WAYNE FULFORD Applicant And: HARBOUR AUTHORITY OF PLACENTIA AREA, a.k.a. the PLACENTIA AREA HARBOUR AUTHORITY Respondent, 2019 NLSC 99

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Fulford v. Harbour Authority of Placentia Area (Placentia Area Harbour Authority) 2019 NLSC 99 Date : May 10, 2019 Docket : 201901G1161 Between: WAYNE FULFORD Applicant And: HARBOUR AUTHORITY OF PLACENTIA AREA, a.k.a. the PLACENTIA AREA HARBOUR AUTHORITY Respondent Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: May 2, 2019

Summary: Claiming harassment and disruption, the Placentia Area Harbour Authority served on Wayne Fulford notice under the Petty Trespass Act that he was barred from the Authority’s public wharf facility at Jerseyside. Mr. Fulford commenced a proceeding seeking declarations that the wharf facility was not subject to the Act and that, in any event,

section 6 of the Act entitled him to access. He sought an interlocutory injunction allowing him access to the wharf pending final adjudication, claiming irreparable harm to his mental and physical health because of the exclusion. Held : The application was dismissed. Mr. Fulford had not established irreparable harm. Because of proceedings pending in Provincial Court, the Court declined to express a view on whether the proceedings as framed raised a serious issue. Appearances:

Raymond G. Critch Appearing on behalf of the ApplicantGregory J. French Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Hurley v.Slate Ventures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 (N.L. (T.D.)). STATUTES CONSIDERED: Petty Trespass Act, RSNL 1990, c. P-11.

REASONS FOR JUDGMENT Orsborn, J.: INTRODUCTION [1] This is an application for an interlocutory injunction to enable Wayne Fulford to have, pending final adjudication of thisproceeding, unfettered access to a public wharf facility and to keep his boat moored at that facility. [2] By letter of November 22, 2018, the Placentia Area Harbour Authority (the “Authority”) advised Mr. Fulford that he was “nolonger permitted on the Jerseyside Wharf Facility” and that he should remove his boat immediately. For present purposes, the reasons for the expulsion are not particularly important; generally, they relate to Mr.

Fulford’s expressions of displeasurewith the Authority’s management of the facility and to allegations of harassment by Mr. Fulford. [3] By a second letter of January 11, 2019, counsel for the Authority wrote to Mr. Fulford: Pursuant to the authority vested in the Harbour Authority by the Fishing and Recreational Harbours Act, R.S.C. 1985, c. F-24, theHarbour Authority hereby directs you to have your boat removed from the Harbour Authority’s facility within five (5) days of receipt ofthis letter and to remain away from the Jerseyside Wharf Facility.

In accordance with the provisions of the Petty Trespass Act, R.S.N.L.1990, c. P-11, this letter shall serve as written notice that you are barred from the Jerseyside Wharf Facility on pain of prosecution underthat Act. Please make arrangements to have your vessel removed forthwith and to settle [your] outstanding accounts with the HarbourAuthority.

If it is necessary for us to pursue this matter further, we shall seek to recover all unpaid berthage fees from your vessel via theFederal Court, and shall have your vessel arrested and, if necessary, sold by Sheriff’s auction, or take any necessary action through policeor the civil courts for any acts of trespass, as may be appropriate. [4] On February 4, 2019, Mr. Fulford issued an originating application seeking: (

i) a declaration that the Jerseyside Wharf Facility is not covered by

Section 2 of the Petty Trespass Act, RSNL1990, c. P-11; and/or (ii) a declaration that Mr. Fulford is entitled by virtue of

section 6 of the Petty Trespass Act to attend at the wharffacility. [5] Concurrently, Mr. Fulford filed an interlocutory application for an order “allowing him to access the Jerseyside wharfunmolested and without fear of further prosecution under the Petty Trespass Act until the issues between the parties in this matter areresolved”. [6] The interlocutory application was supported by an affidavit of Geraldine Fulford, Wayne Fulford’s wife.

