12/02/2022
IT APPEARS THE CONCRETE BATCHING OPERATIONS HAVE FINALLY CEASED AT ML READY MIX CONCRETE on Judson Street effective November 30th - here's the court decision and so far ML is complying with the order
CITATION: The ML Group Corp. v City of Toronto, 2022 ONSC 4460
COURT FILE NO. CV-22-00683590-0000
DATE: 20220928
ONTARIO
SUPERIOR COURT OF JUSTICE
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BETWEEN:
THE ML GROUP COPR. o/a ML READY
MIX CONCRETE and REMICORP
INDUSTRIES INC.
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) Wendy Greenspoon-Soer, lawyer for the
) Plaintiffs
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)
Plaintiffs )
-andCITY OF TORONTO, CREA TETO,
TORONTO PORT LANDS COMPANY,
MARK GRIMES, PAULA FLETCHER,
DANIELE. IRWIN, JOHN DOE
NEIGHBOUR #2, and JOHN DOE
NEIGHBOUR #3
Defendants
)
)
)
)
)
)
)
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)
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Christopher Henderson and Nicholas Rolfe,
lawyers for the Defendants, City of Toronto,
CreateTo, Toronto Port Lands Company, Mark
Grimes and Paula Fletcher
HEARD: JULY 28, 2022
REASONS FOR DECISION
G.DOW,J.
[1] The plaintiffs seek an extension of an interim~interim injunction granted by Justice
F. Myers on July 5, 2022. Materials were served, cross-examinations conducted, and
factums delivered in the intervening time frame.
[2] No one appeared for the defendants not represented by counsel for the City of
Toronto being the activist neighbour, Daniel E. Irwin or the John Doe neighbours.
[3] The injunction permitted the plaintiffs to continue its tenancy at 29 Judson Street,
Toronto after expiry of its lease with the City of Toronto as of June 30, 2022. The plaintiff
operates a concrete production facility on the premises which is bordered by the main eastwest rail corridor into downtown Toronto on the south and residential homes on the north.
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[ 4] At the conclusion of my submissions and my reserving this decision, I orally clarified
to the parties that the interim-interim injunction and its terms made by Justice Myers was to
remain in effect pending release of these Reasons.
Background
[ 5] The use of 29 Judson Street site as a cement "batching" facility includes the regular
entry and exit of heavy trucks delivering ingredients and product. It has been a concern of
the residential neighbours and the City for many years. In 2017, the plaintiffs and City of
Toronto reached an agreement, the details of which are contained in a letter dated November
29, 2017.
[6] The relevant portions of that agreement or "Letter oflntent" can be summarized as
follows:
a) the plaintiff would sell its Judson Street property to the City of Toronto;
b) the concrete batching operation would be relocated to a property on
Commissioners Street owned by the City with a 20 year lease plus two 5 year
renewal options to be negotiated;
c) the change in location and lease was to begin as soon as all requisite
approvals were obtained and the new facility constructed;
d) the City of Toronto and its related bodies would support the plaintiffs in
obtaining the necessary approvals for the intended use; and
e) the Letter of Intent was binding until replaced by more formal agreements.
[7] The new formal agreement became a 37 paragraph Offer to Sell regarding the 29
Judson Street property dated July 29, 2019. It included:
a) leasing the Judson Street property back to the plaintiffs for a term of 12
months at $21,500.00 per month (paragraph 7.1) which I was advised had
risen to $24,295.00 per month at the time of hearing;
b) an extension of the lease for "as reasonably necessary to a maximum term of
two years . . . with the consent of both parties. Such consent shall not be
unreasonably withheld" (paragraph 7.2); and
c) an entire agreement clause (paragraph 36.10).
[8] The plaintiffs' were able to continue operations on Judson Street as the process to
rezone, design, have approved and build its new facility moved forward. The City of
Toronto had in place a plan and commitment to move the concrete batching operation to a
more suitable site. This resulted in a lack of urgency if not complacency in completing the
process. It was complicated by the COVID pandemic.
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[9] The details of the various exchanges, failures, delays, misunderstandings, lack of
clarity or use of skilled professionals was detailed in the materials and will not be repeated
here.
[1 0] Both parties relied on delays, missteps and conduct of the other in explaining the
delay. It is important to note the City was unable to point to any specific financial advantage
for the plaintiffs to delay its move to what one can infer is a newer and preferable facility.
[11] The extensions agreed to by the City continued to June 30, 2022.
