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.

Building projects can be delayed or derailed and costs driven up when developers and neighbouring landowners don’t reach timely agreement on access needed to operate construction cranes and perform other essential construction operations. Delays prolong the disruption and inconvenience that construction activity may cause in a neighbourhood. Higher costs are ultimately passed on to purchasers and tenants of new buildings, contributing to the problem of lack of affordability.

When negotiations for access fail, developers have been known to trespass by forging ahead with crane and shoring operations without landowner consent, resulting in litigation. Injunctions against the trespass obtained by landowners can stall construction and force resort to costly workarounds. Where workarounds are not possible or would be too costly, building projects may not proceed at all.

The study paper explains why access to neighbouring land and airspace is often needed during construction. It reviews cases where failed negotiations or a failure to negotiate led to trespassing and injunctions and explains the legal concepts involved. Then it sets out a series of potential solutions for avoiding and resolving access-related disputes.

Typical reasons why builders need access to neighbouring land and airspace

The latticework, fixed-base construction cranes that are familiar sights in urban settings often need to swing over ground lying outside the boundaries of the building site. Their movement can’t be restricted by property boundaries because they must be capable of “weathervaning” (swinging 360 degrees) for safety reasons in high winds. It’s also a legal requirement.

A preferred method for reinforcing (“shoring”) the sides of excavations to prevent cave-ins is to insert anchor rods (also called “tiebacks”) at an angle into the ground behind a temporary shoring wall that may run close to or along a property boundary. Anchor rods may be left permanently in place after construction is completed.

Consent from neighbouring landowners is needed to allow cranes and shoring installations to encroach on their property. If neighbouring landowners refuse to grant access for these purposes, developers can sometimes use mobile cranes or drive piles to support a shoring wall. These workarounds are usually more expensive than the preferred methods and often take longer.

Potential Solutions for Avoiding and Resolving Access Disputes

The study paper presents a series of possible solutions to prevent or resolve construction-related access disputes. The continuum runs from potential solutions that require the least governmental involvement to ones requiring the most.

At one end of the continuum, there are strategies where there is little or no government involvement, except for municipal co-operation and support. These include public education campaigns, neighbourhood-level informational initiatives, and early contact with the landowners surrounding a proposed building site. These initiatives would cover matters like the safety standards that apply to construction cranes, reasons why builders need timely access to adjacent ground and airspace, and the importance of proper shoring for the stability of soil and structures surrounding an excavation.

Another initiative to prevent disputes could be a code of best practices in negotiating access, created by the development industry in collaboration with other stakeholder interests, principally landowners and municipalities. The best practices code would draw upon the collective well of experience in achieving successful outcomes.

Moving on to the middle range of the continuum, the study paper covers mediation and arbitration processes for resolving situations where access is in dispute between a developer and a landowner. As a landowner is not legally obligated to grant access to a developer, resort to voluntary mediation and arbitration could be unlikely. Mandatory mediation or arbitration, on the other hand, could play a significant role in resolving access disputes if a decision-making body were given the necessary authority and the process could be invoked by either the developer or landowner when initial negotiations fail.

Legislation would be needed to make mediation or arbitration mandatory to resolve disputes over construction-related access. The study paper suggests that the Surface Rights Board that now settles the terms of surface leases in the oil and gas and mining sectors, including the level of rent, could be given decision-making authority over construction access disputes as well. The Surface Rights Board uses a mediation-arbitration process. It first tries to mediate a dispute over entry and access between an oil and gas or mining operator and a surface landowner, and if mediation is unsuccessful, the process moves on to arbitration.

Another solution might be to give a court the power to decide whether a developer should be given access to neighbouring property and set the compensation the developer should pay to the landowner. Either party could apply to the court to decide these matters. Australian states, New Zealand, and the UK have legislation allowing similar court applications.

At the far end of the continuum where the most government involvement is to be found are potential solutions involving public policy choices requiring legislative changes to cut down the scope for access disputes. These include passing a law that a crane swinging through airspace is not a trespass. That would make it less likely that a non-consenting landowner could obtain an injunction preventing crane operation, but the landowner could still sue the developer for nuisance if the landowner could prove there was substantial interference with the use of the land below and the intrusion was not by consent.

Another policy choice could be passing a law that simply prevents an injunction from being awarded to a non-consenting landowner against trespass by crane overswing, leaving it still open to the landowner to sue for damages.

The requirement for strata corporations to pass a resolution by a ¾ vote to grant a developer a right of access to common property could be removed so that the resolution could pass with a simple majority of strata lot owners being in favour. This would make it easier for strata corporations to grant access on terms that are acceptable to the majority of owners.

The most drastic measure discussed in the study paper that was raised in stakeholder consultations would be to legislate an automatic right to access neighbouring land and airspace as needed for construction purposes. Landowners would not receive any compensation, except that they could take advantage of the same right of access if they redeveloped their own property in the future.

The study paper does not recommend any one of these potential solutions over another. It is meant to be a contribution to public discussion and assist stakeholders, policymakers and legislators in dealing with land and airspace access issues related to construction.

