Docket: T-1944-11
Citation: 2011 FC 1528
Ottawa,
Ontario, December 30, 2011
PRESENT: The Honourable Mr. Justice Barnes
ACTION IN REM AGAINST
THE SHIPS “2008-1”, “CAPITAL “C””, “MITCO NO. 3”, “SWEETIE PIE” AND “STRAITS
WATER SKIDDER” AND IN PERSONAM
BETWEEN:
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WESTERN FOREST PRODUCTS INC.
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Plaintiff
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and
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RANDOLF O'BRIEN aka RANDY O'BRIEN,
O'BRIEN & FUERST LOGGING LIMITED, THE OWNERS AND ALL OTHERS INTERESTED IN
THE VESSELS "2008-1", "CAPITAL "C"",
"MITCO NO. 3", "SWEETIE PIE" AND "STRAITS WATER SKIDDER"
AND THE VESSELS "2008-1", "CAPITAL "C"",
"MITCO NO. 3", "SWEETIE PIE" AND "STRAITS WATER
SKIDDER"
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
This
is a motion by Western Forest Products Inc. (WFP) seeking an interlocutory
injunction compelling Randy O'Brien and O'Brien & Fuerst Logging Limited
(collectively referred to as O’Brien) to remove a residential barge from WFP’s
foreshore leasehold at Dinan Bay, Haida Gwaii, British Columbia.
Background Evidence
[2]
O’Brien
is the holder of two Timber Sales Licences (TSLs) in the area of Dinan Bay, British Columbia. The initial
TSLs permitted O’Brien to log the holdings for two years but he subsequently
purchased a one-year extension for both.
[3]
WFP
holds Tree Farm Licence 60 and other related permits and licences all of which
allow it to log in the vicinity of Dinan Bay. In 2009, WFP acquired
a leasehold interest over a designated foreshore area of Dinan Bay for the
purpose of making and sorting log booms. Under the terms of this lease
with the province, WFP pays an annual rental fee and undertakes, among other
things, not to moor or secure any boat or structure for use as a live-aboard
facility, whether permanent or temporary. Other provisions in Article 4 of
the lease limit WFP’s use and occupation rights in various ways but, otherwise,
the province contracts to provide quiet enjoyment over the foreshore leasehold.
[4]
WFP
has entered into a purchase and sale agreement for Tree Farm Licence 60 and
related interests with Taan Forest Products Ltd. and, pending the closing, Taan
has agreed to manage WFP’s logging operations. Because of this management
agreement, some of the evidence in the record comes from Taan employees.
However, nothing turns on the relationship between WFP and Taan. I will refer
to Taan and WFP under the collective acronym WFP.
[5]
The
record discloses, at least in a general way, a long-standing history of
acrimony between O’Brien and WFP apparently arising out of O’Brien’s desire to
gain convenient and economical access to his TSLs. O’Brien deposes that as
early as September 2009 he sought WFP’s permission to moor a residential barge
within the area of WFP’s foreshore leasehold in Dinan Bay. It is not
clear from O’Brien’s affidavit what became of those early discussions, but in
November 2011, he again sought permission to moor the barge in the bay. At that
time, he understood that favourable consideration would be given to the
request, subject to the Department of Fisheries’ approval and the negotiation
of a fee. On the strength of those positive indications, O’Brien unilaterally
moved the barge from a dock in Port Clements to Dinan Bay where it was
tied up to the existing WFP anchorage.
[6]
O’Brien
deposes that “the only practical access to our TSLs is by water”. Road access,
particularly in the winter, involves a minimum three-hour commute and is
sometimes impossible. Nevertheless, he is able to use the existing roads to
gain access to Dinan Bay and to his TSLs. O’Brien further deposes that daily
access to his TSLs by boat – a distance of 22 miles – is “too dangerous to
contemplate” using his 35-foot crew boat. The only solution to his problem is,
therefore, to moor his residential barge at Dinan Bay which, he
says, is the only safe and available moorage. Without this option, O’Brien
asserts that he “would need to lay-off or not hire 20 workers” and that,
because of the dispute with WFP, he has already laid off six fallers. According
to O’Brien, there is also “no guarantee” that the province will renew his TSLs
if they are not logged within the existing tenure. O’Brien’s affidavit is,
however, notably silent about the option of bringing in land-based
accommodations for his crews or chartering a larger and safer boat to make the
22-mile daily commute as is done by other logging operators in the area. He
also offers no explanation for the earlier lay-off of six fallers in the face
of his ongoing use of the barge since at least the early part of November.
