Mr. Jack the Senior (“Mr. Jack”) made a will in 2006 and died in 2018. His will called for the residue of his estate to be divided equally among “my children then alive.”  A term in a will that says what is to happen with the residue of the estate is called a “residuary clause.” Residue is the portion of an estate left over after all debts, funeral expenses, and other expenses are paid and specific property that the will gives to particular beneficiaries has been distributed to those beneficiaries.

Mr. Jack had two sons we’ll refer to by their initials T and J. In his will he appointed T as his executor. The will had usual wording giving the executor power to sell or retain particular assets in the same form as they were at the will-maker’s death and also gave the executor discretion regarding the timing of any sale. The largest asset in Mr. Jack’s estate was a ranch which the two sons ran together.

The gift to Mr. Jack’s children under the residuary clause in his will was a “class gift,” meaning that the beneficiaries are identified by means of a description of a class of persons to rather than being identified individually. Sometimes post-mortem disputes can arise about when the class of beneficiaries was meant to close, or in other words about the size of the class.

The will provided for the possibility that Mr. Jack might have more children, because . another term in it said that if anyone became entitled to a share of the estate while under 19, the share would be held in trust by the executor until that person reached 19 years of age.

Both Mr. Jack’s sons survived him, but J died before the estate was distributed. J had a spouse but no children. J’s and T’s mother, Mr. Jack’s ex-wife, became the administrator of J’s estate with the consent of J’s spouse. The only asset with significant value in J’s estate was his interest in the ranch.

T claimed all of the residue of Mr. Jack’s estate, including the ranch, maintaining that “my children then alive” in the residuary clause in the will meant the children of Mr. Jack who were alive when the residue was distributed. That would mean T would get it all.

T’s and J’s mother, acting as J’s administrator, sued T for a declaration that on the proper interpretation of the will, “my children then alive” meant Mr. Jack’s children alive at the time of his death. That would mean that T and J’s estate shared equally in the ranch along with the rest of the residue. So T and his (and J’s) mother faced off in court over who was right about what the will meant.

The first court to deal with the case was the BC Supreme Court, which is not the highest court in BC but is actually BC’s superior trial court. The BC Supreme Court judge considered the will to be unambiguous, and interpreted it to mean that the executor was to gather the assets, pay the estate’s debts, and then divide the residue into equal shares based on the number of Mr. Jack’s children “then alive.” In other words, alive when distribution of the residue took place. The judge also thought the words “then alive” had been included order to override the usual rule that the terms of a will take effect at the will-maker’s death.

In other words, T won in the BC Supreme Court and would have taken everything, including the ranch. Except that his mother appealed to the BC Court of Appeal, which is BC’s highest court.

The Court of Appeal held the first court’s interpretation was wrong. It said the first court should have applied what is known as the “presumption of early vesting.”  This is a rule of interpretation that beneficiaries become entitled to receive what the will gives them at the time of the will-maker’s death unless the terms of the will show a clear intention by the will-maker to override the rule, or the gift depends on some fact personal to the beneficiary, like reaching a certain age. The Court of Appeal did not consider the words used in the Jack will were clear enough to override the rule, and considered it unlikely that Mr. Jack had intended to postpone his surviving children from becoming entitled to their shares of the residue until the rest of the estate had been fully administered.

The presumption of early vesting applies to class gifts as well as other gifts under a will. If it is possible to determine the size of the class at the death of the will-maker, that is generally when the class is considered to close. The Court of Appeal declared the class under the residuary clause in the Jack will closed on the death of Mr. Jack, reversed the first court’s decision, and declared J’s estate to be entitled to a half-interest in the residue.

T would have to share the ranch (and any other residue) after all with his mother representing his deceased brother’s estate. So ended the Jack family’s internal class war.

The BC Court of Appeal decision in Lewis v Jack, 2026 BCCA 18 was handed down on 21 January 2026.

