MENIHEK NORDIC SKI CLUB ASSOCIATION Plaintiff / defendant by counterclaim And: LABRADOR WEST TRAP & SKEET CLUB INC. Defendant / PLAINTIFF by Counterclaim, 2022 NLSC 162

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Menihek Nordic Ski Club Association v. Labrador West Trap & Skeet Club Inc. , 2022 NLSC 162 Date : November 8, 2022 Docket : 202101G6341 Between: MENIHEK NORDIC SKI CLUB ASSOCIATION Plaintiff / defendant by counterclaim And: LABRADOR WEST TRAP & SKEET CLUB INC. Defendant / PLAINTIFF by Counterclaim Before: Justice Alexander MacDonald Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 3, 2022 Appearances: Raymond G.

Critch Appearing on behalf of the Plaintiff / Defendant by Counterclaim Megan S. Reynolds Appearing on behalf of the Defendant / Plaintiff by Counterclaim

Authorities Cited: CASES CONSIDERED: RJR — MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Hoganv. Newfoundland (Attorney General) (1998), (NL CA), 172 Nfld. & P.E.I.R. 185, 528 A.P.R. 185 (Nfld. C.A.));Jones v. Bay Roberts (Town), 2017 NLTD(G) 134; Hurley v. Slate Ventures Inc. (1996), (NL SC), 136 Nfld. &P.E.I.R. 341, 423 A.P.R. 341 (Nfld. S.C. (T.D.)) STATUTES CONSIDERED: Shooting Clubs and Shooting Ranges Regulations, S.O.R./98-212 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT MacDonald J.: INTRODUCTION [1] The Menihek Nordic Ski Club Association (“Ski Club”) operates a successful Nordic nonprofit Ski Club in Labrador West.Because of the efforts of dedicated volunteers, it expanded over the years to be one of Newfoundland and Labrador’s foremost Nordic skiareas. [2] The Labrador West Trap & Skeet Club Inc. (“Gun Club”) operates a successful nonprofit Gun Club.

It, like the Ski Club, isrun by dedicated volunteers. [3] The Ski Club operates on land licensed from His Majesty in Right of Newfoundland and Labrador (“Province”) issued inJanuary 2001.[1] The Gun Club operates on land also licensed from the Province issued in January 2004.[2] [4] The boundaries of both licences overlap. The shooting licence is wholly contained within the ski licence.

I will call theoverlapping land jointly occupied by both clubs, the “Site”. [5] Despite this overlap, both clubs coexisted on the Site under informal arrangements until 2010 when they executed aMemorandum of Understanding (“MOU”)[3]. [6] The MOU provided that: (

a) each club would establish a four-person committee to act as a liaison between the clubs and perform functions called for inthe MOU. These committees could appoint subcommittees to address particular issues and concerns if required (articles 2 and 10); (

b) the Gun Club would have priority over the Site from April 16 to November 5 in each year, while the Ski Club would havepriority from November 6 to April 15 of each year (“Designated Season”) (articles 5 and 6); (

c) the clubs will share a

schedule of maintenance activities for discussion with the committee (article 11); (

d) the Gun Club will be solely responsible for erecting and removing barriers and safety barricades and notices on its licensedarea and would generally mark the property as required by either Crown Lands or the Chief Firearms Officer (article 12); (

e) if either club wants to make use of the Site during the other’s Designated Season, that club committee would advise the othernot less than 72 hours in advance. The consent of the other club must be obtained prior to work commencing on the Site. However, eachclub can make improvements on land solely used by them without limitation from the other club (article 13); and (

f) the clubs would maintain certain safety procedures relating to the use of a yellow caution flag during the Gun Club’sDesignated Season (articles 14, 15 and 16). [7] Both clubs were satisfied with this arrangement until 2018. Before then, during the Gun Club’s Designated Season, it wouldplace two barriers (“Old Barriers”) across ski trails. The barriers prevented public access to an area near a grassy field where theshooting range is located (“Gun Range”). The Ski Club does not object to the Old Barriers. [8] After 2018, the Gun Club erected four new barriers during its Designated Season.

