Glooscap First Nation v. Howard

Glooscap First Nation v. Howard Court Supreme Court Date 2026-04-01 Citation 2026 NSSC 89 Docket Ken No. 538237 Judge/Registrar/Adjudicator Norton, Scott C. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Glooscap First Nation v. Howard, 2026 NSSC 89 Date: 2026 03 27 Docket: Ken No. 538237 Registry: Kentville Between: Glooscap First Nation, Glooscap Landing #1 GP Ltd in its capacity as general partner of Glooscap Landing #1 Limited Partnership, and Glooscap First Nation Economic Development Corporation Ltd., doing business as Glooscap Ventures Management Applicants v. Clinton Ray Howard, carrying on business as Glooscap’s Finest Herbal Body Care Respondent DECISION ON APPLICATION FOR PERMANENT INJUNCTION Judge: The Honourable Justice Scott C. Norton Heard: March 2, 2026, in Kentville, Nova Scotia Written Decision: March 27, 2026 Counsel: Derek Simon and Eliza Richardson, for the Applicants Michael Curry, for the Respondent By the Court: Overview [1] The applicants filed a Notice of Application in Chambers, seeking an order: (a) Declaring that the respondent, Clinton Ray Howard, is unlawfully trespassing on the Glooscap Landing Reserve (“the Property”). (b) Requiring Mr. Howard to deliver vacant possession of the Property to the applicants. (c) Requiring Mr. Howard to remove from the Property any structures and equipment used to carry on his business. (d) A permanent injunction prohibiting Mr. Howard from unlawfully occupying or conducting any unauthorized construction, occupation, or related activities on the Property or on any other property on Glooscap First Nation Reserve lands without authorization from the Glooscap First Nation Band Council. [2] By Decision dated December 5, 2024 (2024 NSSC 377), Justice Gail L. Gatchalian granted an interlocutory injunction on the following terms: 1. The Respondent, Clinton Ray Howard, carrying on business as Glooscap’s Finest Herbal Body Care (“the Respondent”), and any person acting on the Respondent’s instructions, must cease and desist from conducting unauthorized construction and related activities on the Glooscap Landing Reserve (the “Property”) immediately upon issuance of this Order. 2. The Respondent must remove from the Property any and all equipment used for the purpose of conducting unauthorized construction and related activities by either the Respondent or any person acting on the Respondent’s instructions. This must be done no later than 5:00 p.m. on December 7, 2024. 3. The Respondent, and any person acting on the Respondent’s instructions, is enjoined from selling tobacco and cannabis products on the Property or on any other Glooscap First Nation reserve land immediately upon issuance of this Order. 4. The Respondent, and any person acting on the Respondent’s instructions, is enjoined from selling any other products from the Property or from any other Glooscap First Nation reserve land immediately upon issuance of this Order, until the Respondent has furnished proof of general liability insurance in a form satisfactory to the Applicants by December 11, 2024. 5. The Respondent, and any person acting on the Respondent’s instructions, is enjoined from conducting any activities on the Property or on any other Glooscap First Nation reserve land that contravene any applicable laws or any provision of the Head Lease. 6. The Respondent, and any person acting on the Respondent’s instructions, shall, for the period of this interlocutory injunction, not interfere with the lawful operation of any other business located at Glooscap Landing Reserve. 7. If the Respondent, or any person acting on his behalf, fails to comply with this Order, the Royal Canadian Mounted Police are authorized and directed to enforce this Order and remove the Respondent and anyone acting on his instructions from the Property. 8. This Order shall be in effect on an interlocutory basis, until the determination of the Application, which is scheduled to be heard on February 12, 2025, at 9:30 a.m. [3] Due to various intervening procedural and evidentiary hearings, the merits hearing was delayed until March 2, 2026, with the interlocutory order remaining in force. [4] The application is granted. In summary, the applicant has established a claim in trespass. While the applicants initially granted the respondent consent to occupy the Property, that consent was gratuitous, conditional, and revocable. The respondent vitiated the consent. [5] The doctrines of illegality and fiduciary duty offer no assistance to the respondent. The applicants had no duty at law to act in the respondent’s best interests in the context of negotiating a commercial lease agreement. As no formal lease agreement was entered into, whether the respondent’s business operations were legal is a moot issue. Background [6] The parties agree to the following factual history of the matter except as noted. [7] Glooscap First Nation (“GFN”) is a “Band” recognized pursuant to the Indian Act, RSC 1985, c. I-5 (“Indian Act”). The Chief and Council of the Band (“Glooscap Council”) is the elected governing body of GFN. [8] Glooscap First Nation Economic Development Corporation Limited, doing business as Glooscap Ventures Management (“Glooscap Ventures”) is a corporation that is wholly owned by GFN and which manages various businesses owned directly or indirectly by GFN. [9] The Federal Crown holds title to the Property, which land is set aside for the use and benefit of GFN pursuant to s. 18(1) of the Indian Act. [10] GFN is responsible for managing its reserve lands for the use and benefit of the community as a whole and Glooscap Council has the authority to pass Bylaws related to land use, zoning, and construction. No individual band member is lawfully in possession of any portion of reserve land unless it has been allotted to them by Glooscap Council (s. 20 of the Indian Act). [11] Glooscap Landing was designated for commercial and light industrial leasing in 2021 following a referendum of eligible GFN electors pursuant to s. 53(1) of the Indian Act. [12] Her Majesty the Queen in Right of Canada entered a Lease of Designated Lands (the “Head Lease”) with Glooscap Landing #1 GP LTD (“GLGP”) as general partner of Glooscap Landing #1 Limited Partnership (“GLLP”), a partnership in which GFN is the limited partner. GFN is also a party to the Head Lease. [13] The Property is managed by Glooscap Ventures and GLLP as a commercial development under the name “Glooscap Landing”. [14] The respondent, Clinton Howard (“Mr. Howard”), is a member of GFN. On April 21, 2024, Mr. Howard, began