John Trenberth v. National Westminster Bank

John Trenberth v. National Westminster Bank [1979, Eng. Ch., Walton J.]: ∆ needed to repair building but couldn’t do so without trespassing on  property (needed to use it as a staging area, bring materials across, etc.) – but  doesn’t want them to do that. Court grants injunction, despite noting that  was fairly unreasonable and ∆ was just doing what they were legally obligated to do (to repair the bldg). This is a somewhat extreme case, but it stands as a reaffirmation of courts’ tendency to favour injunctions for property owners.

42 Goodson v. Richardson [1874]: Trespass: ∆ laid pipes underneath the road.  owns property under the road, but doesn’t own the road. So, can’t access the subsurface. No harm to  - no physical interference with a usable piece of real estate. So, what has been lost to merit an injunction? Court said the loss was veto power.  has an interest, with value  the power to exclude other people except if they strike a bargain with him. So, this is an invasion of land in a series of trespasses to the gain/profit of trespasser w/o consent of owner. Court says damages are inadequate because there are no calculable damages. BUT, nowadays they could consider what would have come out of a negotiation on the matter (though at the time of this case that option hadn’t been set out yet).

43 Woolerton and Wilson Ltd. v. Richard Costain Ltd. [1970, Eng. Ch., Stamp J]: Construction near  warehouse, ∆ crane swings over  property. No damage, but  successfully argued that injunction was needed to protect veto power. Court granted the injunction but suspended its application for 12 months. This effectively negated the need for the injunction, since ∆ would be done the construction by then. Stamp J said he was following Goodson, but he wasn’t really. Stamp J. said that Shelfer only applied in nuisance, not in trespass, where only nominal damages can be recovered – so there’s no room to substitute damages for an injunction in trespass cases. BUT, even if that statement were accurate at the time, it’s definitely not accurate now.

44 Bertram v. Builders Association of North Winnipeg [1915, MBKB]: There is no apparent difference between this case and John Trenberth, but Trenberth is the primary case and Bertram is an outlier.

45 Behrens v. Richards: Local village always used a certain path across property, but no legal right. New owner seeks injunction to prevent people from using the property. Held: No injunction. Yes, no legal right, but that had always been the way the property was used, and  knew that when they bought it.

46 Bernstein v. SkyViews: Overflight airplane photos of property ≠ trespass. Measured in nuisance by whether the action interferes w/ reasonable use/enjoyment of property.

47 Clark v. McKenzie [1930, BCCA]: When ∆ built house, didn’t know they were trespassing. Minor interference which barely reduced the property value. Held:  got $50 in damages, no injunction to tear down.

48 Shelfer v. City of London Electric Lighting [1895, Eng. Ch., Smith LJ]: Nuisance case;  seeking injunction against a noisy electrical utility.

49 Vaz v. Jong: Neighbours were already at odds due to a separate issue, and  sought injunction because ∆’s upper porch and some eavestroughs overhung ’s property. Held: injunction granted, but court noted that they were not presumptively obligated to do so. Court distinguishes Lewvest (prefers nuisance to trespass in air cases, but even if trespass we can import a damages assessment). Applying the Shelfer factors: it’s a fairly trivial interference and it could be compensated in money, but it could also just be fixed, for a relatively modest cost. Just cut off a bit of the porch and move the downspout  ∆ can fix the whole thing for about $2k. So, wouldn’t be oppressive to ∆. But if it were oppressive (e.g. if the cost were much higher), court would have the power to order damages instead of an injunction.

50 Miller v. Jackson [1977, Eng. CA]]: Cricket balls coming over into a development, a few times/year. Three judges made three different findings: Denning MR said no nuisance no injunction; Cumming-Bruce LJ said nuisance but no injunction since it’s too extreme and we want to allow people to play cricket; Geoffrey-Lane LJ said nuisance and injunction, on basis that physical danger to property owners means no room for balancing ∆ interests. So, no injunction, but because Denning ordered damages despite the lack of nuisance finding (probably so there would be a clear 2:1 decision between him and C-B). The big balancing factor: public interest in letting people play cricket. There are more people in favour of cricket than people whose windows are being smashed by cricket balls. Though note that there is also a public interest in housing developments, so be careful about public interest considerations  they are highly POV-dependent.

51 Spur v. Del Webb: huge cattle operation; developer bought thousands of acres w/ plan to turn into residential area. Lots of manure,  developer sought injunction against the manure. Held: court granted the injunction, but required  to pay ∆ the value of his farming operation as a going concern. Rationale: First in time ≠ excuse; tons of manure in what would soon be a residential area = nuisance/health hazard. So, injunction required, but compensation necessary.

52 Palmer v. Burnaby [2006, BCSC]: Too many concerts in the park,  seeking injunction to shut them down. Held: no injunction. Live and let live. Yes, concerts can be noisy, but the city was trying to contain the noise and stop the concerts at a reasonable house, and also the public interest weighs in favour of allowing the concerts to continue (over the interest in peace and quiet in the neighbourhood).

53 Sammut v. Islington Golf [2005, ON Sup. Ct. J]: Golf balls breaking windows in nearby house;  knew there was a golf course there when he moved in. Golfing ≠ public park – can’t use public interest argument. Planning permission was given, houses were built, therefore the golf course has to do something to prevent the balls from flying over into  home. Held: court granted an injunction against golfing on the third tee, so ∆ has to rearrange the course.

