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Appeal Court Confirms Key Role of Courts & Injunctions to Resolve Disputes

Published:

February 3, 2022

Author(s):

• Harvey Morrison, KC
• Noah Entwisle

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On January 26, 2022, the British Columbia Court of Appeal extended an injunction preventing protesters from interfering with a logging company’s rights on its land. The decision in Teal Cedar Products Ltd. v. Rainforest Flying Squad confirms that courts continue to play a central role in protecting lawful rights from illegal interference, even where police are capable of taking independent action – and that courts must not retreat from their constitutional duty to resolve contentious disputes due to misplaced concern that their actions will be publicly unpopular or misconstrued. As a result, interlocutory injunctions will continue to be the preferred legal solution for those facing substantial or illegal interference with their lawful activities, an outcome particularly welcome by members of the energy and natural resources sector that frequently rely on them to respond to public protest.

The Case

Teal Cedar Products holds a tree farm license over land on southern Vancouver Island. In August 2020, protestors concerned about the destruction of old growth forests blocked roads at various locations in and around the land. The large-scale protests prevented Teal Cedar from exercising its lawful rights on the land and many of the protestors’ tactics were criminal offences.

The Injunction Order. Teal Cedar obtained an interlocutory injunction from the B.C. Supreme Court requiring the blockades to disperse and authorizing the RCMP to arrest and remove protestors disobeying the order and requiring it to preserve public access to the logging roads in the land. As part of their enforcement strategy, the RCMP established checkpoints at various entry points into the land, blocked public vehicle access, and required pedestrians to submit to searches prior to entry. The RCMP created “exclusion zones” in certain areas, and exercised substantial control over media activity inside the land. Hundreds of arrests were made. However, following applications by members of the public and the media, the Supreme Court ruled the RCMP’s enforcement of the injunction unlawful. The Court found the RCMP blocked access to the land, contrary to the terms of the order, and that the exclusion zones, checkpoints, and searches were not reasonable and necessary means of enforcing the order.

The Extension Application. Teal Cedar subsequently applied to the B.C. Supreme Court for a one-year extension of the injunction. The Court refused. Applying the three-part test for an injunction endorsed by the Supreme Court of Canada in its seminal 1994 decision in RJR MacDonald, the Court found Teal Cedar clearly established a “serious question to be tried” and the existence of probable “irreparable harm” if the injunction were not extended, but failed to establish that the “balance of convenience” favoured the extension.

• Enforcement Gap. Teal Cedar argued extension was necessary because the RCMP refused to arrest protestors without an injunction. The RCMP testified it believed the B.C. Prosecution Service would not prosecute any protestors without an injunction. The Court disagreed with the RCMP’s assessment, and held the Prosecution Service’s policies indicated it would in fact prosecute the protestors in lieu of an injunction due to the escalating severity of the protests. Although the Court conceded it was important to uphold the rule of law, it concluded the injunction was not necessary to do so given the lack of an “enforcement gap”.

• Public Interest. The Court also found there were significant public interest concerns weighing against Teal Cedar in the “balance of convenience”. Specifically, the Court was concerned that extending the injunction would compromise the Court’s reputation and create the perception it was “taking sides”. The Court found the RCMP’s expansive, heavy-handed, and at times unlawful, enforcement of the injunction increased the risk that the Court’s reputation would be compromised. The Court also considered the possibility that the injunction had reduced the public’s ability to access the roads in the land as a further factor weighing against Teal Cedar.

The Appeal

Teal Cedar appealed the Supreme Court’s refusal to extend the injunction. The B.C. Court of Appeal reversed the decision, and extended the injunction:

Ever-present Enforcement Gap. The Supreme Court erred in finding an enforcement gap only exists if it appears police will not intervene to protect lawful interests from illegal interference without a court order. Instead, the Appeal Court held enforcement gaps always exist for private people or entities (as distinct from government) seeking to protect their lawful rights from illegal interference. Because Teal Cedar could not force the RCMP to protect its lawful interests from illegal interference, an enforcement gap existed. Teal Cedar’s only option was to ask the courts to intervene.

Criminal Remedies Don’t Tip the “Balance of Convenience”. The Supreme Court also erred by considering the availability of criminal law remedies at the “balance of convenience” stage of the interlocutory injunction test. However, the Appeal Court conceded that the likelihood of police intervention could be relevant to the question whether an applicant for an interlocutory injunction could establish the existence of “irreparable harm”. If the applicant can show that police would intervene and prevent some or all of the illegal interference, this might affect the applicant’s ability to establish it would suffer irreparable harm without an interlocutory injunction.

Criminal Law Remedies Relevant But Not Decisive. The Court of Appeal offered a pointed criticism of the Supreme Court’s attempt to second-guess the RCMP’s belief that the Prosecution Service would not prosecute arrested protestors without a court order. The Appeal Court emphasized the Service’s independence and the importance that it exercise its own discretion to make prosecutorial decisions, criticizing the Supreme Court’s attempt to conduct its own analysis of how the Service would (or should) interpret and apply its own internal policies. The Court of Appeal held the available evidence demonstrated the Service probably would not prosecute protestors without a court order, in keeping with its approach to that point.

Courts Can’t Fear Backlash. The Court of Appeal firmly rejected the Supreme Court’s reputational concerns. The extension of the injunction to prevent illegal interference with Teal Cedar’s lawful activities should not be construed as an endorsement of the actions of Teal Cedar or the RCMP, but of the rule of law. The Court of Appeal further held that the court should not deny Teal Cedar a remedy because of the RCMP misconduct, referring to various means to hold the RCMP accountable for alleged misconduct without unfairly punishing Teal Cedar.

Injunctions Intact  

As a result of the Court of Appeal’s decision in Teal Cedar v. Rainforest Flying Squad, interlocutory injunctions will continue to be the preferred remedy for people and private entities faced with substantial or illegal interference with their lawful activities. In particular, members of the energy and natural resources sector, which frequently rely on the courts – and injunctions – to protect illegal disruptions of their lawful activities, will welcome the Appeal Court’s decision. If allowed to stand, the Supreme Court’s decision would have:

• Made it far more difficult to protect lawful activities from substantial and illegal interference. When faced with the most egregious forms of illegal conduct, those affected would be left with little choice but to wait and hope for police intervention. Paradoxically, the Supreme Court’s reasoning would have ensured that injunctions would not be available in the exact situations where they are most urgently needed.

• Made interlocutory injunctions vulnerable to undermining by the actions of third parties. Police conduct could have been used in subsequent cases to justify revoking an injunction even where it was clearly necessary to prevent irreparable harm because of illegal interference with lawful activities.

By overturning the Supreme Court’s decision, the Court of Appeal re-affirmed its commitment to the longstanding approach to interlocutory injunctions first endorsed by the Supreme Court of Canada in its 1994 decision in RJR-MacDonald. In so doing, the Court of Appeal confirmed that the legitimate interests and the conduct of the parties in question are the paramount consideration in interlocutory injunction analysis.

Please contact your McInnes Cooper lawyer or any member of our Litigation Team @ McInnes Cooper to discuss how we can help you resolve your legal disputes.

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