occupying and using a site belonging to Glooscap Landing, setting up a temporary trailer, after having originally set it up nearby to Glooscap Landing. He began selling cannabis and other products. [15] Glooscap Council attempted to negotiate with Mr. Howard to establish a valid sublease, initially consulting with him on April 22, 2024. [16] On April 22, 2024, Mr. Howard sent an email to members of the Glooscap Council, attaching a letter from Del Riley, on behalf of Mr. Howard, addressed to Glooscap Council and dated April 15, 2024. The letter alleges that the elected Glooscap Council has no authority over GFN reserve lands. That letter also states that Mr. Howard is a member of the “Micmac Rights Association” and that Mr. Howard is a sovereign right holder who is not subject to the Indian Act. [17] On April 23, 2024, Glooscap Council and Glooscap Ventures staff met with Mr. Howard, and explained that Mr. Howard could not continue operating from his trailer in its current condition, but that Glooscap Council and Glooscap Ventures would work with him to get the necessary sublease. Glooscap Council and Glooscap Ventures say that the following terms were verbally agreed to by Mr. Howard: (e) Mr. Howard would not sell tobacco products from Glooscap Landing. (Mr. Howard says that he did not verbally agree not to sell tobacco products but indicated that he understood that was their position and he would take it under advisement). (f) Mr. Howard would provide Glooscap Ventures and Glooscap Council with proof of insurance for his business operation on Glooscap Landing. (g) Mr. Howard would not build or disturb the ground/land. (h) Glooscap Ventures would provide a building for Mr. Howard, to be built and owned by Glooscap Ventures. [18] In May 2024, acting on the verbal agreement, Glooscap Ventures built a new parking lot. Mr. Howard relocated his trailer and business onto this parking lot. He operated his business from that location while the sublease document was being prepared. There were communications back and forth between the parties about the terms of the sublease. [19] On June 30, 2024, Glooscap Council provided their approval of a draft sublease prepared by their legal counsel. Mr. Howard was provided with a copy of the draft sublease on August 6, 2024. On August 30, 2024, Mr. Howard submitted a counter proposal for changes to the sublease, including added terms that contradicted the terms Mr. Howard had previously verbally agreed to (as understood by the Glooscap Council). On September 24, 2024, Glooscap Council rejected the proposed counter to the lease, and chose to not re-offer the lease under the original terms. [20] On October 27, 2024, it was observed that a new structure was being assembled on the gravel parking lot. On October 29, 2024, Mr. Howard was delivered a cease-and-desist letter, requiring him to remove all his property from the site by no later than November 1, 2024, at 4:30 p.m. Mr. Howard did not comply with this letter, and did not remove any of his equipment or buildings. [21] In November 2024, Glooscap Ventures placed large boulders across the access point to the structure. Someone removed the boulders without authorization shortly after they were installed. [22] Since September 1, 2024, the applicants allege that Mr. Howard has conducted or directed the following actions on Glooscap Landing, without authorization from GFN and without having the required sublease (Mr. Howard does not admit any of these assertions): (a) Placing decals to advertise their business on Glooscap property including gas pumps, despite explicit instructions against this as it violates Glooscap’s agreement with its partner. (b) Erecting temporary structures including tents, flag poles, and a portable toilet without permission. (c) Permitting other retailers, such as a clothing vendor and a beverage vendor to sell products from the site. (d) Threatening Glooscap staff with legal action should Glooscap not construct a washroom facility on-site. (e) Constructing permanent structures on the site. (f) Installing an additional access road to the site. (g) Removing barriers put in place by Glooscap Ventures to prevent further unauthorized access to the site. (h) Digging earthworks on the site, to add a new access road. (i) Constructing within proximity to wastewater and electrical infrastructure, which may cause damage to critical infrastructure. (j) Putting shingles and siding on a new building on the site. [23] Mr. Howard asserts that the prefabricated shed rests on blocks and as such is not connected to the ground. [24] After the interlocutory injunction was issued, the applicants allege that the following events occurred: (a) On December 13, 2024, two workers were observed adding additional siding to the shed on site. (b) In mid-December, Mr. Upton observed that a cannabis shop under the name ‘Robyn’s Nest’ was opened on Glooscap First Nation Reserve land. The shop is owned by Robyn Hazard, mother of the respondent. Signage for Robyn’s Nest was placed at the site being occupied by Mr. Howard. (c) On December 29, 2024, construction on the respondent’s building was observed, in which new flooring was being added. The RCMP was called, after which the contractor told the RCMP that they were hired by Matt Thomson to open a boutique shortly. (d) On January 7, 2025, a community meeting was held to discuss the events at Glooscap Landing. At this meeting, a number of documents were distributed and shared, including a warrant to search the respondent’s structure, a brochure, and a draft notice to discontinue motion. (e) On January 9, 2025, a post was made to the Glooscap’s Finest Herbal Body Care’s Facebook page, announcing the opening of Glooscap’s Finest Herbal Body Care’s Trading Post at Glooscap Landing. (f) In the late summer of 2025, Mr. Michael Peters, CEO for the applicant, Glooscap Ventures, observed that there was a considerable amount of activity on site where Mr. Howard had erected a permanent structure. On or around July 25, 2025, Mr. Peters arranged for cement blocks to be put on the driveway, blocking access to the structure. (g) After the cement blocks were placed in front of the structure, someone attended the site with a moving truck and removed items from the structure. The structure remains empty but has not been removed from the site. (h) The applicant, Glooscap Ventures, has had to remove signs advertising Robyn’s Nest from the site on numerous occasions. Such a sign was most recently removed from the site on July 25, 2025. (i) The cement blocks, which physically prevent a car