Injunctions

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 33-60

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,

[1998]

1

S.C.R.

626.

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

interlocutory injunction

in a

defamation case

and

reviewed

the

origins

of

that jurisdiction,

at

pages

263-64:

Prior

to the

Common

Law

Procedure

Act,

1854, neither Courts

of Law nor

Courts

of

Equity

could

issue

injunctions

in

such

a

case

as

this:

not

Courts

of

Equity,

because cases

of

libel could

not

come

before

them;

not

Courts

of

Law,

because prior

to

1854 they could

not

issue injunctions

at

all.

But the

79th

and

82nd

sections

of the

Common

Law

Procedure

Act, 1854,

undoubtedly

conferred

on the

Courts

of

Common

Law the

power,

if a fit

case should arise,

to

grant

injunctions

at any

stage

of a

cause

in all

personal actions

of

contract

or

tort,

with

no

limitation.

This

power

was,

by the

Judicature

Act, 1873, conferred