Canada: The SCC Clarifies a Heightened Threshold Requirement for Mandatory Injunctions in R v Canadian Broadcasting Corporation

The first stage of the classic tripartite test for granting an interlocutory injunction, originating from RJR MacDonald v Canada (Attorney General),¹ requires the plaintiff to demonstrate a "serious question to be tried." Canadian courts have been divided on the issue of whether there should be a heightened threshold at the first stage of the RJR-MacDonald test where a mandatory interlocutory injunction is being sought. In R v Canadian Broadcasting Corporation,² the Supreme Court clarified that there is a heightened threshold at the first stage of the RJR-MacDonald test in that the plaintiff must establish a "strong prima facie case" in order to be granted a mandatory injunction.

Factual Background

A publication ban was ordered to prevent the dissemination of the identification of a murder victim who was under the age of 18. The CBC refused to take down two articles from their website which identified the victim, but which were published prior to the publication ban. The Crown sought an order for a mandatory interlocutory injunction directing the removal of the identifying information on the basis that the CBC was in criminal contempt of court.

The Applicable Standard: A Strong Prima Facie Case

In an unanimous decision, the Supreme Court concluded that 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, as some courts have determined in the past, but rather whether the applicant has shown a strong prima facie case.

The Honourable Justice Brown, writing for the majority, explained that a mandatory injunction requires the defendant to take active steps to restore the status quo of the applicant, which can be costly and burdensome on the defendant. As well, restorative relief can usually be obtained at trial. Therefore, the risk of harm to the defendant is more likely than the risk of harm to the plaintiff if the plaintiff is to wait until trial to obtain restorative relief. It follows that when assessing a request for a mandatory injunction, a more extensive review is required at the first stage of the RJR-MacDonald  test than a prohibitive injunction, which only requires the defendant to refrain from a specific act.

The Court also provides clarification as to what constitutes "a prima facie case" in that "the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the application will be ultimately successful in proving the allegations set out in the originating notice." ³ For example, if the court concedes that there are multiple arguable positions, as it did in this case, there is not a strong likelihood that the plaintiff will be successful at trial.

In applying this standard to the facts in R v Canadian Broadcasting Corporation, the Supreme Court concluded that the Crown failed to demonstrate a strong prima facie case as there was not a strong likelihood that the Crown would be successful in proving that CBC was in criminal contempt of court based on the law and the evidence in front of them.

Commentary

When deciding whether to proceed with asking the court to grant an order for a mandatory injunction, significant consideration should be given to whether the case-specific facts and evidence will be able to overcome the heightened threshold that has now been affirmed. Even though injunctions can be a powerful tool for achieving interim restorative relief, if the analysis reveals that the bar of establishing a strong prima facie case is probably too high to reach, it might warrant reconsidering bringing such an application or motion. This is especially true in light of the fact that injunctions are typically expensive and in the event that the plaintiff is unsuccessful, there is a risk of a large cost award being ordered against them in many provinces.

It is also of the utmost importance to consider whether the court will decide to classify the injunction being sought as a mandatory injunction. The Supreme Court advised that judges should look past the form and the language in which any proposed injunction is framed and identify the substance of what is being sought. In other words, even if a party self-identifies the injunction sought in its materials as being a prohibitive injunction, if the court determines that the effect of granting the order would require the defendant to take positive actions, it will be deemed to be a mandatory injunction and thus establishing a strong prima facie case will be required.

The Supreme Court describes the heightened threshold as "not an easy burden to discharge." ⁴ As such, a careful analysis should be undertaken in light of R v Canadian Broadcasting Corporation and other jurisprudence that utilize the modified RJR-MacDonald test when considering whether to pursue a mandatory injunction.

Case Information

R. v. Canadian Broadcasting Corp., 2018 SCC 5

Docket: 37360

Date of Decision: February 9, 2018

Footnotes

1 [1994] 1 SCR 311 [the "RJR-MacDonald Test"].

2 2018 SCC 5.

3 Ibid at para 17.

4 Ibid at para 28.

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