The Canadian Civil Liberties Association v. Nova Scotia (Attorney General), 2022 NSCA 64

Nova Scotia Court of Appeal Citation: The Canadian Civil Liberties Association v. Nova Scotia (Attorney General) , 2022 NSCA 64 Date: 20221026 Docket: CA 507668 Registry: Halifax Between: The Canadian Civil Liberties Association Appellant v. The Attorney General of Nova Scotia representing His Majesty the King in Right of the Province of Nova Scotia, the Department of Health and Wellness, and the Chief Medical Officer of Health, and Freedom Nova Scotia, John Doe(s), Jane Doe(s), Amy Brown, Tasha Everett, and Dena Churchill Respondents Reasons for Judgment: (paras. 1 to 10) Beveridge J.A.

Reasons for Judgment: (paras. 11 to 171) Bryson J.A. Reasons for Judgment: (paras. 172 to 355) Fichaud J.A. Appeal Heard: April 11, 2022, in Halifax, Nova Scotia Subject: Ex Parte Injunctions – Quia Timet Injunctions – Permanent or Interlocutory – Moot Appeals – Disclosure – Expert Evidence – Charter Rights in Context of Interim Injunctions.

Summary: The Attorney General and the Chief Medical Officer of Nova Scotia (the “Province”) obtained an ex parte injunction enjoining illegal public gatherings prohibited by a Public Health Order issued by the Chief Medical Officer. The Canadian Civil Liberties Association (“CCLA”) was granted intervenor status and sought an inter partes hearing. The Province successfully applied to have the injunction dissolved as no longer necessary and the Supreme Court refused to consider an inter partes because the matter was moot. The CCLA then successfully applied to extend time to appeal the original ex parte injunction.

Issues: 1. Should the Court hear an appeal of an ex parte order? 2. Should the Court entertain a moot appeal? 3. Did the judge err by:

a) Granting an injunction order without the applicants having advanced any common law cause of action, statutory authority, or other right to a remedy;

b) Applying the test for an interlocutory injunction to the applicants’ request for a permanent injunction;

c) Stating and applying the wrong test for a quia timet injunction;

d) Granting an Injunction Order against all Nova Scotians without requiring evidence that such a remedy was needed against all Nova Scotians;

e) Granting an injunction order without considering that the order infringed the Charter rights of all Nova Scotians and that this infringement may not be justified in circumstances;

f) Accepting the evidence of a named applicant as independent expert evidence, without compliance with Rule 55 or the common law requirements for independent expert evidence.

Result: Appeal allowed. per Bryson J.A. (

a) The Court should hear the appeal of the ex parte Order; (

b) Although moot, the Court should entertain this appeal owing to the public interests engaged; (

c) The application judge issued an ex parte final injunction to which the injunction test described in RJR – MacDonald Inc. v.Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 did not apply. RJR is the proper test for an interim injunctionfor which the Province should have applied; (

d) The application should not have been heard ex parte. (

e) The application judge did not misstate the test for obtaining a quia timet injunction; (

f) The application judge did not err by failing to identify a cause of action because a breach of statute was a potential basis forseeking injunctive relief; however, the court erred in issuing either a permanent or interim injunction because the Province did notestablish: (

i) The inadequacies of the statutory remedies under the Health Protection Act, S.N.S. 2004, c. 4 (“Act”); (ii) That there was a “very high probability” of serious or irreparable harm by outdoor transmission of COVID-19 at the proposedpublic gatherings; (

g) In any event, the Order should not have been indefinite with respect to person, place or duration, but confined to the contemplatedgatherings. Provision should have been made for a full inter partes hearing on notice to the named respondents at the earliestopportunity; (

h) The Charter rights infringed by the Order should have been identified and considered in the balance of convenience in theinjunction analysis; (

i) The Chief Medical Officer should not have been qualified as his own expert in a case initiated by him to enforce orders authorizedand issued by him. per Beveridge J.A. Beveridge J.A. concurs with Bryson J.A. except on whether the Attorney General’s expert possessed the requisite degree ofindependence and impartiality to gain admission as expert opinion evidence. That should be left to another day. per Fichaud J.A. Fichaud J.A. dissented on four bases:

(1) Dr. Strang’s opinion was admissible as narrative; (2) though Dr. Strang’s opinion failed tocomply with Rule 55, and was inadmissible as expert evidence on that basis, the nature and extent of Dr. Strang’s connection to thematter did not offend the requirement of independence for an expert witness; (3) the statutory remedy was inadequate to avert imminentharm, so an injunction was appropriate; and (4) the duty of full and fair disclosure was not infringed.

Cases Cited By Bryson J.A. RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Chedrawy v. Chedrawy, 2021NSCA 73; Thompson v. Procrane Inc. (Sterling Crane), 2016 ABCA 71; Society of Lloyd’s v. Partridge, 2000 NSCA 84; Burton v.Howlett (1998), 1998 NSCA 212 , 172 N.S.R. (2d) 342; Lawton’s Drug Stores Ltd. v. Zinck, 2009 NSSC 208; NunatuKavutCommunity Council Inc. v. Nalcor Energy, 2014 NLCA 46; 526901 B.C. Ltd. v. Dairy Queen Canada Inc., 2018 BCSC 1092; R. v.Canadian Broadcasting Corp., 2018 SCC 5; Saskatchewan (Environmental Assessment Act, Minister) v.

Kelvington Super Swine Inc.(1997), (SK KB), 161 Sask.R. 111 (SK QB); North Pender Island Local Trust Committee v. Conconi, 2009 BCSC328, aff’d 2010 BCCA 494; Township of King v. 2424155 Ontario Inc., 2018 ONSC 1415; Vancouver (City) v. O’Flynn-Magee, 2011BCSC 1647; Attorney General v. Ashbourne Recreation Ground Company, [1903] 1 Ch. 101; Cooney v. Ku-ring-gai Corporation(1963), 114 C.R.R. 582 (Australia High Court); Ontario (Attorney General) v. Dieleman (1994), (ON SC), 20 O.R.(3d) 229; Alberta (Attorney General) v.

