Pre-Trial Injunctions
Cases published to October 19, 2023
Click on a Case Name for full text (links off site).
2023 October 19
The Ontario Superior Court of Justice Divisional Court held that a motion judge has inherent jurisdiction to grant a pre-trial injunction to a defamation plaintiff notwithstanding section 137.1(5) of the Ontario Courts of Justice Act which provides that once an anti-SLAPP motion is made by a defendant, “no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.” The Divisional Court noted that the Ontario Court of Appeal has interpreted section 137.1(5) as allowing a measure of discretion to motions judges, to promote the goals of efficiency and economy, citing Boyer v. Callidus Capital Corporation, 2023 ONCA 233, at para. 62 and Zoutman v. Graham, 2020 ONCA 767. The Divisional Court held that “the discretion available to motions judges should be interpreted to permit injunctions where the moving party is able to demonstrate harm justifying injunctive relief.”
2021 July 2
The Ontario Superior Court of Justice granted the plaintiff landlord an interlocutory injunction to enjoin a “deliberate course” of online harassment which the Court characterized as “a major issue in Canadian society.” The alleged online harassment involved YouTube videos. The Court held that “[w]hether people harass others online to gain clicks (and thereby make money), to hurt, or to intimidate, the law must be able to respond with some boundary to protect and preserve countervailing values like peoples’ privacy, their right to go about their days unmolested, their right to health and to protect the health of their loved ones, and the rule of law.” “I am prepared to recognize that it is unlawful harassment, to use the internet in a manner that is outrageous in character, duration, and extreme in degree, with the intent to coerce behaviour by causing fear, anxiety, emotional upset or impugning the dignity of the plaintiff online. In my view this is an incremental step in the development of the law that goes no further than required to deal with the case before me.”
The Court also expressed the view that “social media algorithms deliberately foment controversy by re-publishing aggressive or outlandish statements regardless of their truth. It was long before the journalism profession had become so diminished in the public eye that many people seem to prefer ‘fake news’ to journalistic integrity. It was before the risk that any common, non-famous Karen or Kevin could ‘go viral’ and be cancelled – losing their jobs, their reputations, and the security of their families’ lives – based on committing some previously unknown form of heresy as asserted unilaterally by any number of modern day, self-appointed Senator Joseph McCarthys.”
The Court specifically declined to rely on the traditional torts of defamation and intimidation as a basis for this pre-trial injunction.
2021 April 22
The Superior Court of Quebec granted the plaintiffs, all members of the same family, an interlocutory injunction valid for 10 days, ordering the defendant to suspend: (a) certain TikTok accounts and all videos published by those accounts; (b) any hashtag which includes the plaintiffs’ names; and (c) any video, status or message published with a hashtag that involves the plaintiffs’ names. The interlocutory injunction also ordered the individual defendant (who allegedly published the TikTok videos for revenge) to remove any video, photograph, message, status, or any other kind of publication concerning the plaintiffs from TikTok, Instagram, Facebook, YouTube, Twitch and any other social media or digital platform.
2021 January 19
The Quebec Superior Court granted the plaintiff Accident Legal Solution an interlocutory injunction requiring the defendant company and its principal to remove certain disparaging comments and posts from its website and Facebook timeline. The interlocutory injunction also prohibits the defendant from publishing anything else concerning the plaintiff on its website, Facebook timeline or its blog. The Court held that the evidence filed by the plaintiff showed there was a serious issue to be tried, that the plaintiff would suffer irreparable harm if the pre-trial injunction were rejected, and that the plaintiff is likely to suffer more damage if the injunction is not granted than the defendant will suffer if an injunction issues. The Court noted that the defendants did not dispute that the words complained of by the plaintiff were defamatory and false. They relied only on a limitation defence, alleging the publications had been on their website, blog and Facebook page since May and June, 2018. The limitation period prescribed by article 2929 of the Quebec Civil Code is one year from the date the plaintiff learns of the defamation. The plaintiff alleged it only became aware of the Internet publications in June, 2019. Taking into account the statutory suspension of limitation periods from March 15, 2020 to September 1, 2020 (COVID-19 related), the plaintiff’s lawsuit was arguably not barred by the one year limitation period. The Court also suggested that comments published by the defendants in May and June 2019, which referred to the 2018 publications, restarted the limitation period for the latter.
2020 November 24
The Ontario Superior Court of Justice dismissed an application by the plaintiff for an interim injunction requiring the defendant, an ex-employee, to remove one specific allegation made in disparaging posts on Twitter and Instagram and to refrain from republishing them pending the trial. When this motion was heard, a statement of defence had not yet been filed. The Court noted the evidence of the defendant is that “she believes the posts to be true and intends to prove the truth at trial. It is also her position that the posts are matters of fair comment or opinion.” With respect to the plaintiff’s evidence, the Court noted that “since these posts were made, numerous negative comments were written by others” and the plaintiff “has also received threatening and hateful messages directly on its social media pages.” “The company was also the subject of an article written on a Toronto blog” that detailed the defendant’s posts. After reviewing the evidentiary record on the application, the Court concluded that “[t]his is not one of those clearest of cases where injunctive relief ought to be granted pending trial.”
