Injunctive relief, the court ordering an opposing party to do or refrain from something, is a fraught and confusing area of the law. Parties often come to the court in an emotionally charged state seeking to have the court urgently require another party to take steps which are intended to stop or lessen harm that is about to be inevitably suffered by the first party. The requirements for successfully seeking injunctive relief are both intuitive in nature, but difficult to appreciate in practice. Some of these difficulties are explored in the recent case of Flannigan v Forest Hills McKinley Beach Developments Inc., 2022 BCSC 1376 (CanLII).

In Flannigan, the plaintiffs had purchased a property described as their “forever home”. It was alleged by the plaintiffs that during the purchase process, the vendor/developer’s realtor had made representations that a downhill property was too small for construction and, therefore, was effectively a no build lot such that the plaintiffs’ view would not be interfered with in the future.

When the plaintiffs observed signs of construction on the downhill property, they wrote to the vendor/developer seeking to have it confirm that no construction would occur on the downhill property. In the correspondence that followed the vendor/developer asserted its position that no representations were made that the downhill property would be constructed on, there were materials disclosed to the plaintiffs indicating the planned construction on the downhill property, the one plaintiff being a lawyer imputed particular knowledge of the construction potential and the contract of purchase and sale limited the actionable representations concerning the plaintiffs’ property. Despite this, the vendor/developer did offer to repurchase the plaintiffs’ property for their purchase price plus court ordered interest and modest amounts for legal expense and moving costs.

It was nearly a year after the plaintiffs first raised their concerns that they commenced litigation seeking injunctive relief which would prevent continued construction on the downhill property. By that time, the arm’s length purchasers of the downhill property had made considerable progression on the improvements to their property and expected a completed home in the following six months.

The court began its legal analysis with the well-established test for injunctive relief, being that the applicant (plaintiffs) must show that each of the following applies:

1. there is a serious question to be tried between the parties;
2. the applicant will suffer irreparable harm if the injunction is not granted;
3. the balance of convenience must lie in the applicant’s favour; and
4. the test is to be applied flexibly to ensure the ultimate focus is on whether or not granting injunctive relief would be just and equitable in all the circumstances.

On the serious question test, the court affirmed that it needed to only find the claim of concern was not frivolous or vexations. The court found that, despite conflicting and potentially ambiguous evidence, that there seemingly could be a legal case to be made, especially given that an entire agreement clause is not a complete bar to recovery where a specific representation made to a party to induce them into a contract may overtake the more general limitation on representations an entire agreement clause entails.

On the irreparable harm component, the court found that damages have been accepted as a sufficient remedy in similar circumstances where injunctive relief was declined. The court expressed some concern with the downhill property owners being excluded from proceedings given the irreparable harm an order forcing them to cease construction could have wrought upon them.

Similarly, on the balance of convenience test the court again expressed concerns with damages being a sufficient remedy and the exclusion of the downhill property owners and the implications the orders sought had to them. The status quo favoured the continued development of the downhill property given that both parties expressed their differing views but the plaintiffs took no steps to actually stop the development of the downhill property for in excess of a year and the delay by the plaintiffs exposed the downhill property owners to more serious prejudice than they would have faced with more timely intervention being sought. The plaintiffs’ decision to reject an offer to effectively unwind their property sale, even in a rising market and where the offer did not cover all expenses, was one the court had to have regard for.

For all these reasons, the court rejected the application for injunctive relief.

Flannigan v Forest Hills McKinley Beach Developments Inc. is illustrative that a prayer for injunctive relief needs to be more than saying to the court “if you do not order this, something bad may happen to me.” Applications for injunctive relief require real evidence of irreparable harm. They are to be pursued in a timely manner with frank and full disclosure to the court of all relevant considerations. An applicant is better off to take the reins on acknowledging and presenting challenges to their claims and demonstrating how money is simply an inadequate remedy for the harm they are seeking the court to help them avoid. If a party cannot otherwise quickly negotiate a parallel agreement, injunctive relief should be sought forthwith.