Plantation Indoor Plants Ltd. (1982), 1982 ABCA 1 , 133 D.L.R. (3d) 741, rev’d (SCC), [1985] 1 S.C.R. 366; Ontario (Chicken Farmers of Ontario) v. Drost (2005), (ON SCDC), 204OAC 17 (Div Ct); Attorney General v. Chaudry, [1971] 3 All E.R. 938; Cambie Surgeries Corp. v. British Columbia (Medical ServicesCommission), 2010 BCCA 396; Beaudoin v. British Columbia, 2021 BCSC 248; Teal Cedar Products Ltd. v. Rainforest Flying Squad,2022 BCCA 26; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43; Boucher v. The Queen, (SCC),[1955] S.C.R. 16; Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170; Ruby v.

Canada (Solicitor General), 2002 SCC 75;United States of America v. Friedland, [1996] O.J. No. 4399; MTS Allstream Inc. v. Bell Mobility Inc., 2008 MBQB 103; ForestwoodCo-operative Homes Inc. v. Pritz (2002), 31 C.B.R. (4th) 243 (Ont. Div. Ct.); Canadian Paraplegic Association (Newfoundland andLabrador) Inc. v. Sparcott Engineering Ltd. (1997), (NL CA), 150 Nfld & PEIR 203 (NLCA); R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852; R. v. Giesbrecht (1993), (SCC), 91 C.C.C. (3d) 230 (Man. C.A.), aff’d [1994] 2S.C.R. 482; R. v. J.-L.J., 2000 SCC 51; Inkster v. Manitoba (Workers Compensation Board), 2021 MBCA 14; R. v.

Abadom, [1983] 1 AllE.R. 364, leave to appeal ref’d (MB CA), [1983] 1 W.L.R. 405 (H.L.); Hudson Bay Mining & Smelting Co. v. Dumas,2014 MBCA 6; Griffin Steel Foundries Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers (1977), (MB CA), 80 D.L.R. (3d) 634; Re Brake; Anderson v. Nalcor Energy, 2019 NLCA 1; Provincial Rental Housing Corporation v.Hall, 2005 BCCA 36; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34; MacMillan Bloedel Ltd. v. Simpson, (SCC), [1996] 2 S.C.R. 1048; Teksavvy Solutions Inc. v.

Bell Media Inc., 2021 FCA 100; Vancouver Aquarium Marine Science Centre v.Charbonneau, 2017 BCCA 395; Automotive Parts Manufacturers’ Association v. Boak, 2022 ONSC 100; Li v. Barber, 2022 ONSC1037; R. v. Sharpe, 2001 SCC 2; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; Layes v. Bowes, 2021NSCA 50; Silzer v. Saskatchewan Government Insurance, 2021 SKCA 59; IPL Plastics Ltd. v. New Brunswick (Executive Director ofAssessment) (1994), (NB KB), 150 N.B.R. (2d) 267; Homco Realty Fund

(20) Ltd. (Re), 2005 NSUARB 16, aff’d2006 NSCA 66; Ocean v. Economical Mutual Insurance Company, 2010 NSSC 315; Handley v. Punnett, 2003 BCSC 294; R. v. Potter;R. v. Colpitts, 2020 NSCA 9. By Fichaud J.A. (concurring but by disparate reasons) Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 , [2003] 3 S.C.R. 3; Borowski v. Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342; MacMillan Bloedel Ltd. v. Simpson, (SCC), [1996]2 S.C.R. 1048; Danyluk v.

Ainsworth Technologies Inc., 2001 SCC 44 , [2001] 2 S.C.R. 460; White Burgess Langille Inman v.Abbott and Haliburton Co., 2015 SCC 23 , [2015] 2 S.C.R. 182; People’s Holding Co. v. Attorney General of Quebec, (SCC), [1931] S.C.R. 452; Brotherhood of Maintenance of Way Employees Canadian Pacific System. v. Canadian PacificLtd., (SCC), [1996] 2 S.C.R. 495; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, (SCC), [1986] 1 S.C.R. 704; Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; New Brunswick v.O’Leary, (SCC), [1995] 2 S.C.R. 967; Cambie Surgeries Corporation v.

British Columbia (Medical ServicesCommission), 2010 BCCA 396; Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26; Attorney General v. Chaudry,[1971] 3 All E.R. 938 (Ch. D.); Operation Dismantle v. The Queen, (SCC), [1985] 1 S.C.R. 441; 526901 BC Limited v.Dairy Queen Canada, 2018 BCSC 1092; Robinson v. Canada (Attorney General), 2019 FC 876; Google Inc. v. Equustek Solutions Inc.,2017 SCC 34 , [2017] 1 S.C.R. 824; RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1S.C.R. 311; B.C.G.E.U. v. British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214; Ruby v.

Canada (SolicitorGeneral), 2002 SCC 75 , [2002] 4 S.C.R. 3; 1711811 Ontario Ltd. (Adline) v. Buckley Insurance Brokers, 2014 ONCA 125;Griffin Steel Foundries Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers (1977), (MB CA),80 D.L.R. (3d) 634 (M.C.A.); United States of America v. Friedland, [1996] O.J. No. 4399 (Ct. of J., Gen. Div.); Canadian ParaplegicAssociation (Newfoundland and Labrador) Inc. v. Sparcott Engineering Ltd. (1997), (NL CA), 150 Nfld & PEIR203 (NLCA).

Authors Cited Sharpe, Injunctions and Specific Performance, looseleaf (Toronto: Thomson Reuters, 2021); Dicey, An Introduction to the Study ofthe Law of the Constitution, 9th ed (London, U.K.: MacMillan 1945); Sopinka, Lederman and Bryant, The Law of Evidence in Canada,5th ed; The Right Hon. Lord Woolf, DeSmith’s Judicial Review, 8th ed. (London: Sweet & Maxwell, 2018); Spry, The Principles ofEquitable Remedies, 9th ed. (London: Sweet & Maxwell, 2014).

Statutes and Regulations Cited Health Protection Act , S.N.S. 2004, c. 4 ; Civil Procedure Rule 2.03, 5.01, 5.02, 22.03(2), 22.05, 31.01, 41, 41.01, 55, 55.04, 75; Canadian Charter of Rights and Freedoms , s. 2(b) ; Emergency Management Act , S.N.S. 1990, c. 8 , Communicable Diseases Regulations , N.S. Reg. 196/2005 (O.I.C. 2005-457). This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 110 pages. Nova Scotia Court of Appeal Citation: The Canadian Civil Liberties Association v.

