Summary

In Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26, the BC Court of Appeal ("BCCA") confirmed that upholding the rule of law continues to be the dominant public interest in determining the outcome of injunction proceedings involving civil disobedience against a private entity. This decision affirms that private entities can seek and rely on the protection of injunctions when their legal rights are being infringed by acts of civil disobedience.

Background

In April 2021, Teal Cedar was granted an injunction against interference with its logging operations in the southern portion of Vancouver Island. Individuals were engaged in acts of "prolonged and significant" civil disobedience that were intended to prevent Teal Cedar from exercising rights granted to it by the provincial government under a tree farm licence.

The decision being appealed was a decision of the BC Supreme Court (2021 BCSC 1903) regarding whether the six-month injunction should be extended given ongoing acts of civil disobedience preventing Teal Cedar's operations. The court refused to extend the injunction restraining the conduct of individuals interfering in Teal Cedar's logging operations finding, in particular, that there was no "enforcement gap".

As the lower court explained, an enforcement gap exists where there is a low likelihood that the police or prosecutors will use the criminal law to protect a private entity's legal rights, leaving the private entity without recourse. In the circumstances, the judge found that "there was every chance" that criminal law remedies would be employed, and therefore no need for an injunction.

The BC Supreme Court refused Teal Cedar's application to extend the injunction because the absence of an enforcement gap diminished the weight to be given to the public interest in upholding the rule of law. Additionally, the judge found that the public interest in protecting the reputation of the court, due to the contentious nature of the dispute and the manner in which the police were enforcing the injunction, weighed in favour of denying the extension.

The Decision of the BCCA

On appeal, Teal Cedar argued that the judge erred in using an enforcement gap analysis and made several other errors of law relating to the reputation of the court and the public interest.

In a unanimous decision, the BCCA allowed the appeal on the basis that the public interest in upholding the rule of law is the dominant public interest in cases involving civil disobedience against a private entity.

In concluding that the rule of law is the dominant interest, the court recognized the important role of protest in a healthy democracy (while criminal conduct is not), but concluded that private entities must have recourse when their rights are infringed:

"The rule of law demands access to independent courts with the power to enforce the law by granting effective remedies to those individuals whose rights have been violated"

The BCCA also made the following comments on the nature of injunctions and role of the court:

  • The purpose of an injunction is to uphold the rule of law, not to "pick a side" in a legal dispute or protect the activity at issue: at para. 57.
  • Contempt offences exists to allow private litigants to enforce their legal rights without relying on the police or prosecutors to do so: at para. 34. Initiating a contempt proceeding is a way to protect their rights that is within their control in an effective and expeditious process: at para. 35.
  • The court's reputational interest lies in its legitimacy and effectiveness, not the popularity of its decisions: at para. 59.
  • The conduct of police officers when enforcing an injunction does not diminish the court's reputation: at para. 56. The court and the police are constitutionally independent of one another. While the administration of justice may be brought into disrepute by the actions of police officers, the reputation of the judicial branch is not diminished. Instead, it is the role of the judiciary to hold the police accountable: at para. 64.
  • The conduct of the police does not diminish the private litigant's need for a legal remedy. The conduct of a private litigant may be relevant in determining in an injunction should be granted or extended, but the actions of third parties outside of the control of the applicant is not a relevant factor: at para. 66.
  • The rule of law demands that everyone obey the law. The court concluded that "significant, organized, deliberate and persistent defiance of the law and court orders is a serious threat to the rule of law which is both the foundation of a functioning democracy and the refuge of every citizen": at para. 70. A group should not be permitted to "abandon the democratic process and impose their will on other by force" by engaging in significant and persistent acts of civil disobedience: at para. 76.
  • The protection of the private entity's rights should not be discounted by interests of a public nature, such as the conduct of police: at para. 71.
  • The public interest in upholding the rule of law must be the dominant consideration in all cases involving significant and persistent acts of civil disobedience: at para. 78.

Conclusion

Ultimately, the BCCA's conclusions reaffirm that the dominant purpose of injunctions is to uphold the rule of law in situations of civil disobedience. This reaffirmation of the purpose of injunctions and the link to the public interest in the rule of law has provided important clarity. The decision that was the subject of the appeal could have led to a circumstance in which injunctions were less likely the more egregious the civil disobedience. The Court of Appeal has restored balance to the analysis and kept injunctions as an important tool in ensuring that the rule of law is respected and can be relied on when such circumstances arise. 

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