The post Family-size Class Warfare – Who Gets the Ranch? first appeared on British Columbia Law Institute.

The parties have a longstanding relationship and worked together to develop the functioning of the App with Kilter’s climbing boards. The exact nature of their respective involvement is disputed. For a number of years, Aurora supplied Kilter with LED Kits without any difficulty; however, when Aurora decided to update its terms and conditions relating to the purchase of the LED Kits, the relationship between the parties soured and Kilter eventually sued Aurora in Colorado.

This dispute eventually led to this litigation in the BC Supreme Court, in which “Aurora seeks an injunction restraining Kilter from breaching the terms of the April 2024 agreement [that partially settled some of the parties’ claims]. Aurora seeks that Kilter be restrained from manufacturing, sourcing, supplying and/or selling LED kits not made by Aurora. Aurora also seeks to restrain Kilter from developing a mobile application using similar ideas, features or functions as the App”.

The court began by setting out the legal principles that govern applications for pre-trial injunctions: “the applicant seeking a pre-trial injunction must demonstrate each of the following: (a)  there exists a serious issue to be tried; (b)  they will suffer irreparable harm if the injunctive relief is not granted; and (c)  the “balance of convenience” favours granting the injunction sought. RJR—MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311”.

In addition, the court made the following general points:

[77]      Rigid compartmentalization of the factors should be avoided. The factors serve as evidentiary considerations relative to the central question of whether the relative risks of harm to the parties favour the granting or withholding of interlocutory relief: Edward Jones v. Voldeng, 2012 BCCA 295 at paras. 19 and 24.

[78]      The objective of the court at this stage is not to determine the merits of the action, but rather whether the granting of an injunction is just and equitable in all of the circumstances of the case: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para. 1; Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 at para. 37.

The court found that “Aurora’s breach of contract claim surpasses the requisite threshold. The claim is neither frivolous nor vexatious”.

But Aurora was unable to clear the second and third elements of the test.

On the second element, the court concluded that the parties’ dispute was commercial in nature, which meant that damages would be an adequate remedy for Aurora’s claims:

[102]   In my view, Aurora’s evidence falls short of establishing that if an injunction is not granted, Aurora will suffer irreparable harm that cannot be quantified in monetary terms. Aurora’s claims against Kilter are mainly rooted in their contention that Kilter has breached the Agreement. Monetary damages would be an adequate remedy should that claim succeed.

[103]   I am not satisfied that Aurora’s reputation will be harmed by Kilter’s alleged actions. It is speculative to suggest that Kilter has held out that non-Aurora LED kits will function properly with the App. Although Aurora, as the App developer, has received complaints about functionality, it is the Kilter product sold to the end user that is the cause of the connectivity issues. It is more likely that Kilter will suffer repercussions from using non-Aurora LED Kits than Aurora will. Aurora has refused and presumably will continue to refuse to connect features of the Kilter board to the App.

Further, the balance of convenience favoured Kilter: “Even if I had found that Aurora would suffer irreparable harm if an injunction was not granted, in assessing which party would suffer greater harm if the injunction is granted or refused, I find that Kilter would suffer greater harm if the injunction was granted”.

In summary, the court decided that “while Aurora has established that there is a serious issue to be tried, I am not persuaded that if the injunction is not granted, Aurora will suffer irreparable harm. Damages will be adequate should Aurora succeed in its claims. The primary evidence Kilter relies on in support of their irreparable harm argument does not rest on a solid evidentiary foundation. Moreover, if the injunction is granted, Kilter will suffer more harm than Aurora”.

The post BC Supreme Court denies application for injunction in commercial dispute, finding plaintiff wouldn’t suffer irreparable harm and balance of convenience favoured defendant first appeared on British Columbia Law Institute.

The application led the court to grapple with the following two issues: (1) whether it had jurisdiction to grant the injunction; and (if it had such jurisdiction) (2) whether the applicant met the three-stage test for a pre-trial injunction set out in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117, [1994] 1 SCR 311(SCC).

