The importance of acting quickly when applying for a provisional injunction

October 6, 2020 | Nicolas Sacha Nesviginsky | Montréal

When it comes to court proceedings, time is of the essence. This principle becomes even more crucial when applying for a provisional injunction, as was recently reaffirmed by the Superior Court in Ville de Baie-d’Urfé c. Hirtle [1].

The applicant, the Town of Baie D’Urfé (the “Town”), applied for a provisional injunction to stop construction work that was being carried out by the respondent. The Town claimed that the construction work violated municipal by-laws, which require that a building permit be obtained for this type of work.

Based on the facts, on July 8, 2020, an employee of the Urban Planning Department inspected the property. During this visit, she noted that construction work was being carried out despite the fact that the Town had not issued a permit. On July 27, 2020, the Town, claiming it had received complaints about the construction work being done by the respondent, sent the respondent a notice asking her to contact the Urban Planning Department within five days to open a permit application. In its letter, the Town ordered the respondent to cease all work in progress, failing which she would face fines and court proceedings. On September 2, 2020, the Town sent the respondent a second letter reiterating the above facts and noting that construction work was still underway on September 1, 2020. The respondent was given formal notice to submit a permit request and any other required documents within ten days following receipt of this letter. The evidence shows that the respondent received this formal notice on September 8, 2020. The Town stated that if the respondent failed to comply with these requirements, it would proceed with all recourses necessary to ensure compliance with the applicable by-laws.

On September 16, 2020, despite the fact that the 10-day period had not yet elapsed, the Town applied for a provisional injunction to stop the construction work. The Superior Court, per the Honourable Babak Barin, J.C.S., was of the view that [TRANSLATION] “this in and of itself, not taking into account any other criteria of the provisional injunction, is fatal for the Town.” [2] Though the Town had known since July 2020 that construction work was underway, it only brought the issue before the Court in September. The Court was therefore of the opinion that the Town [TRANSLATION] “cannot now complain about its own decisions.” [3] Finally, at the hearing, the Town’s counsel conceded that even if its application were to fail and the respondent’s work were to be completed, the Town would not be without recourse. In light of the foregoing, the Court concluded that the application for a provisional injunction must be dismissed given the lack of urgency or evidence of serious or irreparable injury.

[1] Ville de Baie-d’Urfé c. Hirtle, 2020 QCCS 2975

[2] Ville de Baie-d’Urfé c. Hirtle, supra, para. 19

[3] Ville de Baie-d’Urfé c. Hirtle, supra, para. 22

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