2020 November 17
The Quebec Superior Court dismissed an application by the plaintiffs for a provisional injunction to restrain the defendant from communicating defamatory allegations to the news media. A major Montreal newspaper had published an article on October 31, 2020 on its website which reported on this defamation litigation and the allegations made by the defendant. The article, which was published on two websites, contained images of the plaintiffs’ house, their address and a photo of the male plaintiff, which he had not authorized. The Court rejected the plaintiffs’ submissions that a state of urgency existed which would allow the Court to grant an injunction at this provisional stage.
2020 September 30
The Ontario Superior Court granted an application by the plaintiffs by counterclaim/defendants for an interim injunction prohibiting the corporate plaintiff and the two individuals named as defendants to the counterclaim from “publishing, broadcasting, or communicating on the internet or elsewhere any defamatory words or images” concerning the plaintiffs by counterclaim/defendants “including defamatory words concerning [this] litigation.” The Court noted that “technology has also given rise to new ways for harassment to occur and it can proliferate defamatory and hateful content at remarkable speed, with the click of a button.” “Pictures and words can live on indefinitely on the web, accessible to all. So not only is the web an amazing and important tool, it can also be a dangerous one if used for malicious purposes.” The corporate plaintiff and the two individual defendants by counterclaim were also ordered to remove posts concerning the plaintiffs by counterclaim that had already been published on the internet and social media, including specific Instagram accounts.
The Court acknowledged that “injunctions in defamation cases ‘should only be granted in the rarest and clearest of cases, and where the words are so clearly defamatory and impossible to justify that the claim would almost certainly succeed (Fortress Real Developments Inc. v Franklin, 2018 ONSC 296 at para. 15)”. “While there is a very strong public interest in protecting speech, there may be a reduced public interest in protecting speech that contains, inter alia, personal attacks and vitriol.” This interim injunction Order was scheduled to come up for review on November 6, 2020. On November 12, the Court made a further Order (by consent) extending the injunction against the corporate plaintiff pending trial and ordering that the terms of the injunction against the two individual defendants by counterclaim remain in force until further Order of the Court.
2020 August 17
The Quebec Superior Court dismissed an application for a provisional interlocutory injunction prohibiting the defendant from publishing articles about the plaintiff on the Capitales Medias network, particularly on the Internet and in social media. This ruling notes that prior Quebec decisions established the following rules for a pre-trial injunction: (a) great caution must be exercised in issuing such an injunction; (b) the injunction is only granted in the most clear and rare circumstances; (c) the impugned expression must be clearly defamatory; (d) the damage must be irreparable; (e) the truth of the impugned expression must be impossible to prove. In this case: the expression at issue was not obviously defamatory; irreparable harm was not shown by the plaintiff; and the plaintiff failed to show there was no possible defence.
2020 June 3
In this criminal proceeding, the Ontario Superior Court of Justice varied a judicial release order made in March, 2020 by permitting the accused to use the internet without supervision for the purpose of employment and for purposes relating to his ongoing criminal and civil court cases. The Court also decided to permit the accused to use the internet for other purposes, including sending emails, when he is supervised by his surety or designate. In the result, the revised release order reads:
Do not access or use the internet or email or text messages except (i) in the direct continuous presence of your surety or an adult over the age of 21 as approved by your surety; (ii) for the purposes of employment with Google maps street view photography, remote P.C. support and website development; or (iii) for purposes relating to your ongoing court proceedings, including conducting online research, serving and filing electronic court documents, communicating with your own and other counsel, and attending virtual online court hearings.
The Court noted that the March 2020 judicial release order did not take into account the accused’s “status as a self-represented litigant who was defending himself against multiple criminal charges, as well as dealing with multiple civil actions both as a plaintiff and as a defendant.” The Court noted that bail conditions barring the accused from doing online legal research or using the internet to communicate with court staff and opposing counsel was “entirely untenable in the current landscape created by the COVID-19 public health crisis, which has closed law libraries and is likely to shift most court hearings onto online platforms for the foreseeable future.”
2018 November 8
The Superior Court of Quebec issued a pre-trial injunction requiring the defendant to remove the names of certain people and organizations, or any information tending to identify them, from his Facebook page. The court expressed a preliminary view that the primary object of the Facebook page was to express hatred and mistrust, and that some readers might even regard the posts as an invitation to violence. The court described the posts as “virulent and repetitive”.
2018 May 16
The Alberta Court of Queen’s Bench held that contempt proceedings against a defamation defendant for breach of pre-trial injunctions are not stayed by the bankruptcy of the defendant. “The laws of contempt reflect a public obligation to comply with a Court order, and bankruptcy is not a dispensation from the laws relating to contempt.” Further, although a bankruptcy may prevent a defamation plaintiff from recovering damages against the bankrupt, the plaintiff’s claims for a permanent injunction remain intact. A pre-trial injunction granted by the Court therefore remains in force pending the trial of the permanent injunction claim. With respect to the pre-trial injunction in this case, the Court stated: “I find that the Applicant has proved beyond a reasonable doubt that the Respondent breached Madame Justice Anderson’s Order” in relation, among other things, to a website set up in 2013 detailing the respondent’s grievances against the plaintiff and another website set up in February 2014 protesting against the plaintiff. “I find the potential defences, excuses and justifications have been disproved beyond a reasonable doubt.”