Jurisdiction to grant an injunction

On the jurisdictional issue, the court found that, despite Jewish National Fund of Canada Inc. v Minister of National Revenue, 2025 FCA 110, the Federal Court of Appeal didn’t have exclusive jurisdiction over this matter, which meant the BC Supreme Court did have concurrent jurisdiction:

[44]      With respect, I disagree [with Jewish National Fund]. Subparagraph 168(2)(b) of the [Income Tax] Act sets out that the FCA may extend the period during which a notice of revocation cannot be published when issuance of a notice has been appealed. However, this section of the Act does not contain “clear and explicit statutory wording” to the effect that exclusive jurisdiction to delay publication is vested in the FCA in all circumstances, for example, where the decision to revoke a charity’s registration is to be challenged in the superior court as ultra vires the Federal government.

[45]      Given that it is the intention of the Charity to challenge the validity of the Act, as opposed to an assessment of taxes, I am satisfied that I have jurisdiction to decide whether it is appropriate to grant an injunction to stay publication of the Notice. See Myers [v Canada (Attorney General), 2022 BCCA 160] at para. 43.

Elements of the RJR-MacDonald test

On the second issue, the court summarized the test from RJR-MacDonald as follows:

The party seeking an interlocutory injunction must establish that:

1.   there is a serious issue to be tried;

2.   irreparable harm would result if the injunction is not granted; and

3.   the balance of convenience, considering all of the circumstances, favours granting the injunction.

The minister of national revenue acknowledged that the charity met the first element.

On the second element, the court noted that it was significant that the applicant was a charity: “It is usually the harm suffered by the applicant that must be considered, although this principle is modified, at least in respect of those dependent on a charity: Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255”. Taking this point into account, the court found that, on balance, the charity had met the second element of the test:

[60]      However, I am satisfied based on the evidentiary record before me, that there is clear evidence that proves on a balance of probabilities that deregistration of the Charity will cause irreparable harm to donees, beyond those associated to the “ordinary consequences” of losing registered charity status.

[61]      I am, furthermore, satisfied that publication of the Notice will irreparably harm the reputation of directors and senior management of the Charity.

On the third element, the court noted that it “must consider potential impacts not only to the Charity, but also to the public interest”. The court found, nevertheless, that the balance of convenience favoured the charity:

[74]      On the evidence presented, I cannot conclude that there is presently any ongoing risk to the public interest.

[75]      I am satisfied that the balance of convenience favours the granting of an interlocutory injunction for a short period of time to permit the Charity to file its petition. It is clear that the Charity will suffer greater harm from refusing an injunction than the public interest will be harmed by the granting of an injunction.

[76]      Once the petition is filed, the Charity can apply to extend the injunction. At that time, the balance of competing interests can occur with full knowledge of the seriousness of the issue to be tried, as well as a timeline for the hearing of the petition.

Concluding remarks

In its concluding remarks, the court noted that it was

guided by the words of Justice Groberman in Snuneymuxw [First Nation et al. v R., 2004 BCSC 205]:

[72]      The jurisdiction of the court, in appropriate cases, to interfere in legislative and executive decisions that are under challenge should not be too hastily exercised. The courts have a supervisory role to play, and should be wary of usurping legislative and executive roles and effectively governing by interlocutory order.

[73]      In the case at bar, the injunction that I have indicated I will grant is a very limited one. It does not seriously interfere with governance.

The post Injunction restrains MNR from deregistering Vancouver charity pending constitutional challenge first appeared on British Columbia Law Institute.

As the court noted, “the appeal is focused on three discrete legal issues: a) Does a Supreme Court judge have jurisdiction to grant an interim injunction in the federal labour relations context before the appointment of an arbitrator? b) If an injunction is available, must it end the day an arbitrator is appointed? c) Is a judge obliged to require an undertaking as to damages?”

