Don't Bother Asking: Court Raises Bar for Mandatory Injunctions

Advanced Filters

Please search by first or last name. e.g: "John" or "Smith". Your search will begin after typing at least 2 characters. Searching...
Sort by: Relevance | Name

We are pleased to provide you with detailed biographies on our lawyers, paralegals and administrative team, so you can learn more about how we can best support your business' success.

Use the search bar above or the advanced filters to further narrow your search by service, industry, office location, bar admissions, title, education and language.

: Service; Industry; Office; Position; Bar Admission; Education; Language

Contact Form

: Contact

We want to hear from you: Did we delight you with great service or a timely insight? Did we miss the mark? Are you looking for legal advice? If so, we want to know. Just type a few lines into our form, send an email to client.service@mcinnescooper.com, or call 1-855-622-6668.

Charlottetown

141 Kent St., Suite 300
McInnes Cooper Building
Charlottetown, PE
C1A 1N3

Tel: 902.368.8473
Fax: 902.368.8346

Fredericton

570 Queen St., Suite 600
Barker House
Fredericton, NB
E3B 6Z6

Tel: 506.458.8572
Fax: 506.458.9903

Halifax

1969 Upper Water St., Suite 1300
Purdy’s Wharf Tower II
Halifax, NS
B3J 3R7

Tel: 902.425.6500
Fax: 902.425.6350

Moncton

644 Main St., Suite 400
Blue Cross Building, South Tower
Moncton, NB
E1C 1E2

Tel: 506.857.8970
Fax: 506.857.4095

Saint John

1 Germain St., Suite 1700
Brunswick Square
Saint John, NB
E2L 4V1

Tel: 506.643.6500
Fax: 506.643.6505

St. John’s

10 Fort William Pl., 5th Floor
Baine Johnston Centre
St. John’s, NL
A1C 1K4

Tel: 709.722.8735
Fax: 709.722.1763

More Publications

Publication

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

February 15, 2018

By Gavin Giles, QC, Partner at McInnes Cooper,
Theron Davis, Articled Clerk at McInnes Cooper

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.

Please contact your McInnes Cooper lawyer or any member of the Litigation Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

People

Services

Publication

January 12, 2018

Legal Reality: “Virtual Presence” is enough for production order against non-Canadian company

Whether a provincial court will grant police a “production order” under the Criminal Code of Canada requiring a non-Canadian company...

Publication

June 28, 2017

Go Global @ Home: Supreme Court of Canada Confirms Global Order to Remove Internet Content

On June 28, 2017, the Supreme Court of Canada confirmed a Canadian court can issue an interlocutory injunction (an order...

Publication

June 23, 2017

Like it or Not: Class action against Facebook can go ahead in B.C. - despite terms of use

On June 23, 2017, the Supreme Court of Canada decided that in a contest between the choice of forum clause...

We are pleased to provide you with detailed biographies on our lawyers, paralegals and administrative team, so you can learn more about how we can best support your business' success.

Advanced Filters

Contact

We want to hear from you: Did we delight you with great service or a timely insight? Did we miss the mark? Are you looking for legal advice? If so, we want to know. Just type a few lines into our form, send an email to client.service@mcinnescooper.com, or call 1-855-622-6668.

Charlottetown

Fredericton

Halifax

Moncton

Saint John

St. John’s

Send Us Feedback

Un moment s'il vous plaît...

We are pleased to provide you with detailed biographies on our lawyers, paralegals and administrative team, so you can learn more about how we can best support your business' success.

Advanced Filters

Contact

We want to hear from you: Did we delight you with great service or a timely insight? Did we miss the mark? Are you looking for legal advice? If so, we want to know. Just type a few lines into our form, send an email to client.service@mcinnescooper.com, or call 1-855-622-6668.

Charlottetown

Fredericton

Halifax

Moncton

Saint John

St. John’s

Send Us Feedback

Un moment s'il vous plaît...

Share this with others

Twitter

Facebook

Google +

LinkedIn

Email