Nova Scotia (Attorney General) , 2022 NSCA 64 Date: 20221026 Docket: CA 507668 Registry: Halifax Between: The Canadian Civil Liberties Association Appellant v. The Attorney General of Nova Scotia representing His Majesty the King in Right of the Province of Nova Scotia, the Department of Health and Wellness, and the Chief Medical Officer of Health, and Freedom Nova Scotia, John Doe(s), Jane Doe(s), Amy Brown, Tasha Everett, and Dena Churchill Respondents Judges: Beveridge, Fichaud and Bryson JJ.A.

Appeal Heard: April 11, 2022, in Halifax, Nova Scotia Held: Appeal allowed without costs, per reasons for judgment of Bryson J.A.; Beveridge J.A. concurring in part; and per Fichaud J.A. in separate partially disparate reasons.

Counsel: Benjamin Perryman and Nasha Nijhawan, for the appellant Duane Eddy, for the Attorney General of Nova Scotia and Chief Medical Officer of Health Beveridge J.A. – [ 1 ] I have had the privilege of reading the comprehensive and insightful draft reasons of both of my colleagues, Justices Fichaud and Bryson. [ 2 ] At the end of the day, the Court is unanimously of the view the appeal must be allowed. My colleagues agree, as do I: • The Attorney General’s application should not have been ex parte ; • The Court should hear this moot appeal; • Dr.

Strang’s expert opinion was not admissible; • The Nova Scotia Supreme Court had the jurisdiction to issue a quia timet injunction to enjoin apprehended breaches of the Public Health Order made pursuant to the Health Protection Act ; • The motion judge erred when he employed the test for an interlocutory injunction when he actually was asked for and did issue a permanent injunction; • The motion judge erred by not considering the impact on Charter rights when considering if he should issue the requested injunctive relief;

• The motion judge erred by issuing injunctive relief that was far too broad. [ 3 ] I write brief concurring reasons because of the points of disagreement. As I see it, they are: • The AGNS failed in its duty to provide full disclosure of information in its possession on the ex parte application; • The motion judge erred in law in finding the prerequisites for a permanent quia timet injunction had been made out; • Dr.

Strang’s opinion about the risk of outdoor transmission should not have been accepted because he lacked the necessary independence and impartiality as set out in White Burgess . [ 4 ] I agree with Justice Bryson that the prerequisites for a permanent quia timet injunction were not met and the AGNS did not fulfill its duty to ensure full disclosure on an ex parte application. [ 5 ] With respect to both of my colleagues, not only is there no need to weigh in on the issue of Dr.

Strang’s independence and impartiality, it is preferable not to do so. [ 6 ] Trial judges are to act as the gatekeepers with respect to expert opinion evidence. There are two steps that could preclude admission. At the first step, the judge must be satisfied the evidence is necessary, relevant, does not offend an exclusionary rule, and the expert is properly qualified to offer the opinion ( White Burgess at para. 23).

The second engages a cost-benefit analysis ( White Burgess at para. 24). [ 7 ] As part of the inquiry whether the proposed expert is properly qualified, the judge must be satisfied the expert is independent and impartial ( White Burgess at paras. 45 and 53). The issue of independence and impartiality can also play a role at the second step ( White Burgess at para. 54). [ 8 ] Here, the motion judge failed to address this issue.

This is likely the product of the Attorney General’s request and the motion judge’s agreement to hear the injunction application ex parte . [ 9 ] In any event, as pointed out by Cromwell J. in White Burgess , whether an expert should be permitted to give opinion evidence despite having an interest or connection with the litigation is a matter of fact and degree (para. 50).

We do not have a decision by a judge who should have had the benefit of hearing the proposed expert and making findings of fact or of mixed law or fact on this issue. [ 10 ] In these circumstances, it is preferable to leave this issue to another day. In all other respects, I concur with the reasons of Bryson J.A. Beveridge J.A.

Bryson J.A. – Introduction [ 11 ] On May 14, 2021, the Attorney General of Nova Scotia and the Province’s Chief Medical Officer of Health obtained a sweeping ex parte Injunction Order binding all Nova Scotians, preventing them from organizing, promoting or attending public gatherings that would be contrary to public health orders issued by the Chief Medical Officer (unless otherwise described, the Attorney General and the Chief Medical Officer will be collectively referred to as the “Province”). The Injunction Order (“Order”) followed the decision of the Honourable Justice Scott C.

Norton ( 2021 NSSC 170 ). [ 12 ] Amy Brown, Tasha Everett, and Dena Churchill, as well as “Freedom Nova Scotia”, “John Doe(s)” and “Jane Doe(s)” were named as respondents. Because the application was ex parte, none of the respondents were told of the hearing. They did not attend the hearing, so they could not give evidence or make submissions themselves. They could not challenge the Province’s evidence or cross- examine the Province’s witnesses. [ 13 ] The Order was granted indefinitely in time and extent. There was no return date for an inter partes hearing for the respondents to be heard.

The Order did permit application to vary or discharge the Order, but otherwise it would remain in effect. [ 14 ] The Canadian Civil Liberties Association (“CCLA”) appeals the “unprecedented” Order, involving a “misuse” of government power, “unjustified” resort to the courts, and alleged procedural and substantive improprieties in obtaining the Injunction Order. [ 15 ] The CCLA argues the Chief Medical Officer’s own opinion should not have been admitted as “expert evidence”.

The CCLA says the court applied the wrong test when issuing a “final injunction”, failed to identify a proper cause of action, and misstated the test for a quia timet injunction. [ 16 ] The CCLA challenges the need for any injunction and questions the breadth of the Order granted. They add the injunction flouted Charter rights which the judge failed to properly consider. [ 17 ] The Province opposes the appeal and rejects all of the CCLA’s arguments as detailed further below. [ 18 ] Two preliminary matters arise.

