No. S-244694 Vancouver Registry

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Table of Contents

• PART I – INTRODUCTION 5
• 1. By order made July 31, 2024, this Court granted BCCLA leave to intervene in the Plaintiff’s injunction application filed July 24, 2024 on terms including the right to file written submissions not exceeding 10 pages. This Court further ordered that ... 5
• 2. BCCLA intervenes to submit that: Charter values cannot bolster restrictive university policies to justify injunctive relief; and the rights to free expression and assembly should develop the common law test for injunctions. 5
• 3. BCCLA will not address the question of the Charter’s applicability to the Plaintiff, which is the subject of submissions from other parties and interveners. 5
• PART II – ISSUES 5
• 4. BCCLA raises the following two issues: 5
• PART III – LAW 5
• The role of Charter values 5
• 5. The Ontario Superior Court's approach to Charter values in the U of T decision should not be adopted by this Court, as it does not serve a function recognized at law. 5
• Charter values have restricted functions at law 5
• 6. Charter values are those values that underpin each right and give it meaning. Their entrenchment in the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑... 5
• 7. Charter values have distinct and recognized functions at law, depending on the context in which they are engaged: in the development of the common law, the interpretation of statutes, the reasoning of administrative decision-makers, and the exercis... 6
• 8. Where common law rules, which ensure the protection of property interests and contractual relationships, are inconsistent with Charter values, these values may be considered using a flexible balancing approach. In that balance, Charter values shoul... 6
• 9. Charter values must be deployed with care. Unlike Charter rights, such values are not taken from a canonical text. There is no methodology to guide the degree of abstraction at which they are formulated, or to resolve competing claims of priority. ... 6
• Charter values cannot bolster restrictive policies 6
• 10. In U of T, the Ontario Superior Court applied Charter values in its analysis of that application for injunctive relief to remove a protest encampment at that university. In particular, the Court held it was more appropriate to analyze the relief ... 6
• 11. This Court should refrain from deploying Charter values in a similar fashion as the Ontario Superior Court. Separate and apart from any issues with the evidence (or lack thereof) in relation to the content of the policies themselves, the applicati... 7
• 12. In U of T, the Court went beyond engaging Charter values in the exercise of its discretion, and held that the University’s policies were “directionally consistent with Charter values”. Beyond begging the question of how university policies restri... 7
• 13. A distinct regulatory framework, such as a university’s policies, cannot simply be substituted for the applicable Charter analysis on the basis that that it is “directionally consistent” with Charter values. 7
• 14. Further, even the Plaintiff has rejected its own reliance on the University’s policies on this application. Though the University’s policies are expressly incorporated into the order sought at Part 1, paragraph 3 of the Plaintiff’s application, th... 7
• 15. Given the Plaintiff’s position that the reference to its policies in the relief sought is unnecessary and does not serve to create any prohibition, it would not be appropriate for this Court to examine those policies in relation to Charter values ... 7
• The impact of the Charter on the test for injunctive relief 7
• 16. The order sought by the Plaintiff engages not only private property rights at common law and under the Trespass Act, but is also an injunction which limits the Charter-protected rights to free expression and assembly, as both Defendants and other ... 7
• 17. But even in a private dispute that does not directly implicate the Charter, judicial discretion must be exercised in accordance with the Charter and its principles, as fundamental elements of the Canadian legal order. That is the case whether the ... 8
• 18. As set out above, rules of the common law are to be scrutinized closely where their underlying principles are out of step with the values enshrined by the Charter. Where it is possible to change the common law rule to make it consistent with Chart... 8
• 19. BCCLA submits that: 8
• (a) The common law analysis for injunctive relief under the RJR-MacDonald test is consistently modified where free expression rights are directly engaged; 8
• (b) The common law test for an interlocutory injunction that restrains free expression should be developed to include assessments of necessity and proportionality to reflect the constitutional requirements for restricting Charter rights only where rea... 8
• (c) Alternatively, the balance of convenience must incorporate rigorous examination of the Charter rights and interests at stake. 8
• Exceptions to the RJR-Macdonald test reflect the importance of free expression 8
• 20. The prevailing test for injunctive relief in most contexts is the three-part analysis set out in RJR-MacDonald, adopting the methodology applied in American Cyanamid Co. v. Ethicon Ltd., [1975] AC 396 (HL). But Canadian courts have consistently ... 8
• 21. The RJR-MacDonald test requires an applicant for an interlocutory injunction to satisfy three elements: (1) some assessment of the merits, ranging from a serious question to be tried to a strong prima facie case standard; (2) irreparable harm if a... 8
• 22. According to the Supreme Court of Canada, in matters of pure speech, this test is inappropriate. The application of the irreparable harm and balance of convenience criteria grievously undermine the right to free expression enshrined in s. 2(b) of ... 9
• 23. Another exception is found in the context of restrictions on court openness – again, because of the central importance of free expression. Courts have held that the centrality of this principle underlies the strong presumption (albeit one that is ... 9
• 24. In Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835, the Supreme Court of Canada rejected the common law rule giving judges a discretion to order publication bans on trial fairness grounds, because such bans infringe the right to freedom of... 9
• 25. Dagenais was expanded in R v Mentuck, 2001 SCC 76, to encompass the administration of justice generally. But the necessity for injunctive relief, in the sense of there being no reasonable alternative, remained the first step of the test. The Court... 9
• 26. This test was most recently reaffirmed and restated by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, where the two-stage analysis from Dagenais/Mentuck was expressed based on three requirements: (1) a serious risk to an im... 10