from driving up to the structure, have been the only successful measure which has resulted in Mr. Howard ceasing his unauthorized activities on Glooscap Landing. The applicants are concerned that Mr. Howard will again begin operating business from the structure should GFN remove the cement blocks. (j) The applicants have also expressed concerns that the respondent’s unauthorized construction on the site, and the unauthorized sale of cannabis and tobacco, may be harmful to the health and safety of the Glooscap First Nation community. Issues [25] The issue before the Court in this matter is whether a permanent injunction should be granted. Law and Analysis [26] The parties agree on the applicable legal principles. The test for a permanent injunction differs from the test for an interim or interlocutory injunction and was set out in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46. This test was adopted by the Nova Scotia Court of Appeal in 778938 Ontario Limited v. Annapolis Management, Inc., 2020 NSCA 1933, and applied again in The Canadian Civil Liberties Association v. Nova Scotia (Attorney General), 2022 NSCA 6. [27] The test has six parts: 1. Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant’s suit should be dismissed). 2. Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed). 3. Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy). 4. If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence, or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court’s discretion as to whether to deny the injunctive remedy). 5. If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction? 6. In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [28] My analysis is framed around the six questions. 1. Cause of Action Established [29] The claims advanced by the applicants are in trespass and nuisance. Trespass [30] This court discussed the elements of trespass and nuisance in the case of Halifax County Condominium Corporation No. 277 v. Halifax Regional Water Commission, 2023 NSSC 128, stating at para. 21: In Lewis Klar et al., Remedies in Tort (Thomson Reuters ProView, 2023) at §26:5, the authors describe the elements of the tort of trespass to land as follows: The tort of trespass to land is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. The elements of trespass have been stated as follows: (a) the intrusion onto the land must be direct; (b) the interference with land must be intentional or negligent; and (c) the defendant's interference with the land must be physical. To be actionable, the defendant's act must be intentional in the sense of being voluntary and affirmative; intentional does not mean that the trespasser intended to do a wrongful act. If a trespass is committed unintentionally and without negligence, no liability is incurred. The interference with the plaintiff’s property must be direct, not indirect or consequential. [Emphasis Added] Trespass is distinguished from nuisance at §26:2 at p. 538: Trespass is a direct interference with the land of another and is actionable without proof of damage. Private nuisance involves interference with the plaintiffs use and enjoyment of property without direct entry by the defendant and is generally actionable only upon proof of damages. To be actionable as a trespass the injury must be direct. Thus, it is trespass to place material objects directly on another’s land; it is not a trespass but may be nuisance and thus actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. [... ] [Emphasis added] [31] The respondent initially occupied the site on Glooscap Landing in April 2024. Good faith efforts were made to negotiate with Mr. Howard, and to establish a valid sublease which would permit him to continue operation on Glooscap Landing, and during the negotiation period, the applicants gave the respondent verbal authorization to remain on the site. [32] The respondent argues that the applicants cannot make out the claim for trespass because any trespass was vitiated by the applicant’s consent and any withdrawal of that consent was done unfairly and without adequate notice. [33] It was the consent that was vitiated. The parties agree with the statement of the law of consent from my decision in Greenwood v. Dhillon, 2024 NSSC 55, at paras. 58-59. Briefly summarized, consent to occupy land must be informed and can be withdrawn with notice. Consent will be vitiated if the subsequent use of the land is inconsistent with the consent granted. [34] An occupier who exceeds their license to use the land is treated as a trespasser ab initio (Greenwood, para. 58): [58] … At common law, where a person entitled by law to enter premises abuses his or her privilege and performs acts outside the scope of his or her licence to enter the land, he or she might be treated as if he or she has been a trespasser from the moment he or she first entered the land — that is, he or she becomes a trespasser ab initio. [35] The party asserting consent has the burden of proving it. Where consent is alleged, the consent must be consistent with the subsequent use of those who claim consent. In Greenwood, at para. 59, I said: [59] There is no trespass if the defendant has the express or tacit consent of the plaintiff to the defendant’s entry on the plaintiff’s land. The burden of proving consent lies with the person who asserts it: Fridman’s The Law of Torts in Canada (4th ed.)(Toronto: Thomson Reuters, 2020) at p. 57. In York v. Ferguson, [1991] B.C.J. No. 3742, Justice Cashman examined the issue of consent at para. 31: 31 In a case bearing a striking similarity to this case, Mr. Justice McColl in Webb v. Attewell (1990), 43 C.L.R. 160 considered this issue of consent at pp. 167-168. I will set out what he said because it is applicable to this case and I could not say it any better: "The question that arises on these facts is whether the defendants have trespassed upon the Webb property. In G.H.L. Fridman, The Law of Torts in Canada, 2 vols. (Toronto: Carswell, 1989), Vol. 1, the author states (at p. 11): ‘Trespass to land consists of entering upon the land of another without lawful justification, or placing, throwing or erecting some material object thereon without the legal right to do so. ... To constitute trespass the defendant must in some direct way interfere with land possessed by the plaintiff.’ It is clear that the concept invokes the question of consent. That is, if a property owner has given consent for one to enter upon the land, there can be no trespass. It is fundamental that the rights of the property owner are paramount, and consent (absent a statutory authority) may be withheld for any reason: Austin v. Rescon Construction (1984) Ltd. (1989), 36 B.C.L.R. (2d) 21, 48 C.C.L.T. 64, 57 D.L.R. (4th) 591 (C.A.). It follows that where consent is alleged the consent must be consistent with the subsequent use of those who claim consent. Thus, where consent is obtained to use the land for one purpose and is used for an entirely different purpose, there will be no consent at all and the entry upon the land will constitute a trespass. No authorities were cited to me concerning the nature of consent. Counsel for the plaintiff seemed to be satisfied that consent had not been given just as counsel for the defendants seemed not in doubt that consent had been given. There are, I think, two self-evident principles that emerge: 1. That if consent has been given it cannot, without notice, be unilaterally withdrawn once the encroachment has taken place any actionable wrong occasioned to the land once it is entered upon will resound in negligence; and 2. Consent in any event must mean an informed consent; that is the property owner should be fully informed of the nature and degree of the encroachment so that the consent is founded upon a knowledge of the circumstances in which the encroachment will take place. Neither of these two principles take into consideration the state of mind of the encroacher. That in my view is a matter to be considered if and when a trespass is found.” [Emphasis added] [36] On the facts of this case, the applicants’ consent was gratuitous, conditional, and revokable. The respondent knew that the consent offered by the applicants was conditional upon a formal sublease being signed and that the applicants required that the respondent agree not to sell tobacco products and to not erect a structure on the land that was not built and owned by the applicants. [37] Accordingly, the applicants’ consent was either uninformed, as the respondent claims he never agreed to certain terms of the verbal agreement, or the respondent’s subsequent use of the land was inconsistent with the consent granted. In either event, consent was vitiated. [38] Further, the applicants were entitled to revoke their consent. On October 29, 2024, the applicants notified the respondent by hand delivered correspondence that he had until 4:30 p.m. on November 1, 2024, to vacate the premise. [39] The applicants expressly prohibited the respondent from “building” on Glooscap Landing. Placing the structure on the land is in my view a clear violation of this condition. The respondent testified in cross examination that he knew that the applicants’ position was that the structure had to be constructed by and leased from the applicants. [40] The respondent received a reasonable amount of time to comply with the applicants’ cease-and-desist letter. As stated, the respondent’s position is the structure is not connected to the ground. If so, three days was more than sufficient time to remove the structure. [41] The respondent has continually refused to comply with the cease-and-desist letter despite being given sufficient notice to do so. He only removed items from inside the structure in or around July 2025, over eight months after the deadline. The structure remains on site. [42] There is no merit to the respondent’s argument the verbal agreement should be considered a month-to-month agreement requiring at least one month’s notice. The applicants gave the respondent verbal permission to use the property subject to certain conditions which the respondent failed to meet. The respondent is not entitled to a lengthy notice period given his breach of the verbal agreement. [43] The respondent is occupying lands designated for commercial use, without the proper authorizations and leases in place. Mr. Howard has been engaging in ongoing trespass and occupation. He has made unauthorized modifications to the land and has left structures on the site. [44] I find that the claim in trespass has been established. [45] Having found a valid cause of action in trespass, it is unnecessary for me to consider the claim in nuisance. 2. Sufficient Likely to Occur or Reoccur in the Future [46] The respondent conducted additional construction after the interlocutory injunction was put in place. On December 29, 2024, workers were observed laying flooring in the building. On January 9, 2025, the respondent advertised the opening of a new store at the site of 45 Sweetgrass Road. The site has also been used to advertise another cannabis store operated by the respondent’s mother. [47] Further activity took place on the site in July 2025, and only the placement of large concrete blocks by the applicants appears to have deterred unauthorized activity for the time being. However, the structure remains in place and unauthorized activity could easily resume. As stated, the respondent has continuously refused to remove the structure. No term of the interlocutory injunction prevented him from doing so. [48] If the injunction is not granted, the respondent’s occupation of this site is likely to continue and so it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction. 3. Adequate Alternative Remedy [49] The parties agree that this stage of the analysis was articulated in Nalcor at paras. 65-66: [65] Chief among the discretionary considerations that must be addressed is whether there is an effective alternative remedy available. This is because equitable remedies are generally regarded as supplementary to other available remedies. It is only where such supplementation is needed that the appropriateness of an injunction enters the picture. In most cases, this will involve a consideration of whether the claim can be properly remedied by an award of damages. Usually, damages will not be adequate where what is at issue is threatened future harm that is not an extension of existing harm. In addition, questions as to whether effective protection of the rights that have been or are threatened to be interfered with can be achieved either directly or indirectly by other mechanisms such as by the invoking of some other sort of statutory remedial process, such as in Cambie, or by the enforcement of the criminal or quasi-criminal law (and whether it would be more appropriate for the Attorney General to seek an injunction in aid of preventing threatened continuing breaches of the criminal or quasi­ criminal law rather than leaving it to private claimants). [66] Where another remedy is adequate, the discretion to deny an injunction should ordinarily be exercised. Generally, it will be for the party resisting the injunction to show that other remedies are adequate. [50] In 778938 Ontario Limited v. Annapolis Management, Inc., 2020 NSCA 19 (“938 Ontario”), the Nova Scotia Court of Appeal had to deal with a similar issue to what is at hand here, of if an injunction should have been granted for trespass or nuisance. Regarding remedy, the court had this to say: [44] An injunction remains the presumptive remedy for nuisance and even more so for the direct interference of trespass. [...] [51] The Court in 938 Ontario further draws from Robert J. Sharpe’s Injunctions and Specific Performance, as cited at paras. 