2017 December 1
The Ontario Superior Court of Justice granted a pre-trial injunction prohibiting two of the individual defendants from any and all direct communications with employers of an expert witness retained by the plaintiff, including all letters, emails under any name or pseudonym, and all other modes of correspondence or communication. The Court deferred consideration of a defendant’s internet blog, which contained allegedly defamatory statements about the plaintiff’s expert witness, but characterized them as “the type of statements that should not and cannot be made without attracting legal action. They certainly should never be made to a person’s employer, as they could be construed as not only defamatory but an interference with the target person’s economic and contractual relations.” “[I]f these allegations were repeatedly called to the attention of [the expert witness’] employer, it would look like an attempt was being made to intimidate or actively discourage her from testifying at trial as an expert witness.”
2017 November 14
The Ontario Superior Court of Justice (Divisional Court) varied an interlocutory injunction that required all of the impugned websites to be taken down and held that the plaintiff’s interest was adequately served by an order requiring the appellants/defendants to delete from their websites any hyperlink or other reference to certain digital articles. The Divisional Court considered that the combined effect of the digital articles and the websites resulted in defamation. “Although the Websites do not repeat the defamatory content of the digital articles, they render the digital articles defamatory by effectively identifying the persons who would have otherwise remained anonymous. In my view, utilization of the hyperlinks to that effect amounts to publication sufficient to warrant the application of the law of defamation.”
2017 September 25
The Manitoba Court of Queen’s Bench dismissed an application by the plaintiff filed on January 26, 2017 for an interlocutory injunction restraining the defendant CBC from communicating, and from broadcasting by means of the internet, media stories that are derogatory and discriminatory towards him. The plaintiff’s lawsuit, which was filed July 20, 2015, alleged he had been defamed in a television broadcast and online article published on September 2, 2014 and which remained on the CBC website. The Court applied the test approved by the Supreme Court of Canada in Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 S.C.R. 626, namely that an interlocutory injunction will not be granted where the defendant indicates an intention to justify (i.e. prove the truth of) the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify. The Manitoba Court also approved the following statement of the law in Kent v Martin, 2012 ABQB 507 at paragraph 13: “A court will look to see if the defendant has a sustainable defence; if so an interim injunction will not be granted. It must be beyond doubt that there are no defences. An injunction should issue only if the defendant does not deny the falsity of the publication. Even if it is conceded that the publication is untrue, an interlocutory injunction will not be granted where the defendant intends to defend on the ground of privilege or fair comment on a matter of public interest.” In relation to a CBC submission that the Liberty Net test should also apply to the pleaded causes of action for violation of privacy rights, intentional infliction of emotional distress, and breach of copyright, the Manitoba Court agreed that the “driving factor underlying the Liberty Net principles is a reluctance of restrain expression in all but the clearest of cases” and stated that “the specific cause of action upon which the [plaintiff] relies in the substantive claim is not material to determining the test that should apply on a motion for an injunction to restrain expression.”
2017 June 28
In this intellectual property case, the Supreme Court of Canada dismissed an appeal from lower court orders granting the plaintiff an interlocutory injunction requiring Google “pending a trial, to globally de-index the websites of a company which, in breach of several court orders, was using those websites to unlawfully sell the intellectual property of another company.” The Court rejected the argument that non-parties cannot be the subject of an interlocutory injunction, citing MacMillan Bloedel Ltd. v Simpson, [1996] 2 SCR 1048, which held that non-parties are bound by injunctions and are subject to conviction and punishment for contempt of court if they violate them. “The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey.” The Supreme Court of Canada noted that Norwich disclosure orders are analogous and may be ordered against non-parties who are not themselves guilty of wrongdoing, but who are so involved in the wrongful acts of others that they facilitate the harm. “This approach was applied in [Cartier International AG v British Sky Broadcasting Ltd., [2017], 1 All. E.R. 700 (C.A.), at para. 53] where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party internet service providers who had not engaged in, and were not accused of any wrongful act. The internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff’s trademarks.”
The Supreme Court of Canada also rejected Google’s argument that an interlocutory injunction with extraterritorial effect is improper; i.e. that any injunction issued should be limited to Canada or google.ca. “When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction restraining that person’s conduct anywhere in the world.” “The problem in this case is occurring online and globally. The internet has no borders – its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates – globally.” “If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the injunction accordingly.”
2017 May 12
The Ontario Superior Court of Justice dismissed the plaintiff’s application for an interlocutory injunction to prohibit publication of two articles posted on the Internet on the basis of the stringent test for such injunctions in defamation cases. See Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626. The Court was unable to find, on the basis of the evidentiary record before it on the application, that a jury verdict in favour of the defendant at trial would be perverse. “It is, however, a Pyrrhic victory for the defendant. In the circumstances, having regard to the interests at stake, the plaintiffs are not foreclosed from returning the motion with a more fulsome (evidentiary) record.”
2017 May 11
The Superior Court of Quebec dismissed an application by the plaintiff for a provisional injunction before trial which would have required the individual defendant and the newspaper to withdraw an article on the newspaper’s internet site and all other related platforms within 14 hours. The Court applied the same stringent test as common law courts in the other provinces and rejected the motion because it could not conclude “that the words are so manifestly defamatory and impossible to justify” that the defamation action was bound to succeed.
