Injunctions

AuthorRoger McConchie; David Potts
ProfessionMember of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
Pages33-60
CHAPTER
FIVE:
Injunctions
A.
SPECIAL
RULES
APPLY
At
the
outset
of
defamation litigation,
a
plaintiff
may
give
high
priority
to
preventing further publication
of the
defamatory
expression.
In
this
regard,
a
number
of
issues
arise
for
consideration:
i)
Will
the
court grant injunctive relief before trial?
ii)
Should
an
application
for an
interlocutory injunction
be
made
ex
parte
or
with notice
to the
opposing
party?
iii) Will
the
trial court grant
a
permanent injunction?
Although
a
large body
of
case
law
addresses these issues,
the
basic princi-
ples governing
the
exercise
of the
judicial discretion
to
enjoin defamatory
expression
are
conveniently expressed
in the
following leading cases:
Bonnardv.
Ferryman,
[1891]
2 Ch. 269
(C.A.).
Canada Metal
Co.
Ltd.
et
al.
v.
Canadian Broadcasting Corp.
et
al.
(1974),
44
D.L.R.
(3d)
329
(Ont.
H.C.J.),
afFd
(1975),
55
D.L.R.
(3d)
42
(Ont. Div.
Ct).
Rapp
v.
McClelland
&
Stewart
Ltd. (1981),
34
O.K.
(2d)
452
(H.C.J.).
Canadian Human Rights Commission
v.
Canadian Liberty
Net,
The
fundamental rule
is
that
a
court will exercise
its
jurisdiction reluc-
tantly.
At the
pretrial stage,
a
court
is
extremely cautious about enjoining
free
speech. Interlocutory injunctions will
be
granted only
in
exceptional
circumstances, where
the
words complained
of are
unarguably
defamatory
and
where
a
jury verdict dismissing
the
action would clearly
be
perverse.
The
ordinary test
for the
grant
of an
interlocutory injunction does
not
apply
to
defamation litigation. That ordinary test
has
three stages:
33
34
CANADIAN LIBEL
AND
SLANDER ACTIONS
i)
Is
there
a
serious question
to be
tried?
ii)
Would
the
applicant
suffer
irreparable
harm
if the
application
were
refused?
and
iii)
Which
of the
parties would
suffer
greater harm
from
granting
or
refusal
of the
injunction
pending
a
decision
on the
merits?
In
defamation litigation,
the
third stage,
the
"balance
of
convenience," plays
virtually
no
role
in the
determination
by the
court whether "prior restraint"
of
freedom
of
expression
is
warranted.
After
a
trial verdict
for the
plaintiff,
a
permanent injunction
may
issue
if
the
court
is
satisfied
that
the
defamation
is
injurious
to the
plaintiff
and
there
is
reason
to
apprehend
further
publication
by the
defendant.
Safeway
Stores
Ltd.
v.
Harris,
[1948]
4
D.L.R.
188
(Man. K.B.) varied,
[1948]
4
D.L.R.
187
(Man.
C.A.).
The
jurisprudence
is
discussed
in
detail below.
B.
INJUNCTIVE RELIEF BEFORE TRIAL
1) Bonnard v. Ferryman
The
leading
case
is
Bonnard
v.
Ferryman,
[1891]
2 Ch 269
(C.A.),
where
the
Court
of
Appeal
set
aside
an
interlocutory injunction granted
by
North
J. of
the
High Court
to
restrain
the
publisher
of a
weekly newspaper
from
fur-
ther
"selling, circulating,
or
delivering
or
communicating
to any
person
or
persons,
or
permitting
to be
sold
or
circulated,
or
delivered
or
communi-
cated,
to any
person
or
persons" copies
of an
article critical
of the
plaintiffs
and
their
business
activities.
In the
Court
of
Appeal, Lord Coleridge
CJ.
(Lord
Esher
M.R.,
and
Lind-
ley
Bowen,
and
Lopes
LLJ.
concurring) confirmed
the
existence
of a
juris-
diction
to
grant
an
interlocutor<