First, should this Court hear an appeal from the ex parte Order when no inter partes hearing took place? Second, since there is no longer a live issue between the parties, because the Order has been discharged, should this Court exercise its discretion to hear the appeal? [ 19 ] A further potential preliminary question is whether this is an interlocutory appeal, for which leave is required. Assuming the

appeal is interlocutory, the CCLA must show there are “arguable issues”. As the following discussion reveals, the appeal raises arguableissues for which leave, if necessary, should be granted. [20] For reasons elaborated on below: (

a) The Court should hear the appeal of the ex parte Order; (

b) Although moot, the Court should entertain this appeal owing to the public interests engaged; (

c) The application judge issued an ex parte final injunction to which the injunction test described in RJR – MacDonald Inc. v.Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 did not apply. RJR is the proper test for an interim injunctionfor which the Province should have applied; (

d) The application judge did not misstate the test for obtaining a quia timet injunction; (

e) The application judge did not err by failing to identify a cause of action because a breach of statute was a potential basis forseeking injunctive relief; however, the court erred in issuing either a permanent or interim injunction because the Province did notestablish: (

i) The inadequacies of the statutory remedies under the Health Protection Act, S.N.S. 2004, c. 4 (“Act”); (ii) That there was a “very high probability” of serious or irreparable harm by outdoor transmission of COVID-19 at the proposedpublic gatherings; (

f) In any event, the Order should not have been indefinite with respect to person, place or duration, but confined to thecontemplated gatherings. Provision should have been made for a full inter partes hearing on notice to the named respondents at theearliest opportunity; (

g) The Charter rights infringed by the Order should have been identified and considered in the balance of convenience in theinjunction analysis; (

h) The Chief Medical Officer should not have been qualified as his own expert in a case initiated by him to enforce ordersauthorized and issued by him. [21] The preliminary issues will be addressed first, followed by an overview, a list of the issues, and an analysis of the issues. Appeals from interim ex parte orders [22] As a general rule, courts of appeal do not typically hear appeals from ex parte orders because the appropriate procedure is toapply for an inter partes hearing. As this Court explained in Chedrawy v.

Chedrawy, 2021 NSCA 73: [13] Barring exceptional circumstances, appellate courts do not hear appeals from interim ex parte orders because the proceduralremedy is to seek an inter partes hearing before the first instance judge or another judge of that court, as A.C.J. O’Neil’s ex parte ordercontemplated and Rule 22.06 permits (see Secure 2013 Group v. Tiger Calcium Services Inc., 2017 ABCA 316 at paras. 52-55). Anattempted appeal following an executed ex parte order may even be an abuse of process when the applicant has made no effort to havean inter partes hearing: WEA Records Ltd. v.

Visions Channel 4 Ltd., [1983] 2 All E.R. 589 (C.A.). [23] In Thompson v. Procrane Inc. (Sterling Crane), 2016 ABCA 71, the Alberta Court of Appeal denied permission to appeal an exparte order partly because the order had already been reviewed and upheld. In this case, the injunction under appeal has not beenreviewed by any court. Moreover, as discussed below, the CCLA made efforts to have an inter partes hearing but was denied that on thebasis of mootness.

Appeal of the ex parte Order should be heard in this case because the circumstances are exceptional, and, asdiscussed by Fichaud J.A., involve matters of public interest and importance from both public and private law perspectives. Is it in the public interest that the appeal should be heard? [24] For the reasons given by Justice Fichaud in his consideration of estoppel and mootness, the Court should hear this appeal. Overview [25] On May 12, 2021, the Province filed an ex parte Application seeking a quia timet injunction in anticipation of pending protestsagainst COVID-19 public health restrictions.

The application was supported by affidavits from Dr. Robert Strang, Chief Medical Officerof the Province, and Hayley Crichton, Director of Public Safety and Investigations for the Department of Justice for the Province. [26] Quia timet literally means “because one fears”. Quia timet injunctions respond to an anticipated event, not to existingcircumstances. They are hard to get. [27] The protests were scheduled for May 15, 2021, on Citadel Hill in the City of Halifax, Alderney Landing in Dartmouth, and thebaseball field in Barrington.

The Public Health Order then in force, dated May 13, 2021, prohibited “illegal public gatherings” definedas: [13.5] … a gathering that does not comply with the requirements of this Order including (

a) attendance limits applicable to gatherings, whether indoors or outdoors; (

b) physical distancing; and

(

c) masking requirements. [ 28 ] The Province sought to enjoin all persons in Nova Scotia from organizing, promoting or attending “illegal public gatherings”.

Subject to exceptions not relevant in this case, any public gathering was illegal. [ 29 ] On May 14, 2021, the Injunction Order was granted prohibiting all persons in Nova Scotia from: a. organizing an in person gathering, including requesting, inciting or inviting others to attend an “Illegal Public Gathering”; b. promoting an Illegal Public Gathering via social media, or otherwise; c. attending an Illegal Public Gathering of any nature, whether indoors or outdoors as set out in the Public Health Orders, as amended, and issued by Dr. Robert Strang, Chief Medical Officer of Health, under

section 32 of the Health Protection Act . [ 30 ]

Section 5 of the Order made any violation of the Order punishable by civil contempt and granted law enforcement a wide range of enforcement powers.

Section 9 authorized the Respondents and any person with notice of the Order to “apply to the court at any time to vary or discharge the Order” and the Order was not made returnable for an inter partes hearing at a later time. [ 31 ] On May 27, 2021, the CCLA filed a Notice of Motion seeking public interest standing for the purpose of requesting a rehearing pursuant to s. 9 of the Order. By consent on June 4, 2021, Justice Timothy Gabriel granted the CCLA public interest standing.

The rehearing was scheduled for June 30, 2021. [ 32 ] On June 14, 2021, the Province filed a motion to discharge the Injunction Order because it was “no longer necessary”. The only evidence for the Province’s sudden change of heart was cited in the Province’s factum, referring to a solicitor’s affidavit filed in support of the motion to discharge the injunction: 15. On June 17, 2021, the Attorney General filed a Notice of Motion to discharge the injunction, pursuant to paragraph nine (9) of the Injunction Order.

In support of the motion the Attorney General filed a solicitor’s affidavit setting out the following grounds ( inter alia ): “I am advised by the Attorney General of Nova Scotia and do verily belief [ sic ] that the Premier of Nova Scotia in consultation with the Chief Medical Officer of Health, Dr. Robert Strang, have determined that the Injunction Order issued by the Court in this proceeding is no longer necessary.” The CCLA opposed the motion on procedural grounds but raised no objection to discharge of the Order on the merits. [ 33 ] The Order was discharged by Justice Gail Gatchalian on June 22, 2021.

