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”.

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