Nova Scotia Court Prevents Anti-Masking Protest From Happening

• Published date: 25 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Government Measures, Operational Impacts and Strategy
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

This past weekend, despite Ontario's stay-at-home order, there were two major public protests in Toronto. On late Saturday afternoon (May 15^th) an estimated crowd of 2,500 to 5,000 people gathered at Nathan Phillips Square to voice their concerns about the current Palestinian-Israeli conflict. That same day, an "anti-lockdown" protest was held at Queen's Park, with a large crowd marching through the downtown core.

In Nova Scotia, the story was different because of quia timet injunction granted by the Honourable Justice Norton in Nova Scotia (Attorney General) v. Freedom Nova Scotia, 2021 NSSC 170.

A quia timet injunction is a remedy that is sought by a party to stop potential harm from occurring before it is actually suffered, but is expected to occur in the future. This is different than the usual injunction that parties seek to prevent harm into the future because of a defendant's recent conduct.

In this case, the Nova Scotia government learned that an anti-mask rally was being organized for downtown Halifax on Saturday, May 15, 2021 at 1:00 pm, with a second rally to be held elsewhere. However, Public Health Orders granted under the province's Health Protection Act placed restrictions on outside gatherings. An order issued by the Chief Medical Officer of Health contained a definition for an "illegal public gathering", which, among other things, prohibited the organizing of an in-person gathering, promoting an illegal public gathering and attending an illegal public gathering.

The government viewed the rally as being contrary to the Public Health Orders.

On the motion for an injunction, the government filed affidavit evidence that included incidents of previous large gatherings organized by the defendant that contravened the Public Health Orders and that showed the defendant's promotion of the May 15^th rally. The defendant called the event: "Worldwide Rally for Freedom - Halifax" and the defendant's Facebook page showed 261 comments, with 88 people listed as "interested" and 66 people listed as "going" as of May 12^th.

Additional evidence, which was accepted by the court as findings of fact, showed, among other things, that COVID-19 was a new disease that could cause death, that there was no underlying immunity, that there were presently no drug therapies to cure COVID-19 (or its various strains) and that if left unchecked the virus could spread exponentially.

In Nova Scotia, since March 1, 2020, there had been 4,152 confirmed cases of COVID-19 and 71...