On June 30, 2021, Justice James Chipman determined the de novo hearing of the application was moot and refused to allow it to proceed. [ 34 ] The CCLA then filed a motion for extension of time to file an appeal of Justice Norton’s decision. The Province opposed the motion on grounds of mootness and lack of standing. On August 31, 2021, Justice Cindy A. Bourgeois granted an extension authorizing CCLA to file an appeal, finding that it was in the interests of justice to allow the appeal to be heard. [ 35 ] The Notice of Appeal alleges the following errors: 1.

Granting an injunction order without the applicants having advanced any common law cause of action, statutory authority, or other right to a remedy; 2. Applying the test for an interlocutory injunction to the applicants’ request for a permanent injunction; 3. Stating and applying the wrong test for a quia timet injunction; 4. Granting an Injunction Order against all Nova Scotians without requiring evidence that such a remedy was needed against all Nova Scotians; 5.

Granting an injunction order without considering that the order infringed the Charter rights of all Nova Scotians and that this infringement may not be justified in circumstances; 6. Accepting the evidence of a named applicant as independent expert evidence, without compliance with Rule 55 or the common law requirements for independent expert evidence. [ 36 ] In its factum, the CCLA argues (a), (b), and (

c) together. Accordingly, the first issue to be addressed is whether the correct injunction test was applied. Because the relevant injunction test relates to the procedural steps undertaken by the Province in obtaining the injunction, sub-ground (

b) will be considered first, followed by (

c) and (a). Was the correct injunction test applied? Injunction – Interlocutory or Permanent? [ 37 ] The CCLA maintains the judge granted what was in effect a permanent injunction, not an interlocutory injunction, and accordingly the interlocutory injunction test should not have applied. The CCLA says the three-part test for an interlocutory injunction is set out in RJR – MacDonald : (

a) a serious issue to be tried; (

b) irreparable harm if the injunction is not granted; and

(

c) the balance of convenience favours the injunctive relief. The CCLA adds that the RJR – MacDonald test does not apply to permanent injunctions and is designed instead for situations where the court has not finally determined the merits. [ 38 ] In its factum, the Province insists it obtained an interlocutory injunction, properly relying on the RJR – MacDonald test. It says the interlocutory character of the Order is reflected in the judge’s decision, his discussion with counsel in court and s. 9 of the Order permitting application to vary or discharge the Order.

Alternatively, the Province claims it does not matter because the test for a permanent injunction was met. [ 39 ] The Province’s Ex Parte Application begins: Order applied for The Applicant is applying for an Order granting a quia timet injunction which: 1. Orders compliance with the provisions of the Health Protection Act 2004, c. 4, s. 1 ; 2. Enjoins the Respondents, and any other person acting under their instructions or in concert with them, from organizing in-person public gatherings: and 3.

Authorizes law enforcement to engage in enforcement measures to ensure compliance with the Health Protection Act and any Order issued under

section 32 of the Health Protection Act , or in accordance with the Health Protection Act . [ 40 ]

Section 9 of the Application describes the legislation and points of law on which the Province relies: 9. The Applicant relies on the following legislation and points of law: a. Health Protection Act 2004, c. 4, s. 1.S 9 b. Judicature Act . c. Nova Scotia Civil Procedure Rule 5.02. d. Nova Scotia Civil Procedure Rule. 2.03 [ 41 ] Neither the legislation nor points of law refer to injunctions. The Province did not specify under what rule it was seeking an ex parte injunction.

Rule 2.03 discusses a judge’s procedural discretion in applying the Civil Procedure Rules , and Rule 5.02 which refers to an “ ex parte application in chambers”. The application does not mention Rule 41 which addresses interlocutory injunctions or Rule 75 which refers to permanent injunctions. [ 42 ] An application is a proceeding which contemplates a decision on the merits whereas an interlocutory proceeding is an intermediate step prior to a final determination on the merits. Rule 5.01 describes an application as originating a proceeding and a motion as an interlocutory step in a proceeding.

Rule 5.02 authorizes an ex parte application in chambers, not as an interlocutory step but as a final step: 5.02 Ex parte application in chambers

(1) A person may apply for an ex p arte order, if it is appropriate to seek the order without notice to another person .

(2) The person may apply for an ex parte order in chambers by filing an ex parte application.

(3) The ex parte application must contain a standard heading written in accordance with Rule 82 - Administration of Civil Proceedings, be entitled “ Ex parte Application”, be dated and signed, and include all of the following: (

a) a description of the order applied for; (

b) a statement explaining why it would be appropriate for the judge to grant the order without notice to other persons ; (

c) a concise statement of the grounds for the order, including the material facts the applicant seeks to establish and a reference to legislation relied on by the applicant; (

d) a reference to each affidavit relied on by the applicant, identified by the name of the witness and the date the affidavit is sworn or affirmed; (

e) the time, date, and the place for the application (

f) if there is only one applicant, a designation of an address for delivery of documents to the applicant, and if there is more than one applicant, a designation of one address for delivery to all applicants or a separate address for each applicant; (

g) an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary.

(4) The ex parte application may be in Form 5.02.

(5) The applicant must file the ex parte application, and the referenced affidavit, and deliver a brief for the judge hearing theapplication, at least two days before the day of the hearing of the application. [Emphasis added.] [43] An ex parte application requires the applicant to state why it is appropriate not to give notice of the application (Rule 5.02).

Inthis case, this was all the Province offered: Ex parte This Application is made without notice to any other person because injunctive relief is necessary to prevent or reduce the spread ofSARS-CoV-2 which causes Covid-19 within the Province of Nova Scotia. [44] This does not say why it was necessary to go to court without notifying the respondents. It did not comply with Rule 5.02(3)(b). The Province should not have proceeded ex parte [45] In general, notice should always be given to persons who may be affected by a proceeding directed against them (Society ofLloyd’s v. Partridge, 2000 NSCA 84; Burton v.

Howlett (1998), 1998 NSCA 212 , 172 N.S.R. (2d) 342). In this case, the Rulespecifically permits proceeding ex parte, but requires the applicant to explain why it is appropriate not to give notice. Since no suchexplanation was given, it was inappropriate to proceed ex parte. [46] Although the Rules allow for ex parte injunctions, Rule 41.02 specifically says, “Nothing in this Rule alters the general lawabout obtaining an interim or interlocutory injunction before a dispute is heard and determined on the merits” (see Lawton’s Drug StoresLtd. v.

