JFK Court Report: Recent Cases from British Columbia

The BC Courts in late 2014 were busy dealing with a number of proceedings related to civil injunctions.

In Red Chris Development Company Ltd. v. Quock, 2014 BCSC 2399, the court heard an injunction application by a developer seeking to restrain defendants from blockading access roads to the site of the Red Chris Mine in northwestern BC. The mine is located in the traditional territory of the Tahltan Nation. The defendants were members of First Nations within that territory and call themselves the Klabona Keepers. They say that they are the rightful title-holders of the lands affected by activities at the mine, and that they were not adequately consulted in the development of the mine. An interim injunction was granted, and a pre-trial injunction was thereafter granted by this order of Justice Punnett. The Court concluded that  there are fair questions to be decided in the case brought by the Plaintiff Red Chris, that the harm resulting from the blockade is irreparable given that the plaintiff will not be able to recover economic losses from the defendants, and that the balance of convenience is met because there was little justification for denying the injunction and because the public interest requires upholding the rule of law. Injunction was ordered with enforcement provisions.

In Trans Mountain Pipeline ULC v. Gold et al, 2014 BCSC 2133 and 2014 BCSC 2403, the court dealt with an injunction application by Trans Mountain against individuals protesting Trans Mountain’s exploratory work on Burnaby Mountain. The court granted the injunction on the basis that Trans Mountain advanced strong issues to be tried, including torts of assault and intimidation. The court concluded that in the balance, the defendants’ right of public dissent must be protected but that in this case there was a strong case for tortious behaviour. (The evidence of tortious behaviour introduced in court included photographs of the expressions of protesters, and led to a social media moment, with the use of the hashtag #kmface.) The court further determined that failing to grant the injunction would lead to irreparable harm to Trans Mountain by adding to unrecoverable economic losses; and it would not result in irreparable harm to the defendants. The balance of convenience favoured the plaintiff and Justice Cullen issued the injunction. Later, however, it became clear that the plaintiff’s GPS coordinates for the location of the Borehole No. 1 (a location where the plaintiff sought to conduct exploratory work, and the defendants sought to protest, so which defined the physical parameters of the injunction) were incorrect. As a result, civil contempt charges that had been laid against protesters who crossed the (mis-marked) injunction line were vacated.

In  Abbotsford (City) v. Shantz, 2014 BCSC 2385, the applicant Mr. Shantz, asked the court to dissolve an interim injunction issued against homeless persons living in tents in Jubilee Park in Abbotsford, relying on the “material change in circumstances” and “unacceptable delay” thresholds for reconsideration. The court denied the application and sustained the injunction. The court did not agree that there had been a material change in circumstances since the injunction was initially granted despite recognizing that the alternate site at Gladys park is not as spacious, is not well maintained and is exposed to passing traffic; it is still camping in an urban park. Nor did the court agree that Abbotsford had failed to prosecute the matter diligently. The matter is therefore headed to trial with the injunction intact, and with some of the homeless defendants living outdoors in the interim, but not in Jubilee Park.