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The Supreme Court of Canada Clarifies the Threshold for Mandatory Interlocutory Injunctions

R v Canadian Broadcasting Corp. , 2018 SCC 5

On February 9, 2018, Justice Brown writing for the Supreme Court of Canada clarified that the threshold for a party to receive a mandatory interlocutory injunction is a high one.

A mandatory injunction is a situation in which the court orders a party to act to do something; this can be contrasted with a prohibitory injunction in which a court orders a party to refrain from doing something. Mandatory interlocutory injunctions are a pre-trial form of relief that require a party to do something which is enforceable until the conclusion of the trial. They arise relatively infrequently, have an important, though limited, role in commercial litigation, and are most often seen in cases regarding the context of media coverage.

The facts in the recent case of R v Canadian Broadcasting Corp. arose after charges were laid against an accused for the first degree murder of a person under the age of eighteen. Upon the Crown’’ s request, a mandatory ban prohibiting publication, broadcast, or transmission in any way of information that could identify the victim was ordered pursuant to section 486.4 (2.1) of the Criminal Code. Before the publication ban was issued, however, the defendant broadcasting company had posted information revealing the identity of the victim on its website. Following the publication ban, the defendant did not post anything further regarding the victim’’ s identity, but refused to remove the two articles previously posted. The Crown, therefore, sought an order citing the defendant in criminal contempt of a publication ban and granting an interlocutory injunction directing the defendant to remove the information previously posted on its website.

The Chambers Judge dismissed the Crown’’ s application, but the majority of the Alberta Court of Appeal allowed the Crown’’ s appeal and granted an injunction. The Supreme Court of Canada here allowed the appeal, restoring the Chambers Judge’’ s decision and, in doing so, clarifying the necessary threshold to be met.

The Supreme Court of Canada first noted that injunction thresholds vary across the country. The Court then considered the three part test from the case of RJR-MacDonald Inc. v Canada (Attorney General) [ 1994] 1 SCR 311, a test which must be met in order for a party to obtain a mandatory interlocutory injunction. The Court went on to clarify the appropriate framework for mandatory interlocutory injunctions: in order to obtain such an injunction, an applicant must meet this three part test, but with a modified first stage. This first stage now includes the threshold question of “" whether the applicant has shown a strongprima facie case”" . In order to show a strong prima facie case, an applicant must show a case of such merit that it is very likely to succeed at trial.

This Court explained that this high standard is appropriate because it is often costly or burdensome for the defendant to be required to undertake a positive course of action and is difficult to justify prior to trial since restorative relief can usually be obtained at trial.

Summarized in paragraph 18 of the decision inR v Canadian Broadcasting Corp., the modified RJR-MacDonald test that must be met to obtain a mandatory injunction is now:

The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

The applicant must show that the balance of convenience favours granting the injunction.

On the facts of R v Canadian Broadcasting Corp. Justice Brown concluded by saying that “"this is not an easy burden to discharge…… .and the Crown has failed to do so here”" (para 28).

So we see that the Supreme Court of Canada has adopted a very high threshold for mandatory interlocutory injunctions. The new test requires a court to find, almost certainly, that the party applying for a mandatory interlocutory injunction is correct before an award for such an injunction will be made. As a result, mandatory interlocutory injunctions are likely to be awarded in only the most compelling factual circumstances.