Zinck, 2009 NSSC 208). [47] Typically, there are only two situations where giving no notice whatsoever for an injunction is justified: 1. When it is virtually impossible to give notice to the respondent before serious irreparable injury occurs; 2.

When the act of giving notice itself may trigger the damage which it is sought to avoid.[1] [48] Examples of the latter include Anton Piller and Mareva injunctions. [49] Rule 22.03(2) gives other examples of when notice may be unnecessary, including the risk of triggering violence, destruction ofevidence or serious property loss. [50] The Province was monitoring the named respondents on social media. There was no reason why notice could not have beengiven to them.

Moreover, notice to those unnamed could have been given by publication or social media. [51] The failure to give notice has an impact on the disclosure obligations of the Province. More will be said about theseobligations when addressing whether the injunction test was met in this case. The court granted a permanent injunction [52] In its factum, the CCLA argues the distinction between an interim and permanent injunction: 47. At common law, injunctive relief is available on either an interim, interlocutory or permanent basis, as a civil remedy.

In Adline v.Buckley Insurance Brokers, Gillese JA of the Court of Appeal for Ontario provided clarity on these different remedies: a. Both interim and interlocutory injunctions are granted on a pre-trial basis, prior to the determination of the final issues betweenthe parties in the main proceeding.34 i. An interim injunction can be granted on an ex parte basis, and is usually granted on limited argument, for a brief, specified periodof time, and can only be continued by further motion; ii.

An interlocutory injunction is usually granted based on more thorough argument by both parties, and is usually for a longerduration than an interim injunction. b. Permanent injunctions are imposed only after a final adjudication of rights, and once it has been established that an injunction isan appropriate remedy. The foregoing is a correct

summary of the law respecting interim, interlocutory and permanent injunctions. In this case, there was nofinal adjudication of rights, including Charter rights which the CCLA says were ignored. [53] The appropriate test for a permanent injunction is described in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014NLCA 46 at ¶72 as a “helpful

summary” for deciding the availability of permanent injunctions: [72] I will conclude this analysis by saying that the proper approach to determining whether a perpetual injunction should be grantedas a remedy for a claimed private law wrong is to answer the following questions: (

i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, theclaimant’s suit should be dismissed);

(ii) Has the claimant established to the satisfaction of the court that the wrong(

s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed); (iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy); (iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court’s discretion as to whether to deny the injunctive remedy.); (

v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction? (vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [Emphasis added.] [ 54 ] The Province chose a final process but argued law respecting an interlocutory or interim injunction on which the judge relied in granting the injunction.

The Order has the character of permanency, although the urgency alleged and the immediate relief sought related to the pending public rallies on May 15, 2021. The Province wanted to prevent those rallies from taking place. The Order itself did not provide a return date but it did contemplate a return date on notice. [ 55 ] Rule 41.01 defines an interim injunction as an injunction order before an interlocutory injunction is heard. An interlocutory injunction is heard on notice. The judge did not provide for an inter partes hearing.

Unless someone applied to set aside or vary the Order, it was permanent. [ 56 ] The judge granted a permanent ex parte injunction, although the requirements for seeking that relief ex parte were not met by the Province (¶31-33 above). Additionally, the wrong injunction test was applied for a permanent injunction. [ 57 ] The Province submits that it can meet the permanent injunction test because: 1. The Public Health Order was not an adequate alternative remedy to deter and prevent public gatherings; and 2.

Restraining public gatherings was not worse than the spread of COVID-19 infections. [ 58 ] These points correspond to points (iii) and (iv) of the foregoing Nalcor criteria (adequacy of remedy and hardship). [ 59 ] The Province’s argument that it could meet either the interlocutory or permanent tests for an injunction will be considered further below. [ 60 ] The Province should have sought an interlocutory injunction. The correct test for that relief was the RJR test applied by the judge.

Did the judge misstate the quia timet injunction test? [ 61 ] The CCLA complains the Province cited the wrong test to the judge who adopted it: 71. The Province offered the following test for consideration by the Court, without any attribution or authority: In order to grant a quia timet injunction, the Province submits that the court must find the following: 1. The harm that is anticipated is imminent. 2. The harm is irreparable. 3.

Damages would not be an adequate remedy. [ 62 ] The CCLA says it was also necessary to find “… that there is a high degree of probability the alleged harm will in fact occur …” ( 526901 B.C. Ltd. v. Dairy Queen Canada Inc. , 2018 BCSC 1092 ). Assuming that this finding is an additional requirement that must be met, the judge did consider it when he said there was a “high probability that the harm will occur …” ( Decision , ¶20). [ 63 ] The judge did not misstate the correct quia timet injunction test.

Was the injunction granted without identifying a cause of action? [ 64 ] The CCLA says that no cause of action was identified before the application judge and therefore there was no “serious issue” to be tried. The CCLA refers to the Supreme Court of Canada’s comment in R. v. Canadian Broadcasting Corp. , 2018 SCC 5 at ¶25,

that, “An injunction is not a cause of action, in the sense of containing its own authorizing force. It is, I repeat, a remedy.” [65] The Province replies that public gatherings in breach of public health orders are “the cause of action” which satisfies the“serious issue” criterion of RJR – MacDonald’s tripartite test. A cause of action is equally necessary for a party seeking a permanentinjunction. [66] The CCLA rightly says that the statute itself did not authorize an injunction order which some statutes occasionally do for abreach (Saskatchewan (Environmental Assessment Act, Minister) v.

Kelvington Super Swine Inc. (1997), (SK KB),161 Sask.R. 111 (SK QB); North Pender Island Local Trust Committee v. Conconi, 2009 BCSC 328, aff’d 2010 BCCA 494; Township ofKing v. 2424155 Ontario Inc., 2018 ONSC 1415; Vancouver (City) v. O’Flynn-Magee, 2011 BCSC 1647). [67] The court retains an inherent jurisdiction to grant injunctive relief unless the legislature clearly intends to exclude it by statute(Attorney General v. Ashbourne Recreation Ground Company, [1903] 1 Ch. 101). The court’s inherent jurisdiction includes the power toprotect public health (Cooney v.

Ku-ring-gai Corporation (1963), 114 C.R.R. 582 (Australia High Court); Ontario (Attorney General) v.Dieleman (1994), (ON SC), 20 O.R. (3d) 229). [68] The CCLA acknowledges the court has a limited jurisdiction to grant injunctions to enforce statutory obligations, even in theabsence of explicit statutory power but says this authority is “sparingly exercised”. [69] The Province responds that the breach of statute, together with the high probability of irreparable harm and a balance ofconvenience favourable to the Province, establishes the right to an injunction.

