Canada: The Impact Of Freedom Of Expression In Granting An Interlocutory Injunction

Last Updated: November 29 2017
Article by John McKeown

A recent decision of the British Columbia Court of Appeal considered the grant of an interlocutory injunction to restrain the publication of a Documentary critical of the plaintiff.

The Facts

A filmmaker filmed and produced an hour-long, low-budget documentary film entitled "Vancouver Aquarium Uncovered" (the "Documentary"). The Documentary was primarily about the Vancouver Aquarium Marine Science Centre (the "Aquarium"). The Documentary relies on interviews with experts and statistics but challenges claims regarding the Aquarium's research and education efforts and is critical of the Aquarium's practice of keeping whales and dolphins in captivity.

The filmmaker initially attempted to shoot footage at the Aquarium's premises but was prevented from doing so by Aquarium employees. Subsequently the filmmaker entered into an agreement with the Aquarium that provided any previous or future recordings could not be used but permitting him to film interviews with designated individuals.

The Documentary was published and posted on Vimeo and You Tube. The Aquarium objected to segments of the Documentary. The footage consisted of four minutes and 46 seconds in which the Aquarium claimed copyright or breach of the agreement.

YouTube refused to remove the documentary from its website asserting that the content was protected by the fair use, fair dealing or similar exceptions to copyright protection.

The Aquarium brought an action and on learning YouTube's position applied for an interlocutory injunction to restrain use of its copyright material pending the trial.

The Interlocutory Injunction

The judge who heard the application found there was a serious question to be tried and the balance of convenience favoured the removal of the contested segments of the Documentary.

The Appeal 

The filmmaker appealed to the British Columbia Court of Appeal. The British Columbia Civil Liberties Association (BCCLA) intervened. BCCLA stressed the importance of freedom of expression and argued this right should be expressly recognized in the law governing interlocutory injunctions in civil proceedings. Animal Justice also intervened and argued that a claim for copyright in the Documentary should not be capable of suppressing unfavourable and critical commentary regarding animal rights.

The filmmaker argued that a case of this nature should be considered like a case involving a claim for defamation. In cases involving defamation it is well-established an interlocutory injunction will not be granted where the defendant indicates an intention to prove the truth of the statements complaining of, unless the plaintiff can show words are both clearly defamatory and impossible to justify. The Court did not accept this argument but considered the application of the traditional test.

The Court repeated the well-known test for the grant of an interlocutory injunction. Before issuing an interlocutory injunction, there must be a preliminary assessment of the merits of the case to ascertain there is i) a serious question to be tried, ii) a consideration of whether the applicant will suffer irreparable harm if the application were dismissed, and finally, iii) an assessment of the "balance of convenience", that is, which of the parties would suffer the greater harm from the granting or refusing the injunction pending a decision on the merits of the case. The fundamental question is whether granting an injunction is just and equitable in the circumstances of the case.

The Court carefully considered the exceptions in the Copyright Act and their potential application. In particular the Court noted that the fair dealing exception is not considered a defence but an integral part of the Act i.e. a user's right. However, the Court agreed there was a serious issue to be tried.

With respect to the irreparable harm the Court said that "irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured. Examples of such harm include instances where one party will be put out of business by the court's decision; or where one party will suffer permanent market loss or irrevocable damage to its business reputation.

The Court referred to the position adopted by the Federal Court of Appeal to the effect that that the evidentiary foundation required to establish irreparable harm must be clear and based on non-speculative evidence that irreparable harm will occur if the injunction is not granted. The party seeking the injunction cannot simply rely on assertions.

Court agreed it would not be appropriate to limit interlocutory injunctions only to cases where irreparable harm is certain or highly likely to occur. The grant of such a remedy pending trial is significant and should only be granted when the three elements are established on a sound evidentiary foundation. This is particularly so in cases involving intellectual property rights since frequently the grant of an interlocutory injunction can effectively decide the dispute.

The Court found there was no evidence supporting the judge's conclusion about irreparable harm. If the damages were in the form of loss of donations, the loss of attendance or on a similar basis this should have been set out in the Aquarium's affidavits. It was not and the judge's conclusion could not stand.

The Court said that the judge also failed to carry out a sufficient analysis concerning the balance of convenience. Specifically the judge should have considered arguments relating to freedom of expression.

The Supreme Court of Canada attaches great weight to the freedom of expression and stresses the societal importance of this right as guaranteed by s. 2(b) of the Charter of Rights and Freedoms. It has said that freedom of expression plays a critical role in the development of our society and was among the most fundamental rights possessed by Canadians:

"It makes possible our liberty, our creativity and our democracy. It does this by protecting not only "good" and popular expression, but also unpopular or even offensive expression. The right to freedom of expression rests on the conviction that the best route to truth, individual flourishing and peaceful coexistence in a heterogeneous society in which people hold divergent and conflicting beliefs lies in the free flow of ideas and images. If we do not like an idea or an image, we are free to argue against it or simply turn away. But, absent some constitutionally adequate justification, we cannot forbid a person from expressing it."

Because of the importance of freedom of expression any attempts to restrict it must be subjected to careful scrutiny. In context of an application for an interlocutory injunction the potential for harm to the freedom of expression must be considered when the balance of convenience is considered.

Following this approach the Court concluded the balance of convenience favoured the filmmaker. The film was part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and the value of freedom of expression must weigh against granting the injunctive relief.

As a result of its conclusions concerning irreparable harm and the balance of convenience the appeal was allowed and the interlocutory injunction set aside.

Comment

This decision will narrow the differences concerning the granting of interlocutory injunctions in the courts of British Columbia and the Federal Court. It is also a useful precedent regarding the potential impact of the Charter right to freedom of expression.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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