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...