Injunctions - Case Summaries
The database contains 13 case summaries relating to Injunctions. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Trespass - Nuisance - Logging
Her Majesty the Queen v. B & B Barges Ltd., 2019 BCSC 2160
Précis: The BC Supreme Court granted a mandatory injunction and ordered two barges be removed from crown land.
Facts: the Provincial Crown sought a mandatory injunction against the defendant owner of two barges situated on crown foreshore at Donkey Cove near Bella Bella. It was agreed that the barges were on Crown land and were a trespass and nuisance. The barges were used in 2016/2017 and in 2018 taken to be stored by the third party at Donkey Cove, however that third party did not hold a licence of occupation from the Crown and the presence of the barges at that location was illegal. The barges were also resting on beds of manila clam and eelgrass. When the provincial Crown found out about the barges in mid 2018, it issued three trespass notices and ordered the defendants to remove them but the defendants failed to do so. It was argued by the defendants that it lacked the funds required to move the barges and that the Crown could remove the barges at public expense under the provincial Land Act and pursue repayment from the defendants after.
Held: Injunction granted.
Decision: The Court wholly rejected the defendant’s arguments and in doing so noted that the defendant had recently raised over $280,000 for a timber licence for its logging operations. The judge rejected the Land Act argument and found that such measures produced no compliance or correction, and that an injunctive enforcement was a perfectly admissible next step. The test for the interlocutory injunction (under RJR-MacDonald) was met as there was no question to be tried between the parties, the barges were causing irreparable harm to the marine ecosystem including the manila clam and eelgrass, and the balance of convenience favored the Crown as the defendant never had any lawful right to leave the barges in Donkey Cove. Further, the Court found that this remedy would not affect the trial of the issues between the defendant and third party for negligence, breach of contract, breach of bailment, loss of income, loss of use of the barges and cost of their removal.
Stay - Irreparable Harm - Vessel
Worldspan Marine Inc. v. Sargeant, 2019 FCA 207
Précis: The Federal Court of Appeal granted a motion for stay of the payment of vessel sale proceeds pending the determination of a creditor's claim to those proceeds.
Facts: Worldspan and Restaurant moved to request the stay of the order of the Federal Court (2019 FC 546) that permitted the proceeds of sale of the vessel to be paid to Sargeant. In the Court below, Worldspan, brought a motion seeking that Sargeant or Comerica Bank was in breach of the VCA for failure to pay claims certificates to Worldspan when due, and Offshore and Restaurant brought motions that their claims ranked in priority to that of Sargeant. The Federal Court dismissed those motions and it was that order directing payment to Sargeant which was appealed in this present motion. Sargeant argued the stay should not be granted as Worldspan and Offshore were in default of previous orders awarding costs to him, and Restaurant was in breach of the order for costs from the 2019 FC 546 action.
Decision: Restaurant motion granted, Worldspan motion dismissed.
Held: The failure of a person to comply with a court order may be a basis for denying a stay that is requested by that person. As such the Court only had to address the motion for stay of Restaurant as they were not in default of any outstanding costs orders prior to the order under appeal in this action, and in using its discretionary power under s. 50 of the FCA the Court held it would not be in the interest of justice to deny Restaurant’s request for stay because Worldspan and Offshore are in default of paying their outstanding cost awards. The Court applied the RJR-MacDonald test to determine if a stay should be granted. The Court held that Restaurant’s appeal was neither frivolous or vexatious, and that Restaurant established irreparable harm on the basis of Sargeant’s unwillingness to pay a judgment against him in Florida. The Court also held that the balance of convenience favours granting the stay as Sargeant had a history of avoiding payment of judgments against him and the difficulty in Restaurant to collect on a judgment (if successful) outweigh the inconvenience of Sargeant in waiting for his money if the stay was granted.
Wharf Facility — Irreparable Harm — Boat — Preserver — Berthage
Fulford v. Harbour Authority of Placentia Area (Placentia Area Harbour Authority), 2019 NLSC 99
Précis: The Supreme Court of Newfoundland and Labrador dismissed an application for moorage and access to the defendant wharf.
Facts:The harbour authority served notice on the applicant that he was no longer permitted on its premises and also to remove his boat. A second notice was sent by the harbour authority's solicitor stating that under the Fishing and Recreational Harbours Act, R.S.C. 1985 c. F-24 and under the provincial Petty Trespass Act the applicant had to remove his vessel from the facility and that he was barred from the facility respectively. The applicant then filed an interlocutory application for access to the wharf without prosecution under the Petty Trespass Act, claiming physical and mental harm as a result of the boat removal and denial of access.
