Sep 28, 2020

A New Test for Interim Mandatory Injunctions

RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311

Often a major dispute in a proceeding is who has to do what until the matter is finally decided. Courts frequently rely on the status quo so if one side wants to preserve it in the face of a proposed regulatory change, they traditionally only had to prove that there is a serious issue to be considered, they will suffer “irreparable harm” and the “balance of convenience” favours their position: RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, http://canlii.ca/t/1frtw.

More recently, the Supreme Court of Canada recently stated that if a party wants to order the other party to do something, their position has “such merit that it is very likely to succeed at trial”: R. v Canadian Broadcasting Corp., 2018 SCC 5, http://canlii.ca/t/hq979. In the CBC case the court refused to order a media outlet to temporarily remove articles identifying a victim posted before an order banning publication was made because it was not clear that the application to permanently do so would succeed.

Even more recently, in Moore v The Law Society of British Columbia, 2018 BCSC 386, http://canlii.ca/t/hr06v, the Court confirmed this new test on an interim request to remove the restrictions imposed on a lawyer’s licence pending a full hearing on the validity of those restrictions. Ultimately the Court did not have to assess the strength of the applicant’s case because the balance of convenience favoured the regulator.

One can see this new test becoming an issue when a regulator seeks an interim injunction compelling an unregistered practitioner to stop practising or to cease using a protected title. This new test is less likely to become an issue for interim suspension orders during investigations or hearings because the legislation often imposes its own legal test for making the determination (i.e., likely to expose a client to harm or injury).