2017 March 7
The Ontario Superior Court of Justice granted the defendants leave to appeal [to the Divisional Court] from interlocutory (pre-trial) injunctions requiring them to remove nbsp;websites and other publications from the Internet and prohibiting further statements about the plaintiff. The Chambers judge applied the standard test for pre-trial injunctive relief in civil cases, which is expressed in RJR MacDonald Inc. v Canada, [1994] 1 S.C.R. 311 rather than the more stringent test commonly applied in libel cases which is found in Canada (HRC) v Canadian Liberty Net, [1998] 1 S.C.R. 626. In the latter case, Bastarache J. stated for the majority that “interlocutory injunctions should only be granted to restrain in advance written or spoken words in the rarest and clearest of cases – where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed.” In granting leave, the Ontario Superior Court of Justice noted that if the test in Canadian Liberty Net were applied, there was a real likelihood the injunctions would not have been granted.
2017 January 11
The Superior Court of Quebec dismissed an application by a defamation plaintiff for a pre-trial injunction to require the defendant newspapers to remove articles from their internet website. The Court noted that the great majority of the public comments posted to the article were made on the first day it appeared online, and only one or two were made very shortly afterwards. Accordingly, the Court concluded the greater part of any damages had already been sustained. The Court also applied a strict test for pre-trial injunctions in defamation cases, citing Leblanc c Leduc, 2014 QCCS 2495, Champagne c. Collège d’enseignement général et professionnel de Jonquière, [1997] R.J.Q. 2395 (C.A.), and Prud’homme c. Rawdon (Municipalité de), 2010 QCCA 584. The Court held that the jurisdiction to grant an injunction must be exercised with great caution, only in rare and very clear cases, where the words are clearly defamatory, the prejudice is irreparable, and the defence of truth is clearly insupportable.
2016 December 20
The Ontario Superior Court of Justice dismissed an application by the plaintiff for an interlocutory (pre-trial) injunction to prohibit the defendant from posting on the internet any defamatory information about the plaintiff mayor or other council members, and from sending any defamatory emails to the mayor or other members of town council. “The heart of the complaint against [the defendant] is that he has directed defamatory and abusive emails to the town and others, generally about the mayor and the town’s administration.” [Note: the Court applied the ordinary test for granting an injunction in civil cases rather than the more stringent test applied by most courts as defined in Canadian Liberty Net.]
2016 December 16
The Ontario Superior Court of Justice dismissed an application by the defendant for an interlocutory injunction to prohibit the plaintiff from picketing at any Cineplex movie theatre in Ontario and from publishing defamatory statements on social media networks, in printed literature or common consumer products. The Court noted that the defendant’s statement of defence did not include a counterclaim for a permanent injunction. The Court held that it is fundamental that the remedy of an interlocutory (pre-trial) injunction cannot be obtained in the absence of a pending or intended proceeding in which a permanent injunction is claimed. Further, the Court held that the defendant would be required to meet the evidentiary test for an interlocutory injunction, which the Court identified as the standard test for pre-trial injunctive relief described in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311. The test has three elements that must be proven by the plaintiff: 1) serious question to be tried; 2) irreparable harm; and 3) balance of convenience. [Note: It is submitted that RJR-MacDonald is the wrong test for interlocutory injunctive relief to restrain defamatory expression).
2016 October 25
The Quebec Superior Court dismissed the plaintiff’s application for a pre-trial injunction against two of the individual defendants which would have required them to disable and remove from the Internet any publications about the plaintiff on Facebook, Twitter, Youtube and other websites.
The Court noted that such interlocutory relief is rarely granted for alleged defamation under Quebec law, which establishes the following necessary conditions precedent: (a) the discretionary power to issue such an injunction must be exercised with extreme care; (b) the injunction should not be granted except in rare and clear circumstances; (c) the expression complained of must be clearly defamatory; (d) the harm caused by the expression must be irreparable; and (e) the defence of truth must be bound to fail. The authorities supporting this proposition include Champagne v College d’enseignment general et professionel de Jonquiere, [1997] R.J.Q. 2395 (CA); (HRC) v Canadian Liberty Net, [1998] 1 SCR 626; and Prud’homme v Rawdon (Municipalite de), 2010 QCCA 584.
