This case was heard in the New Brunswick Court of Queen’s Bench.
In this case, the plaintiff (Bolster) sought an interlocutory injunction to halt the defendants from cutting or removing trees on the disputed “Riley Brook Properties,” which was originally co-owned by Ralph Hawkes and Stewart Bolster. The injunction also aimed to prevent the removal of already cut trees and to restore water access to the plaintiff’s cottage by a specified date, except during normal winter periods, until the legal matter’s conclusion. Additionally, relief was sought against John Trecartin, who is linked to one of the defendants. Bolster argued that, per the late Ralph Hawkes’s will, they held a 50% interest in the properties and alleged that the unauthorized tree cutting caused irreparable harm.
A party seeking injunctive relief must satisfy the three-part test set out in the leading Supreme Court of Canada decision in R.J.R. MacDonald Inc. v. Canada (Attorney-General). The applicant must establish:
a. There is a serious question to be tried;
b. He will suffer irreparable harm if the injunction is not granted; and
c. The balance of convenience between the parties.
The threshold for a serious issue is rather low. In this case, the court decided that there was clearly a serious issue to be tried over the ownership of the properties.
The court noted that hundreds of trees have been cut or removed by the defendants and while there is nothing to establish how old these trees are, nor is there special character of those trees, the number of trees demonstrates that damages would not be appropriate. The cutting and removal of trees, especially mature trees and in a large number, is therefore determined to fall into the characterization of irreparable harm.
The court determined that the balance of convenience favours Bolster in this matter, especially due to the limited nature of the injunction sought, which is to stop the cutting and removal of trees, and the turning off of the water line with respect to Bolster’s portion of the disputed properties. The court determined that if the injunction is not granted and the plaintiff is successful in the litigation, the defendants may be able to remove many trees and harm the plaintiff's ability to enjoy his property. If the injunction is granted the defendants will be able to continue to use and enjoy their portion of the property in dispute.
In conclusion, following a risk analysis of both options, the court was satisfied that the risk of withholding the injunctive relief sought was greater than the risk of granting the injunction. The plaintiff’s motion for an interim injunction was allowed.
The court set the costs of the motion at $1,250. The final allocation of these costs depend on a final judgment concerning the property’s ownership.
View the Decision on CanLII: 2021 NBQB 110 (CanLII) | Bolster v. Hawkes-Trecartin et al. | CanLII
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