Decision: Application dismissed.
Held: The decision hinged on the “irreparable harm” component of an interlocutory injunction, with the Court reluctant to reason on the “balance of convenience” and “serious issue to be tried” aspects due to on-going proceedings in the Provincial Court on the trespass issue and the deteriorated relations between the parties. The Court found that the applicant had not suffered or would continue to suffer irreparable harm on account of being barred from the facility. As the evidence in support of irreparable mental and physical harm was not tendered by a medical expert, the evidence was inadmissible. Further, the Court found that the applicant’s loss of socializing at the facility would not support a request for interlocutory relief.
Moorage - Harbour - Berthage - Commercial Fishing Vessels
Steveston Harbour Authority v. Medanic Fisheries Ltd., 2019 BCSC 304
Précis: The B.C. Supreme Court found the defendant ships were trespassing and causing a nuisance and ordered for their removal from the plaintiffs' property.
Facts: This was a summary trial in which the Plaintiff sought a declaration that the Defendant ships were trespassing, causing a nuisance, and a permanent injunction against the moorage of the Defendant ships. The Defendants jointly owned the two Defendant ships and had moored them there since 1980. Neither of the Defendant ships had been actively fished in several years. Moorage was paid up to 2017 by the Defendants, at which time the Plaintiff notified the Defendants it was terminating the moorage contracts with them. The Defendants continued to moor at the same location despite having no contract to do so. The Plaintiff is the lessee of a commercial fishing harbour pursuant to a head lease from the Federal government. Under the head lease, the Plaintiff is authorized to use the harbour for the purpose of operating, maintaining, and managing a public commercial fishing harbour. Under clause 7 of the head lease, the Plaintiff can, inter alia, refuse access to any person or vessel where interference or render difficult or dangerous the use of the harbour or obstruct the maintenance of order therein. Under an Operations Directive approved by the Plaintiff’s Board of Governors in 2014, all vessels moored at the harbour must sign a “Berthage and Vessel Storage Agreement” as a condition of occupancy. Berthage at the harbour is prioritized for active commercial fishing vessels.
Decision: Defendant ships trespassing, causing a nuisance, and a permanent injunction granted.
Held: Counsel for the Defendant Govorcin argued that the Court should imply a term into the contract for berthage between the Plaintiff and the Defendants so that the berthage agreement would be offered by the Plaintiff and accepted by the Defendant upon payment of the moorage price. The Court held that, even if this was so, the Plaintiff refused the cheques in 2017 and notified the Defendants that the moorage contracts would be terminated.
The Court found that the vessels were trespassing at common law by occupying the moorage space without authorization. The Court then considered the Plaintiff’s alternative claim that the Defendant ships are creating a nuisance, holding that the continued occupation of prime berthage created a substantial interference with the plaintiff’s right and enjoyment of the property and therefore were a nuisance.
In the absence of a contractual remedy available to the Plaintiff to enforce removal of the ships from the harbour, the Court determined that an injunction was appropriate on the merits of the Plaintiff’s case.
Return of Vehicles to Canada - Jurisdiction to Order Return - Theft - Intervenor Status
Mercedes-Benz Financial Services Canada Corp. v. Maersk Line A/S, 2018 FC 1119
Précis: The Federal Court dismissed a motion for injunctive relief when the applicant failed to satisfy the legal test thereof.
Summary not yet available.
Municipal Bylaw prohibiting long term mooring - Interjurisdictional Immunity - Public Right of Navigation - Right to Anchor
Victoria (City) v. Zimmerman, 2018 BCSC 321
Précis: The British Columbia Supreme Court upheld a local bylaw that prohibited long term moorage but allowed temporary moorage.
Facts: The City of Victoria adopted a bylaw that, inter alia, purported to prohibit the anchoring or mooring of vessels within the Gorge Waterway for more than 48 continuous hours or for more than 72 hours in a 30-day period. The Gorge Waterway is a tidal inlet connected to Victoria Harbour and was a favourite anchoring spot for small vessels. The respondent vessel owners refused to comply with the bylaw. The City brought this application for an order that the respondents remove their vessels and for an injunction restraining the respondents from contravening the bylaw.
Decision: Application allowed.
