October 23, 2014

By Brian Babcock

If you have a property dispute, particularly with a neighbour, you need to carefully consider what remedy is best for your situation.

Damages are the most common remedy in law suits. If your neighbour dug up or damaged your hedge, you are likely best to replant it and sue the neighbour for damages. A judge is unlikely to order the neighbour to replant the hedge (i.e. grant you a “mandatory injunction”) for fear that you will end up back in court arguing about the location, the height, the choice of shrubberies, etc.  So if it is a one-time thing, better to fix the problem yourself and seek damages. You might even be able to do it yourself in Small Claims Court.

However, damages are a very poor solution if you have a continuing problem – such as the situation where the neighbour not only removed the hedge, but is parking their Hummer on your side yard, letting it idle right beneath your bedroom window at all hours. In that case, you might need to get an injunction.

Injunctions are traditionally more difficult to get than damages because courts do not like to have to supervise the ongoing situation, and also judges are aware that injunctions can impose shifting burdens on not only the parties, but innocent people who might be affected.

Ongoing property disputes seem to be an exception to this general rule. Judges say that the very essence of the concept of property is that an owner should not be deprived without consent, or at least, not without an opportunity to bargain for acceptable compensation.

Another situation where judges might be more willing to grant an injunction is where damages alone would allow the wrongdoer to keep interfering with the property, forcing the innocent party to come back to court repeatedly, which is not fair to the innocent person, or efficient use of the court’s resources.

Injunctions are “equitable remedies” which mean that you need to apply to the court without delay; must not be partially to blame for the situation; must propose terms that are practical and not unduly harsh for the wrongdoing, or for any innocent persons who might be affected.

Because of the need to move without delay, seeking prompt legal advice may be your best remedy of all. Sometimes, a letter from a lawyer might be all that you need to solve the problem. If not, a lawyer can help you select the right remedy to pursue.

Injunctions are also not available in Small Claims Court. Though it is possible to represent yourself in Superior Court, the technical nature of the law and evidence surrounding injunctions makes hiring a lawyer an attractive option.