Commercial Litigation and Dispute Resolution Blog

In late September 2021, a judge of the British Columbia Supreme Court in chambers refused the application of Teal Cedar Products Ltd. (“Teal”) to extend the interlocutory injunction to protect its ongoing logging operations in the Fairy Creek watershed on Vancouver Island from unlawful interference by protesters.^[1] Media coverage about the protests over old growth logging in B.C., as well as the police’s conduct in enforcing the injunction is ongoing and widespread. The chambers judge’s view relied heavily on his finding that extending the injunction would damage the reputation of the Court due to the police’s conduct.

On January 26, 2022, the BC Court of Appeal (“BCCA”) allowed Teal’s appeal and extended the injunction in Teal Cedar Products Ltd. v. Rainforest Flying Squad^[2] (Teal Cedar BCCA). The BCCA stressed that this case is about the principles that apply when a court is asked to enjoin “significant and persistent unlawful conduct by those who choose to abandon the democratic process and impose their will on others by force.”^[3] The BCCA reiterated that the making of an order enjoining interference with an applicant’s lawful rights does not imply the courts’ approval of the activity – the purpose of the injunction is not to protect the activity, but to uphold the rule of law.^[4]

The three-part test governing applications for an injunction is well known:

1. Is there a serious issue to be tried?
2. Will the applicant seeking the injunction suffer irreparable harm if the injunction is not granted? and
3. Does the balance of convenience favour granting the injunction or denying it?^[5]

On both an initial application for an injunction and an application to extend an injunction, the Court is to determine whether the granting of an inunction is just and equitable in all the circumstances.^[6] In civil disobedience cases, the relevant public interest most often considered and weighed heavily in the third step of the test is the protection of the exercise of private rights from illegal obstruction, in other words, the public interest in the rule of law.^[7]

In this case, the chambers judge found that Teal could not meet the third branch of the test through what he termed an “enforcement gap analysis.” He determined that the government and police could and should use provincial laws and the criminal law, as well as lawful preventive policing measures, to stop the unlawful activity at Fairy Creek. As a result, he concluded there was no “enforcement gap” requiring an ongoing injunction to preserve Teal’s rights. The chambers judge also determined that the court’s reputation had been depreciated by the manner in which the police enforced the injunction order, a factor he weighed heavily in favour of refusing to extend the injunction.

According to the BCCA, the chambers judge’s decision “upended the law of injunctions” by considering under the third branch of the test matters unrelated to the interests of the parties before the court.^[8]

The BCCA found it was an error to consider the availability of the criminal law as a factor weighing against the granting of an injunction to Teal, a private applicant. The Court wrote that the “weight of the jurisprudence is entirely against” the chambers judge’s “enforcement gap” approach, noting the respondents could not identify a single case in which a court refused to enjoin persistent illegal interference with private rights on the basis that the applicant could not establish that the criminal law would not suffice. ^[9] In short, a private applicant seeking an injunction cannot exert any control over whether the police or prosecution service enforce the criminal law.

The BCCA was equally critical of the chambers judge’s view that the conduct of the police in enforcing the injunction depreciated the court’s reputation. The Court found that the court and the police are constitutionally independent of each other and while the administration of justice may be brought into disrepute by police conduct, “that is not synonymous with the court’s reputation.”^[10] In the context of the application by Teal, a private party, to extend its injunction, the conduct of the police should not have been the central focus. In other words, the conduct of a third party, entirely independent of the applicant, should not be weighed against the granting of the injunction because to do so, denies the applicant a remedy on the basis of conduct beyond its control.^[11]

_{[1] Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2021 BCSC 1903.}

_{[2] Teal Cedar Products Ltd. v. Rainforest Flying Squad., 2022 BCCA 26.}

_{[3] Teal Cedar BCCA, para. 3.}

_{[4] Teal Cedar BCCA, para. 57.}

_{[5] RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.}

_{[6] Teal Cedar BCCA, para. 19.}

_{[7] Teal Cedar BCCA, para. 21.}

_{[8] Teal Cedar BCCA, para. 30.}

_{[9] Teal Cedar BCCA, para. 39.}

_{[10] Teal Cedar BCCA, para. 64.}

_{[11] Teal Cedar BCCA, para. 66.}