On the first issue, the court confirmed that the jurisdiction exists and affirmed the chambers judge’s decision on its availability in this case:

[24]      The parties agree that in the federal labour relations context, superior courts retain a residual discretionary power to grant interlocutory relief where an adequate alternative remedy is not available. This power emanates from the courts’ inherent jurisdiction and in British Columbia, it finds form in the Law and Equity Act, R.S.B.C. 1996, c. 253. . . .

[25]       The Supreme Court of Canada affirmed the existence of a residual discretionary power in Canadian Pacific. . . 

[26]       Although the parties agree on the existence of this power, they disagree on whether the power was available in the circumstances of this case. . . .

[32]      I agree with the judge that because the collective agreement at issue here allows for delay between the filing of a grievance and the appointment of an arbitrator, there is a remedial gap within the meaning of Canadian Pacific and the Supreme Court had jurisdiction to grant interim relief exercising its residual discretionary power. The plain fact is that until an arbitrator was in place, there was no tribunal in existence and available to the Union under the collective agreement or the statutory scheme that could grant the relief sought. As found by the judge, the Union’s affected members were facing the prospect of irreparable harm, and a forum was necessary to address that issue. With this practical reality, I do not find P.S.A.C. [2000 YTSC 20] (cited by TELUS) persuasive. It is unclear whether an arbitrator was in place at the time the bargaining agent in P.S.A.C. filed its application for interim relief; in any event, that decision is not binding on this Court.

[33]      TELUS is correct to point out that s. 60(1)(a.2) of the Canada Labour Code filled the specific void identified in Canadian Pacific, namely, a factual scenario in which neither the collective agreement nor the “machinery provided under the Canada Labour Code” offered a jurisdictional path to secure the postponement of intended job changes: at para. 6. However, it is also the case that Canadian Pacific stands for a broader proposition. It holds that where there is a “possibility” events will produce a difficulty not foreseen by the collective agreement and the statutory scheme that govern a labour relations relationship. . . .

[34]        In this case, the only “tribunal capable of resolving the matter” of irreparable harm at the time of the injunction application was the Supreme Court.

On the second and third issues, the court declined to reverse what were, in essence, discretionary decisions made by the chambers judge:

[39]      However, crafting the terms of an injunction involves discretion and I would not find that standing alone, the two-month expiry date justifies appellate intervention. It is readily apparent the judge was alive to the interim nature of the remedy he granted, recognized that once an arbitrator was in place, the latter was the decision maker with “domain” over injunctive relief and TELUS could raise the issue with the arbitrator, and he included terms allowing for an amendment or earlier termination of the injunction by written agreement or a further court order: at paras. 55–60. This flexibility provided for the amelioration of prejudice at TELUS’ behest.

***

[46]      The judge’s discretionary decision to not require an undertaking attracts a deferential standard of review and cannot be overturned in the absence of TELUS establishing a material error of law or principle, or a palpable and overriding error of fact: Interfor Corporation v. Mackenzie Sawmill Ltd., 2022 BCCA 228 at para. 26.

[47]      In my view, TELUS has not met this burden. The fact that another judge may have exercised their discretion differently does not mean this judge erred. On a functional and contextual review of the reasons for judgment, I am satisfied the judge did not misdirect himself on the law surrounding undertakings, misapprehend the record, fail to consider relevant factors, or wrongly emphasize one factor over another. Instead, as I interpret his reasons, he simply concluded that given the short duration of the interim injunction, the ability of TELUS to challenge the need for an injunction once before the arbitrator, and his direction that the proceedings be expedited, the usual approach taken to undertakings in the labour relations realm (a relevant consideration) was also appropriate here. This was an individualized assessment and TELUS has not displaced the deferential standard of review.

In the result, the appeal was dismissed.

The post Injunction available to fill remedial gap in labour case: BC Court of Appeal first appeared on British Columbia Law Institute.