The Authority filedaffidavits from Tony Barry, the Vice President of the Authority, and Mark Power, a watchperson on the Sir Ambrose Shea Lift Bridge, astructure that must be raised in order to allow boats to enter and leave the harbour at Jerseyside. Geraldine Fulford and Tony Barry werecross-examined. [7] Following the hearing, I indicated to the parties that I would delay starting to write this decision for a few days in order toprovide some opportunity for them to discuss their differences and to see if a reasonable accommodation could be reached.

On May 6,2019, counsel advised that a decision would be required. ISSUE [8] Should Wayne Fulford have unfettered access to the Jerseyside Wharf Facility pending final determination of thisproceeding? BACKGROUND

[ 9 ] The Authority operates, maintains and manages the public commercial fishing harbour under lease from the federal Crown. The lease confirms that the harbour facility is open to the public and includes the following provisions (which, given the legal structure of this proceeding, are set out here for interest only):

SECTION 7 OBLIGATIONS OF THE LESSEE … 7.3 Public Access Ensure, at all times, that the public has access, in a non-discriminatory manner, to the Leased Area and to the Leased Equipment.

Notwithstanding the previous paragraph, the Lessee may deny access or use of the Leased Area and the Leased Equipment to any person, vehicle or vessel where such access or use would be contrary to the interest of the public present on the Leased Area and in particular where it would render the use of the Leased Area and the Leased Equipment unsafe to persons or property thereon or would impede, interfere with, or render difficult or dangerous, the use of the Leased Area or obstruct the maintenance of order thereon or pose [an] environmental risk.

Ensure, at its expense, that the [sic] no person shall loiter in the Leased Area or cause any nuisance or disturbance to users of Leased Area or Leased Equipment, any neighbours or anyone who may be affected by users of the Leased Area. In addition, the Lessee may deny access to any person or vessel on the ground of unpaid fees. …

SECTION 16 DISTURBANCE OR NUISANCE The Lessee shall not cause or permit any disturbance, or nuisance whatsoever, detrimental or likely detrimental to the enjoyment of the Leased Area, or of the Leased Equipment or any other affected person. [ 10 ] On September 7, 2018, Mr. Fulford’s boat was damaged in a collision with a boat owned by Tony Barry. Mr. Fulford says in his originating application that the boat is “currently damaged and unable to be safely moved” from the Jerseyside Wharf Facility. Mark Power deposed that the lift bridge was raised to allow passage of Mr.

Fulford’s boat on September 7, September 14, September 30 and October 8, 2018. (I note in passing that there is an issue as to the ownership of Mr. Fulford’s boat; this issue is not relevant for present purposes.) [ 11 ] Mr. Fulford has not been happy with the management of the facility and has made his displeasure known, in large measure by emails to relatives of Tony Barry and by responding for requests for media interviews. Mr. Barry deposed: 10.

That Wayne Fulford has declined to engage with the Board of Directors of the Harbour Authority regarding any of his issues, and has instead harassed patrons at the Jerseyside Wharf Facility, contacted the media, and removed Harbour Authority property without cause, in particular, removing a life preserver from the wharf. 11.

I have been informed by various users of the Jerseyside Wharf Facility, and do verily believe, that Wayne Fulford has approached and harassed users of the Wharf to join in his protest against the Board of Directors and stop paying their berthage, and he has done so for months prior to January of A.D. 2019. 12. Furthermore, Mr. Fulford has taken lifesaving equipment from the Jerseyside Wharf Facility without permission. This is addressed in our letter to him of November 22 nd , 2018. I understand that Ms.

Geraldine Fulford alleges in her affidavit that the “life preserver in question was cracked and was not fit for purpose”, but she does not appear to dispute that Mr. Fulford did in fact remove it.

