A New Test for Interim Mandatory Injunctions

Often a major dispute in a proceeding is who has to do what until the matter is finally decided. Courts frequently rely on the status quo so if one side wants to preserve it in the face of a proposed regulatory change, they traditionally only had to prove that there is a serious issue to be considered, they will suffer “irreparable harm” and the “balance of convenience” favours their position: RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, http://canlii.ca/t/1frtw.

More recently, the Supreme Court of Canada recently stated that if a party wants to order the other party to do something, their position has “such merit that it is very likely to succeed at trial”: R. v Canadian Broadcasting Corp., 2018 SCC 5, http://canlii.ca/t/hq979. In the CBC case the court refused to order a media outlet to temporarily remove articles identifying a victim posted before an order banning publication was made because it was not clear that the application to permanently do so would succeed.

Even more recently, in Moore v The Law Society of British Columbia, 2018 BCSC 386, http://canlii.ca/t/hr06v, the Court confirmed this new test on an interim request to remove the restrictions imposed on a lawyer’s licence pending a full hearing on the validity of those restrictions. Ultimately the Court did not have to assess the strength of the applicant’s case because the balance of convenience favoured the regulator.

One can see this new test becoming an issue when a regulator seeks an interim injunction compelling an unregistered practitioner to stop practising or to cease using a protected title. This new test is less likely to become an issue for interim suspension orders during investigations or hearings because the legislation often imposes its own legal test for making the determination (i.e., likely to expose a client to harm or injury).

More Posts

Immunity from Regulatory Scrutiny?

Mandatory reporting provisions typically protect the reporter from liability or retaliation for making a report in good faith. Do those immunity provisions prevent registrants from

Jurisdiction Over Cosmetic Procedures

Health regulators are receiving frequent expressions of concern about “medical spas” that provide cosmetic procedures. Complex questions arise as to the legal authority to provide

Interpreting Legislation vs Making Legislation

Regulators cannot enact legislation through policy. However, regulators frequently publish policies interpreting or applying their legislation. The line between those two activities is sometimes fine.