Seeking an order requiring a respondent to “do something” requires a strong prima facie case
At a time when litigants are increasingly seeking orders for the removal of content from the internet at an interlocutory stage in litigation, and while courts across the country are applying different tests for granting mandatory injunctions, the Supreme Court of Canada has settled on a definitive test for such court orders.
In R. v Canadian Broadcasting Corporation, the Supreme Court of Canada has raised the bar for obtaining mandatory interlocutory injunctions. The case arose from an attempt by the Crown to enforce a publication ban against the Canadian Broadcasting Corporation. The CBC had published content on its websites that named a homicide victim. After charges were laid against the accused, the Crown sought and obtained a publication ban on the victim’s identity. The CBC refused to unpublish its previous articles and the Crown sought charges of criminal contempt against CBC for violating the publication ban. The Crown also sought an injunction to require the CBC to remove the articles at issue.
The question before the Court was entirely about the burden on the Crown to obtain the injunction. Since the leading case of RJR-MacDonald v Canada (Attorney General), Canadian courts have ultimately divided on how that test should be applied. This test is derived from the UK case of American Cyanamid Co. v Ethicon Ltd, which the court summarized at paragraph 12:
At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious. The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits. [footnotes omitted]
Since then, Alberta, Nova Scotia and Alberta courts have applied the test so that the applicant must show a strong prima facie case. Other courts have used a lower threshold, being whether the applicant has shown a “serious issue to be tried”.
The Supreme Court settled this discrepancy by holding that in order to obtain a mandatory injunction, the applicant must prove a strong prima facie case. This leads to two questions: first, what is a “mandatory injunction” compared to a “prohibitive injunction”. The second is what is the standard for a “prima facie case”.
The distinction between mandatory and prohibitive injunctions is important because it determines the test to be applied and there are many cases where the terminology used by an applicant can confuse matters. The court considered this and concluded that it will be up to the application judge to determine whether the respondent is being ordered to do something or to refrain from doing something:
… I acknowledge that distinguishing between mandatory and prohibitive injunctions can be difficult, since an interlocutory injunction which is framed in prohibitive language may “have the effect of forcing the enjoined party to take… positive actions”. For example, in this case, ceasing to transmit the victim’s identifying information would require an employee of CBC to take the necessary action to remove that information from its website. Ultimately, the application judge, in characterizing the interlocutory injunction as mandatory or prohibitive, will have to look past the form and the language in which the order sought is framed, in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, “what the practical consequences of the . . . injunction are likely to be”. In short, the application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something. [footnotes omitted, emphasis in original]
The Court then considered the various formulations in the caselaw regarding a “strong prima facie case” and reached the following conclusion: “… upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.”
The Court concluded with a summary of the newly modified RJR-MacDonald test:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.
(Whether this modified test will be referred to as the “CBC test” remains to be seen.)
The CBC argued that in cases where “pure speech” is at issue, the RJR-MacDonald test should be dispensed with entirely following Canada (Human Rights Commission) v Canadian Liberty Net, which held that the second and third factors in the tripartite test are derived from the commercial context and stack the cards against the defendant. The Court disagreed:
 In Liberty Net, the Court explained that the RJR—MacDonald tripartite test is not appropriately applied to cases of “pure” speech, comprising the expression of “the non-commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself”. This appeal does not present such a case. The reason the Court gave in Liberty Net for not applying the RJR—Macdonald test to “pure” speech was that the defendant in such cases “has no tangible or measurable interest” [also described as a “tangible, immediate utility”] other than the expression itself”. Where discriminatory hate speech or other potentially low-value speech is at issue (as was the case in Liberty Net), the RJR—MacDonald test would “stac[k] the cards” against the defendant at the second and third stages. In this appeal, however, the chambers judge correctly identified a “tangible, immediate utility” to CBC’s posting of the identifying information, being the “public’s interest” in CBC’s right to express that information, and in freedom of the press. Because CBC does not therefore face the same disadvantage as defendants face at the second and third stages of the RJR—MacDonald test in cases of low- to no-value speech, it is unnecessary to apply the “clearest of cases” threshold, and I would not do so. [footnotes omitted]
On the merits of the underlying case, the Court limited its comments to nothing that that the Alberta Court of Appeal’s implicitly determined there was no “strong prima facie case” shown by the Crown. The Appeal Court had had determined the positions of both the Crown and the CBC were arguable, namely that it is an open question whether one can be in contempt of a publication ban for content that was published before the ban but continues to be present on the internet. This conclusion meant that the Crown had now shown a strong prima facie case of criminal contempt against the CBC.
Interestingly, the Supreme Court did not refer to the fact that prior to the hearing, the CBC was acquitted of criminal contempt before the Court of Queen’s Bench in a decision released on May 16, 2017. That Court held that retaining an article previously published in an archive accessible on the internet did not offend the publication ban. From that decision:
 Furthermore, neither the words “broadcasting” nor “transmitting” are necessarily a reference to the source of the material. The issue of how the material came to be in the hands of the broadcaster or transmitter is only relevant to the defence of justification. As such, the words “broadcasting” and “transmitting,” focus on doing something with what exists. In context, therefore, getting hold of the material or “accessing” it would not be broadcasting or transmitting. Something more must be done. Similarly, allowing access is not good enough to amount to broadcasting or transmitting.
 In the end, it is my view that the fact that CBC maintains the original articles in its archives, which can be accessed, does not amount to publication, transmission or broadcast.