



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Premium Weatherstripping Inc. v. Ghassemi,









2016 BCCA 20




Date: 20160114

Docket: CA42708

Between:

Premium
Weatherstripping Inc.

Respondent

(Plaintiff)

And

Hossein Ghassemi

Appellant

(Defendant)

Corrected
Judgment: A correction was made in the text of para. 7 on March 7, 2016.




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch




On appeal from: an
order of the Supreme Court of British Columbia, dated
March 11, 2015 (
Premium Weatherstripping Inc. v. Panahandeh
, 2015 BCSC
841, Vancouver Registry No. S149998)

Oral Reasons for Judgment




Counsel for the Appellant:



C.R. Wardell





Counsel for the Respondent:



A. Spence





Place and Date of Hearing:



Vancouver, British
  Columbia

January 14, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2016








Summary:

The appeal
from an interlocutory injunction is granted. The injunction ought not to have
been issued on the basis of hearsay evidence when the source of the information
was not provided and the deponent did not depose as to belief in that evidence.
Further, the undertaking as to damages was not given as required, and the court
did not relieve the applicant from that obligation. Interlocutory injunctions
are a special remedy whereby relief is provided to the applicant without
requiring proof, only that there is an arguable case. For that reason, the
procedural requirements intended to guard the remedy of interlocutory
injunctions must be assiduously met.

[1]

SAUNDERS J.A.
: Premium Weatherstripping Inc. (Premium) obtained
an interlocutory injunction in the Supreme Court of British Columbia enjoining
Mr. Ghasssemi from: i) competing with it by way of providing goods that
Premium manufactured; and ii) soliciting any of its customers for the provision
of goods that it manufactured.

[2]

Mr. Ghassemi applied successfully for leave to appeal. The reasons for
leave identify two practice points as issues for appeal - the adequacy of the
affidavits filed in support of the interlocutory injunction and the absence of
an undertaking as to damages. The respondent does not defend the injunction
obtained.

[3]

The issue of costs contested in the factums is now not pursued with the
parties agreeing that each party will bear their own costs of the application
the Supreme Court of British Columbia and in this appeal.

[4]

It is clear, in my view that the order of an interlocutory injunction
must be set aside.

[5]

Rule 22-2 of the
Supreme Court Rules
limits the evidence in an
affidavit to that which is admissible at trial, unless excepted, in these
terms:

(12)
Subject to subrule
(13), an affidavit must state only what a person swearing or affirming the
affidavit would be permitted to state in evidence at a trial.

(13)
An affidavit may
contain statements as to the information and belief of the person swearing or
affirming the affidavit, if

(a) the source
of the information and belief is given, and

(b) the
affidavit is made

(i)   in
respect of an application that does not seek a final order, or

(ii)   by leave of the court under
Rule 12-5 (71) (a) or 22-1 (4) (e).

[6]

By these sub-rules, hearsay evidence (not permitted at trial) generally
may not be included in an affidavit unless sub-rule (13) is met. An
interlocutory injunction, of course comes within the words of sub-rule (13),
an application that does not seek a final order.

[7]

An interlocutory injunction is well understood to be a special sort of
non-final order in that, by its very nature, it restricts the freedom of the
party against whom it is made, without the applicant having had to prove any
allegation beyond the standard of an arguable case. An interlocutory injunction
often becomes the entire remedy in an action, and can endure for a very long
time unless temporal limits are placed upon it. For that reason, assiduous care
in preparation of the application is the standard, including strict compliance
with the requirements for all hearsay evidence that would not be permitted to
be stated at trial to be on information and belief, with the source identified.
There is no room in interlocutory injunction practice for relaxation of that
requirement, in my view.

[8]

In this case the affidavits did not comply with this requirement; the
order appealed must be set aside as having been obtained on the basis of
inadmissible evidence.

[9]

The requirement that an undertaking as to damages be given by the
applicant is of similar importance. Such an undertaking provides an assurance to
the Court of proper intention in the obtaining of the injunction, protects to
some degree against abuse of the remedy, and provides a commitment to make
right any harm done as a result of the granting of the order. In my view, the
order ought not to have issued in the form it did without the court formally relieving
the applicant of the required undertaking.

[10]

In summary, I would allow the appeal and set aside the order of an
interlocutory injunction, with costs as I have described.

[11]

KIRKPATRICK J.A.
: I agree.

[12]

FITCH J.A.
: I agree.

[13]

SAUNDERS J.A.
: The order will go as I have just indicated.

The Honourable Madam Justice Saunders