34-35 of Maxwell Properties Ltd. v. Mosaik Property Management Ltd., 2017 NSCA 76, such that (paras. 18-20): [18] As Maxwell explains at para. 40, “equitable discretion to grant an injunction is usually—but not invariably—exercised to vindicate property rights”. Sharpe elaborates at §4.10: Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass. ... The discretion in this area has crystalized to the point that, in practical terms, the conventional primacy of common law damages over equitable relief is reversed. Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy. [19] Later, Justice Sharpe adds at §4.590: Where there is a direct interference with the plaintiff’s property constituting a trespass, the rule favouring injunctive relief is even stronger than in the nuisance cases. Especially where the trespass is delivered and continuing, it is ordinarily difficult to justify the denial of a prohibitive injunction ... [20] On the other hand, courts have refused an injunction where the trespass is temporary or trivial, or unlikely to be repeated or where it was unintentional and inadvertent: Leader v. Moody (1875), L.R. 20 Eq. 145 at 153; Bertram v. Builders’ Association of North Winnipeg (1915), 23 D.L.R. 534 (Man. K.B.); Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-operative Assn., 2008 BCSC 1676; and Jarnouin v. Parvais (1997), 122 Man.R. (2d) 223 (Q.B.). [52] The respondent asserts that there are two viable, alternative remedies to a permanent injunction which will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong: (1) the applicants and respondent can open a dialogue and negotiate a valid sublease; and (2) the applicants can rely on the provisions of the Criminal Code to prevent the respondent from continuing his operation. [53] The alternative remedies offered by the respondent are not adequate substitutes for the injunctive relief sought as neither will prevent the ongoing trespass. The applicants have no duty to negotiate with the respondent to remedy his trespass, and criminal proceedings will not prevent future trespass or nuisances. [54] The applicants have no obligation to engage in endless negotiations with the respondent. The respondent rejected the draft sublease and made a counteroffer. The applicants, as was their right, declined the counteroffer and ended negotiations. The respondent’s position the applicants should be ordered to re-enter negotiations runs entirely contrary to one of the fundamental principles of contract law, namely the freedom to contract. Simply put, the respondent is not entitled to the ideal lease. [55] Criminal proceedings against the respondent are not a substitute for the injunctive relief being sought. Criminal proceedings – regardless of outcome – will not restore use and enjoyment of the land to the applicants or prevent the respondent from trespassing in the future. [56] Neither of the alternative remedies advanced by the respondent are adequate and injunctive relief remains the appropriate remedy for both trespass and nuisance. 4. Applicable Equitable Discretionary Considerations [57] The respondent first asserts that the applicants breached their fiduciary duty owed to the respondent as a member of the Glooscap First Nation Band by failing to negotiate in good faith a valid sublease. He further asserts that the applicants breached their duty owned to him because of a conflict between their roles as members of band council and directors of Glooscap Ventures. Finally, he asserts that the applicants entered into an illegal contract which allowed the respondent to operate his business/truck house to maximize their financial gain. Their involvement in the illegal activity prevents the applicants from seeking an equitable remedy. Band councils do not owe fiduciary duties to individual band members. [58] While a band council does owe a fiduciary duty to their band members collectively in certain circumstances, there is no legal authority for the proposition that they owe a fiduciary duty to an individual band member in the context of negotiating a commercial lease agreement. [59] A fiduciary has an obligation to act with loyalty, good faith, and to avoid conflict of interest. Ad hoc fiduciary relationships can arise outside the existing categories of fiduciary relationships (e.g. solicitor-client, director-corporation, etc.), but whether such duties exist is extremely fact dependent. [60] The Supreme Court of Canada stated an amended test for ad hoc fiduciary relationships in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24. Relationships that give rise to fiduciary obligations require the beneficiary to be particularly vulnerable to the fiduciary. The claimant must also show (paras. 11, 14): 1. an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries. 2. a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and, 3. a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control. [61] Courts, particularly in British Columbia and at the federal level, have repeatedly recognized that upon election, band chiefs and councillors undertake to act in the best interests of the band. See Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 36; Wewayakai Indian Band v. Chickite, 1998 Carswell BC 2629, [1998] B.C.J. No. 2775 para. 31, for a statement of the former legal test as stated in Frame v. Smith (1989), 42 DLR (4th) 81; Gilbert v. Abbey, 1992 CanLII 921 (BC SC); Louie v. Louie, 2015 BCCA 247; Webb v. Genaille, 2023 BCCA 443; and Annapolis Valley First Nations Band v. Toney, 2004 FC 1728. [62] The applicants could not locate any Nova Scotian case law commenting on this point but agree in principle that band councils owe fiduciary duties to their band. [63] The scope of the fiduciary relationship between band council and the band is not unlimited, and not every interaction between band council and band members attracts fiduciary obligations: Wewayakai, at para. 25. A fiduciary may make errors, even with adverse consequences for the beneficiary, without breaching their fiduciary duty. Courts will look to the instrument bestowing power on the fiduciary to determine whether the fiduciary has adhered to the terms: Basil v. Lower Nicola Indian Band, 2009 FC 741, at para. 97. [64] Fiduciary obligations are strongest where band members are most vulnerable to the council’s acts of discretion. It is uncontroversial band councillors owe fiduciary duties to their members when managing band funds (Genaille, at paras. 