Owning a home neighbouring a golf course is a desirable thing. A golf course provides significant green space in a neighbourhood, and, among other things, provides an adjacent homeowner with stunning views and backyard privacy. However, owning a house surrounding a golf course also presents risks. Stray shots can sometimes escape from the course and strike a house or a person enjoying themselves in the privacy of their backyard.
In Horan v. Marlwood Golf and Country Club, 2022 ONSC 1806 (CanLII), homeowners on the third hole of the defendant golf course, located in Wasaga Beach, experienced the risks of owning an adjacent home and sought to enjoin the defendants from allowing golf balls to trespass onto their property. They alleged that as a result of the tee position on this hole, golf balls were constantly and consistently being hit onto their property. The balls would hit their home or cars, and would sometimes strike people, including children, using the yard. The homeowners described that the third hole was a 309-yard dog leg, which pivoted directly behind their property and that golfer often tried to hit their tee shots over their property in order to reach the green in one stroke.
The defendants disputed the claims of the homeowners and noted that the homeowners had owned their property for 20 years. As well, the defendants engaged a course architect to appease the complaints that the homeowners made to them in 2020, and undertook a number of steps to remedy the situation. The defendants:
- moved the location of the tee box;
- placed netting and erected a fence around the homeowners' property;
- planted bushes and trees;
- posted warning signs warning golfers of trespass and liability for damages; and
- put employees, course marshals and volunteers by the third hole to tell people to lay up and avoid hitting their drive over the homeowners' property.
However, the homeowners maintained that the present situation was still dangerous.
In general, the party seeking to obtain an interlocutory injunction is required to show that there is a serious issue to be tried, that they will suffer irreparable harm if the injunction is denied, and that the balance of convenience favours them. This three-part test, however, is modified where a party seeks a mandatory interlocutory injunction[1], which is what the homeowners wanted. Rather than being required to show that there is a serious issue to be tried, the party seeking the mandatory injunction must show that they have a strong prima facie case. In R. v. Canadian Broadcasting Corp., 2018 SCC 5 (CanLII), the Supreme Court of Canada described that the party wanting the injunction had to show a case of "such merit that it is very likely to succeed at trial." This meant:
...that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.
A party seeking an injunction is also required under rule 40.03 of the Rules of Civil Procedure to give an undertaking in damages to protect a party against whom an interlocutory injunction is granted in the event that a court ultimately determines at trial that the injunction was wrongly issued.
The defendants in this case argued that the homeowners had not satisfied the three-part test and were disentitled to the interlocutory injunction because the homeowners failed to provide the necessary undertaking. The motion judge agreed with both arguments.
With respect to the undertaking, the motion judge found that rule 40.03 was clear. It mandated the need for an undertaking in damages. The homeowners wanted an order that the defendants do something and their failure to do so would result in police involvement or an order of contempt. Accordingly, the failure to provide the undertaking was fatal to their request.
The motion judge also found that the homeowners had not met the test for irreparable harm or balance of convenience. The homeowners' action was for damages. This was an adequate remedy which defeated the need for an injunction.
The evidence also established that the balance of convenience favoured the defendants. They had tried to remedy the situation and showed that if the injunction was granted, the third hole would have to be closed. Closing one hole of a golf course is significant. In Tanglewood (Sierra Homes) Inc. v. Munro Gold Ltd., 2009 CanLII 20713 (ONSC), the court stated:
...golf is a game of eighteen holes and to prevent the owner from offering less than a full course would be a serious interference with its business and would likely cause damage to the course's reputation and a loss of clientele.
As well, the motion judge explained that if the injunction was granted, users of the course could be subject to police involvement or damages for hitting a ball onto the homeowners' property.
The homeowners conceded that by purchasing a property on a golf course they knew they would be subject to golf balls entering their property. Also, the homeowners presented no evidence that their situation was substantially different over their 20 years of ownership.
This case shows that there are pros and cons to owning a property on a golf course. For a homeowner who knows that by purchasing such a property they will likely have golf balls hit into their yard, stopping errant shots by way of an injunction will be extremely difficult. As well, this case is a reminder that the failure of a party who wants an interlocutory injunction to give an undertaking in damages will be fatal to the motion. A PDF version is available to download here.
Footnote
1 The decision references a "Mareva injunction" in a few places. This is likely an obvious error and that the motion judge meant to say "mandatory injunction".
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