Held: The foreshore and seabed of the Gorge Waterway are owned by the Province of British Columbia and have been leased or licensed to the City of Victoria. The waterway is not federally owned public property that would be immune from local bylaws. Nor is it located within the boundary of a public port where special restrictions would apply pursuant to the Canada Marine Act, S.C. 1998, c. 10. Local governments may enact bylaws to regulate the use of land that is covered by water or the use of water itself. Zoning bylaws in relation to ships or vessels on navigable waters do not necessarily fall outside of provincial/municipal jurisdiction. However, in West Kelowna (District) v. Newcomb, 2015 BCCA 5, it was held that a bylaw does intrude on the core of the federal power over navigation and shipping and is inapplicable under the doctrine of interjurisdictional immunity when the bylaw purports to prohibit even “[t]emporary moorage directly incidental and related to the active recreational use of vessels”. In this case the bylaw does not purport to regulate or restrict temporary moorage. It prohibits only long term anchoring or moorage. The bylaw is valid.
Injunctions – Security for Release from Arrest – Letters of Credit – Fraud
Olsen v. The Bank of Nova Scotia, 2011 BCSC 111
This was an application for an injunction restraining payment under a letter of credit. The letter of credit had been issued to obtain the release of a vessel from arrest and to secure claims that were the subject of arbitration. The arbitrations were decided in favour of the defendant ship builders and applications to review the arbitration awards were later dismissed. In this action the plaintiff alleged that the letter of credit was obtained by fraud. The plaintiff was not a party to the ship building contract but was to be the ultimate purchaser and had supplied the letter of credit as well as the funds to finance the construction. The Court dismissed the application holding that the plaintiff had failed to make out a strong prima facie case of fraud. The Court also disagreed with the plaintiff that an injunction was necessary to preserve the status quo. The Court noted that the defendants had the security of the vessel and agreed to release the vessel in substitution for the security of the letter of credit. The Court said that by seeking to invalidate the letter of credit and not returning the vessel the plaintiff “will have significantly altered the position of” the defendants. The Court was finally concerned that the action was simply a collateral attack on the arbitration awards.
Anti-Suit Injunction - Bunker Supplies
Alpha Trading Monaco Sam v. Sarah Desgagnés (Ship), 2010 FC 695,
This was an application by the defendant owner of the subject ship for an anti-suit injunction restraining the plaintiff from continuing proceedings commenced in Belgium. The plaintiff was a bunker supplier who had supplied the defendant ship with bunkers at various ports including ports in Canada. The ship was under time charter at the time of the supplies and the time charter contained a prohibition of lien clause and a clause that charterers were responsible for bunkers. The ship was arrested by the plaintiff in this action in Montreal and was later released on the undertaking of the owner to provide bail. Before bail was actually provided, the plaintiff advised that it would amend its statement of claim and proceed with only one supply claim. The plaintiff later commenced proceedings in Italy and Belgium and had the vessel seized in Belgium. The Court noted that the reason the plaintiff was “slicing and dicing” its recovery efforts was because Canadian law required personal liability on the part of the ship owner to support an action in rem whereas under Belgium law a ship may be arrested to secure a claim by a bunker supplier without personal liability of the owner. The Court further noted that the discretion to order an anti-suit injunction should be exercised most carefully. However, the Court did exercise its discretion and granted the injunction on the basis that the plaintiff had commenced these proceedings and accepted the defendant‟s undertaking to post bail. Importantly, the Court said that if the plaintiff had not commenced this proceeding in the first instance the defendants would have no standing whatsoever to bring this motion. The Court noted that the plaintiffs could properly have made their claims in a number of jurisdictions but that having made its choice it would be held to it. Accordingly, the Court granted the anti-suit injunction and ordered the plaintiff to release the ship from arrest in Belgium. On appeal to the Federal Court of Appeal, the Court of Appeal in brief reasons merely said that the re-arrest of the ship was, in the circumstances, an attempt to take unfair advantage by forcing the owners to provide security to guarantee a judgment against a third party.
