Executive Summary: Key Legal and Evidentiary Issues

• Removal of the City of Fredericton as a respondent due to absence of any municipal decision, ownership, or regulatory trigger related to the housing project.
• Failure of the applicant to establish standing, either through a direct personal legal interest or through a motion for public interest standing, to challenge the provincial decision.
• Improper handling and alteration of a sworn affidavit after execution, raising serious concerns about affidavit integrity and supporting the striking of that evidence.
• Rejection of a claimed common law right for local residents to be consulted on the siting of transitional housing in the absence of a defined legal interest.
• Inability of the applicant to satisfy the RJR-MacDonald test for an interlocutory injunction, particularly on the existence of a serious issue, irreparable harm, and the balance of convenience.
• Costs awarded against the applicant in favour of both the Province/New Brunswick Housing Corporation and the City, totalling $3,000 plus applicable HST.

Background and facts of the dispute
Timothy Hawkins, a resident of the Skyline Acres neighbourhood in Fredericton, applied for an injunction to halt further work on a provincial project to provide transitional and supportive housing for people experiencing homelessness and addiction. The project was to be constructed on land within the City of Fredericton, owned by the Province of New Brunswick and developed under the direction of the Minister of Housing/New Brunswick Housing Corporation and the Minister of Transportation and Infrastructure. The intended use of the land, as “assisted living,” was a permitted use within the existing I-2 zoning of the property. The City’s Development Officer deposed that the Community Planning Act was not triggered by the project, that no development process requiring City action had been initiated, and that the City neither owned nor had any interest in the property and was not the proponent or developer of the project. Mr. Hawkins did not dispute the accuracy of this municipal evidence. He brought his injunction motion together with a Notice of Application for judicial review, asserting concerns about public safety, including the project’s proximity to a local school and surrounding residential uses. He did not claim to own or occupy the project site, nor did he provide evidence of the distance between his residence and the development, or the precise geographic scope of Skyline Acres. His position was grounded in his status as a concerned resident and his belief that local residents should have been consulted before the provincial decision was made.

Procedural history and affidavit concerns
Before filing the present motion and application, Mr. Hawkins had commenced an earlier proceeding by Notice of Preliminary Motion, seeking essentially the same injunctive relief. That preliminary motion, under a different file number, was supported by an affidavit sworn November 4, 2025. When that material was reviewed by another judge of the court, the Clerk advised counsel for Mr. Hawkins that the affidavit contained an impermissible degree of hearsay, particularly in one paragraph. That earlier motion named the Province (through the Minister of Transportation and Infrastructure) and the City of Fredericton as respondents. In response to the concerns raised, counsel withdrew the preliminary motion and later brought the current application and motion. In the new proceeding, Mr. Hawkins swore a fresh affidavit dated November 19, 2025. However, the record also contained what appeared to be the same November 4 affidavit re-used, but with an altered style of cause: two additional respondents (relating to housing) were inserted on the face of the document after it had already been sworn. Counsel for Mr. Hawkins candidly acknowledged that this “cutting and pasting” had occurred after execution. The court held that once an affidavit is sworn, it is improper to modify or “update” it, and that this kind of post-swearing alteration could not be sanctioned. The judge indicated that striking the November 4 affidavit in full would ordinarily be appropriate, and expressed concern over why a document previously flagged for evidentiary issues had been repurposed in the new record at all. The respondents had not been aware of this alteration until it was raised before the court.

Status of the City of Fredericton as a party
The City of Fredericton was named as a respondent despite having had no role in deciding to develop the site, no ownership interest in the land, and no active file or process triggered under its by-laws, the Community Planning Act, or the Local Governance Act. The Development Officer’s affidavit made clear there was no permit required for the site work, no municipal approval process underway, and no municipal decision at issue. The intended use conformed to the existing zoning, eliminating any need for planning approvals that might involve public notice or hearings. As Mr. Hawkins accepted these factual statements, the court found there was no municipal decision to challenge and therefore no basis to keep the City as a party. The City was accordingly removed as an improper respondent to the proceeding.

Notice to the Crown and the Proceedings Against the Crown Act
The Province initially raised a preliminary objection based on lack of notice under section 15(1) of the Proceedings Against the Crown Act, which requires two months’ written notice before bringing an “action” against the Crown. The record showed Mr. Hawkins had attempted to give such notice, assuming it might be required. However, before the hearing counsel for the Province advised that this objection was withdrawn. The judge went on to explain why that was a prudent course: section 15(1) refers to a “Notice of Action,” a “proposed plaintiff,” and a “cause of action,” language that aligns with ordinary civil actions seeking damages. In contrast, Mr. Hawkins proceeded by Notice of Application for Judicial Review under Rule 69, invoking the court’s judicial review jurisdiction akin to the former prerogative writs, where damages are not the typical remedy. In that context, the court indicated that the statutory notice requirement for “actions” under the Proceedings Against the Crown Act did not apply to this type of judicial review proceeding.

