The Supreme Court of Canada (SCC) has clarified the test for mandatory injunctions under the RJR-MacDonald framework and resolves conflicting case law concerning the strength of the case that the applicant must establish in order to succeed by requiring that the applicant demonstrate a strong prima facie case that it will likely succeed at trial, as opposed to a serious issue to be tried. This higher threshold reflects the serious nature of the mandatory relief.
An accused was charged with first degree murder of an individual under the age of 18. The Crown requested — and a judge subsequently ordered — a mandatory ban under s. 486.4(2.2) of the Criminal Code to prohibit the publication, broadcast, or transmission in any way of information that could identify the victim. The Canadian Broadcasting Corporation (CBC) refused to remove from its website the victim’s identifying information published prior to the order granting the ban.
The Crown filed an Originating Notice seeking an order citing CBC for criminal contempt, and an interlocutory injunction directing removal of the information from CBC’s website. The chambers judge of the Alberta Court of Queen’s Bench applied a modified version of the tripartite test for interlocutory injunctions as laid out in RJR-MacDonald. This required the Crown to prove a strong prima facie case for finding CBC in criminal contempt, that the Crown would suffer irreparable harm if the application was refused, and that the balance of convenience favoured granting the injunction. The chambers judge concluded that the Crown had not satisfied any of the requirements for a mandatory injunction and dismissed the application.
Court of Appeal
The majority of the Alberta Court of Appeal allowed the appeal and granted the injunction. The majority held that the Originating Notice had a “hybrid” aspect to it, in that it sought both a citation for criminal contempt and the removal of the victim’s identifying information from CBC’s website. Here, the strong prima facie case that the Crown was bound to show was not for criminal contempt, but rather for an entitlement to a mandatory order directing removal of the identifying material from the website. Upon reframing the issue, the majority found that the Crown had satisfied the test.
In dissent, Greckol JA held that a literal reading of the Originating Notice did not support the majority’s conclusion. Rather, the wording of the Originating Notice shows that the Crown brought an application for criminal contempt and sought an interim injunction in that proceeding. There was only one claim and a corresponding remedy; not two separate claims. Accordingly, Greckol JA would have dismissed the appeal as the chambers judge had accurately characterized the issue. The chambers judge’s exercise of discretion to refuse an injunction was entitled to deference.
Supreme Court of Canada
The SCC agreed with Greckol JA and found that each prayer for relief in the Originating Notice did not launch an independent proceeding; rather, both related to the alleged criminal contempt. Accordingly, the Court held that the chambers judge was correct in finding that the Crown had the burden to demonstrate a strong prima facie case of criminal contempt.
In so doing, the SCC clarified the applicable framework for granting mandatory injunctions. It held that an applicant must meet the following test:
- The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
- The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
- The applicant must show that the balance of convenience favours granting the injunction.
In applying the test, the SCC found that there was no reason to disturb the chambers judge’s decision – the Crown had failed to discharge its burden that it could “likely succeed at trial” with respect to the finding of criminal contempt. As this finding was dispositive, the Court did not see the need to consider the other two stages of the modified RJR-MacDonald test.
As Canadian courts have, since RJR-MacDonald, been divided on the appropriate framework for mandatory injunctions, this decision provides welcome guidance.
The author would like to thank Peter Choi, articling student, for his contributions to this article.