• 27. Another area of injunction law revised by the Supreme Court of Canada because of freedom of expression is secondary picketing. The common law of secondary picketing was unsettled and inconsistent across Canada, with some jurisdictions treating it ... 10
• 28. The Supreme Court held that, “to be true to the values expressed in the Charter our statement of the common law must start with the proposition that free expression is protected unless its curtailment is justified.” The restated common law of seco... 10
• The importance of free expression and peaceful assembly rights 10
• 29. The protection of free expression is based on the fundamental values of promoting truth-seeking, fostering participation in social and political decision-making, and promoting self-fulfillment and human flourishing. 10
• 30. Freedom of expression is not, however, solely a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social, and educational institutions of western society. 11
• 31. Like freedom of expression, freedom of assembly protects rights fundamental to Canada’s liberal democratic society. More specifically, the British Columbia Supreme Court has held that s. 2(c) serves to protect the freedom of everyone to be in, ac... 11
• 32. Free expression is valued above all as being instrumental to democracy. The connection between freedom of expression and the political process is the linchpin of the s. 2(b) guarantee – not only because free expression allows the best policies to ... 11
• The RJR-MacDonald test should be developed to reflect Charter rights 11
• 33. BCCLA submits that the common law test for the injunctive relief sought in this case should reflect the critical importance of the Charter rights to free expression and assembly in the Canadian constitutional order and Canada’s liberal democratic ... 11
• 34. This development of the common law is required because the traditional consideration of Charter rights at the balance of convenience stage is inadequate, as numerous and varied factors jostle for the court’s attention at this stage of the analysis... 11
• 35. That methodological ambiguity stands in stark contrast with the requirements imposed by the Charter, and represents an inconsistency which should be addressed by a development in the common law. The Supreme Court has been unambiguous – court-impos... 11
• [37] The same applies in interpreting the common law to reflect the Charter. The starting point must be freedom of expression. Limitations are permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a free ... 12
• 36. Where expression is unconnected to some other commercial purpose or activity, the Supreme Court of Canada has recognized that it is “virtually impossible” to use the second and third stages of the RJR-MacDonald analysis without grievously undermin... 12
• 37. As in Pepsi-Cola, Dagenais, Mentuck, and Sherman Estate, where judicial discretion to grant injunctive relief conflicts with the constitutional right to free expression, the common law analysis should also invoke Oakes, not only RJR-MacDonald. The... 12
• 38. This Court should adopt a framework which balances the competing interests of Charter-protected rights to free expression and peaceful assembly with private property rights, by incorporating the following after the first two prongs of the RJR-MacD... 12
• (a) The order sought is necessary, in the sense that: 12
• (i) there are no reasonable alternative means of relief; 12
• (ii) the order sought will be effective; and 12
• (iii) the order sought is no broader than necessary to achieve its objectives; and 12
• (b) As a matter of proportionality, the benefits of the order outweigh its negative effects, based on: 12
• (i) The connection between the target(s) of the order and the defendant(s); 12
• (ii) The costs and consequences of complying with the proposed order; 13
• (iii) The impact to the plaintiff if an order were not granted; and 13
• (iv) The impact on the rights protected under the Charter. 13
• 39. This does not represent a far-reaching change to the common law, but a natural evolution based on existing precedents. 13
• 40. The necessity requirement reflects how the Oakes analysis has been adapted in other contexts restricting free expression. In addition, courts already recognize that the exercise of injunction discretion must be undertaken with restraint and cautio... 13
• 41. The necessity requirement is also consistent with how Canadian courts have approached requests for other extraordinary relief that impacts third parties, such as Norwich orders. 13
• 42. It is a venerable tenet of Canadian law that courts will be reluctant to adversely affect the rights of third parties by injunction: "Where the injunction sought will injuriously affect the rights of a person or body not before the court it will n... 13
• 43. The proportionality analysis represents a modified, and more rigorous, version of the balance of convenience which traditionally occupies the final stage of the RJR-MacDonald test—one which gives due deference to the rights protected by the Charter. 13
• 44. In this case, the impact of the orders sought on the rights to free expression and assembly protected by the Charter will depend on: 13
• (a) the scope of the order sought; 13
• (b) the potential for capturing legitimate protest activities; 13
• (c) the potential for a disproportionate chilling effect on legitimate expression and assembly in protest on the University’s grounds; and 13
• (d) the degree of connection between the protest activities sought to be restrained and core values underlying the rights to free expression and freedom of assembly. 14
• 45. Developing the common law in this way will ensure that injunctions which engage Charter-protected rights to free expression and assembly properly balance competing interests. 14
• Alternatively: how Charter considerations apply in the balance of convenience 14
• 46. In the alternative, this Court should ensure that Charter rights and values are given their due consideration in the RJR-MacDonald analysis, under the balance of convenience stage. At a minimum, that should incorporate the impact on the Charter ri... 14
• 47. Traditionally, courts have preferred the RJR-MacDonald test over less restrictive analyses based on trespass or statutory injunctive relief where Charter issues are raised, and will engage Charter values even where Charter rights are not infringed. 14
• 48. Echoing Lord Diplock’s caution, Charter protections are special factors that require careful consideration in the particular circumstances of each case. 14
• 49. BCCLA submits that consideration should specifically involve an assessment of those factors set out above relating to the necessity and proportionality of the injunction order sought. The Court should weigh heavily whether the rights to be restrai... 14
• LIST OF AUTHORITIES 15