Speech Canada Metal Co. v. CBC [1974, ON HC]
Facts:
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radio broadcast will say some bad things about a company that’s contaminating a community with lead.
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Company wants an injunction against the broadcast until they’ve had their trial – say it’s defamatory.
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CBC is going to say the company is buying experts
Analysis
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Cassels: on the surface, this is a case where an injunction is easily argued
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Serious issue to be tried: √
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Irreparable harm: √
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Reputation will be harmed permanently by allegation of paying experts
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Balance of convenience? What’s the harm in asking CBC to delay a few months to allow a trial to sort out the issues
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But, in this case, an interlocutory injunction would be a prior restraint on freedom of speech
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You don’t shut down speech on basis of an allegation that it may be defamatory
Procedural background:
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TJ granted the injunction because he said he couldn’t see a way in which this wasn’t defamatory.
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came in at 3pm the day of the broadcast, only judge available, and w/o word from CBC the judge got only one side of the story.
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CBC appeals injunction
Held: injunction was granted by TJ, but CA overturned. We read the much later appellate decision.
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Came after portions of the broadcast were actually played on the radio
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ONCA establishes principles:
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A court will not grant an interlocutory injunction on basis of serious issue to be tried, or on basis of strong prima facie case, but only on basis that it is irrebuttable that the material will be defamatory.
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Court must be satisfied that the words are:
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(a) beyond doubt defamatory,
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(b) are clearly untrue (so no defence of justification could succeed), and
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(c) are not fair comment on true or admitted facts.
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all of this must be proven at the criminal or beyond criminal degree of proof before a court will grant an injunction
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Practice point: the decision is still being rendered on the basis of affidavits. Generally, where you swear something to be the case you have to provide the grounds on which you believe it is the case.
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CBC’s affidavits weren’t supported by this explanation of why they believed; court cut them significant slack, saying that what they believe to be true is a complex assessment of science, and they are documentarians who have pulled together the evidence of scientists.
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So, the courts relaxed the rules of civil procedure for ∆s
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But bear in mind, you can’t just go in with an affidavit that says “my client believes what they’re saying is true” opposing lawyer is at least supposed to be able to cross-ex or critique the affidavit, which isn’t really feasible if it just says “I think what I’m saying is true”
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The burden of this high threshold is on the plaintiff burden to establish that the allegations are untrue.
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But, can’t establish fully in preliminary hearing, but plainiff has to give affid. saying this is not true and this is why we believe that.
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has to hit the basic cause of action – untrue, libelous, ≠ aware of any defences.
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Ok, so just can’t be silent on the issue of truth, b/c that leaves them open to the justification defence. But ∆ still has to prove their defences.
Canadian Tire v. Desmond
Facts: ∆ sign “Canadian tire cheated me”
Held: injunction granted against libelous sign
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Cheat means defrauded, which requires an intention by ∆ to deceive, and there’s no evidence of that, so it’s clearly libelous.
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So, judge didn’t hold to the incredibly rigorous std of CBC, and we don’t really know exactly why, but someone probably told a better story (it’s just not in the judgment so we can’t see)
Procedural notes about CBC:
On the day of: documentary was airing at 6pm. 3pm s get injunction, served on ∆ at 5pm “don’t allege anything about buying experts”
A few months later, CBC wins on appeal so the injunction should never have been granted.
In the interim, though, on the night of: CBC went ahead with the broadcast, but did some on-the-fly editing. They read out parts of the injunction on the air to explain what they weren’t allowed to allege/refer to.
CBC was sued by Canadian Metal for contempt of court
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Held: CBC was found in contempt of court. So were the individuals involved in the broadcast, even though they weren’t specifically named in the injunction.
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Principle: You don’t have to be named in the injunction to have to honor the injunction.
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SCC: you may not be bound by injunction as a party to it, but if you know about it then it’s still contempt if you know about a court order to take steps to breach that court order.
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Principle: you can be in contempt for violating the letter of the injunction [which they didn’t do – they broadcast the injunction itself], or if you violate the spirit of the injunction.
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It’s no excuse to say you excised those portions then filled in those gaps with the court saying what they were going to say.
Medical Treatment
Possibly a lower threshold than for speech
These are difficult cases for the courts.
Typically these are disputes on the treatment of a terminally ill person either dispute among family members or between family members and doctors/health authority.