Inasmuch as O’Brien has imposed his own optimal solution to the dispute, it is
not apparent why his operations would have suffered any setback up to this
time.
[7]
WFP
contends that O’Brien was told that he could not moor his barge in its Dinan Bay leasehold unless and until the province
agreed to an amendment to the foreshore lease. When O’Brien unilaterally moved
the barge to Dinan
Bay, WFP advised
O’Brien that it would not further discuss the access issue until he relocated
the barge. WFP further maintains that O’Brien’s continued occupation of the Dinan Bay leasehold constitutes a breach of WFP’s
foreshore lease with the province and jeopardizes its ongoing tenure.
Issue
[8]
Should an
interlocutory injunction be issued in favour of WFP compelling O’Brien to
remove the residential barge from WFP’s foreshore leasehold at Dinan Bay?
Analysis
[9]
The
parties agree that the test for an interlocutory injunction is described by the
Supreme Court of Canada in RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR
311, [1994] SCJ no 17 (QL), and requires the proponent to establish that:
a. there is a serious
issue to be tried;
b. the proponent
will suffer irreparable harm; and
c. the balance
of convenience favours the grant of interlocutory relief.
[10]
O’Brien
concedes that there is a serious issue raised by this proceeding and that the
Court ought not to consider the relative merits of the parties’ positions. He
disputes that WFP has or will suffer any irreparable harm by his continued
occupation of WFP’s foreshore leasehold. O’Brien also asserts that the balance
of convenience favours his interests and those of his employees over the
interests of WFP.
[11]
On
the record before me, I am satisfied that WPF has established a prima facie
case of trespass that is unlikely to be excused by the defences raised by
O’Brien. Although O’Brien may well have a right of riparian passage to gain
access to his onshore timber leases, including the right of temporary moorage,
the authorities do not support the kind of long-term fixed moorage that O’Brien
has put in place: see R v Lewis, 2009 BCPC 386 at para 29, [2009] BCJ no
2596 (QL) and North Vancouver (City) v Seven Seas S.R., [2000] FCJ no
1468 (QL) at para 35, 192 FTR 203 (TD). Indeed, O’Brien’s several attempts to
secure WFP’s permission to moor the barge in Dinan Bay seemingly
belie a good faith assertion that he had the right to tie up there on an
ongoing basis. I also do not agree that the strength of WFP’s allegation of
trespass cannot be considered. The stronger the prima facie case for
relief, the stronger the claim to an injunction: see Tlowitsis-Mumtagila
Band v MacMillan Bloedel Ltd, [1990] BCJ no 2746 (QL), 53 BCLR (2d) 69 (CA).
[12]
With
respect to the issue of irreparable harm, O’Brien contends that WFP is not
presently working in the foreshore lease area and, in the result, has suffered
no harm whatsoever by his actions. He maintains that WFP is not at risk of
being declared in default by the province under the foreshore lease
because WFP has not consented or acquiesced to his incursion in Dinan Bay
and because the lease could presumably be amended by consent to permit his
moorage. All that WFP needs to do to avoid the problem is to ask the province
to agree to the necessary amendment.
[13]
I
agree with O’Brien that his unilateral actions could not legally be held by the
province to constitute a breach of the foreshore lease by WFP. It is only by
acquiescence to O’Brien’s conduct that the province could make a case for
default under the lease. WFP is making diligent efforts to have O’Brien removed
and that is all that the province can expect of it in terms of its contractual
performance. At the same time, WFP has no obligation to seek an amendment to
the lease to permit O’Brien to moor his barge. WFP paid for quiet enjoyment of
the foreshore lease area and it has no obligation to surrender that right to appease
O’Brien.
[14]
O’Brien
also argues that WFP will not be harmed by the ongoing presence of the barge
because WFP is not presently using the foreshore leasehold. It characterizes
its use - even if it is a trespass - as trivial and not warranting the extreme
remedy of an injunction. I do not agree.
[15]
O’Brien
relies on the authority of Vaz v Jong, [2000] OTC 323, [2000] OJ no 1632
(Ont
Sup Ct),
to support his argument that trivial interferences with property rights do not
always attract injunctive remedies. However, what has been alleged by WFP is
not a technical trespass. It is not the sort of conduct that can be fairly
described as more in the nature of a nuisance or where the complaint is
motivated by an unreasonable antisocial insistence.