2014 June 24
The Ontario Superior Court of Justice held the respondent A in contempt of court for knowingly and wilfully breaching a five-day ex parte injunction obtained by the plaintiff prohibiting the defendant from publishing a press release. The Court found that “after her employment was terminated for refusing to undergo a background check, the defendant embarked on an email campaign with her former employer that if they didn’t settle with her and pay a significant sum of money by a certain date, she would issue a long and detailed press release disclosing the plaintiff’s confidential business methods and disparaging their business reputation.” Despite the ex parte injunction, the “press release was issued and the plaintiff’s confidential information was widely disclosed over the Internet by numerous news outlets” which received the press release. The Court noted that it is no defence to a motion for contempt to argue that the injunction order is improper and should not have been granted. A court order “stands, and commands respect in all its aspects, until it is reversed on appeal or an equally effective order is secured that it need not be obeyed.” Once a person has knowledge of a Court Order, he or she must obey the order “in both the letter and spirit with every diligence.“
2013 September 20
The British Columbia Supreme Court dismissed an application for an interlocutory application to restrain the defendants from further publication of allegedly defamatory allegations concerning the plaintiffs on various websites and Internet bulletin boards. The Court stated:
“ An application for an interlocutory injunction in the context of a defamation claim has always been treated differently. This is because it squarely raises the competing public interest of freedom of speech, which, the courts have held, ought not to be stifled in advance of a trial on the merits except in the very clearest of cases. In one sense, this may be viewed as akin to the principle from RJR-MacDonald that the strength of the applicant’s case is the predominant consideration where the effect of the injunction would be to end the litigation. Since the granting of an interlocutory injunction in a defamation case prevents the publication of the impugned words without any decision on the merits of the claim, the existence of a fair case to be tried has been considered insufficient. Instead, the courts have required that the words complained of be manifestly defamatory and impossible to justify: see, for instance, Beidas v. Pichler 2008 CanLII 26255 (ON SCDC), (2008), 294 D.L.R. (4th) 310 (Ont. Sup. Ct. J.), and Canada (Human Rights Commission) v. Canada Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626. … Although many cases refer solely to the defence of justification, the test is wider than that. To quote from Professor R. E. Brown’s well-known text, Brown on Defamation, looseleaf, 2nd ed. (Toronto: Carswell 2011) at pp. 36-7 and 44-46: A court will look to see if the defendant has a sustainable defence; if so an interim injunction will not be granted. It must be beyond doubt that there are no defences. An injunction should issue only if the defendant does not deny the falsity of the publication or, if denied, it would be impossible for him or her to succeed on a plea of justification. Even if it is conceded that the publication is untrue, an interlocutory injunction will not be granted where the defendant intends to defend on the grounds of privilege or fair comment on a matter of public interest. … If the defendant intends to defend on the basis of a qualified privilege or a fair comment on a matter of public interest, the court should not issue an injunction unless it is shown that the defendant is acting dishonestly and with malice in, or it is clear that the defences are spurious or fanciful or bound to fail. It is not necessary for the defendant to submit evidence in support of these defences to defeat an injunction, but the court will look critically at the defences pleaded to see if they would succeed.”
In this case, the BC Supreme Court held that it could not conclude that the defence of justification cannot possibly succeed and the plaintiffs therefore had not satisfied the test for an interlocutory injunction, referring to Nazerali v Mitchell, 2011 BCSC 1846 at paragraph 12.
2013 June 10
The Ontario Superior Court of Justice rejected the plaintiff’s submissions, following a dismissal of its application for an interlocutory injunction, that the defendants should not be awarded costs for the motion on the theory they would thereby be “rewarded for posting and allowing others to post on their YouTube channel, comments of a … vile nature.” The Court rejected the defence request for “full indemnity” costs (awarding only the lesser “substantial indemnity” costs), stating that it had no reason to doubt the plaintiff was “motivated only by a desire to permanently remove from the Internet offending comments made about him on the Defendant’s YouTube channel.” The defence unsuccessfully argued that the main purpose of the plaintiff’s injunction application was to force the defendants to incur unnecessary costs thereby bringing financial pressure on the defendants. The Court held there was no evidence to support that defence allegation
2013 March 25
The Ontario Superior Court of Justice dismissed the application of the plaintiff, a municipal official employed by the town of Renfrew, for a pre-trial injunction regarding two videos made by the defendants and comments on YouTube posted by the defendants and others in relation to the videos. The defendants made the videos to protest alleged difficulties with municipal officials over the defendants’ decision to operate a pornography store on the town’s main boulevard. The plaintiff argued that the defendants were liable not only for their own comments, but those posted by others which the plaintiffs characterized as “cyber bullying.” After noting that a pre-trial injunction is an “extraordinary remedy, granted sparingly, in the clearest of cases, and only to the extent necessary,” the Court held that it was for a jury to find that “the Defendants deliberately adopted and endorsed the opinion of others, having regard to all of the circumstances, including the involvement of others who made comments of a defamatory nature against the Plaintiff and that of YouTube.”
2012 September 25
The Ontario Superior Court of Justice granted the plaintiff, the CEO of a publicly-traded corporation, a pre-trial injunction against the defendant “John Doe” aka B Prince (at a Yahoo email address) who did not appear in court although the Court found he had notice of the application. The Court noted that the defendant had responded to the plaintiff’s demands with emails to the effect: “Go F___yourself.” Commenting that the defendant “has done the opposite of expressing his intention to justify his words,” the judge held that the defendant’s posts to the “bullboard” about the plaintiff’s company on Stockwatch were clearly defamatory and designed to injure the plaintiff’s reputation. The evidence indicated they had been viewed over 500,000 times. Granting the application, the Court stated: “An injunction will not constrain Mr. Prince’s freedom of expression. What is being enjoined are defamatory posts. Public discussion of publicly traded corporations and their managers are rightfully and properly the subject of discussion on the Internet. Members of the public have every right to post and share their thoughts and opinions, but the invention of the Internet has not repealed the law of defamation.”
2011 December 13
The Supreme Court of British Columbia dismissed an application by the plaintiff to extend an ex parte, temporary injunction granted October 19, 2011 which enjoined certain defendants from publishing any statements regarding the plaintiff on the Internet and prohibited GoDaddy from permitting operation of the defendant’s domain name or transferring its registration: 2011 BCSC 1581.
