Her Majesty the Queen v. B & B Barges Ltd., 2019 BCSC 2160 (2019-12-13)
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.