13. Mr. Fulford has also sat in his car in the parking lot of the Jerseyside Wharf Facility and waved at members of the Board ofDirectors. This has occurred at [diverse] dates between November of A.D. 2018 and January of A.D. 2019, and I myself, along withother members of the Board of Directors who have so informed me, have felt this to be mocking us and a direct response to our notices toremain away from the Wharf. [12] I would note that it appears that the media contact was not initiated by Mr.

Fulford and that the life preserver was in damagedcondition and, says Geraldine Fulford, “has since been returned”, although it is not clear by whom it was returned. [13] On January 23, 2019, Mr. Barry complained to the police that Mr. Fulford was violating what has been referred to as theJanuary 11, 2019 Petty Trespass Act notice (see paragraph 3 above). A charge followed—counsel advised that the matter is to be heardin Provincial Court in August, 2019. [14] Mr. Fulford’s originating application is scheduled to be heard in this Court in October, 2019. [15] As noted, the only evidence offered by Mr.

Fulford in support of his request for injunctive relief is the affidavit of GeraldineFulford. In that affidavit and in the course of her cross-examination, she spoke of Mr. Fulford’s medical issues and of a noticeabledecline in his mental and physical health since being barred from attending at the wharf.

Her affidavit, in part: • Prior to January 2019, Wayne would attend at the Jerseyside Wharf to attend to his boat the Michael Joseph and to talk with otherboat owners and local fishermen, as the Wharf was the centre of his social life; … • Since he has been blocked from the Jerseyside Wharf, Wayne has become confused and forgetful, he has withdrawn from everyoneand is becoming isolated from his friends and family; • That the decline in his mental health which is attributable to being blocked from the Jerseyside Wharf has also had a negativeeffect on his physical health, as he is no longer showing interest in his daily activities. [16] In cross-examination, Geraldine Fulford confirmed that her husband was suffering from the embarrassment of being “treated asa town reject”, but she acknowledged that nothing stops him from seeing his friends and socializing with them at locations other than thewharf.

DISCUSSION [17] The preconditions for the granting of an interlocutory injunction are well-known—See RJR-MacDonald Inc. v. Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311; Hurley v. Slate Ventures Inc. (1996), (NL SC),136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 (N.L. (T.D.): (

i) Is there a serious issue to be tried? (ii) Will the applicant suffer irreparable harm if the injunction is not granted? and (iii) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits?(often called “balance of convenience”). Serious Issue [18] As framed, this proceeding raises only issues concerning the application and

interpretation of the Petty Trespass Act; that is,that

section 2 of the Act does not encompass the wharf facility and that, in any event, Mr. Fulford is entitled by virtue of

section 6 of theAct to attend at the wharf as he chooses. [19] The provisions relied upon by Mr. Fulford: Trespass on land 2.

(1) A person shall not trespass on land that comprises … (

d) the premises used for another industrial, commercial, business or educational purpose and the premises used in connection withthe preceding for parking or other purposes,

with respect to which the person has had notice by word of mouth, or in writing or by posters or signboards, not to trespass. … Saving 6. Nothing in sections 2 and 3 extends to a case where the person trespassing acted under a fair and reasonable belief that he or she had a right to do the act complained of. [ 20 ] A person who contravenes

section 2 and is not saved by

section 6 is “guilty of an offence and liable on

summary conviction to a fine of not less than $10 or more than $200”. (Subsection 2(3)) [ 21 ] Whether or not the Jerseyside Wharf Facility is encompassed by the premises described in subsection 2(

d) of the Act and whether or not Mr. Fulford can avail of the defence set out in

section 6 will be determined by the Provincial Court when it deals with the trespass charge. [ 22 ] Because of the view that I take on the issue of irreparable harm, I do not propose to say anything further on the Petty Trespass Act issues raised by this proceeding other than to point out that the issue of reliance on a provincial

summary conviction offence statute to ground a civil entitlement to access will have to be canvassed. Further, and as pointed out by counsel for the Authority, there are other bases upon which the Authority may seek to rely for its exclusion of Mr. Fulford. Counsel referred to the Authority’s right under the lease to exclude a person for nonpayment of berthage fees (Mr. Fulford’s nonpayment of these fees is not in dispute) and to the Authority’s obligation to prevent nuisance and disturbance at the facility. As noted, Mr.