May breach of a statute afford injunctive relief? [70] While there is no question that, in appropriate circumstances, courts have the power to grant injunctions against thosebreaching statutes, it does not follow that they will routinely do so. The equitable character of injunctive relief is supplementary to thelaw and is typically unavailable to a party with an effective legal remedy (Nalcor, ¶67). Injunctions have been granted in support oflegislative requirements when the statutory penalties were unavailable or ineffective because prior convictions did not deter thedefendant (Alberta (Attorney General) v.

Plantation Indoor Plants Ltd. (1982), 1982 ABCA 1 , 133 D.L.R. (3d) 741, rev’d onother grounds (SCC), [1985] 1 S.C.R. 366; or where the judge treated the applicant as a private litigant and overlookedthe statutory power to award an injunction: Ontario (Chicken Farmers of Ontario) v. Drost (2005), (ON SCDC), 204OAC 17 (Div Ct)). [71] In the context of public safety, Sharpe refers to Attorney General v.

Chaudry, [1971] 3 All E.R. 938 at p. 3-18, in which aninjunction was granted to restrain a dangerous breach of fire and safety regulations, in part because the statutory remedies wereinadequate to compel compliance by the defendants in a timely manner that would avoid risk to the building’s occupants.[2] [72] In this case, the Act authorizes enforcement in the following ways: • Subsection 26(4)(

c) allows an order to pay issued by the Chief Medical Officer to be enforced in the same manner as the judgmentof the Supreme Court in civil proceedings; •

Section 27 permits a court to order compliance where a person has violated an order made under s. 22(5). Subsection 22(5)requires that a person who is served with an order comply with it forthwith or within any period of compliance specified in the order. •

Section 38 permits a judge of the Provincial Court, upon application by a medical officer, to order that a person who has failed tocomply with an order made under s. 32 of the Act: • be taken into custody and be admitted to and detained in a quarantine facility named in the order; • be taken into custody and be admitted to, detained and treated in an isolation facility named in the order; • be examined by a physician who is acceptable to the medical officer to ascertain whether the person is infected with an agent of acommunicable disease; or • where found on examination to be infected with an agent of a communicable disease, be treated for the disease. [73]

Section 27 only applies to orders made under s. 22(5) of the Act. The Public Health Order in this case was made under s. 32. Sections 27 and 38 only apply to persons who have failed to comply with an order. [74] While the foregoing do not permit a forward-looking remedy like an injunction, there is no evidence that these enforcementprovisions had been invoked and proved ineffective against the named respondents. [75] In Cambie Surgeries Corp. v.

British Columbia (Medical Services Commission), 2010 BCCA 396, the British Columbia Courtof Appeal overturned a permanent injunction obtained by the Province for alleged breaches of the Medical Protection Act in part becausethe Province failed to establish the inadequacy of the statutory remedies: [33] On the face of it, the Commission established that it was legally entitled to conduct an audit under s. 36 of the Act. The first partof the test for the granting of a final injunction was, therefore, made out.

Nonetheless, it is my view that, for reasons that follow, thecourt ought not to have granted injunctive relief in this case. [34] While courts have jurisdiction to grant injunctions to enforce statutory obligations, the jurisdiction must be exercisedcarefully. Where, as here, there is a clear method of enforcement set out in the statute, the court should not grant injunctive reliefunless the statutory provision is shown to be inadequate in some respect.

[35] There are a number of respects in which a statutory regime may be inadequate. For example, the penalty for breach of the statutemay be so limited that a party chooses to treat it as a cost of doing business, and therefore flout the law (see Robert J. Sharpe, Injunctionsand Specific Performance (Looseleaf Edition, Toronto: Canada Law Book, 1998-2009) §3.210; A.G. v. Harris, [1961] 1 Q.B. 74 (C.A.);Alberta (Attorney General) v. Plantation Indoor Plants Ltd. (1982), 1982 ABCA 1 , 133 D.L.R.(3d) 741 (Alta. C.A.), rev’d onother grounds (SCC), [1985] 1 S.C.R. 366; Attorney-General for Ontario v.

Grabarchuk (1976), (ONSC), 67 D.L.R. (3d) 31 (Ont. Div. Ct.). [36] A statutory provision may also prove inadequate where a party who suffers harm is unable to invoke the provision (MacMillanBloedel Ltd. v. Simpson, (SCC), [1996] 2 S.C.R. 1048), or where serious danger or harm would result from the delayinherent in invoking a statutory remedy. There are, undoubtedly, other situations in which deficiencies in a statutory remedy militate infavour of the granting of an injunction. [Emphasis added.] [76] The Province contends it can meet the emphasized criteria. [77] We shall see. [78] Cambie supports the CCLA’s

summary of when injunctions may be granted in support of legislation: 1. Whether the penalty for breach of a statute is so limited that a party chooses to treat it as a cost of doing business, andtherefore flouts the law; 2. Whether a party who suffers harm as a result of a breach is unable to invoke the provisions; or 3. Where serious danger or harm would result from the delay inherent in invoking the statutory remedy. [79] Cambie is a case of a permanent injunction and does not speak to “irreparable harm”, although, unlike here, it was an interpartes case.

Even so, the availability of injunctive relief depended upon a finding of “a serious danger or harm”. In a quia timet context,there must be a high probability of either serious danger or irreparable harm for permanent or interim relief, respectively. [80] The CCLA relies upon the availability of alternative remedies described in Beaudoin v. British Columbia, 2021 BCSC 248, inwhich Chief Justice Hinkson said: [52] The respondents differ from many litigants who seek injunctive relief. In particular, they do not necessarily require the assistanceof the Court to enforce their legislation.

The alternate remedies available to the respondents are a factor to be considered in the exerciseof my discretion. The challenged orders remain extant unless and until set aside or overturned by this Court. [81] The Province replies that Beaudoin can be distinguished because the British Columbia Court of Appeal in Teal Cedar ProductsLtd. v. Rainforest Flying Squad, 2022 BCCA 26 at ¶40, leave to appeal ref’d [2022] S.C.C.A.

