Going to Court - Part III by Philippe Richer | TLR Law

Going to Court – Part III

Going to Court – Part III

Over the past few weeks, I posted my first and second articles on the situation that lead to the first court hearing. This week, I will share more about the court process and how we managed it.

First hearing

On August 13th, I appeared before Chartier J. for the first time at 10 a.m. That was Tuesday morning, an hour before the landlord imposed deadline. As previously discussed, I made an application for an ex parte hearing, meaning that I did not provide the landlord with notice of the hearing. He did not know I was in court.

This is unusual. Judges do not like hearings where one of the parties has not been notified, for obvious reasons. Justice Chartier was quite concerned about my application. Fortunately, as I had prepared all weekend, when I filed my material, I filed a comprehensive affidavit, outlining all of the meetings I’d had with the landlord and all the correspondence supporting my position. I had also filed a brief outlining the case law, and how my situation compared to it.

While the material was only filed the day before, it gave the judge an opportunity to review my position before the hearing, which he had obviously done.

Justice Chartier outlined a few of the courts concerns. First, the urgency of the matter. I had to satisfy that the matter was in fact urgent (as I had filed on that basis). After some discussion, the court agreed that the matter was in fact urgent. The judge agreed that the landlord’s demand letter created enough of a legal threat and that, as he could exercise certain rights without notice or court approval, the threat was imminent enough.

Secondly, as stated above, he was concerned that I had not provided the landlord notice of the hearing. Again, after reviewing the material and some discussion, I satisfied the court that providing notice would have given the landlord an opportunity to exercise his rights prior to the hearing, thus locking me out or seizing our assets.

While he reluctantly agreed that the failure to provide notice was appropriate, he kept me on a short leash. At the conclusion of the hearing, he awarded an injunction, but only for 2 days. I had to provide the landlord notice of the court order (that the landlord could not interfere with our business activities) and return to court on the 15th of August at 10 a.m..

Second hearing

With 5 minutes left before the landlord imposed deadline of 11 a.m., I emailed the landlord and management company advising them that the court had issued an order and that I was serving them that afternoon. After returning to the office, we followed the procedure of providing notice. We had to email all the material and the court order. Kylie, from our office did that, and I then prepared an affidavit of service whereby Kylie declared that she had done so (the court requires affidavits of service as proof that the other party receives the appropriate notice).

Since I had prepared for the first hearing and had initiated the process, I didn’t have any other preparations to make other than preparing and filing the affidavit of service (Mentioned above). The ball was now in the landlord’s court. Because I had filed in French, the documents were drafted in French. The landlord’s representative at first asked for the documents in English. In an effort to provide an outline, I drafted an English letter outlining the material and the court order. I did this out of courtesy – more courtesy than I believe the landlord showed me. As Manitoba is a bilingual province, I have a constitutional right to be heard in French. I had no obligations to provide the opposing party with a letter, let alone an English version of the materials. The courts have all materials translated, so eventually, everyone would have a copy they understand.

I appeared at court at 10 a.m. on the 15th of August. The landlord had retained another francophone lawyer. The lawyer, on behalf of his client, opposed the application. The landlord claimed that he had no intention of exercising his rights of re-entry or seizure. However, curiously, he continued to oppose the application. The lawyer for the landlord was unable to provide the court with any further assurances that his client would not act. Accordingly, the judge extended the order until September 4th.

To date, the court had only reviewed my affidavit and heard my legal arguments. On the face of it – and based solely on my materials – the facts did not support the landlord’s underlying position that I owed him money. The judge wanted to hear the legal basis of his claims. Perhaps the landlord had correspondence that would contradict my position that I did not owe him any money.

Third hearing

The extension until September 4th provided the landlord with sufficient time to file an affidavit. I thought perhaps, as the court did, that the parties would agree on an outcome. I don’t believe the landlord had a legal basis for his demands. Until now, the court agreed. On what basis did I owe him? However, on the 4th, the landlord continued to oppose the application. In support of that position, he filed an affidavit. However, astonishingly, he simply stated that he believed I owed him money. He did not provide the court with any other justification.

At the hearing, the judge appeared surprised that the matter was still contested. My position had not changed. The lawyer for the landlord spent most of the hour attempting to justify his client’s position. His lawyer first pointed out that the procedure we chose to file the application was not appropriate. He was right. Procedurally, we opted for a “shortcut” for the sake of speed. I knew I was vulnerable on this front, but the rules also clearly state that a procedure won’t be rejected simply because we opted for the wrong process.

He also argued that the application for an injunction was premature. The judge did not accept that argument. The demand letter clearly gave us a short and definite deadline of 11 a.m. 7 days from the delivery of the letter. As the landlord could then exercise any of the rights available to him without notice or court order, the judge concluded that the threat was real.

At the conclusion of the hearing, the judge issued the final injunction, preventing the landlord from interfering with our business activities until the end of September. We had won.

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