These barriers are on trails outside the GunRange where the ski trails intersect with the Gun Club’s licensed boundary (“New Barriers”). [9] The Gun Club tells me that it will remove both the New and Old Barriers in the next few days to allow the changeover into theSki Club’s Designated Season.

[10] The Ski Club asked that I enjoin the Gun Club from replacing the New Barriers, or any other barriers on land outside the GunRange. The Gun Club asked that I dismiss the Ski Club’s application. ISSUE [11] I am therefore to decide whether the Ski Club has established the grounds to support an injunction, and in particular: (

a) has it established that it has a triable case? (

b) has it established that it will suffer irreparable harm if I do not grant the injunction? (

c) has it established that the balance of convenience favours the Court granting the injunction? (

d) did the Ski Club provide a satisfactory undertaking for damages? [12] I hereby dismiss the Ski Club’s application. I will explain why I made this decision. I will first deal with whether the Ski Clubestablished the grounds to support an injunction. DISCUSSION [13] The test courts apply when they consider injunction applications is contained in the Supreme Court of Canada case of RJR —MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. The Supreme Court sets out a three-parttest. [14] The first test is has the applicant established a triable case.

The second is will it suffer irreparable harm if I do not grant theinjunction. The third is does the balance of convenience favour granting the injunction. Issue (a): Has the Ski Club established it has a Triable Case? [15] The Ski Club originally asked that I both enjoin the Gun Club from placing any future barriers and order it to remove anybarriers it has already placed.

Given that the Gun Club will remove all barriers in the next few days, I will only deal with enjoining itfrom placing future barriers. [16] Therefore, as the Ski Club seeks a prohibitive injunction, it must show it has a serious issue to be tried, being an issue that isnot frivolous or vexatious. I need not make a detailed examination of the merits of the case. (See Hogan v. Newfoundland (AttorneyGeneral) (1998), (NL CA), 172 Nfld. & P.E.I.R. 185, 528 A.P.R. 185 at paras. 30-34 (Nfld. C.A.)). [17] I find that the Ski Club has established that they have a serious issue to be tried.

I will now explain why I made that decision. [18] The Ski Club argues that the MOU only applies to the Gun Range and not to the larger area of the Gun Club’s licenceboundaries. It says that it was not aware of the extent of the licence boundaries when it executed the MOU. [19] Thus, it says this allowed the Gun Club to place the Old but not the New Barriers. It says this is consistent with the practice ofthe parties from 2010 to 2018.

It says the New Barriers effectively prevent the Ski Club from all-season access to trails to the east of theGun Range (“Blocked Trails”). [20] Therefore, it says the Gun Club cannot prevent access to the Blocked Trails during the Gun Club’s Designated Season. Thus, itsays that

article 12 (which requires the Gun Club to erect barriers and “generally mark” “their Licence to Occupy”) and

article 13 (whichprevents the Ski Club from making use of the Site without notice to, and consent from, the Gun Club during the Gun Club’s DesignatedSeason) do not apply. [21] It says then that this is an issue of property rights. It says that the Gun Club’s application of

section 12 and

section 13diminished its property rights in the Blocked Trails. [22] This argument has some support in the wording of the MOU. The MOU does not expressly define the area over which it iseffective. However,

section 13 may be ambiguous because it refers to land “jointly occupied by both clubs during the other’s season” asopposed to the express wording found in

section 12 about the Gun Club’s “Licence to Occupy”. Arguably, the land jointly occupiedcould only be the Gun Range. [23] Although the Ski Club may not have a strong argument about its

interpretation of the MOU, I am not to make a detailedexamination of the issue in this application. Therefore, I conclude that the Ski Club’s case is not frivolous or vexatious. Thus, the SkiClub has established that they have a serious issue to be tried. [24] However, as I will discuss in a moment, the Chief Firearms Officer has extensive authority over the operation of the Gun Cluband its effect on surrounding areas, including the Site. [25] This action may be moot if the Chief Firearms Officer requires barricades on trails intersecting the Gun Club’s licensed areaboundaries.