54 Cattel v. Great Plains [2008, SKCA]: TJ gave absolute injunction against golf balls; CA overturned as overly broad. Can’t prohibit playing golf – the neighbourhood is used for playing golf and the occasional stray ball should be tolerable. CA reworded injunction to “enjoin the golf course from allowing users to strike golf balls onto the ’s property in numbers that are greater than would be expected...” So...basically meaningless?

55 Boomer v. Atlantic Cement Co. Ltd.: Industrial pollution – relatively serious pollution from ∆ factory. Analysis is focused on social utility: an injunction will stop the pollution, but will also shut down factory that produces useful/necessary things and is an important part of the local economy. Majority says shutting down the plant would be sufficiently burdensome that they would withhold the injunction and grant  “permanent damages” – damages for past and future harm. Do an estimate of the likely future harm and pay for that. However, in this case the court didn’t actually make this award – they awarded the injunction and said it would be withdrawn once the parties agreed as to damages. Minority argues that denying  this injunction basically amounts to expropriation of their land. But, that’s not really the point – someone is inevitably going to lose rights here (either right to clean air or to carry on business). The problem is symmetrical.

56 Bottom v. Ontario Lead Tobacco [1935, ONCA]: Air smelled like tobacco, tars released into the air. Huge industry at the time. Held: no injunction. Greatest disparity between gain to  and disadvantage to ∆. Factory employed over 200 people, was a significant part of business, etc.

57 340909 Ontario v. Huron Steel [1990, ONCA]:  owned apartment building in Windsor, said tenants complained about the noise at ∆ steel stamping plant and that vacancy in apt bldg is high and property values down b/c of the noise problem. ∆ counter: employ a lot of people, have brought engineers in to try to diminish the noise and don’t want to be shut down. Held: court allowed ∆ to operate, giving them 6 months to complete the already-planned work on the bldg to decrease noise. Wrote injunction such that they just had to do what they were already planning to do – get the sound down a bit – without forcing them to shut down the factory.

58 Gouriet v. Union of Post Office Workers:  wanted to send mail to South Africa during Apartheid

59 NWL v. Woods: Non-unionized ships flying flags of convenience coming into port; unionized workers boycotting. Court knew this was a temporary dispute and that whatever order they made would conclude the issue. Granting or refusing the injunction amounted to deciding the case.

60 C-Cure: When, because there’s no real conflict as to facts, or where it’s possible to determine what facts will be proven at trial (i.e. we know who will win), then a judge can make the call right away.

61 Sheperd Homes (quoted in Films Rover): New development; term of lease says no one will build a fence. Trying to create a nice, pastoral setting. However, nearby farmers weren’t maintaining their fences, and farm animals were coming onto ∆ property so they built a fence.  sought mandatory injunction to take down the fence. Held: no injunction. Reasons: goes beyond status quo; would give  the whole relief they want at trial; hard to formulate in specificity.

62 Prairie Hospitality: Injunction granted. ∆ just had to continue to provide information  the injunction wasn’t very intrusive, and the risk of irreparable harm to  was much greater. Plus, ∆ appeared to be wrongfully repudiating.

63 Fothergill: K for coal. Opportunity to sell for a higher price to other people arises so defendant breaches contracts and sells to other people. Plaintiff sues. Court says it will not award SP, because it involves the sale of goods, which are fungible and thus can be adequately compensated in damages. So  asks for injunction: don’t force relationship, just tell ∆ they can’t sell coal to anyone else – just enforce the negative side of the K. Held: no. the obvious result of that injunction would be to force ∆ to perform the K; since court wouldn’t order that straight up, they won’t do it in a roundabout way.

64 Jin v. Calgary Regional Hospital: Brain injury resulted from a fall. Family suing for injunction to prevent hospital from withdrawing life support for Mr. Jin, and to prevent hospital from putting a DNR on his chart. Held: injunction granted.

65 CS v. Capital Health Authority [AB]: Mother has terminal cancer, family suing to prevent hospital from withdrawing support etc. Held: no injunction.

66 Rasu:  seeking injuction over ship/equipment of ∆s, to be part of construction project in other country. Court said can’t seize those assets not part of dispute and prevent ∆ from taking their construction actions.

67 Gateway Village: ∆s owned Arby’s up on Blanshard, and it wasn’t working out well so they were selling their restaurants in BC.  supplier was owed $, suing for just over 65k. ∆ was an AB corp, only had the one restaurant in Victoria. Sold it, wanted to transfer proceeds back to AB bank accounts. BC  sought injunction. Southin: Strong case – looked like ∆ really did owe that $. But no evidence of any wrongdoing -∆ just wanted to put the $ in its AB bank account, where its head office was. So, no motive as other judgments have looked for. Takes Aetna to stand for strong presumption against Mareva injunctions w/in Canada, but only a presumption. Granted injunction on basis that sum was too small to justify  pursuing judgment remedy in AB. Inconvenience of  in pursuing the judgment there might well defeat the claim.

So, as a lawyer, get the facts in, but tell your client’s story.

68 Mooney v. Orr [1994, BCSC]: ∆ shady financial arrangements, gradually moving all assets out of BC into Cayman Islands. BCSC granted a worldwide injunction.

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