Lessons Learned
- It’s cheaper to negotiate a resolution to a business dispute with your neighbour than it is to blaze ahead and dare them to litigate, especially if an adverse result to litigation risks significantly bogging down your construction project.
- It’s much cheaper to negotiate in good faith than it is to arrive at the injunction hearing with a documentary record that shows no genuine attempt to resolve your neighbour’s concerns.
- A crane trespassing into a neighbour’s airspace may or may not attract an injunction. There are degrees of thoughtlessness to such a trespass, and those that involve disruptive hours of crane operation or overhang of dangerous parts of the crane, e.g. the counterweight or loaded boom, are most likely to attract judicial ire.
- Beware of relying too heavily on economic losses, even significant economic losses, as the primary basis for opposing an injunction.
Construction
Stober Construction Ltd. installed a crane to support a multi-tower construction project in the south end of downtown Kelowna, at the point where waterfront hotels and a commercial district give way to suburbia.
Witmar Holdings Ltd. owns three adjacent addresses containing multi-unit residential buildings, rooftop and terrace amenities, and Witmar office space that hosts six full-time employees.
The crane in question overhung the airspace of one of the Witmar addresses by approximately 20 metres, despite Witmar’s refusal to agree to an airspace access agreement earlier proposed by Stober. Inter alia, Witmar believed an overhanging crane would bring undue stress to its tenants after a July 2021 crane collapse in downtown Kelowna that led to the death of five people, one of whom was in an adjacent building when the crane fell.
Further negotiations proved fruitless, and in early 2023 Stober installed the crane anyway. This resulted in airspace violations, including as a result of the crane “weathervaning” when not in use in whichever direction the wind dictated. Weathervaning is a safety practice that minimizes wind shear that would otherwise occur when an unused crane is forced to remain perpendicular to the wind.
Litigation & Analysis
Witmar filed an application for an interim injunction preventing Stober from trespassing in its airspace. The Court turned to the battleworn three-part test for an injunction established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 at 334, 1994 CanLII 117.
Is there a serious question to be tried?
The Court observed that the threshold at this step is low – in general, a question must merely be better than a frivolous or vexatious claim.
Is there evidence the plaintiff will suffer irreparable harm if the injunction is not granted?
The parties arrived with duelling case law. Witmar presented OSED Howe Street Vancouver Leaseholds Inc. v. FS Property Inc., 2020 BCSC 1066, a crane overhang case in which the court issued an injunction on the basis of the interruption of the enjoyment of a rooftop terrace by tenants, the potential risk presented by the crane, and the reputational harm potentially suffered by the building over which the crane was overhanging.
Stober, of course, preferred Janda Group Holdings Inc. v. Concost Management Inc., 2016 BCSC 1503, in which the court had held that intermittent crane overswing, inevitable in a busy city, was an issue that required some “give and take”, could be compensated in damages, and therefore did not qualify for an interim injunction.
Both the OSED court and this Court distinguished Janda, noting that the inference in Janda was less serious – that airspace did not involve an outdoor recreational area. The Court also observed that the “give and take” promoted in Janda had not occurred here: Stober had not made any response apparent in the evidence that adequately addressed the safety concerns Witmar raised at the start of negotiations, for example:
- no proposed schedule which would have allowed for the use of the property by tenants without crane overswing; and
- no proposed agreement for no-go hours or days.
Stober’s arguments turned to the harms that would be imposed by an injunction – delay, cost, the usual suspects, including delay to the residential occupancy of those who had pre-purchased units in the project.
The Court showed no mercy. “The costs…were largely incurred by itself, when it undertook a self-help remedy and erected the crane which would trespass into Witmar’s airspace without reaching agreement.”
Does the balance of convenience weigh in favour of granting the injunction?
Witmar’s primary concern was the safety of its tenants and workers, and the Court found that such a concern could not be adequately compensated in damages should the worst occur.
Balanced against this was Stober’s concern over merely monetary losses, albeit significant ones. The Court found this to be no sort of balance at all, and added in obiter:
I note that the spectre of large economic losses should not be allowed, on their own, to tip a consideration on the balance of convenience. Such consideration would weigh heavily in favour of parties with great financial means and against parties with legitimate interests which require the court’s protection, but without any significant financial means. Weighing the balance on an injunction should never be reduced to assessing the party with the greater financial wherewithal and therefore greater potential for financial loss. [emphasis added]
Given Witmar’s strong prima facie case for trespass, the prospect of irreparable harm, and the fact that the legal tension was, in the Court’s interim opinion, entirely of Stober’s own making, the outcome was never destined to be all that close.
Stober was fortunate that the injunction the Court ultimately granted was not open-ended: it was for a four-month period with leave for Witmar to reapply, accompanied by a pointed suggestion that the parties use that time to reach a negotiated agreement.