R v Canadian Broadcasting Corporation: Settling the Test for Mandatory Interlocutory Injunctions
An interlocutory injunction is a flexible remedy that serves as a powerful tool for litigators. These orders act to maintain the status quo on a certain matter until the issue has been resolved at the finality of the overall proceedings. The Supreme Court of Canada (“SCC” or the “Court”) released a decision earlier this year in R v. Canadian Broadcasting Corp., 2018 SCC 5 [“CBC”] that settles the test for mandatory interlocutory injunctions. In a unanimous ruling, the Court decided that the CBC was not required to remove identifying information of an underage murder victim on their website that was published prior to the implementation of a publication ban.
Background and Judicial History
On March 5, 2016, an accused was charged with the first-degree murder of a person under the age of 18. On March 15, 2016, pursuant to s. 486.4(2.2) of the Criminal Code of Canada, RSC 1985 c C-46 [Criminal Code], the Crown successfully requested a mandatory publication ban that would prohibit the “publication, broadcast or transmission in any way of information that could identify the victim.” (CBC, para 1)
By the time the publication ban was ordered however, CBC Edmonton had already posted two articles on its website, which identified the victim both by name and by photograph. One of the articles mentioned how the victim’s identity was already widely known in the local community and was being circulated on social media. These articles continued to be accessible online even after the March 15th publication ban.
On March 18, 2018, the Attorney General of Alberta brought forth an application to the Court of Queen’s Bench of Alberta (ABQB) to have the CBC cited for criminal contempt of court for breaching the March 15, 2016 publication ban. While the criminal contempt matter was to be resolved, the Crown sought an interlocutory injunction that would require the CBC to take down the articles from its website until a ruling had been made. The ABQB dismissed this request on the grounds that the Crown failed to meet the required test to successfully obtain an interlocutory injunction. At the third stage of the test, which is outlined below, Justice Michalyshyn of the ABQB weighed the harm to CBC’s freedom of expression against any harm to the administration of justice if the articles remained on the website, and concluded in favour of CBC. This ruling was overturned by the Alberta court of Appeal in a 2-1 split decision, paving the way for this matter to reach the SCC.
The Traditional Approach on Seeking an Interlocutory Injunction
The original approach on seeking an interlocutory injunction is derived from the RJR-Macdonald v Canada (Attorney General),  1 SCR 311 [“RJR-Macdonald”]. The court is required to apply a three-stage test that answers the following questions:
- Has the applicant satisfied that there is a serious question to be tried?
- Will the applicant suffer irreparable harm if the relief is not granted?
- Does the balance of convenience favour granting the application?
CBC hinged upon determining the threshold that meaningfully satisfies the first part of the test and how that may differ depending on the nature of the interlocutory injunction sought. A mandatory injunction essentially compels the respondent to do something while a prohibitive injunction would compel a respondent from refraining to do something.
Due to the mandatory nature of the injunction being sought, both parties agreed to a modified version of this test. Instead of satisfying the Court that there was a serious issue to be tried, the parties submitted, the first stage of the test required a higher threshold and should ask instead whether or not the Crown has a strong prima facie case upon which the interlocutory injunction is being sought (CBC, para 13).
Courts across Canada have been inconsistent regarding the threshold applied to the first stage of the RJR-Macdonald test. While courts in Alberta and Ontario have generally stuck with the strong prima facie case requirement, others have instead opted for the less onerous “serious issue to be tried” threshold (CBC, para 14). Such inconsistency creates confusion in the law and as such, the SCC took this opportunity to clarify this matter and outline which approach is more appropriate.
The SCC Decision
The SCC asked the following question:
- What is the applicable framework for granting a mandatory interlocutory injunction?
Writing for a unanimous court, Justice Rowe acknowledged the test laid out in RJR-Macdonald, and that the first stage of the test has historically required the judge to “undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a ‘serious question to be tried’, in the sense that the application is neither frivolous nor vexation.” (CBC, para 12) However, the court then distinguishes this case from RJR-Macdonald due to the mandatory nature of the interlocutory injunction and says,
…on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR—MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case (CBC, para 15).
The reason for this distinction is that a mandatory injunction forces the respondent to “put the situation back to what it should be” and that this is often a costly and burdensome endeavour.
The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction further demand an extensive review of the merits at the interlocutory stage. (CBC, para 15)
Justice Rowe acknowledges that at times, it may be difficult to truly distinguish between mandatory and prohibitive injunctions, but that ultimately it is upon the application judge to look beyond the language of the order sought and determine whether the overall effect of the injunction “would be to require the defendant to do something, or to refrain from doing something.” (CBC, para 16).
Finally, in defining the meaning “a strong prima facie case,” the court must be convinced that there is a strong likelihood that the applicant will be successful in proving the allegations set out in the originating notice (CBC, para 17)
In this case, the SCC was unconvinced that the Crown had satisfied that there was a strong likelihood that they would successfully prove CBC’s guilt of criminal contempt of Court. The SCC sided with CBC’s argument that the statutory provision in s. 486.4 of the Criminal Code could be interpreted reasonable as only prohibiting publication which occurred for the first time after the publication ban. This means that the two articles that CBC published prior to the ban – even though they remained online – may not violate the terms of the non-publication order. As such, the ABQB was correct to dismiss the application.
The Court has made it more difficult to successfully seek a mandatory interlocutory injunction by affirming the high threshold requirement for the first stage of the test. It now also becomes critical as to whether the Court will classify the injunction sought as being mandatory or prohibitive since the threshold differs depending on the classification. Any party seeking such an order will find it crucial to undertake a careful analysis in light of CBC and determine whether there are sufficient grounds to pursue their application. Litigators should look to the essence of the injunction that they are seeking rather that the simple language of it to make this determination.