Patients who are terminally ill or in a permanent comatose/vegetative state (the lowest possible diagnosis on the brain injury scale; implies no functionality/consciousness and no hope of recovery)
Court decisions are highly nuanced, tied to facts of specific cases. [see Jin v. Calgary Regional Hospital64 and CS v. Capital Health Authority]65
In both of these cases: families argued as substitute decision-makers that there was something left that they or the person would value; doctors argued there was no hope, and a fine line between prolonging life and prolonging death.
Concern: doctors swear an oath to do no harm, and courts shouldn’t force them to undertake treatment practices that they feel violate this oath.
Note: in the background, diplomatically unmentioned, is the issue of cost to the healthcare system
Problem of social choice regarding cost
An ICU bed with a ventilatory and the attendance that would be required in these types of cases costs $3-5k per day.
Should courts be commandeering scarce public health dollars for these patients?
Whose life will not be saved as a result of an emergency ward having, say, $1million less per year?
Key Differences that Help Courts Make these Decisions:
1. Time
In Jin, the family was just looking for a little more time.
The eldest son was in China and hadn’t made it back to Canada yet to say goodbye.
The family just got the information; father had only been put into ICU and on ventilator a few days before.
So, the judge allows some time for the psychological adjustment a little time may solve the problem.
Whereas in CS, the was a dedicated daughter who was in total denial about her mother’s death
The situation looked pretty intractable; time did not seem to be making any difference.
2. The terms of the order sought were slightly different between the two cases
In Jin, the only procedures currently being applied: he was in intensive care, on a ventilator, and there was no DNR order.
In CS, there were a lot of positive measures keeping her alive: ventilator, lots of drugs and procedures.
Balancing: patients and their representatives get autonomy over treatment decisions, but doctors shouldn’t be forced to do things they think are bad/wrong/harmful.
It’s one thing to say “don’t pull the plug on a ventilator”, and another thing to say “spend a few hours of your time and resources every day applying a treatment you think is wrong.”
So, in Jin, the court said the hospital could withdraw all other treatment, but couldn’t unplug the ventilator. If they were going to do that, had to give 72 hours notice so the family could go to court again and seek an injunction, if necessary.
Rasouli
ON case, recently got leave to appeal to SCC
Facts:
R went into hospital for brain operation, got an infection and was left in what doctors said was a permanent vegetative state.
Family believed there was some spark still there.
Ventilator to breathe – lungs weren’t working.
ONCA gave injunction in May 2011, SCC gave leave to appeal but it hasn’t been argued yet.
A recent news story indicated that Mr. R had some degree of consciousness; his doctors raised his prognosis from totally vegetative to one step above.
So, SCC had to have a mini-hearing to determine whether the action is moot, since the facts are different from those in front of the TJ now but ultimately they decided to hear it on the original facts.
This is a prime opportunity for legislative intervention.
Environmental Disputes and Aboriginal Interests MacMillan Bloedel v. Simpson [1996, SCC]
Company had legal license to log;
One of several cases emerging from dispute around MacMillan’s logging operations in the Clayoquot Sound area in BC
Seeking injunction to prevent petty criminal activity
Standing issue: does company have right to bring action?
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Recall Gouriet: shouldn’t give standing to enforce criminal law, should really be the AG (HL in Gouriet said we don’t want “officious intermeddlers” to come to court and second guess the discretion of the AG not to pursue something.)
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But, has land rights here, which are being infringed. So, that makes it a trespass case and they do have standing.
Issue: John Doe/Jane Doe usage
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Usually you use this where you’ll know by trial who is involved, and just need a preliminary order before you have that info.
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But here, they didn’t know the names of everyone involved, and wanted to have the injunction cover anyone.
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SCC: that’s ok an injunction binds anyone who knows about it, so it’s fine whether people are named or not. The John Doe/Jane Doe procedure is really just a courtesy, highlighting that other people will be bound.
At the end of the day, photocopied many, many copies of the order, and anytime someone came by in the woods they’d hand them a copy and read it to them, as would the police.
There were more than 500 arrests made as a result of these orders.
Platinex v. Kitchenuhmaykoosib Inninuwug First Nation
Dispute re crown land owned by third party
had mineral rights in NW ON
License allows exploratory drilling for mineral samples
But, also, KI first nation. Ceded the land to the crown under their treaty, but still have use rights (hunting etc.)
So, issue: how do you reconcile the two competing interests?
Courts sets out the approach (following Cyanamid architecture):
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1. Is there a serious issue to be tried?
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Yes, but we’d never figure out at trial whether it’s a strong or weak case. Esp b/c aboriginal rights over land etc. are still being worked out.