The plaintiff company, AFX Mixing & Pumping Technologies Inc. (“AFX”), sells and distributes industrial mixing and pumping equipment. From AFX’s incorporation in 2014, the defendant Shaune McKinon served as managing director and was a minority shareholder. His employment ended in March 2025, and he was removed as a director in April 2025. Other defendants in this matter are family members, each of whom worked for AFX at different times. 

Following Mr. McKinon’s departure, AFX discovered that he had signed a services agreement with Mixtec, a global competitor of AFX. This agreement was signed in March 2025, while Mr. McKinon was still a director of AFX. 

AFX alleged that Mr. McKinon covertly aligned himself with Mixtec while still a fiduciary, took confidential customer information from AFX and was competing against AFX in breach of his fiduciary duties. AFX’s allegations are that this conduct not only breached contractual obligations but also the fiduciary duties inherent in Mr. McKinon’s senior leadership role. 

In August 2025, the BC Supreme Court had granted AFX an interlocutory injunction restraining the defendants from possessing or using specific categories of AFX data and requiring the return of confidential information (this decision can be found at 2025 BCSC 1717). The granting of that order was based on a strong initial case that the defendants had possession of confidential business information which threatened irreparable market harm. 

With this application, AFX had returned to court seeking a further, broader injunction restraining the defendants from contacting or doing business with any AFX clients in North America until trial. AFX argued this second injunction was justified given Mr. McKinon’s patterns of concealment and that Mr. McKinon was likely suppressing additional inculpatory evidence including ongoing misuse of confidential business information.  

The defendants opposed the injunction, arguing Mr. McKinon was no longer an AFX fiduciary, that AFX had not shown risk of irreparable harm, and that the injunction would cause greater harm to the defendants and third parties than any potential harm to AFX. 

The court accepted that there was “strong initial evidence of a pattern of ongoing concealment”, including with respect to the defendants’ affidavits and document production (para. 67). The court also agreed that these breaches of duty and concealment created concerns of ongoing non-disclosure and misuse of confidential information. Despite these findings, the court found that AFX did not have a strong case that Mr. McKinon’s fiduciary duty of non-competition would continue until trial in April 2027. Nearly nine months had passed since Mr. McKinon had ceased being a director, and the court emphasized that a fiduciary duty of non-competition will not typically be extended for more than 12 months after departure, even for a key executive. On this point, the court cited the BC Court of Appeal decision of TCT Logistics Inc. v Nordeen, 1999 BCCA 597, which states that: 

[27]      … courts ought to be careful to limit the grant of equitable relief to that reasonably necessary to protect the interests threatened. In such circumstances, I believe that generally any injunctive relief should be time limited, perhaps with liberty to the moving party to seek to extend the duration of any such relief granted. Each case will, of course, fall to be decided on its particular circumstances but generally, save in exceptional circumstances, I doubt if it would be easy to persuade a court to initially grant an order extending this sort of equitable relief beyond approximately one year from the date of termination of employment and in many cases, a shorter period may be deemed adequate. 

[Emphasis added] 

The court also rejected the plaintiff’s argument that ongoing misuse of confidential information justified the injunction. The earlier injunction already prohibited possession or use of AFX confidential information, and the evidence of potential misuse was “too dated and circumstantial” to justify the relief sought (at para. 9).  

In weighing the balance of potential harm, the court noted that the proposed injunction would significantly impair the defendants’ ability to work in a specialized industry, while AFX had had time to solidify client and market relationships following Mr. McKinon’s departure. The court also considered the impact to third parties, noting that customers would benefit from having an additional supplier in the market. 

The application for a second injunction was therefore dismissed. The court ordered limited additional document production but held that costs should be in the cause, noting that the evidence of fiduciary breaches and concealment justified AFX bringing the application. 

The post The Limits of What Is “Reasonably Necessary”: BC Supreme Court Refuses Broad Injunctive Relief in Post‑Employment Competition Dispute first appeared on British Columbia Law Institute.