Feb 16, 2018

“Don’t Bother Asking”: SCC Raises the Bar for Mandatory Injunctions

R. v. Canadian Broadcasting Corp., 2018 SCC 5 (CanLII)

Any law student (especially one who has studied remedies) would confirm all forms of mandatory interlocutory injunction are difficult to obtain. Any seasoned lawyer (especially one experienced inequitable forms of relief) would confirm the availability of mandatory interlocutory injunctions, like interlocutory injunctions generally, kind of “depends”. The courts and the judges, they would say, have been all over the map in recent years on just what tests apply to mandatory interlocutory injunction applications: the traditional triumvirate of tests arising out of decisions such as RJR-MacDonald Inc. v. Canada (Attorney General), Manitoba(Attorney general) v. Metropolitan Stores Limited and American Cyanamid Co.v. Ethicon Limited, [1975] A.C. 396 (H.L.); or a more onerous set of tests akin to those such as would be applied on similar factual bases, but to summary judgment motions.

On February 9, 2018, the Supreme Court of Canada rendered its final answer and denied the Crown’s application for a mandatory interlocutory injunction in its decision in R.v. Canadian Broadcasting Corporation: from now on, parties seeking mandatory interlocutory injunctions are on notice that they will be subject to heightened degrees of judicial scrutiny, and courts are likely to order mandatory interlocutory injunctions only on the basis of the most compelling factual circumstances. As to the overall merits of the Crown’s case against the CBC, it appears nothing has changed: though the Crown has acknowledged the Court’s ruling, it has also highlighted that its criminal prosecution against the CBC will proceed later this year. But as to the burden for a mandatory interlocutory injunction, it appears that for all practical purposes the Court has fashioned a new test requiring a court to find probability approaching certainty that the moving party is correct. It is thus that the test may even be seen as akin to that applicable to motions for summary judgment. It’s well beyond doubt that it is now a very high burden and it will remain to be seen, as similar cases come forward, just how and even if a mandatory injunction could be ordered outside of summary judgment.

The Commercial Relevance

Mandatory Interlocutory injunctions - court orders that a party act positively, as contrasted with a prohibitory injunction in which a court orders a party to not do something or to stop doing something- have a relatively infrequent, but important, role to play in commercial litigation.They often arise, as they did in this case, in the context of media coverage. The issue at stake in R.v. Canadian Broadcasting Corporation was extreme, pitting the public’s right to know against an alleged crime victim’s right to privacy (though the real privacy issue might have been that of the crime victim’s family, as the victim herself had been allegedly murdered); parenthetical was the issue of a broadcaster’s right of commercial free speech. Mandatory interlocutory injunctions also arise, however, in other contexts, such as labour disputes. And in today’s Internet age as the law endeavours to keep pace with the legal ramifications of more posts shared with more people across more electronic platforms with traditional civil wrongs such as defamation or new civil wrongs like damage to reputation and public disclosure of private facts (or even “the right to be forgotten”?), it’s conceivable – and even likely – that more litigants will seek mandatory interlocutory injunctions to remove content online. Yet all will now face strict scrutiny if they seek such an injunction.

The Case

An accused was charged with the murder of a 14-year-old girl. Upon the accused’s arraignment, the Crown sought and received a ban on the publication of any information that might serve to identify the alleged victim. By that time, however, the alleged victim’s identity had been in wide public circulation, especially on social media. And there were at least two postings on the CBC Edmonton website which identified the victim, one of which included her photograph. The Edmonton police requested that the CBC take the website posts down, but the CBC refused as the publication had been made prior to the publication ban. Though the broadcaster pledged no future or additional reporting that might tend to identify the victim and thus violate the publication ban, its position was that what was on its website was legal at the time of posting and it could not be required as a matter of law to effectively un-post legally posted news. The Crown and police disagreed and brought criminal contempt proceedings against the CBC. They also sought an mandatory interlocutory injunction in an effort to compel the CBC to take down the subject website posts pending its criminal trial.

No Injunction in Chambers. The Crown failed in the initial chambers hearing. The Alberta Court of Queen’s Bench decided a“modified version” of the tripartite test set out in RJR-MacDonald Inc. v. Canada (Attorney General) applied to mandatory interlocutory injunctions. It was therefore incumbent on the Crown to prove a strong prima facie case of criminal contempt, irreparable harm and balance of convenience. The judge also held the operative Criminal Code provisions could be reasonably interpreted as applying only to future publications, and not to publications that had already taken place. That interpretation undermined the Crown’s position on the strength of its interlocutory case. The Crown appealed.