6 – 18) and must adhere to strict no‑conflict and no‑profit rules (Louie, at para. 23). [65] None of the authorities advanced by the Respondent support his position that the Applicants owe a fiduciary duty to him personally. In Genaille, the British Columbia Court of Appeal clarified that the trial judgment stood for the proposition that a fiduciary duty was owed to the band as a collective: [22] …the [trial] judge did not make a finding that the appellants owed a fiduciary duty to individual band members. While the judge did refer to fiduciary duties owed to “band members” several times in her judgment, this language was clearly intended to refer to duties owed to the members of the band as a collective. [66] The respondent does not plead breach of fiduciary duty to protect the interest of GFN as a collective. Rather, the respondent advances the claim that GFN Chief and Council (the “Glooscap Council”) owes him, in his personal capacity as a businessperson, a fiduciary duty. The respondent goes on to equate his business interests – the continued operation of a truck house – with the best interests of GFN. There is no basis for this assertion. [67] Any fiduciary duty owed in these circumstances is to the band as a whole. Such duties, in the circumstances, includes ensuring the band gets fair value for the lease and a lease that protects the interests of the band. There is no duty to give a special deal to an individual band member, especially if such a deal might be contrary to the interests of other members. The bulk of the sublease negotiations occurred between the respondent and Glooscap Ventures and GLLP staff, not with Glooscap Council. Glooscap Council only became involved precisely for the purpose of ensuring the interests of the band as a whole were respected. [68] Finally, even if a fiduciary relationship could exist between band council and an individual band member, such a relationship did not exist here. The parties’ business relationship contains none of the hallmarks of a fiduciary relationship. The applicants and respondent were two sophisticated parties negotiating a commercial lease agreement. The applicants never undertook to act in the respondent’s best interest and did not exercise discretion or unilateral control over the respondent’s legal or practical interests. Notably, the applicants had no authority to sign the sublease on behalf of the respondent, and the respondent rejected some of the terms of the draft sublease. The respondent came to the negotiating table as an equal. A failed business negotiation does not give rise to breaches of fiduciary duty or the duty to perform contractual duties in good faith. [69] The failure to enter into a sublease did not breach any duty, either fiduciary or common law. There was nothing particularly complex about the business negotiations between the parties. The parties attempted to negotiate a commercial lease agreement. They were unable to agree to terms and negotiations broke down. [70] The Supreme Court of Canada recognized the duty of good faith contractual performance in Bhasin v. Hrynew, 2014 SCC 71. This duty creates a base-line standard of conduct for contracting parties and requires them to act honestly and in good faith. [71] The principle of good faith does not require contracting parties “to put the interests of the other contracting party first, it merely requires that a party not seek to undermine those interests in bad faith” (para. 65). Justice Cromwell clarified the principle of good faith does not engage the duty of loyalty or give rise to a fiduciary relationship between contracting parties. [72] There is no related duty to negotiate ordinary commercial contracts in good faith: Guysborough (District) v. Resource Recovery Fund Board Inc., 2011 NSSC 15, at para. 44; Ralmax Properties Ltd. v. Pt. Ellice Properties Ltd., 2025 BCSC 814, at paras. 226-227. Courts have expressly declined to recognize the duty to negotiate in good faith, remarking that such a duty “is inherently repugnant to the adversarial position” and would be practically difficult to enforce: Guysborough, at para. 44. [73] Broadly speaking, agreements to negotiate will often be found void for uncertainty: Guysborough, at para. 44. The British Columbia Court of Appeal considered the jurisprudence on agreements to agree at length in Mannpar Enterprises Ltd. v, Canada, 1999 BCCA 239. Courts may read in implied terms to give effect to the intentions of the contracting parties, but only “if it is the case that both parties would be likely to agree that such a term should be implied” (para. 56). Justice Hall made the following observations regarding negotiation clauses: “It seems to me that unless there is a benchmark or a standard by which to measure such a duty, the negotiation concept is unworkable” (para. 52). [74] Courts may give effect to contractual provisions requiring parties to negotiate in good faith, as in 3289444 Nova Scotia Ltd. v. RW Armstrong & Associates Inc., 2016 NSSC 330, providing such provisions are explicit. In RW, the parties, both sophisticated, executed several agreements for design management services. The agreements contained detailed forum selection clauses which required the parties to “endeavour to settle by good faith negotiation any dispute” (para. 9). The agreements also provided a mechanism for dispute resolution should negotiations fail. The Court found the plaintiff had an obligation to negotiate in good faith but had failed to do so. [75] The respondent alleges the applicants breached “their fiduciary duty owed to the respondent as a member of the Glooscap First Nation Band by failing to negotiate in good faith to obtain a valid sublease, which breaches their duty of good faith performance of the contract.” This argument must fail for the following reasons. First, as stated, Glooscap Council does not owe fiduciary duties to individual band members. The applicants did not fail to negotiate, but, in any event, failure to negotiate a commercial lease agreement cannot breach a duty that does not exist. [76] Second, there is no free-standing