Mareva Injunction – Charters
Aosta Shipping Co. v. Gulf Overseas General Trading LLC, 2007 BCSC 354
This was an application to set aside a mareva injunction that had been granted ex parte. The injunction seized bunker fuel on board a ship that was chartered by the Defendant. The Plaintiff’s claim against the Defendant was in relation to a freight dispute in an earlier unrelated charter and which had been submitted to arbitration in England. The Court noted that mareva injunctions are “extraordinary orders” and their granting is discretionary. In particular, it noted that in British Columbia the authorities indicated a more relaxed approach to mareva injunctions with a movement “to a somewhat unfettered exercise of discretion”. Nevertheless, the two necessary conditions for the granting of an injunction are that the Plaintiff must show a strong prima facie or good arguable case and that the balance of justice and convenience favours the granting of the injunction. Although it was apparently clear that the Defendant owed the Plaintiff the money, the Court set aside the injunction on the grounds that neither party had a substantial connection to the jurisdiction and the seizure had negative consequences for the ship, which was owned by a third party, and her crew.
Interlocutory Injunctions – Mareva Injunction – Breach of Charter Party
Front Carriers Ltd. v. Atlantic & Orient Shipping Corporation, 2006 FC 18
This was an application for a Mareva injunction to freeze the assets of the Defendant within British Columbia pending arbitration in London. The underlying action concerned an alleged repudiation of a charter party agreement between the parties. The motions Judge set out the applicable tri-partite test for an interlocutory injunction, being: 1. a preliminary assessment of the merits to ensure that there is a serious issue to be tried; 2. a determination that the applicant would suffer irreparable harm if the application is refused; and 3. an assessment as to which party would suffer greater harm from the granting or refusal of the injunction. Regarding the “serious issue” branch of the test, the motions Judge noted that the threshold for normal injunctive relief is that the issue is not frivolous or vexatious, however, the threshold for a Mareva injunction is more stringent, being, “a strong prima facie case”. The motions Judge then set out the specific criteria for a Mareva injunction, being: 1. the Plaintiff must make full and frank disclosure of all material matters; 2. the Plaintiff must give particulars of the claim including the points made against it by the Defendant; 3. the Plaintiff should give some grounds for believing the Defendant has assets in the jurisdiction; 4. the Plaintiff should give some grounds for believing that there is a risk of the assets being removed from the jurisdiction; and 5. the Plaintiff must give an undertaking in damages, which in suitable cases should be supported by a bond or other security. The motions Judge noted that the requirement of full and frank disclosure is flexible in that mere imperfections in affidavits or the non-disclosure of inconsequential or immaterial facts will not be fatal. The Judge applied these tests and ultimately granted the order requested. Appeals – Overruling Prior Panels – Appeals to Supreme Court
Ex Parte Injunctions - Picketing by Water - Jurisdiction
Corner Brook Pulp & Paper Ltd v. Comm. Energy & Paper Workers Union, 1999 CanLII 8507
This was an ex parte application for an injunction to restrain the Defendants from picketing the Plaintiff's wharf. The Defendants had erected a rope fence in the water opposite the Plaintiff's wharf and used small boats to allegedly interfere with vessels intending to dock at the wharf. The court noted that only in the most exceptional circumstances will an ex parte injunction be granted. There must be evidence that unlawful conduct created a situation of urgency. The court declined the order sought. First, the court considered that the Plaintiff had not made out a case of sufficient urgency. Second, although the court accepted that the matter fell within the maritime jurisdiction of the Federal Court, it was thought that the Provincial superior court was a more appropriate forum as the substance of the dispute was a labour matter.
Injunctions - Damages
Ordina Ship Management Ltd. v. Unispeed, 1998 CanLII 8785
This was an action was for non-payment of charter hire. The Plaintiff obtained an ex parte mareva injunction which was later continued. The Plaintiff subsequently brought a motion to stay the action in favour of arbitration pursuant to the terms of the charter party and abandoned its injunction. The Defendant thereafter brought this application for assessment of damages suffered as a consequence of the injunction. The Defendant's application was dismissed. The Court held that it was not appropriate to assess damages until the matter was disposed of on its merits following the arbitration.
Navi Mont Inc. v. Rigel Shipping Canada Inc., 1997 CanLII 5130
This was an application for an interlocutory injunction directing the Defendant to continue to operate various ships in accordance with a contract of affreightment. The underlying issue in the action was whether one of the Plaintiffs was entitled to assign its interest in the contract of affreightment to the other Plaintiff that was specifically created for that purpose. The Court referred to the three stage test for granting an injunction: that there be a serious question to be tried; that the applicant would suffer irreparable harm if the injunction is refused; and, that the balance of convenience favours granting the injunction. Although the Court held that there was a serious question to be tried concerning the assignment, it was not satisfied that any harm suffered by the Plaintiffs could not be adequately compensated by an award of damages. In the result, therefore , the injunction was refused.