Standing to bring the application
A central legal issue was whether Mr. Hawkins had standing to pursue judicial review of the provincial decision to establish the transitional housing project. He had not filed a separate motion to establish standing, either on a private-interest or public-interest basis. In the absence of such a motion, he bore the onus of demonstrating a personal legal interest in the outcome. The court found he had not done so. Mr. Hawkins described himself as a concerned resident worried about the safety of people in Skyline Acres and the project’s effect on nearby residents and a school. While the judge accepted his sincerity, the court held that general concern or community unease is not, by itself, a legally recognized interest sufficient to ground standing. The decision drew on authority distinguishing private interest standing (where a party is likely to gain an advantage or suffer a disadvantage beyond a mere sense of grievance) from situations where only public interest standing, if granted, would permit a party to proceed. In other cases, such as the Canadian Civil Liberties Association’s challenge to Policy 713, the applicant had explicitly sought and obtained public interest standing before pursuing judicial review. No comparable motion was made here. The court also referenced decisions like Dignam v. New Brunswick Liquor, where residents who objected to the awarding of a liquor agency lacked standing because they had no real stake in the outcome beyond personal preference and community concern. By analogy, Mr. Hawkins had not shown any direct legal interest or basis for public interest standing, and the record did not support granting him standing on any recognized ground.

Alleged common law right to consultation
Mr. Hawkins’ core substantive claim was that, as a resident of Skyline Acres, he possessed a common law right to be consulted before the Province moved forward with the transitional housing project. He argued that a failure to notify or consult residents, or to conduct an impact study on nearby schools and residents, breached this right and should justify court intervention. The court rejected the existence of any such general common law right to consultation in the circumstances. It noted that the record did not establish a discernible legal interest that would trigger a duty of procedural fairness toward Mr. Hawkins personally. Without a defined right or legal interest at stake, recognizing a duty to consult any concerned resident would effectively extend a general common law obligation on the Province to consult every citizen on any issue, a proposition incompatible with existing jurisprudence. Courts have consistently held that community concern, however genuine, does not create a freestanding right to be consulted in the absence of a specific statutory or legal entitlement or a recognized duty arising from a particular legal relationship.

Test for an interlocutory injunction and application to the facts
The Province also argued that even if all other hurdles were passed, injunctive relief was not available against the Crown by virtue of section 14(2) of the Proceedings Against the Crown Act, which generally bars injunctions and specific performance against the Crown and allows only declaratory relief instead. There are limited and exceptional circumstances in which that immunity may be constrained, and the decision referred to recent case law addressing those issues. However, the judge found it unnecessary to decide whether such an exception might apply here because Mr. Hawkins could not meet the standard test for an interlocutory injunction under RJR-MacDonald. That test has three components: the existence of a serious issue to be tried, the likelihood of irreparable harm if relief is not granted, and the balance of convenience between the parties. On the first element, the court observed that Mr. Hawkins had not identified a cognizable legal right or interest of his own that was engaged by the provincial project. Without such a right, there was no serious issue for the court to adjudicate on his application; the case rested on generalized concern rather than a justiciable individual or public law interest tied to him. On irreparable harm, the judge emphasized that the harm alleged by Mr. Hawkins was entirely speculative. While he feared adverse impacts on local residents and the nearby school, there was no evidence of concrete, non-speculative harm that he personally would suffer, nor any compelling record that the project would create imminent, irreparable injury. The evidence instead showed that the project would consist of sleeping units, an administration unit, a kitchenette and a washroom/laundry unit on a gated and fenced site, located near other housing, a school and commercial uses, in conformity with the existing zoning. Finally, in assessing the balance of convenience, the court contrasted Mr. Hawkins’ speculative fears about potential community impacts with the very real and pressing harms faced by those who are homeless or struggling with addictions, whom the transitional housing project was designed to assist. The judge concluded that the balance of convenience strongly favoured allowing the Province to proceed with the project rather than halting it at the behest of a resident without standing and without evidence of concrete, irreparable harm.

Outcome and costs awarded
In light of these findings, the court dismissed Mr. Hawkins’ motion for an injunction. The City of Fredericton was removed as a respondent, having been improperly named where no municipal decision or process was engaged. The judge determined there was no serious issue to be tried in respect of any right of Mr. Hawkins, no demonstration of irreparable harm, and a balance of convenience that clearly supported continuation of the provincial transitional housing initiative for homeless and addiction-affected individuals. As to costs, the judge ordered that the provincial respondents (collectively referred to as PNB, including the Ministers and the New Brunswick Housing Corporation) were entitled to a joint costs award of $1,500 plus applicable HST, payable by Mr. Hawkins. The City of Fredericton was awarded a separate costs order of $1,500 plus applicable HST, also payable by Mr. Hawkins. This means the successful parties were the Province of New Brunswick and its related respondents together with the City of Fredericton, and the total amount ordered in their favour was $3,000 before tax, with the precise final amount including HST not ascertainable from the decision.