Although the Court agreed that the words complained of by the plaintiff were defamatory, the Court held that the earlier pre-trial injunction granted on October 19, 2011 was not based on the correct legal test for such an injunction which is described in Canadian National Railway Company v Google Inc., 2010 ONSC 3121 as follows:
[8] It is not easy to obtain an injunction in response to defamation. We respect the principle of freedom of speech and are careful when asked to limit the freedom of anyone to express their views. This concern for the freedom of expression is itself expressed in the following:
The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.
(Canadian Metal Co v. Canadian Broadcasting Corp. (1975), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42 at p. 261 quoted in Mcleod (c.o.b. Malask Mcleod Gallery) v. Sinclair, [2008] O.J. No. 5242 at para. 19)
[9] The test to obtain an injunction in such circumstances is high. It is not insurmountable. The test is found in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626. In that case, the Court quoted from Rapp v. McCelland & Stewart Ltd. (1982), 34 O.R. (2d) 452 (Ont. H.C.) as follows:
The guiding principle then is, that the injunction should only issue where words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.
… American Cyanamid…has not affected the well-established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.
(Rapp v. McCelland & Stewart Ltd., supra, at pp. 455-6)
[10] This has been repeated in the following terms:
According to the test, the Court must consider the likelihood of a finding of defamation at trial. The words in question must be clearly defamatory and obviously impossible to justify, such that the trial judge’s acceptance of a defence of justification would of necessity have to be set aside as some perverse finding on appeal.
(Canada (Human Rights Commission) v. Canadian Liberty Net, supra, at para. 49, referred to in Henderson v. Pearlman, [2009] O.J. No. 3444 at para. 37)
At the earlier hearing on October 19, 2011 [when the defence was not represented because it had no notice of the lawsuit or the injunction application] the presiding judge considered that once it had been shown the words were defamatory, the Court did not need to ask whether or not there was any conceivable defence. This was not the correct approach as demonstrated in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.
The Court also expressed concern about the substance of the October 19, 2011 ex parte order in the sense of its breadth. The Court noted that the defendants’ “website consisted of significantly more than the article … which is complained of” and yet the ex parte injunction effectively shut down the entire website. The earlier ex parte injunction was therefore unnecessarily broad.
After considering all of the material, and potential defences raised by the defendants’ motion material, the Court concluded it was “obliged to dismiss the [plaintiff’s] application” to extend the injunction.”
2011 January 5
The Ontario Superior Court dismissed an application by the plaintiff for an interlocutory injunction requiring the defendant Hillier to remove all video postings he has placed on www.youtube.com that have any content concerning the plaintiffs. The Court also refused to grant an interlocutory injunction restraining Hillier from broadcasting, transmitting, publishing or posting on the internet or the worldwide web and/or from distributing in any manner whatsoever any information concerning the plaintiffs. The Court was not satisfied that the plaintiffs have met their burden to prove that the defendant Hillier’s words are “clearly defamatory and impossible to justify”. “…Hillier is but one of many people, identified and unidentified, who are discussing [the plaintiff] and his businesses on the Internet and in the media at large. Strangely, the plaintiffs have chosen to invest their time and money in pursuing one person [the defendant] Hillier.” Although the court did grant an order joining Hillier as a defendant to the action, the judge dissolved an ex parte order made in March, 2009 prohibiting SCAM.COM from posting “derogatory statements or imputations concerning the plaintiffs and granting an Anton Piller order permitting the plaintiff’s to enter and inspect the premises of SCAM.COM. The Court held that the plaintiffs had abused the extraordinary relief granted in the March 2009 orders by attempting to enforce the order against Hillier, who was not a defendant and had never been an officer, director, employee, contractor or agent of SCAM.COM, and was not one of the anonymous posters the plaintiffs were seeking to identify with the March 2009 orders. “The plaintiffs continued to misuse the March orders when they represented to Internet sites (other than SCAM.COM) that the orders applied to them …The March orders were issued 20 months ago and the plaintiffs have not moved this action ahead to trial … It is apparent from [an affidavit of the plaintiff] and the misuse of the March orders that the plaintiffs treated the interim injunctive relief as a sword and acted like there was a final determination on the merits.” The Court noted that a plaintiff who obtains an interlocutory injunction must proceed expeditiously to trial so as to limit as much as possible the time period during which the defendant is impacted by the order.
2010 October 4
The Ontario Superior Court dismissed an ex parte application by the plaintiffs for (i) an Anton Piller order authorizing a search and seizure of the defendants’ business computers and (ii) an interim interlocutory injunction prohibiting the latter from publishing any further allegedly defamatory statements and requiring the defendants to remove and “unpublish” all allegedly defamatory statements about the plaintiffs from their website or otherwise within their control. The plaintiffs’ sought an Anton Piller order to seek evidence supporting their allegation that the defendants had disseminated allegedly defamatory emails using an alias. Rejecting an Anton Piller order, the Court noted there was no evidence to support an allegation the defendants would intentionally destroy evidence. As regards the proposed injunction, the Court noted the plaintiff’s application was brought more than two months after they became aware of the allegedly defamatory website publications, and stated: “I am not prepared to grant an interim interlocutory injunction on an ex parte basis in the absence of evidence that a delay to provide the defendants with notice of the motion is likely to result in serious and irreparable harm to the plaintiffs.” The Court left open the possibility of a renewed application for an injunction on notice to the defendants.
