Irreparable harm criteria does not require impending insolvency
The Court of Appeal for British Columbia has ruled that while interlocutory injunction is an exercise of the inherent jurisdiction of the court, a leave to appeal the order is still required since it is considered a limited appeal order under R. 2.1 of the Court of Appeal Rules.
In Teal Cedar Products Ltd. v. Mashari, 2021 BCCA 353, the appellants filed for an extension of time and for leave to appeal an interlocutory interim injunction procured by the respondent that prevented logging protests. They contend that since the injunction is made under the court’s inherent jurisdiction, appeal is a matter of right and leave for appeal is not required. They also contest the use of the test of going concern in the trial judge’s application of the irreparable harm and the balance of convenience criteria. They assert that to satisfy this test, the activity complained of must cause such a loss as to threaten or impact the solvency of the enterprise.
In dismissing the appeal, the Court said that the question of whether the injunction be made under the inherent jurisdiction of the court or Supreme Court Civil Rules is not proper, since the two coexist. Rather, the proper question is whether the injunction was pursued under the Supreme Court’s rules. Where a particular rule addresses the process, the procedure under that rule can identify whether the order is a limited appeal order, and consequently, whether the Court of Appeal Rules applies, said the Court. In this case, the application for injunction is fully within a rule listed in R. 2.1 of the Court of Appeal Rules, and thus, leave to appeal is required.
As to the issue on irreparable harm, the Court ruled that contrary to the appellants’ assertion, the “interference with the business as a going concern” does not require impending insolvency. The ultimate assessment is whether the harm done or being done is irreparable, and in this case, the respondent’s evidence on risk of employment of workers, safety risks to employees, and loss of wages among others amounted to irreparable harm.
The court also rejected the appellant’s argument on collectability of damages. “The potential for damages from the enjoined behaviour is great and easily beyond the means of most individuals to satisfy. In addition, some of the harm complained of will not sound easily in damages,” said the Court.