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Issue: the Duty to consult
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When there’s a proposal to take up crown land, and a competing right to that land, the primary duty of gov’t is to consult and accommodate.
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Judge explains that the duty of consultation and accommodation does not mean a duty to obtain agreement.
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If he doesn’t give an injunction, just running roughshod over the aboriginal rights, but if he does, then he seems to be giving them a veto.
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TJ decides on balance of convenience that between the competing interests, he should favour the first nation.
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2. Harm?
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Only harm to company is financial, but cultural harm to FN.
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And, neither gov’t nor company had done anything by way of consultation or accommodation.
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So, even if injunction gives KI a veto power, the company brought it on itself by making zero effort to consult and accommodate.
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Note: company was going to be hit by severe financial harm.
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Won’t be compensated b/c FN couldn’t give undertaking
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And, facing bankruptcy
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The real interest they had was in consultation. Judge isn’t completely blind to this accompanies injunction w/ order:
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Band give back equipment it seized
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Immediately put consultation process in place.
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i.e. injunction won’t sit forever – just gives parties an incentive to get to the bargaining table and engage in this process.
After the injunction was granted, parties met and couldn’t resolve, injunction ran out and they wound up back in front of the same judge.
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Reading between the lines, looked like judge now saw that FN was trying to use the duty to consult as a veto.
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Lawyer for company did better job: showed low impact, that they had tried to engage in negotiations
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Refused injunction to FN and granted order to company to do their investigation
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Band then took bulldozers to mining co landing field; 6 band members went to jail
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Mining co walked away and sued ON gov’t for $5 million
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Same judge sentenced the 6 chiefs/elders to 6 months in jail, but they were released on everyone’s agreement after one month.
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Cassels: a heroic attempt by a judge to balance the interests in this case.
Constitutional Cases AG MB v. Metropolitan Stores:
Legislation:
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When a group of employees first unionizes, they try to negotiate a first contract.
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It can be very difficult to get to agreement on this.
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So, legislation says agency can come in and impose things on the employers.
Employer suing to have legislation declared unconstitutional
In the meantime, they want to freeze everything pending the final determination of the issue.
Govt of Manitoba: want the injunction availability test not to apply where the ∆ is government – should be a starting point/presumption of validity of government action, unless/until law is overturned by a court.
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Want a strong prima facie case to rebut the presumption of constitutional validity
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How can they protect the public interest without this presumption? Don’t we assume law is passed for benefit of public?
SCC rejects this argument, but fixes the problem
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1. There’s no presumption of constitutional validity: Cyanamid is the law in Canada in re interlocutory injunctions.
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2. BUT: we’ll consider that issue in the balance of convenience assessment.
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The most important factor is the public interest as it plays out in the balance of convenience.
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SCC gives a presumption that government represents the public interests
RJR MacDonald v. Canada
Nuance: reaffirms American Cyanamid (and Metropolitan Stores) in a slightly different context.
Facts: Tobacco companies seeking an injunction after QC CA has already upheld the constitutionality of the law.
Decision
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We’ll give it to you that there’s a serious issue to be tried
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Court notes exceptions to Cyanamid – there is a higher threshold in two situations: [pg 1237]
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1. Where case is, in fact, a final determination of the matter
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2. Where case involves a pure question of law that really can be decided at the interlocutory stage, court can use higher threshold.
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s in constitutional cases will almost always face irreparable harm
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Because of the nature of the right Charter rights aren’t quantified in damages
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Even if you could quantify, can you collect?
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Is there a damages remedy against government for losses you suffer during the tenure of an unconstitutional law? Not clear.
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Given the early state of development of monetary remedies for losses suffered in this context, we’ll assume will always suffer irreparable harm
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But the court doesn’t care – it’s multi-billion dollar companies (that are poisoning people) and we don’t really care if it costs them a bit more to put labels on their cigarettes.
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So, the only real issue in these cases is the balance of convenience
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Court rejects the status quo as a factor
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Partly, because it’s really hard to determine what the status quo IS, in these cases.
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All things being equal, we’ll really just have to look at the merits of the case at that point. But, it’s pretty much always decided on a judgment of the balance of convenience. Cassels can’t think of any that have gone past that.
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RJR did win in the end, on the free speech point.
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Note: distinction b/w exemption cases and suspension cases
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In some cases, litigant is just looking for themselves to be exempted from the law, and courts will be much more relaxed in granting the injunction, because there’s not a huge public interest issue.
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But where the injunction will have the effect of suspending the law across the board, then public interest is a weightier factor.
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