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CIVIL PROCEDURE - Contempt of court - Ex parte injunctions

Tuesday, April 23, 2019 @ 9:32 AM  

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Appeal by Brake from the dismissal of his application to vacate an ex parte injunction order and an ex parte contempt appearance notice. In 2016, the respondents obtained the ex parte injunction to enjoin and restrain continuing protests of their hydro-electric generating station project. After the injunction was issued, the appellant, a journalist, was present at a protest at the respondents’ construction camp access road. The respondents successfully applied ex parte for an appearance order against the appellant and 21 other named individuals requiring them to appear and show cause why they should not be held in contempt. The applications judge found the appellant’s status as a working journalist was not a material fact that would have affected the outcome of the respondents’ applications.

HELD: Appeal allowed. The injunction could not be said to have brought the appellant within the umbrella of the injunction’s prohibition, which was to stop the protests and allow for free access to the construction site. The appellant’s actions, on their face, did not fall within the scope of the injunction. The appellant’s trespass onto the respondents’ construction site was insufficient to characterize him as a protester. The appellant’s role as a journalist should have been taken into account when considering whether to grant leave to issue the contempt appearance notice. The applications judge erred in applying an incorrect standard for determining whether the appellant’s role as a journalist was a material fact. The material non-disclosure of the appellant’s role in the protest events was very significant. The injunction and contempt appearance notice were set aside as they applied to the appellant.

Nalcor Energy v. Anderson, [2019] N.J. No. 107, Newfoundland and Labrador Court of Appeal, J.D. Green C.J.N.L., C.W. White and F.P. O'Brien JJ.A., March 28, 2019. Digest No. TLD-April222019001