491364 Ontario Inc, 2024 ONLTB 74668 (CanLII)

Irreparable Harm

70. The irreparable harm analysis requires the LTB to consider whether a remedy awarded after the application is determined will provide the party asking for the interlocutory remedy with an adequate remedy.

71. The term ‘irreparable’ refers to the nature of the harm rather than to its magnitude. The LTB must ascertain whether a refusal to make the interim order could so adversely affect the moving party’s interests that the harm could not be remedied if the eventual decision on the merits is in favour of the moving party. In the context of a motion by a tenant asking for an interim order that a landlord make repairs: if the landlord is not directed to make the repairs and the tenant is ultimately successful, will the final order made by the LTB adequately compensate the tenant?

72. On applications involving the breach by a landlord of subsection 20(1), the LTB has jurisdiction to, among other things: (a) abatement the rent; and (b) direct the landlord to make repairs to the unit. [RTA, s. 30(1)] The Tenants have requested an interim order directing the Landlord to make specific repairs in advance of the LTB determining if the Tenants are able to establish on the balance of probabilities that the Landlord has breached its obligations under subsection 20(1).

73. In the case of a tenant application or section 82 issues raised by a tenant on an L1 application that involve ongoing maintenance-related issues with a rental unit, the fact the tenant will have to live with those issues until the LTB determines the application can result in irreparable harm to the tenant. Orders: (a) directing the Landlord to make repairs; and (b) abating the rent paid by the Tenants made at the conclusion of the hearing of these applications will: (a) compensate the Tenants for the impact the issues have had on the use and enjoyment of their units by the Tenants; and (b) remedy any breaches by the Landlord of subsection 20(1). Those remedies will not, however, adequately, in my view, compensate the Tenants for the disruption to the Tenants’ daily lives of having to live in units that have not been properly maintained by the Landlord.

74. Moreover, (a) the Ontario Superior Court has found that the failure to comply with legislation ‘could constitute irreparable harm to the public interest in the sense of avoiding or undermining an established statutory regime’ [See Canadian Civil Liberties Association v. Toronto Police Service, 2010 ONSC 3525 (CanLII)]; and (b) the British Columbia Supreme Court has found the inference with a lawful right can constitute irreparable harm [See Fowler v. Motor Vehicles (Superintendent of), 1999 CanLII 5962 (BC SC)]. Subsection 20(1) imposes on a landlord a positive obligation to address maintenance-related issues in a timely, appropriate and effective manner. In my view, the failure of the Landlord to address the maintenance-related issues identified in paragraph 25 of the Khatri Affidavit is both: (a) a breach by the Landlord of subsection 20(1) that undermines the RTA regime; and (b) an interference with the lawful rights of the Tenants, and, as such, gives rise to irreparable harm.

Toronto Standard Condominium Corporation No. 2395 v Wong, 2016 ONSC 8000 (CanLII)

[32] Second, I am satisfied that the moving party has demonstrated that irreparable harm will result if the injunction is not granted. Irreparable harm may include the increased risk of personal injury or assault: see Ivaco Rolling Mills (2004) LP v. LeBlanc, (2005), 144 A.C.W.S. (3d) 82 at paras. 22-24. Irreparable harm also includes psychological harm that is more than transient or trifling: see Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh, (2010) 2010 ONSC 4448 (CanLII), 322 D.l.R. (4th) 443 at para. 71.

Jegasundaram v. Vadivale, 2021 ONSC 4505 (CanLII)

[68] Irreparable harm refers to “the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms, or which cannot be cured, usually because one party cannot collect damages from the other”: RJR MacDonald, at p. 341.

[69] Irreparable harm may arise from eviction, but there must be some evidence aside from a bald assertion. For example, in Garside v. Jane Oak Apartments Inc. (1998), 27 O.A.C. 308 (H.C.), the appellant was a single mother with small children who was in arrears but would shortly have more than enough funds to make up the arears owing. The case was described as “very unusual”, and the Court of Appeal noted that the eviction of a single mother with small children would be “devastating, rendering her and her family homeless.”

[70] In Hausler v. El Zayat, 2016 ONSC 3370, at paras. 13-18, the Divisional Court refused to stay an eviction order that was issued by the LTB. The LTB had ordered the appellant evicted. He appealed and the landlord brought a motion to quash the appeal. Sachs J. granted the landlord’s motion to quash the appeal and lifted the stay of eviction. The appellant then brought an emergency motion at Divisional Court requesting a stay of the eviction. Pattillo J. of the Divisional Court considered the test for a stay and found that the appellant had not demonstrated that there was a serious issue to be tried, as it was found his appeal was void of merit. Pattillo J. also found no evidence of hardship if evicted. The appellant had not paid rent and had known that eviction was a real possibility for approximately 6 months. The appellant had more than enough time to find new accommodations and organize his affairs. The court found that while it may be inconvenient for the appellant to move, it did not rise to the level of irreparable harm.