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February 15, 2018
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:
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