2010 September 24
The Ontario Superior Court of Justice ordered that the defendant cease contacting the plaintiff and its employees and departments directly or indirectly by email about the subject matter of this litigation (claims for defamation, intentional interference with economic relations and infringement of trademark) until completion of the action or further order of the Court; the defendant was ordered to communicate only with the plaintiff company’s legal counsel. However, the Court rejected the plaintiff’s application for a broadly worded injunction to prevent the defendant from communicating with competitors or saying anything about the plaintiff. The Court held that the plaintiff had not shown that it will suffer irreparable harm that cannot be compensated by damages if the injunction is not awarded and that the evidence was not sufficient to prove the defendant was responsible for an allegedly defamatory report posted on Ripoffreport or that the defendant controlled (at the time of this motion) any website employing the plaintiff’s name in a pejorative way.
2010 May 28
The Ontario Superior Court of Justice granted a pre-trial injunction against Google requiring the defendant to remove the allegedly defamatory website hosted on Blogspot. After noting that the test to be satisfied in order to obtain a pre-trial injunction against defamation is stringent, the Court considered whether the test “could be impacted by the novel nature and broad impact of the publication of defamatory material on the Internet.” The Court concluded that there was no reason to amend or alter the ordinary test when the publication s on the Internet but held it must be applied in a “careful, considered and appropriate manner.” Google did not oppose this motion. The anonymous John Doe defendants did not respond although they had been served with the motion by email.
2010 March 31
The Ontario Superior Court of Justice dismissed a motion by the plaintiff for an interim and interlocutory injunction to restrain the defendant from publishing or republishing five articles published on her websites which were not specifically complained of in the Statement of Claim. The Court stated:”An interlocutory injunction … is intended as protection against harm complained of in a statement of claim that is alleged to need to be addressed immediately, on an interlocutory basis, without awaiting the trial and its outcome. …There is no evident reason why an interlocutory injunction in an action for defamation ought to be given for statements that are not claimed in the Statement of Claim to be defamatory and sought to be enjoined on that basis.” The Court further stated that “[i]t cannot be said that the plaintiff comes to this Court on this motion with clean hands” noting that the plaintiff had published on his own website in 2001 an article “intended to be … a public derogatory comment about the defendant.” “The reasonable inference is that the publication of [the plaintiff’s article was] gratuitous and malicious, which is the same complaint that the plaintiff now makes about the defendant’s publications.”
2009 December 3
The Quebec Superior Court dismissed an application for a pre-trial injunction to restrain the dissemination and publication of defamatory statements concerning the security of the business of the plaintiff or pollution of the environment by the plaintiff. The defendant corporation specialized in hosting web sites for vendors of used goods, including the defendant individual, who published a number of anonymous postings on such web sites. The corporate defendant removed the postings once it received the plaintiff’s complaint. The Court concluded the evidence did not justify granting this exceptional remedy, where the content of the expression to be enjoined was not yet known.
2009 July 9
The Quebec Superior Court granted an interlocutory injunction sought by the mayor, director general and Rawdon municipality to restrain the publication of defamatory words on a specified Internet website and prohibiting the defendants – as the role of administrators, hosts or moderators – from allowing the plaintiffs to be defamed on any Internet website. The court also ordered the defendants to deactivate and withdraw from the Internet within 12 hours a specific discussion group and to withdraw from the Internet every document or words containing the defamatory expression. [Prior court orders in favour of the plaintiffs included an Anton Pillar order which lead to the identification of anonymous posters.] In connection with a finding that the plaintiffs would suffer irreparable harm if the injunction were not granted, the court stated that it was of the opinion that “use of the Internet as a means of dissemination of the defamation rendered practically impossible the correction of the negative impression left by the defamatory words.”
2008 December 8
The Ontario Superior Court of Justice adjourned the plaintiffs’ application for an interlocutory injunction to “close down” a website created and operated by the defendant which allegedly defamed the plaintiffs and threatened to endanger or damage their businesses. The purpose of the adjournment was to permit the defence to prepare responding material and to allow any necessary cross-examinations in preparation for a full hearing of the injunction motion. The court ordered that the website could remain up pending that hearing, but only on the following terms: “Each and every page which suggests [the alleged defamatory meanings] … shall have placed on it a label 4 inches by 3 inches in dimension. The label will have a white background, be easily-read with clear wording using a Times New Roman font stating: The opinions expressed on this website and on this page are those of [the defendant] and of no other person. These opinions are alleged to be defamatory and are the subject of an action in the Superior Court of Ontario.”
2008 September 26
The British Columbia Supreme Court granted an interlocutory injunction pending trial which restrained the defendant, a web-based business competitor of the plaintiff, from “making false or malicious statements with regard to (the plaintiff) on his web site, or any other web site, or otherwise.” In granting the injunction, the court noted that “the types of losses claimed by the plaintiff are by their nature very difficult to quantify, particularly given the web-based nature of the business” and that actual losses from sales due to the defendant’s actions will not be readily ascertainable and the loss of goodwill will be unquantifiable. Further, the defendant had given evidence which lead the court to conclude that “any damages proven will not be collectible.”