As I will discuss in a moment, no one provided me with the position of the Chief Firearms Officer. Issue (b): Will the Ski Club suffer Irreparable Harm if I do not Grant the Injunction? [26] I now turn to whether the Ski Club will suffer irreparable harm if I do not grant an injunction. I find that it will not. [27] Irreparable harm is in relation to “the nature of the harm suffered rather than its magnitude”. The harm must be one that Icannot quantify in money. If I can quantify it, the money must be uncollectible (RJR at para. 64). The Ski Club bears the onus of

presenting evidence to justify it will suffer irreparable harm. [28] It is apparent from the evidence and from its counsel’s argument, the Ski Club wants to be able to conduct maintenance on theBlocked Trails at any time during the Gun Club’s Designated Season. It says then it is not bound to give it 72 hours’ notice, nor does itneed the Gun Club’s consent to do maintenance. [29] It says this even though the Gun Club prevented the Ski Club from doing maintenance only once during the Gun Club’sDesignated Season, and then when the Ski Club failed to give the required 72 hours’ notice call under

article 13 of the MOU. [30] Furthermore, the Ski Club says that this is a matter of trespass on land and as such, courts are generally prepared to assume thatthe person suffering trespass will suffer irreparable harm. [31] However as in Jones v.

Bay Roberts (Town), 2017 NLTD(G) 134 (see paragraphs 74 and 75), the very issue to be decided inthis action is whether the Site operations are governed by the MOU and whether the Gun Club has the right or obligation to erectbarricades on the Blocked Trails. [32] Thus in this case, as it was in Jones, “[t]he facts respecting these issues are in dispute and could result in a trial judgedetermining that the Plaintiff does not have sole and exclusive ownership and right to use all …” of the Site during the DesignatedSeason (paragraph 74). [33] I agree with Justice McGrath (as she then was) when she said at paragraph 75 that, “Not requiring proof of irreparable harmwould provide an unfair strategic advantage to an applicant seeking an injunction against another party who claims ownership of or avalid right to use disputed property.

The end result could be that the Court merely rewards the first party through the courthouse doors.” [34] The evidence shows that the Ski Club can do maintenance during the Gun Club’s Designated Season, but that it cannot do itwithout giving notice to and obtaining permission from the Gun Club. This does not support a finding of irreparable harm. If the GunClub blocks the Ski Club’s maintenance and it was wrong to do so, the Ski Club can seek damages. [35] I now turn to the balance of convenience.

Issue (c): Does the Balance of Convenience favour granting the Injunction? [36] I find that the balance of convenience does not favour granting the injunction. [37] I must balance the potential harm to the Ski Club, if I do not grant an injunction, against the potential harm to the Gun Club, if Igrant one. The balance of convenience “is also affected by the scope of the injunction being sought. In turn, the scope of the injunction isdetermined by the extent of irreparable harm against which the applicant seeks protection.” (Hurley v.

Slate Ventures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 at para. 39 (Nfld. S.C. (T.D.))). [38] I have explained earlier in this decision the potential harm to the Ski Club if I do not grant the injunction. Although it can domaintenance, it cannot do it without complying with

article 13 of the MOU. I now turn to the harm to the Gun Club if I do grant aninjunction. [39] I cannot overlook that this case involves public safety. The Site contains an active shooting range and cross-country ski trails.The public could use these cross-country ski trails for summer activities such as hiking and cycling.