[12] Contrary to its Notice of Motion seeking injunctive relief without any time limit, in
its submissions, counsel for the plaintiffs relied on the plaintiffs need to stay on at the
Judson Street site until no later than November 30, 2022. The decommissioning of the
Judson Street site is the plaintiffs' responsibility and could be completed within the 60 days
following transfer of production to Commissioners Street.
Analysis
[13] It was agreed the legal test to consider is that set out in RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 SCR 311 which requires:
a) a serious issue to be tried;
b) whether the plaintiffs will suffer irreparable harm if the injunction is not
granted; and
c) that the balance of convenience favours granting the injunction.
[ 14] In addition, the plaintiff raised what terms would be just if the injunction were to be
granted.
[15] Regarding the serious issue to be tried, the City submitted that the higher standard
of a strong prima facie case ought to apply. Despite the plain wording of the relevant
documents identified above, I am persuaded the conduct between the parties going back to
the Letter oflntent dated November 29, 2017 or almost five years ago, in the face of the
need for an additional four months as of the time ohhis hearing gives rise to this part of the
test being met. This is so whether it is the lower standard of serious issue to be tried or the
higher standard of a prima facie case.
[ 16] Regarding irreparable harm to the parties, the City relied on the lack of clear financial
evidence that such would occur. It submitted and the law supports that bald statements such
as those provided are inadequate (Barton-Reid Canada Ltd. v Al.fresh Beverages Canada
Corp. [2002] OJ. No. 4116, at paragraph 18). However, the plaintiffs point to what
effectively would be a four month or less shut down of the plaintiffs' business if it is evicted
and before its new facility is operational.
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[17] This shut down would be during the busier time of the construction season. It would
involve lay-offs or repurposing of likely the more numerous lower paid employees as
opposed to higher level managers or executives. It would cause disruption to various
construction projects in the Toronto area which depend on timely delivery of the plaintiffs'
product. In addition, this would include receipt of supplies required to produce the plaintiffs'
products and could have longer term effects on the construction industry in the greater
Toronto area.
[18] While the plaintiffs can and should be criticized for failing to provide some of the
financial records sought, I am prepared to conclude that the plaintiffs have met this second
part of the applicable test.
[19] Regarding whether the balance of convenience favours the granting of the injunction,
this is the strength of the plaintiffs' request. After years of negotiation, planning, obtaining
approvals and construction, the parties are within a few months of achieving their mutually
beneficial goal.
Conclusion
[20] As a result, I am prepared to grant or extend the injunctive relief sought on an interim
basis and with the following terms as suggested by plaintiffs' counsel:
a) the injunction to prohibit termination of the plaintiffs' tenancy at 29 Judson
Street is extended to the earlier of when the Commissioners Street facility is
ready for production or November 30 with no further extension to be granted;
b) the decommissioning obligation of the plaintiffs of the Judson Street facility
is to be completed within 60 days of the transfer or production to the
Commissioners Street location;
c) the plaintiffs shall continue to comply with all Ministry of the Environment
or Environmental Compliance Approvals, City of Toronto by-laws; . . .
d) the plaintiffs shall immediately take whatever steps necessary to reinstate its
Facility Certificate Status with the Ready Mixed Concrete Association of
Ontario which has apparently been in default since August 28, 2021 as
indicated in the Association Records and attached as Exhibit "X" to the
Affidavit of Graham Leah sworn July 14, 2022 and provide to the City of
Toronto confirmation of such reinstatement within the next 60 days;
e) to provide construction timetables with milestones for completion of the
Commissioners Street facility every 21 days commencing from the date of
release of these Reasons;
f) erect additional signs directing trucks in the vicinity of the Judson Street site
to comply with City of Toronto by-laws as the City of Toronto may require;
and
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g) as the plaintiffs are being permitted to remain on site beyond the end of the
lease, I confirm this is over holding and the payment of double rent shall
apply retroactive to July 1, 2022.
[21] I considered additional terms as proposed by the City and requested by me in
submissions but concluded those provisions were either unnecessary or too onerous. I would
repeat the comments of Justice Myers that a term requiring compliance with City of Toronto
by-laws, the Highway Traffic Act or the Environmental Protection Act is not required given
respect for the law is a requirement and not an option.
Costs
[22] The parties advised they agreed on quantum in the amount of $40,000.00 and it
should be payable to the successful party if same was clear. While the plaintiffs have
achieved success in avoiding eviction, the terms imposed result in my concluding the proper
exercise of my discretion under Rule 57.01 and Section 131 of the Courts of Justice Act,
R.S.O., c. C.43 is to, and there shall be no costs payable by or to either party.
Mr. Justice Dow September 28, 2022
