Don’t Bother Asking: Supreme Court of Canada Raises the Bar for Mandatory Injunctions in R. v. Canadian Broadcasting Corporation (CBC)

Mandatory interlocutory injunctions – court orders, made in the context of a lawsuit, that a party take a positive action as opposed to refrain from taking an action – are notoriously tough to get. Part of the problem is that courts, in recent years, have been all over the map on the applicable legal test and in particular, on the threshold an applicant must meet to succeed. On February 9, 2018, the Supreme Court of Canada rendered its final answer, and denied the Crown’s application for an mandatory interlocutory injunction in its decision in R. v. Canadian Broadcasting Corporation. From now on, a party seeking a mandatory interlocutory injunction will be subject to a heightened degree of judicial scrutiny, and courts are likely to order one only in the most compelling factual circumstances. Thus, the Court has, for all practical purposes, fashioned a new legal test for a mandatory interlocutory injunction requiring an applicant to prove a probability approaching certainty that it will succeed at a trial of the merits of its case. It remains to be seen just how, and even if, a mandatory injunction could be ordered outside of an application for a judgment.

The Commercial Relevance. Mandatory interlocutory injunctions 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 and a conflict between privacy and free speech rights.  They 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. In R. v. Canadian Broadcasting Corporation, an accused was charged with the murder of a 14-year-old girl. The Crown sought and received a ban on the publication of any information that might identify the alleged victim. By then, however, the alleged victim’s identity had already been in wide public circulation, especially on social media. And there were at least two postings on the CBC Edmonton website that identified the victim, one of which included her photograph. Edmonton police asked the CBC take the website posts down. The CBC pledged no future or additional reporting that might tend to identify the victim and violate the publication ban. However it refused to take down the posts that pre-dated the ban, arguing they were legal when posted and they couldn’t be ordered to effectively “un-post” legally posted news. The Crown brought criminal contempt proceedings against the CBC and sought a mandatory interlocutory injunction to compel the CBC to take down the posts pending its criminal trial. The Crown initially failed, but appealed and succeeded. The CBC appealed to the Supreme Court of Canada. The Court agreed the Crown did not meet the burden for an mandatory interlocutory injunction, and in so doing fashioned a new legal test requiring a court to find probability approaching certainty that the moving party is correct before it will grant a mandatory interlocutory injunction:

• The New Mandatory Interlocutory Injunction Threshold. The Court finally reconciled whether, at the first stage of the interlocutory injunction test, 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 landed on the higher “strong prima facie case” threshold: where the remedy sought is a mandatory interlocutory injunction, a court must conduct “‘an extensive review of the merits’ at the first stage of analysis”. The Court’s primary rationale is that a mandatory injunction at an interlocutory stage of a lawsuit can effectively represent a final resolution in favour of the party seeking the injunction.
• The Practical Application. The Court next turned to the practical application of the “strong prima facie case” concept. It’s been unclear 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 decided the applicable standard, while flexible, necessarily entails 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.

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