2008 May 29
Beidas v. Pichler, [2008] O.J. No. 2135, reversing [2007] O.J. No. 3684
A three member panel of the Ontario Divisional Court set aside an interim injunction which prohibited the defendants from publishing any material which may identify the plaintiffs and that all references to the plaintiffs be deleted from the Internet. Murray J. held that the plaintiffs had failed to prove irreparable harm on the basis of clear evidence, and their refusal to submit to cross-examination was fatal to interlocutory relief. Further, the orders were too broad and unnecessarily impaired freedom of speech and expression. The fact that defamatory expression is placed on the Internet did not over-ride the stringent test for granting prior restraint. “The Internet should not be less free for expression than other media. The Internet may present unique problems and unique challenges but its use does not and should not invite unwarranted restriction on freedom of expression.” Molloy J. concurred that the injunction was overly broad but would have agreed to amend it if the other two members of the Court were prepared to do so (they were not). Pitt J., dissenting, would have sustained the interlocutory injunction, noting that the defendant’s statements were bizarre and that the alleged defence of truth was unlikely to succeed.
2007 September 25
Beidas v. Pichler, [2007] O.J. No. 3684, reversed [2008] O.J. No. 2135 (Divisional Court)
The plaintiffs in this action in the Ontario Superior of Justice sued over articles disseminated on-line and obtained a pre-trial injunction prohibiting the defendant from publishing any materials which may tend to identify the plaintiffs. Subsequently, the defendant sent an email to 11 people which the plaintiffs alleged violated the injunction. The plaintiffs, seeking to have the defendant found in contempt of court, issued summonses to certain proposed witnesses in connection with a contempt hearing.
In this pre-hearing ruling, a Master of the Court quashed the summonses served by the plaintiffs on four individual witnesses, holding that the plaintiffs failed to demonstrate that they were likely to have any evidence relevant to the contempt motion.
2006 November 17
In this lawsuit, the British Columbia Supreme Court continued (with certain modifications) an interlocutory consent injunction originally granted in May 2006 which prohibited the defendant ex-wife from publishing anything in any way, including the internet, relating to: (i) the plaintiff ex-husband; (ii) the couple’s pre-adolescent daughter; (iii) this proceeding; and/or (iv) another lawsuit in which the ex-wife sued a number of parties alleging wrongdoing. The Court noted that the ex-wife continued to allege that the plaintiff ex-husband physically and sexually abused and neglected the pre-adolescent daughter although her allegations were rejected (a) by another judge of the BC Supreme Court following a lengthy trial and (b) again years later by a different judge of the BC Supreme Court following many days of hearings.
Until the defendant ex-wife was restrained by the May, 2006 consent injunction, she used the internet to seek public support for her claims, posting information which described the alleged sexual abuse, provided particulars of the alleged abuse and personal details of the pre-adolescent daughter, such as her name, photograph, school name and home address.
The Court noted that the ex-wife’s allegations would be defamatory and stated that “injunctions restraining anticipated defamation are rare but can be made in appropriate circumstances, such as to prevent irreparable harm by protecting the identity of people alleged to have perpetrated sexual assaults.” Although the Court accordingly granted a continuation of the injunction (with minor modifications), it required the ex-husband to either amend his claim in this lawsuit within 20 days to seek a permanent injunction or to commence separate legal proceedings seeking such relief.
2006 March 6
The Supreme Court of British Columbia granted an interim injunction preventing the petitioners from publishing information in the media or on the internet concerning the respondents or this proceeding despite the fact that the respondents had not yet filed pleadings that defined a claim for defamation against the petitioners, noting that affidavits of the respondents described some facts which, if believed, could lead the court to conclude the petitioners “have encouraged negative publicity” for one company.” The court held that the petitioners would not be inconvenienced by an injunction because they denied having generated negative publicity in the past and said they had no desire to do so in the future.
2005 October 24
The Saskatchewan Court of Queen’s Bench found the defendant in civil contempt of court for transmitting certain emails which were held by the court to breach an interim injunction obtained earlier by the plaintiff restraining the defendant “from making and publishing further statements whether oral or written and whether distributed via the internet or otherwise or making or permitting the further distribution and publication about any or all of the plaintiffs to this action.”
1999 November 30
The British Columbia Supreme Court granted an ex parte injunction restraining for one week the publication of certain anonymous postings on internet websites operated by a British Columbia company and a U.S.A. company. “… I consider it inappropriate to grant an injunction which will endure until trial, with the right in the defendants and the anonymous writers only to apply to set aside the injunction. It is my view that the injunction should be for as brief a period of time as is reasonable, with an obligation on the part of the plaintiffs to apply for the injunction to be extended.” The Court also granted the plaintiff leave to apply for an extension of the injunction. After noting that the “Court will be as cautious as it is possible to be, more than extremely cautious, in restraining persons from exercising their right to free speech,” the judge stated that what led him to the conclusion that the brief ex parte injunction should be granted is that the statements complained of were anonymous. The judge expressed concern that one anonymous poster “feels free to throw around accusations of the most serious kind behind the cowardly screen of an alias.”