An Injunction on Appeal. A divided Alberta Court of Appeal sided with the Crown. It decided the Crown need not prove a strong prima facie case of criminal contempt. The Crown need only prove a strong prima facie case that the publication ban had been breached in some fashion. The majority of the Court of Appeal held that publication of the deceased’s identity was a continuous activity such that it mattered not that the publication was at one time legal (though curiously, the majority held the contrary position was also “arguable”). The minority of the Court of Appeal would have found the chambers judge was correct: the mandatory interlocutory injunction motion was inextricably tied to the criminal contempt allegation such that there couldn’t be a strong prima facie case in support of the former without, at the same time, a strong prima facie case in support of the latter. The minority would also have held that because it was merely arguable that the operative Criminal Code provisions could be interpreted as applying to publications that had already taken place as well as to future publications, the Crown couldn’t meet its burden of establishing a strong prima facie case. The CBC appealed to the Supreme Court of Canada.

The Supreme Court of Canada’s Decision

The Supreme Court of Canada upheld the decisions of the chambers judge and the minority in the Court of Appeal – and refused the Crown’s application.

The “New”Mandatory Interlocutory Injunction Test. The Supreme Court of Canada noted that injunctions thresholds vary from coast to coast, and turned first to the basic principles based on which courts are to consider interlocutory injunctions: a serious question, irreparable harm and balance of convenience (as set out in RJR-MacDonald Inc. v. Canada (Attorney General)). To these, the Court added a new principle to be considered whenever the remedy sought is a mandatory interlocutory injunction: “‘an extensive review of the merits’ at the first stage of analysis”. And in so doing, the Court finally reconciled whether courts must assess the merits of the applicant’s case on the basis of a strong prima facie case, or on the basis of a mere serious question to be tried. The Court came down on the side of the former primarily on the basis that a mandatory injunction at an interlocutory stage can represent a virtual final resolution in favour of the party seeking the injunction.

The Practical Application. From there, the Court turned to the practical application of the “strong prima facie case” concept as a proxy for the extensive review of the merits of any case where an interlocutory injunction is sought. Courts and judges have been all over the map on just what this well-known phrase means: a “strong and clear chance of success”, an “unusually strong and clear” case, “clearly right”or “clearly in the right”, a “high probability…” or a “great likelihood of success”, a “significant prospect” of success and even a case that is “almost certain”. In seeking a common thread, the Court held the applicable standard,whilst flexible, necessarily entailed findings of “such merit” as “is very likely to succeed at trial” or a “strong likelihood on the law and the evidence”that the moving party will be ultimately successful in proving its underlying allegations at trial.

An Historical Observation

Though it’s undoubtedly helpful that the Court has settled the mandatory interlocutory injunction test, it might be that it was compellingly settled more than 20 years ago.

1997. For reasons unknown, none of the Court of Queen’s Bench, the Court of Appeal or the Supreme Court of Canada appear to have considered the Alberta Court of Queen’s Bench 1997 decision in UnitedTaxi Drivers' Fellowship of Southern Alberta v. Calgary (City) and its underlying authorities. There, the court held that with respect to first step of the RJR-MacDonald analysis (a serious issue to be tried),the weight of judicial authority mandated that an applicant seeking a interlocutory mandatory injunction must demonstrate a strong prima facie case.

1994. The court based this on some compelling judicial authority, citing with approval the Ontario Supreme Court’s 1994 decision in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., which in turn cited with approval the 1970 decision of the English Court in Shepherd Homes Ltd. v. Sandham, [1970] 3 All E.R. 402 (Eng. Ch. Div.) (per: Megarry, J.): “… on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia,feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.”

1981. Egbert,J. of the Alberta Court of Queen’s Bench cited this same passage with approval in Exotic Frozen Foods Ltd. v. Nelco Corp. (1981), 29 A.R. 38 (Alta. Q.B.) (at para. 24): "However, in view of the unusual and serious results that can emanate from the granting of an interlocutory mandatory injunction (as Megarry,J. said [in Shepherd Homes Ltd. v. Sandham] "What is done is done"),I am of the view that the proper test to be applied in determining whether an interlocutory mandatory injunction should be granted in the 'strong prima facie case' test."

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