The post New BCLI Study Paper on a Current Issue in Construction and Property Law first appeared on British Columbia Law Institute.

The underlying dispute involved unauthorized construction due to failure to obtain building permits. The court’s consideration of whether to grant the city an injunction began with the issue of whether the respondent property owners were in breach of the city’s building bylaws:

[55]      In considering whether to grant the relief sought on an application for a permanent statutory injunction, the court must determine whether the respondents have breached the statutes or the regulations or orders made under the statute: Vancouver Island Health Authority v. Giannikos, 2021 BCSC 957 paras. 54–57. I will start with that analysis.

[56]      Pursuant to ss. 8(3)(l) and 53(2) of the Community Charter, S.B.C. 2003, c. 26, the City may, by bylaw, regulate, prohibit, and impose requirements in relation to buildings and structures for the health, safety and protection of persons and property. Pursuant to s. 298 (1)(a) of the Local Government Act, R.S.B.C. 2015, c. 1, the City is authorized to regulate the constructions, alteration, repair or demolition of buildings and other structures.

[57]      The City has adopted the City of Surrey, Bylaw No. 17850, Surrey Building Bylaw, 2012 (14 January 2013) [Building Bylaws] for that purpose. [Bracketed text in original.]

After a lengthy review of the facts and the relevant bylaws, the court found numerous breaches.

Having established this breach of the bylaws, the court turned to consider the remedy of an injunction under section 274 of the Community Charter:

[86]      As proceedings under s. 274(1) are statutory injunctions, the court should only refuse to enforce the legislative requirements in exceptional circumstances: Surrey (City) v. Sidhu, 2023 BCSC 1837 [Sidhu] at para. 29, citing North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494 [North Pender Island] at para. 38.

[87]      Unlike the test for the granting of a common law injunction, the test for granting statutory injunctions does not require that an applicant prove irreparable harm nor does the court have to assess the balance of convenience as between the parties. Rather, an application for a statutory injunction engages the public interest in seeing that a public statute is given effect:  Abbotsford (City) v. Weeds Glass & Gifts Ltd., 2016 BCSC 135 at paras. 20–22, citing North Pender Island at paras. 37–38.

[88]      While the Court has discretion to refuse the injunction, the discretion is narrow and should only be granted in exceptional circumstances: Sidhu at para. 30, citing Burnaby (City) v. Pocrnic, 1999 BCCA 652 at para. 15. [Bracketed text in original.]

In the end, the court concluded that the exceptional circumstances needed to deny the injunction weren’t present in this case:

[95]      In any event, to the extent that the demolition may cause hardship or inconvenience, that will not outweigh that public interest in having the law obeyed: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 54 B.C.L.R. (3d) 155 at para. 9, 1998 CanLII 6446 (B.C.C.A.).

[96]      No exceptional circumstances exist to justify the exercise of the Court’s discretion to refuse the injunction sought. Having found that the respondents have breached the Building Bylaws in the manner set out above, the injunction sought by the City is granted.

The post BC Supreme Court grants statutory injunction in construction dispute first appeared on British Columbia Law Institute.

After dealing with requests for “a declaration of ownership and vacant possession”, the court found that “The only question remaining is whether the Applicant is entitled to an injunction with respect to the Respondent (and other inhabitants) and the Property”.

The main issue this question placed before the court was “what test applies to a request for a permanent injunction”. As the court noted, there is a well-developed three-stage test for a pre-trial injunction, but that test “is clearly aimed at a proceeding where the issues between the parties are serious, but not yet determined”, which was not the case here.

After a brief review of decisions from courts outside New Brunswick, the court concluded that “At present it appears that there is no settled test for a permanent injunction”. So “In the absence of one, I find the questions articulated in NunatuKavut Community Council Inc. v. Nalcor Energy to be appropriate. They are consistent with the test in Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), which has been adopted by other members of this Court, and provide a useful analytic framework”.

The court applied this six-stage framework to the findings made in this case as follows:

a.      Has the claimant proven that all the elements of a cause of action have been established or threatened? Yes, RBC has been successful with respect to its request for a declaration of ownership and vacant possession.

b.        Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? Yes, the Respondent has lived on the Property for over a year since the sale of the property and the demand to leave. He has resisted not by court action or response but by refusal to leave. This has necessitated court action.

c.      Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? There is no adequate alternate remedy that I can envision that will provide the protection sought.

d.       If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? No, there is nothing in the conduct of RBC that implicates them in any equitable consideration in favour of the Respondent.

e.      If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?  No, there are no such terms necessary.

f.        In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? Yes. While the relief sought is appropriate with respect to the Respondent, RBC has sought to extend the injunction to “any other inhabitants”. There is no evidence before me that they are other inhabitants than the Respondent. As such the terms of the injunction should be narrowed so as to be restricted only to the Respondent.

In the result, the court decided to grant the requested injunction “on the terms as narrowed”.

The post New Brunswick court grapples with test for permanent injunction first appeared on British Columbia Law Institute.