duty to negotiate in good faith, nor can such a duty be implied by the terms of the verbal agreement. The parties had a loose agreement they would attempt to negotiate a sublease. The exact terms of that agreement were never discussed. In other words, there was no “benchmark” for determining the scope of an obligation to negotiate, if any. [77] The verbal agreement is clearly distinguishable from the agreement in RW, where the parties considered the obligation to negotiate at length. Here, the parties never turned their minds to that issue. They did not discuss how long negotiations must continue or what would occur if negotiations failed. [78] Finally, although not required by agreement or law to do so, the applicants did make good faith efforts to negotiate. The applicants initiated discussions with the respondent in April 2024 notwithstanding the respondent’s trespass, produced a draft sublease, and even constructed infrastructure to accommodate the respondent’s business. [79] The applicants had no duty to negotiate a lease agreement with the respondent. Nevertheless, the applicants made good faith efforts to reach an agreement with the respondent. The parties’ failure to agree to terms for a commercial lease agreement was not a breach of fiduciary duty or the duty to perform contractual duties in good faith. It is not a breach of fiduciary duty for band councillors to serve as directors of band-owned corporations. [80] The respondent asserts that the applicants are in a conflict of interest due to their dual roles as Council Members of the GFN and as Directors of Glooscap Ventures. The argument proceeds that in their roles as Council Members they must act in the best interests of the Band and its members, not in the best interests of the corporation, and in their role as Directors of Glooscap Ventures, they must act in the best interests of the corporation, not in the best interests of the Band and its members. [81] The fallacy of this argument is that where the Band is the sole owner of a corporate entity, as GFN is of Glooscap Ventures, then these interests align. [82] In Piikani Investment Corp. v. Piikani First Nation, 2008 ABQB 775, the Alberta Court of King’s Bench held that appointing a chief or councillor as a director or shareholder-trustee did not constitute a conflict, provided they act within the corporation’s mandate and maintain accountability to the band. See paras. 182-184, 202-203, 214-219. [83] Whether a conflict of interest exists by virtue of the dual appointment of councillor and director is assessed on actual conduct and compliance with governing documents. In Piikani, the dual roles of band council and directors were anticipated by the governance structure and aligned with the corporation’s mandate to serve the band’s interests. Justice McIntyre described the duties of councillor and corporate director this way in Piikani: [219] Thus, Councillor Herman Many Guns is not in a conflict of interest in his role as director of PIC [Piikani Investment Corporation] and Councillor of the Piikani Nation. When acting in his role as director, he has an obligation to PIC, and when acting in his role as Councillor, he has an obligation to the Piikani Nation, which has stated clearly that it is in its best interests to allow PIC to continue to function. Thus, in both situations, the Councillor has an obligation to act in such a way to ensure PIC continues to operate and serve its purpose for the Piikani Nation. [84] The respondent has not adduced any evidence of an actual conflict of interest on Glooscap Council’s part. GFN is the sole owner of Glooscap Ventures and the limited partner of GLLP. Glooscap Ventures manages various businesses which are owned directly or indirectly by GFN. This includes managing GLLP. The interests of Glooscap Ventures and GLLP are therefore aligned with the interest of GFN. [85] The respondent imagines a conflict based on the Band-owned corporations’ ability to generate profit. Contrary to his assertions, the respondent’s personal business interests are not synonymous with the Band’s. The respondent’s business generated profits for the respondent personally and was not formerly affiliated with the Band. There is no conflict of interest for a band-owned corporation to refuse to enter a lease agreement on unfavorable terms. Illegal Contract [86] The respondent argues that the illegality of the contract is a bar to equitable relief. He says that Canadian courts have routinely refused to offer remedies to a party seeking to rely on an illegal contract under the Doctrine of Illegality as expressed in Dominion Fire Insurance Co. v. Nakata, (1915) 52 S.C.R. 294. [87] The difficulty with this argument is that the applicants do not seek to rely on any contract, legal or illegal. The applicants’ cause of action is in trespass. [88] The respondent’s attempt to cast the applicants as the moving party in setting up an illegal business venture is not supported by the facts. The respondent began operating an unauthorized business selling tobacco and cannabis products without the proper licenses. He then ignored the applicants’ efforts to bring him into compliance with the Head Lease and other regulatory requirements. The facts do not support the respondent’s claim that the applicants actively engaged in and supported the respondent’s illegal sale of cannabis. [89] Further, whether the sale of cannabis is a treaty right in Nova Scotia is a live issue not yet conclusively determined by the courts. The treaty right argument and the evidence to support such an argument are not before me. [90] The applicants’ attempts to constrain, not encourage, the respondent’s illegal activities are evident from the terms of the verbal agreement the parties reached on April 23, 2024. [91] This argument has no merit. 5. Terms to be Imposed [92] The respondent says that any injunction ordered should contain a condition that if the applicants were to permit a business or truck house on the reserve, that opportunity should be offered first to the respondent. I see no reason to restrict the applicants in such a way. To do so would interfere with their obligation to act in the best interests of all Band members. 