It is clear that the Site encompassesboth cross-country ski trails and the shooting range. [40] The Shooting Clubs and Shooting Ranges Regulations, S.O.R./98-212 (the “Regulations”), govern the Gun Club’s operation.Section 5 says that the Gun Club shall ensure that the discharge of firearms in the shooting range does not endanger the safety ofpersons, either at the shooting range, or in the “portion of the surrounding area” as defined in the Regulations. [41] In the Regulations, the surrounding area is as described in a survey report or other similar document that shows “thegeographical location and layout of the shooting range and the portion of the surrounding area that could be affected by shooting on theshooting range, as well as the land use of that portion” (subsection 3(2)(a)). [42] The parties perhaps recognized these requirements because in

article 12 of the MOU, it provides that Crown Lands or the ChiefFirearms Officer can require safety barriers and notices on the Gun Club’s licensed area. Furthermore,

article 19 of the MOU providesthat the “giving effect” to the MOU may require the consent of the Chief Firearms Officer. [43] No one provided me with the position of the Chief Firearms Officer on this application.

No one provided me with evidence ofwhether the Chief Firearms Officer thought it was necessary for the Gun Club to erect the New Barriers. [44] They did not do so despite my request at a case management meeting prior to the hearing of the application that the position ofthe Chief Firearms Officer is important in resolution of this case. [45] What I do know is that in 2018, the Province wrote the Ski Club about its discussions with the Chief Firearms Officerconcerning a proposed expansion of the ski trails outside the Gun Range, but within the Gun Club’s licensed boundaries. [46] The Province reported that the Chief Firearms Officer rejected an option of signage and lighted warnings to indicate trailclosures to hikers because of shooting activities.[4] If this letter is true, it indicates that the Chief Firearms Officer’s public safetyconcerns extend outside of the Gun Range. [47] The Ski Club suggests that I disregard this letter.

It says it is hearsay. It says there is no evidence of a public safety risk ifpeople use the Blocked Trails during the Gun Club’s Designated Season. It says there have only been two times when people were onthe Site when the Gun Club was operating and that no injuries resulted.

[ 48 ] It says the lack of evidence of risk to public safety is the same as evidence that there is no risk to public safety. [ 49 ] I disagree. I accept that the Chief Firearms Officer has concerns about unrestricted access by hikers to at least part of the Site outside the Gun Range during the Gun Club’s Designated Season.

I will not ignore this evidence when the parties could have provided me with the position of the Chief Firearms Officer. [ 50 ] Therefore, I must balance the inconvenience to the Ski Club in conducting unfettered maintenance with the potential risk to the Gun Club that will arise if shooting activities take place when members of the public or the Ski Club use the Blocked Trails. [ 51 ] Furthermore, I will take into account the potential risk to the public if I grant the injunction.

Although this risk may be small, the consequences of harm are great. [ 52 ] Thus, when I do so, I find the prejudice to the Ski Club is less than the potential harm to the Gun Club and members of the public if I do not grant an injunction. I now turn to the Ski Club’ undertaking. Issue (d): Did the Ski Club provide a satisfactory Undertaking for Damages? [ 53 ] Justice Green in Hurley at para. 35 , referring to a judgment of then Justice Noel Goodridge, said that I must also determine the damages the Gun Club is likely to suffer because of the injunction.

I must satisfy myself that the Ski Club will be able to pay those damages and that it provided me with an undertaking to pay those damages. [ 54 ] The Ski Club did not provide an undertaking to pay damages. When I pointed this out in argument, it offered to provide one. However, the Ski Club should have filed an undertaking before the hearing and satisfied the Court that the Ski Club would be able to pay damages. This would have allowed the Gun Club to test the undertaking at the hearing. [ 55 ] Therefore, I find the Ski Club’s undertaking is insufficient.

DISPOSITION [ 56 ] I hereby dismiss the Ski Club’s application. [ 57 ] As the Gun Club was successful, it is entitled to its costs on a Column 3 basis of the Scale of Costs in the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Alexander MacDonald Justice