[16]
In
cases of deliberate and ongoing trespass, the guiding principle is that damages
are presumed inadequate and an injunction is the usual remedy: see
Frontenac Ventures Corp v Ardoch Algonquin First Nation, 165 ACWS (3d) 155
at paras 10-12, 2008 CarswellOnt 1168 (WL Can) (Ont Sup Ct) and Hamilton
(City) v Loucks, 2003 CarswellOnt 3663 (WL Can) at paras 25-27, 232 DLR
(4th) 363 (Ont Sup Ct). Injunctive relief is so strongly favoured in cases of prima
facie trespass that it is generally unnecessary to consider whether the
interference has caused any de facto harm: see The Honourable Mr.
Justice Robert J. Sharpe, Injunctions and Specific Performance,
loose-leaf (consulted on 30 November 2011), (Aurora, Ont: Canada Law Book,
2009), para 4.610 and Terbasket v Harmony Coordination Services Ltd,
2003 BCSC 17 at para 24, [2003] BCJ no 28 (QL).
[17]
I
am satisfied that the nature of O’Brien’s admitted conduct is sufficiently injurious
to WFP’s proven leasehold interest that an injunction is the presumed remedy.
[18]
O’Brien’s
assertions of harm must be considered as an element of the balance of
convenience analysis and not as a potential offset to WFP’s claim to
irreparable harm: see RJR-MacDonald, above, at para
57. That is also the place to assess allegations of harm to the public
interest.
[19]
Although
O’Brien’s affidavit contains several allegations about lost employment and the potential
loss of his TSLs, there is almost no factual support for his somewhat
apocryphal predictions. It is difficult to believe that he alone has no
available options to gain access to his TSLs except by the means he has chosen.
He asserts that his own crew boat is too small to safely navigate the local
waters, but he says nothing about the availability of a larger and safer
vessel. He also says nothing about the possibility of bringing in, by road
or by water, temporary land-based accommodations for his workers. These are
options that he understandably would like to avoid because of their cost and
because there is a barge already at his disposal. Nevertheless, the burden
of additional expense does not tip the balance of convenience in his
favour absent some convincing evidence that the financial burden would be
unmanageable. In summary, this evidence does not satisfy me that O’Brien’s
logging operations cannot be profitably executed by means other than the
approach he has adopted.
[20]
If
the injunction is not granted, O’Brien will potentially finish up his
operations in Dinan
Bay
before the case against him is resolved and WFP’s ostensible rights to quiet
enjoyment may not be fully vindicated. The public interest is not well served
by ignoring such an interference in favour of protecting the economic benefits
that will accrue to an alleged trespasser or by essentially licensing the
conduct through the payment of damages. If, on the other hand, O’Brien
successfully defends this action his losses can be fully compensated by an
award of damages.
[21]
WFP
has agreed that it will provide an undertaking as to damages in favour of O’Brien
in a form agreed to between the parties. O’Brien has provided no authority to
support an expanded undertaking in favour of his employees and I decline to
make that a condition of WFP’s potential obligation to pay damages. In the
result, this Court will issue an interlocutory injunction requiring O’Brien to
remove the residential barge from the WFP’s foreshore leasehold provided that
WFP has executed an undertaking as to damages in the form hereto annexed.
Having regard to potential weather and towing complications, I will allow the
Defendants up to ten days to remove the barge.
[22]
Inasmuch
as the merits of the underlying dispute have not been determined by this Order,
costs will be payable in the cause.
ORDER
THIS COURT
ORDERS that the Defendants shall remove their residential barge
identified by ship name 2008-1 from the area of WFP’s foreshore leasehold at
Dinan Bay, British Columbia within ten days of the date of this Order, subject
only to the Plaintiff’s execution and filing of the undertaking annexed
hereto.
THIS COURT FURTHER
ORDERS that the Defendants and each of them shall desist from occupying
on a continuing basis any part of the WFP’s foreshore leasehold at Dinan Bay, British
Columbia.
Nothing herein shall preclude the Defendants from exercising rights of
temporary daily marine access within the confines of WFP’s foreshore leasehold
for the purpose of delivering personnel or equipment on shore.
THIS COURT
FURTHER ORDERS that the costs of this motion be costs in the cause.
"R.L.
Barnes"
ANNEX
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