6. Scope of the Terms of the Injunction [93] The respondent asserts that the scope of the proposed injunction is too broad to be enacted on a permanent basis as it captures the entire reserve and the requirement of the applicant’s satisfaction which could be unreasonably defined. [94] The applicants assert that the injunctive relief on this matter must enjoin at least Mr. Howard (and those in his employ or under his authority) and must include both unauthorized construction and unauthorized commercial activity. By unauthorized, the applicant’s mean unauthorized by Glooscap Council. Furthermore, to be effective, the applicants argue that the order must include all Glooscap First Nation's lands and reserves, including, but not limited to, Glooscap 35, and Glooscap Landing Reserve. Furthermore, it is necessary for the order to prescribe that unauthorized tobacco and cannabis sales are explicitly enjoined. [95] The applicants understand that at least some of the activities of concern have been conducted by the respondent’s agents, and that this order may bind them in some respects. Regarding the binding of non-parties, the applicants refer to this passage from the Supreme Court of Canada decision in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, which states: [29] In other words, where a non-party violates a court order, there is a principled basis for treating the non-party as if it had been bound by the order. The non-party’s obligation arises “not because [it] is bound by the injunction by being a party to the cause, but because [it] is conducting [itself] so as to obstruct the course of justice” (MacMillan Bloedel, at para. 27, quoting Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.), at p. 555). [30] The pragmatism and necessity of such an approach was concisely explained by Fenlon J. in the case before us when she offered the following example: ... a non-party corporation that warehouses and ships goods for a defendant manufacturing company might be ordered on an interim injunction to freeze the defendants' goods and refrain from shipping them. That injunction could affect orders received from customers around the world. Could it sensibly be argued that the Court could not grant the injunction because it would have effects worldwide? The impact of an injunction on strangers to the suit or the order itself is a valid consideration in deciding whether to exercise the Court’s jurisdiction to grant an injunction. It does not, however, affect the Court’s authority to make such an order. [96] I find that injunction order must apply to all GFN reserve lands to effectively protect the applicants’ property rights and prevent future interferences with same. A site-specific order would be practically meaningless given the nature of the respondent’s business. The respondent initially operated business from a mobile structure. Limiting the order to the current site will not deter the respondent from relocating and resuming operations elsewhere on reserve lands. [97] The requested injunction is not overbroad. It does not permanently bar the respondent from conducting business on the applicants’ lands. It prohibits only unauthorized activities, as defined in the draft order. If the parties execute a valid sublease in the future, any authorized activities will fall outside the scope of the injunction. [98] The scope of the injunction proposed by the respondent is too narrow. It does not sufficiently protect the applicants from future encroachment and would undermine the applicants’ ability to fulfill duties to third parties, including the Crown. In contrast, the scope of the injunction sought by the applicants provides certainty, enforceability, and comprehensive protection against future encroachment. Conclusion [99] The application for a permanent injunction is granted. The form of Order shall provide as follows: 1. The Respondent is trespassing on the Properties. 2. The term “unauthorized” means not authorized by Glooscap Council. 3. The Respondent, Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, is enjoined from conducting unauthorized construction related activities, and unauthorized commercial activities (the “Activities”) on any Glooscap First Nation reserves, including, but not limited to, Glooscap 35, and Glooscap Landing Reserve (the “Properties”). 4. Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, shall cease and desist from the pursuit or performance of any of the Activities immediately upon issuance of this Order. 5. Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, is enjoined from selling tobacco products, or any products containing tobacco, on or from the Properties. 6. Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, is enjoined from selling cannabis, or any other products that contain cannabis, on or from the Properties. 7. Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, shall not interfere with the lawful operation of any other business located at the Properties. 8. Clinton Ray Howard shall remove from the Properties all structures and equipment used by either Clinton Ray Howard or by any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, for the purpose of conducting the Activities. This removal must be completed by no later than 5:00 p.m. on the date two weeks from the date of this Order. 9. The Respondent shall be required to remove all materials used for the purpose of conducting the Activities, or produced as a result thereof, from the Properties by no later than 5:00 p.m. on the date two weeks from the date of this Order. This is to include, but is not limited to, all chattels, materials, garbage, and structures. 10. In the event that the Respondent does not remove the equipment, chattels, and materials by no later than 5:00 p.m. on the date two weeks from the date of this Order, the Applicants are authorized to remove and dispose of them. 11. Clinton Ray Howard, and any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, are enjoined from placing any signage on the Properties, without express written authorization from Glooscap Ventures or Glooscap First Nation Chief and Council. 12. If Clinton Ray Howard, or any person in his employ or acting under any contract or agreement with, or instruction by Clinton Ray Howard, does not immediately cease and desist from the pursuit or performance of any of the Activities immediately upon issuance of this Order, the Police are authorized to enforce this Order and remove Clinton Ray Howard and/or any such person from the Properties. [100] The applicants are entitled to costs. If the parties are unable to agree on costs, they are to file written submissions with the court within three weeks of receipt of this decision. The written submissions shall be limited to ten pages double spaced, and shall be filed in paper form and a copy provided by email to my assistant in digital form. Any books of authorities shall only be submitted in digital form by email. Norton, J.