BC Supreme Court denies anticipatory injunction in racetrack dispute
July 4, 2025
BY Kevin Zakreski
Harness Racing B.C. Society v Orangeville Raceway Limited, 2025 BCSC 1249—a recent decision of the BC Supreme Court—was a dispute between the owners of a horse-racing facility (the defendants) and a society and its members (the plaintiffs), who were among the main users of the racetrack facility.
The dispute turned on a rat infestation at the racetrack. The defendants had engaged a pest-control company, which “recommended barn by barn treatment”. Under this plan, the defendants gave notice to the plaintiffs to vacate the racetrack for a set period.
The plaintiffs, wary of the consequences of vacating the racetrack, commenced an action “for a breach of contract, amongst other things”. Then, the defendants applied for the interlocutory injunction considered in this decision.
The court noted that the type of injunction sought by the plaintiff goes by the name of a quia timet (= because he or she fears) injunction. Or, to use a more informal name, it’s an anticipatory injunction—that is, one that restrains a party from doing something in the future that may harm the other party.
The special nature of an anticipatory injunction has consequences for the legal test that’s usually applied to applications for interlocutory injunctions. As the court noted, these consequences affect the branches of the test dealing with irreparable harm and a serious question to be tried:
[33] Ordinarily, the standard to establish irreparable harm is, at least, a sound evidentiary foundation. For a quia timet injunction, clear evidence is required to establish a highly probable event that will cause imminent harm as a threshold question, because the Court will not invoke this extraordinary remedy for a harm which may not come to pass. A speculative risk of harm will generally not justify the extraordinary remedy of an injunction.
[34] The quia timet nature of the injunction is also said to raise the bar on the “serious question to be tried” element of the test for an interlocutory injunction. Ordinarily, the requirement is only that there is some basis, that is not frivolous or vexatious, to make out this element of the test in an interlocutory context. However, there is considerable authority that something more is required for some types of interlocutory injunctions, including injunctions where the injunctive relief will essentially accomplish the remedy sought in the claim, and in the case of a quia timet injunction. In those cases, a strong prima facie case will often be required. [citations omitted]
In this case, the plaintiffs weren’t able to clear these high hurdles.
The court concluded that the harm alleged was neither irreparable in nature nor imminent:
[62] I find that the evidence before me does not establish that the closure of the barn and track for 60-90 days starting today will cause irreparable harm, or that that harm is currently imminent.
[63] The evidence of a “potential” existential threat to industry is not enough to establish a probability of such a harm.
[64] While the evidence establishes that the members of HRBC have many concerns in this regard, I do not consider that their expressions of concern rise to a level of establishing a probability either that the Fall meet will not occur at all (though I find that the evidence does support that it will likely be delayed and start in October, as it has in previous years) or may have fewer local horses ready to compete. There is a chance that the Fall season might be cancelled altogether and this is a real concern, but it is not established by the evidence to be a high probability, or even a probability.
[65] Nor have the plaintiffs established that their concern of a possibility of cancellation of the Fall season will cause irreparable harm, in the sense that they have only established that this possible evident would likely cause reparable financial harm, for example that certain horses may miss their shot at winning in a stakes race and be worth less as a result. The evidence does not establish a likelihood, imminent or not, that the HRBC will cease to exist due to the 60-90 day closure, or that Mrs. White will more likely than not, be unable to continue to breed and train harness racing horses because of this closure.
[66] While members may lose money on the races if the races are cancelled for the season or their horses are not ready to race in them because of a loss of training time, the income earned from horse racing is highly speculative, and to the extent that any losses are capable of proof, I find that those losses can be recovered at trial once the plaintiffs have established the breaches of rights they claim.
The court also found that the plaintiffs weren’t able to show that they had a strong prima facie case:
[82] Overall, I find that the plaintiffs have not made out a prima facie case, strong or otherwise, on the merits of their claim in advance of trial.
[83] Even if I were to apply the lower threshold of a fair question to be tried or a serious question to be tried, the plaintiffs would barely meet that test on the materials before me, and there are equitable bars to their reliance on a contract that HRBC has refused to sign, and said is not applicable to the years 2024 or 2025.
Finally, the balance of convenience “does not support the plaintiffs’ application for the extraordinary remedy they seek which invokes the Court’s equitable jurisdiction to enjoin activity before a claim is made out, and before anticipated potential harm has occurred”.
In the result, the application for an interlocutory injunction was dismissed.
