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CIVIL PROCEDURE - Injunctions - Circumstances when not granted

Wednesday, December 19, 2018 @ 6:34 AM  

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Application by the petitioners for leave to appeal an order dismissing their application for an interlocutory injunction. The petitioners, private litigants, opposed proportional representation. They sought to suspend regulatory restrictions on advertising in advance of a provincial referendum on proportional representation and to prohibit the Chief Electoral Officer from counting the referendum vote. They wished to engage in a $2.6 million advertising campaign during the referendum voting period and challenged the third-party advertising restrictions provided for in the Electoral Reform Referendum 2018 Regulation as being against their rights under the Charter. The chambers judge found the petitioners met the low threshold of showing there was a serious issue to be tried. She determined the petitioners would not suffer irreparable harm if the interlocutory injunction was not granted. She further determined that suspending regulatory restrictions on referendum advertising would tip the balance entirely in favour of the petitioners and would allow them to enjoy the fruits of potential success before their petition was heard on the merits. She concluded the balance of convenience did not favour granting the injunction.

HELD: Application dismissed. The chambers judge’s determination of the balance of convenience was an exercise of discretion that attracted a highly deferential standard of review. The chambers judge did not err by conflating the two types of harm identified, being harm flowing from the alleged Charter breaches and potential harm to public confidence in the democratic process. She did not err by failing to infer that public confidence in the democratic process would be irreparably harmed if the referendum result was announced and the process was later found to have been tainted by findings of constitutional infringement. The applicants had failed to demonstrate the proposed appeal raised an arguable ground meriting the consideration of the appellate court. It was not in the interests of justice to grant leave to appeal.

Independent Contractors and Businesses Association v. British Columbia, [2018] B.C.J. No. 3650, British Columbia Court of Appeal, G.J. Fitch J.A., November 2, 2018. Digest No. TLD-December172018006