The SCC Raises the Threshold for Mandatory Interlocutory Injunctions; Québec Courts Follow Suit
Mandatory interlocutory injunctions are orders that force a party to take positive action prior to trial. When granted, they can drastically alter the course of ongoing litigation.
Yet, until recently, Canadian courts could not reach a consensus as to the applicable test for granting such remedies. While courts in some provinces required that applicants demonstrate a “strong prima facie case”, others favoured the less exacting standard of a “serious issue to be tried”.1
This past February, in R. v. Canadian Broadcasting Corporation2, the Supreme Court of Canada ostensibly put an end to this controversy, finding that the higher threshold of the “strong prima facie case” is, in fact, the correct one. Since, Québec courts have been quick to adopt this more stringent standard.
I. R. v. CBC: the requirement of a strong prima facie case
The facts in R. v. CBC are relatively straightforward. The CBC had posted two articles to its website that identified a murder victim who was a minor. After the articles were posted, the Crown sought and obtained a court order banning the publication of any information that could identify the victim. The CBC then refused the Crown’s request to take down the articles, as they predated the publication ban.
The Crown brought an application for criminal contempt against the CBC, coupled with an application for a mandatory interlocutory injunction requiring the CBC to take down the articles pending trial. The chambers judge of the Court of Queen’s Bench of Alberta refused the Crown’s application for a mandatory injunction, finding that the Crown had failed to meet its burden of proving a “strong prima facie case” for criminal contempt. A majority of the Court of Appeal of Alberta overturned that decision and granted the mandatory interlocutory injunction against the CBC.
In a unanimous decision, the Supreme Court of Canada granted the CBC’s appeal, finding that the chambers judge had properly refused to grant the injunction, as the Crown had failed to present a “strong prima facie case” for criminal contempt against the CBC.
Writing for the Court, Justice Brown set out the applicable test for obtaining a mandatory interlocutory injunction as follows:
 In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR—MacDonald test, which proceeds as follows:
(1) 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;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.3
Consequently, to obtain an order compelling a defendant to take positive action (i.e. to do something) prior to trial, the Supreme Court found that applicant must “show a case of such merit that it is very likely to succeed at trial.”4
The Court in R. v. CBC acknowledged that distinguishing between mandatory and prohibitive injunctions (i.e. those that require a defendant to refrain from doing something) can be difficult. In this regard, Justice Brown invited applications judges to look past the form and language of the order sought in order to determine what the practical effects of the injunction are likely to be.5
II. Québec courts promptly adopt the test in R. v. CBC
Québec courts and administrative tribunals have been quick to follow Supreme Court’s decision in R. v. CBC, in spite of its origins in a common law province.
Prior to the decision in R. v. CBC, Québec courts had generally urged caution in granting mandatory injunctions, without establishing a clear evidentiary threshold. For example, in Varnet Software Corporation c. Marcam Corporation6, the Québec Court of Appeal held as follows with respect to mandatory injunctions ordering specific performance of a contract:
It is not because injunction is historically a Common Law procedural remedy that the restrictive approach of Common Law to mandatory injunctive relief should also be followed [...]
Courts should however be very careful when using mandatory injunctions to enforce contractual rights, particularly at the interlocutory level.7
Since the R. v. CBC decision, the Superior Court of Québec has adopted the threshold of the strong prima facie case (“forte apparence de droit”) in Ville de Westmount c. KPH Turcot8 and Méthot c. Gamache-Gallant9, and Québec’s labour relations board has done the same.10
In Société du Vieux-Port de Montréal inc. c. 9127-6519 Québec inc.11, the Superior Court also found that, in light of the decision in R. v. CBC, Québec courts must now necessarily assess the balance of inconveniences between the parties in granting a mandatory interlocutory injunction, in spite of previous case law that indicated otherwise.12
At least for the time being, the decision in R. v. CBC has provided clarity to the criteria for granting mandatory interlocutory injunctions throughout Canada. It remains to be seen whether Québec’s appellate courts will ultimately confirm its application in civil law.
1 In accordance with the three-pronged test set out in RJR — MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), the applicant must also demonstrate that irreparable harm will result if the relief is not granted and that the balance of convenience favours granting the injunction.
2 2018 SCC 5 (“R. v. CBC”).
3 2018 SCC 5 at para 18. [Our emphasis.]
4 Idem at para. 17.
5 Idem at para. 16.
6 1994 CanLII 6096 (QC CA).
7 See also Natrel inc. c. F. Berardini inc., 1995 CanLII 5326 (QC CA).
8 2018 QCCS 2080.
9 2018 QCCS 995.
10 Unifor et Marriott de l’Aéroport de Montréal, 2018 QCTAT 1513.
11 2018 QCCS 1406.
12 Société de développement de la Baie James c. Kanatewat  C.A. 166, 183-184: “At the interlocutory injunction stage these rights are apparently either (a) clear, or (b) doubtful, or (c) non-existent. (a) If it appears clear, at the interlocutory stage that the Petitioners have the rights which they invoke then the interlocutory injunction should be granted if considered necessary in accordance with the provisions of the second paragraph of Article 752 C.P. (b) However, if at this stage the existence of the rights invoked by the Petitioners appears doubtful then the Court should consider the balance of convenience and inconvenience in deciding whether an interlocutory injunction should be granted. (c) Finally if it appears, at the interlocutory stage, that the rights claimed are non-existent then the interlocutory injunction should be refused.”