Injunction order preventing public gatherings improperly granted: Nova Scotia Court of Appeal

The Nova Scotia Court of Appeal has ruled that an injunction order preventing public gatherings in the province due to risk of COVID-19 should not have been granted by a lower court.

In The Canadian Civil Liberties Association v. Nova Scotia (Attorney General), 2022 NSCA 64, Nova Scotia obtained a sweeping ex parte injunction order on May 14, 2021. The injunction prevented all Nova Scotians from organizing, promoting, or attending public gatherings that would be contrary to public health orders issued by the province’s chief medical officer. The injunction was issued in anticipation of public protests against COVID-19 public health restrictions.

The Canadian Civil Liberties Association (CCLA) immediately appealed the injunction order. CCLA characterized the injunction as an “unprecedented” order, involving “misuse” of government power and “unjustified” resort to the courts. The CCLA asserted that the ex parte injunction order infringed on charter rights, which the judge failed to properly consider.

A month later, the province successfully filed a motion to discharge the injunction order on the ground that it was no longer necessary. Meanwhile, the CCLA filed a motion to extend time to appeal the original ex parte injunction. The province opposed CCLA’s motion, arguing that the issue was already moot considering that the injunction order had already been discharged.

The court granted an extension authorizing CCLA to file an appeal, finding that it was in the interests of justice to allow the appeal to be heard. In its notice of appeal, CCLA argued that the ex parte injunction order was improperly granted without requiring evidence that such a remedy was needed against all Nova Scotians and without consideringcharter rights that would be infringed. The Nova Scotia Court of Appeal unanimously agreed that CCLA’s appeal should be allowed.

No justification for failure to give notice

The appeal court ruled that the province should not have proceeded ex parte with its injunction application. The court explained that an ex parte application requires the applicant to state why it is appropriate not to give notice of the application to any other person, and consequently deprive them of the right to oppose the application.

In this case, the court found that the province failed to state why it was necessary to go to court ex parte and without notifying any other person. The appeal court concluded that since no such explanation was given, it was inappropriate to proceed ex parte.

Availability of statutory remedies

The court further explained that while courts have jurisdiction to grant injunctions to enforce statutory obligations, this jurisdiction must be exercised carefully. The court found that the province failed to prove that statutory remedies had been inadequate to compel compliance with the Public Health Order. The activity which the province sought to enjoin with the injunction order was already expressly prohibited by the Public Health Order. The province failed to demonstrate that the statutory remedies provided under the law were insufficient, nor did the province present any evidence to show that its attempts to enforce the law had been unsuccessful.

Expert opinion was not admissible

The injunction was intended to prevent outdoor gatherings in wide, open spaces due to an alleged risk that COVID-19 could be transmitted through these outdoor events. However, the court found that the province failed to present any actual evidence of outdoor transmission. Instead, the province relied on the opinion of its chief medical officer, which lacked evidentiary detail. In addition, the chief medical officer was not simply employed by the government, but he was also a party to the litigation. The court explained that an expert witness is expected to be objective and independent of the litigation. In effect, the province failed to meet the requirements of impartiality and independence of an expert witness, and the province also failed in its obligation that material evidence supporting an expert opinion be disclosed.

Scope of injunction order was too broad

The court emphasized that injunctions should impose only the restraint necessary to prevent the alleged mischief and preserve the status quo. Ex parte injunctions should only be given for a very brief time in order to allow the respondents to appear in court and reply to the ex parte order. The court further said that ex parte injunctions should be for a strictly limited time and do the minimum necessary to prevent the irreparable harm anticipated.

In this case, the province sought to prevent anticipated rallies at Citadel Hill and Alderney Landing in the Halifax area and the baseball field in Barrington, NS. The ex parte order should have been confined to those events, said the court. However, the injunction order applied to everyone in the province, not only to those who were anticipated to contravene the Public Health Order. The court explained that granting an injunction for a short period limited the risk of irreparable harm to the plaintiff while ensuring that notice could be given to the protesters and others who may be affected by the order.

The court pointed out that the province sought an order against all Nova Scotians, unlimited in time or geographical extent.

“The need for this extraordinary relief – never sought before or since – was open air meetings of citizens protesting COVID-19 restrictions,” said the court. “Accordingly, the evidence should have demonstrated a very high likelihood of serious harm by outdoor transmission of COVID-19 in the circumstances sought to be enjoined. It did not.”

The court concluded that the province failed to establish any basis for granting either an interlocutory or permanent injunction because it failed to present admissible evidence of outdoor transmission of COVID-19 on which a finding of “high probability” or serious or irreparable harm could be grounded.