Fulford has challenged in this proceeding only what he portrays as an unlawful exercise of authority under the statute; accordingly, even if he is successful in this proceeding, it will not necessarily be the case that the Authority lacks a legal basis to continue to deny him access to the wharf. Irreparable Harm [ 23 ] Whether or not a serious issue has been raised by Mr.

Fulford in this proceeding, he has not established that he has suffered and will continue to suffer irreparable harm on account of his being barred from the wharf facility. [ 24 ] Irreparable harm refers to the nature of the harm rather than its magnitude. It is harm that cannot be quantified in terms of money or which cannot otherwise be rectified. (See RJR-MacDonald Inc. ) [ 25 ] The only evidence in support of the assertion of irreparable harm came from Geraldine Fulford.

Notwithstanding the argument of counsel for the Authority, I am not prepared to say that, since Geraldine Fulford is not a qualified medical expert, her assessment of the effects on her husband is inadmissible. It would be taking too narrow a view to discount the observations of a partner. [ 26 ] Having said that, the absence of evidence from Mr. Fulford himself must be considered and, given the evidence of Mr.

Fulford’s varying and continuing medical issues since at least 2001—the details of which do not need to be set out here—it is difficult to accept such evidence as there is as establishing a causal link between Mr. Fulford’s not being allowed to attend at the wharf—the centre of his social life—and what is said to be a marked deterioration in his mental and physical condition since November 2018. [ 27 ] It is clear, and readily understandable, that Mr. Fulford’s social interaction with his friends at the wharf is an important part of his daily life. Community and a sense of belonging is something to be valued.

But as Geraldine Fulford herself acknowledged, there are other opportunities for social interaction. [ 28 ] Having considered Geraldine Fulford’s evidence carefully, I am not satisfied that the loss of the opportunity to interact socially at a single site—the wharf—has caused or contributed to the type and degree of irreparable harm that would support a request for interlocutory relief. Balance of Convenience [ 29 ] I will comment only briefly on this issue. Mr.

Fulford asserts that there is “no benefit to the Harbour Authority in preventing him from accessing the facilities …”. [ 30 ] In cross-examination of Tony Barry, it became evident that the relationship between the Authority and Mr. Fulford has not been a happy one, with Mr. Fulford being quite active in his criticism of the Authority. According to Mr. Barry, if the Authority were to let Mr. Fulford back on the wharf of its own volition, the members of the Board of the Authority would “lose face”. When I asked how long the access bar would last, Mr.

Barry replied, “for three years, until a new Board of Directors takes over”. It seems to me that this situation has now deteriorated to the point where any substantive issues have been taken over by a clash of personalities, all leading to a refusal to talk through any differences as rational and reasonable people. Were the issue of balance of convenience to have been a controlling factor in this decision, I would find it difficult to conclude that a loss of face is more important than the opportunity to continue a time-honoured practice of persons meeting to socialize on the local wharf facility.

SUMMARY AND CONCLUSION [ 31 ] As already noted, I offer no views on the

interpretation and applicability of the Petty Trespass Act . Further, I express no

opinion on whether either of the two declarations sought by Mr. Fulford raises a serious issue in this civil proceeding. [ 32 ] Mr. Fulford has failed to establish that he will suffer irreparable harm if he is not allowed access to the wharf facility pending final adjudication in this Court or, perhaps, pending adjudication of the

summary offence charge in Provincial Court. [ 33 ] The application for an interlocutory injunction is dismissed. Considering all of the circumstances, I consider it appropriate that the parties bear their own costs. _____________________________ David B. Orsborn Justice