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.