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CIVIL PROCEDURE - Mandatory injunctions

Tuesday, August 25, 2020 @ 5:42 AM  

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Appeal by the defendant from a mandatory interlocutory injunction compelling her to co-operate in the demolition and rebuilding of a residence on property of which she was a registered owner as a tenant in common. The appellant was the respondent’s mother. A fire caused such extensive damage to the residence that it had to be demolished. An insurance policy taken out by the respondent covered the residence and its contents. In the present action, the respondent claimed that she was the sole beneficial owner of the property. This claim had been dismissed. In her counterclaim, the appellant alleged that she and the respondent each held a 50 per cent interest in the property and sought partition and sale. The respondent now wanted to rebuild the residence with the insurance funds. The appellant wanted her application for partition and sale to proceed without rebuilding the residence. The judge integrated the test for preservation of property under Rule10‑1 and for a mandatory interlocutory injunction, characterizing the insurance proceeds as a fund or property that stood in place of the house that was threatened and in need of preservation.

HELD: Appeal allowed. The judge erred both in fact and in law, and it was not open to him to issue a mandatory interlocutory injunction which had the effect of compelling construction on the appellant’s property absent a contractual arrangement between the parties which would mandate construction. The judge erred in finding the insurance funds were property within the meaning of Rule 10-1(1) as they stood in for the residence. There was no evidence that the sum spoken of by the judge was earmarked for rebuilding the house or that payment of that amount was assured, and certainly no evidence the fund existed in specie. At this stage, the respondent had a contingent contractual claim, determination of which was a matter between her and the insurance company, not between her and the appellant. There was no basis on which to issue a preservation order under Rule10‑1. The judge erred in applying the lesser standard applicable to a common injunction restraining behaviour for the issuance of a mandatory injunction. It was not open to the respondent to demand the appellant take any action in respect of the use of the property. There was thus no basis in law for the judge to find there was a strong prima facie case that the respondent could compel the appellant to participate in any fashion in construction of a new residence. The judge erred in law in holding the loss of the insurance fund constituted irreparable harm. The co-operation clause was impermissibly vague and unenforceable. On its own, the clause was incapable of enforcement and should not have been made.

Este v. Esteghamat-Ardakani, [2020] B.C.J. No. 1144, British Columbia Court of Appeal, M.E. Saunders, P.M. Willcock and G.B. Butler JJ.A., July 17, 2020. Digest No. TLD-August242020003