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”.

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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.

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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 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.