No. 168, overturned a trial decisiondeclining an injunction where the judge had given too little weight to the “public interest in upholding the rule of law”. [82] Respectfully, Teal is unhelpful to the Province because the private plaintiff in that case had no access to the alternativeremedies available to a public plaintiff like the Province here.

In this case, there is a statutory enforcement scheme available to theProvince (and unavailable in Teal) which could be engaged to compel compliance with the Act. [83] To add – the “rule of law” referred to by the British Columbia Court of Appeal in Teal is an expression usually attributed to A.V.

Dicey, Vinerian Professor of Law at Oxford, who described the right of public meetings as a general principle of the unwrittenEnglish constitution.[3] Plainly, both at common law and under the Charter, the rule of law embraces more than legislation. [84] The Province failed to prove the statutory remedies had been inadequate to compel the respondents’ compliance with the PublicHealth Order. [85] In this case, the activity which the Province sought to enjoin was already expressly prohibited by the Public Health Order madeunder the authority of the Act for which both fine and imprisonment are available remedies.

The Province did not say in its applicationthat the statutory remedies available under the Act were insufficient, nor did the Province tender any evidence to show that its attempts toenforce the Act had been unsuccessful. Indeed, with respect to the named respondents, no evidence of past enforcement steps was placedbefore the court. [86] The Province relies on the judge’s finding that the Public Health Order “proved ineffective”. In fact, the judge made no suchfinding. The paragraphs cited in support of this submission relate to the issuance of the injunction, not the ineffectiveness of the PublicHealth Order.

In any event, the question is not whether the Public Health Order proved ineffective in restraining public gatherings. Thequestion is whether the remedies provided for in the legislation proved ineffective. No such evidence was led concerning any effort toenforce the orders successfully or otherwise. [87] In her affidavit, Ms. Crichton describes three examples of ticketing at private residences for breaches of the Public HealthOrder, unconnected with the impugned activities of the named respondents. Ms. Crichton describes four prior dates when “FreedomNova Scotia” organized public rallies.

No mention of ticketing or enforcement efforts appear in the affidavits regarding those rallies. [88] Alternatively, the Province contends that the application judge found that the proposed May 15, 2021, public gatherings riskedirreparable harm, owing to the potential transmission of COVID-19 at those gatherings. The Province refers to Dr. Strang’s opinion that“… there is a substantial risk of COVID-19 transmission among attendees”, on which the judge relied to find a “high probability” ofharm. The Province says these findings justified the Injunction Order.

[89] The injunction was intended to prevent outdoor gatherings in wide, open spaces. Crucial to the risk involved, and therefore theavailability of injunctive relief requested, was the danger to those gathering – and to the wider public – posed by these outdoor events. How likely was COVID-19 to be transmitted outdoors? The decision does not ask or answer that question. [90] At the time that the injunction application was sought, the Province had been monitoring COVID-19 transmission by contacttracing for many months.

Yet no examples of outdoor transmission from this monitoring were described in the affidavit evidence. Theaffidavit of Hayley Critchton details a number of previous “illegal” outdoor gatherings, but does not ascribe any infection or transmissionof COVID-19 to these gatherings. In other words, there was no actual evidence of outdoor transmission presented by the Province.

Instead, the Province relies on an opinion from the Chief Medical Officer. [91] The Chief Medical Officer deposed: [28] Nova Scotia has attempted to control the spread of the SARS-CoV-2 virus by implementing a number of public healthrequirements under the Public Health Order.

Restrictions on how people interact with others outside of their households in public places,whether indoors or outdoors, are necessary to prevent the transmission of SARS-CoV-2 and are effective in reducing cases of COVID-19. [92] The only point at which a distinction is made between indoor and outdoor transmission appears in a fleeting phrase in Dr.Strang’s affidavit where he says: [31] […] Recent evidence also shows that even outdoors, if people are not distanced from each other or masked, transmission canhappen from an infectious person to someone else. [Emphasis added.] [93] Although Dr.

Strang refers to recent evidence of outdoor transmission, his affidavit neither describes that evidence nor is thatevidence attached as had been done to support a number of his other assertions. [94] It is plain and obvious from this language that there is a distinction between indoor and outdoor transmission because the ChiefMedical Officer uses the qualifier “even”. Unidentified evidence is cited to support this view. No supporting documentation for thisstatement is attached as an exhibit to the affidavit. What does the evidence say the risk of outdoor transmission is? One percent? Tenpercent? Fifty percent?

We do not know. But we do know that evidence was material to the opinion expressed on which the judgerelied for his finding of irreparable harm. [95] The lack of evidentiary detail is particularly concerning because: 1. This was an ex parte application requiring full disclosure of all relevant and material facts by the Province; 2. COVID-19 is a novel disease about which our knowledge was rapidly evolving; 3. The Province failed to provide a single example of outdoor transmission of COVID-19. [96] As the CCLA submits when arguing its Charter point: 93.

Counsel for the Attorney General acknowledged during the ex parte hearing that constitutional rights were engaged, but failed tomake detailed submissions on this position in advance of the hearing. It is well-established that parties appearing before the court onan ex parte basis are under a duty of utmost good faith in the representations that they make, including a duty to not present onlytheir side of the case.

The Attorney General is not an “ordinary party”, and agents of the Attorney General have even broaderresponsibilities to the court. [Emphasis added.] [97] Rule 22.05 describes the disclosure obligations on an ex parte motion: 22.05 Full and fair disclosure on an ex parte motion

(1) The party who makes an ex parte motion must include, in an affidavit filed for the motion, any evidence known to the party,personally or by information, that weighs against granting the order.

(2) A party who makes a motion for an ex parte order must advise the judge hearing the motion of any fact that may weigh againstgranting the order.

(3) A judge who is satisfied that an ex parte order was obtained without full and fair disclosure may set aside the order. [98] Rule 22.05 merely reflects the general law on the obligation for disclosure. As the CCLA points out in its factum, the AttorneyGeneral is not an “ordinary party” and has a broader responsibility to the court than a private litigant, citing Ontario v. CriminalLawyers’ Association of Ontario, 2013 SCC 43 at ¶37. In that case, the Court referred to its earlier decisions in Boucher v. The Queen, (SCC), [1955] S.C.R. 16 at pp. 23-24 and Nelles v.

Ontario, (SCC), [1989] 2 S.C.R. 170 at pp. 191-192,regarding the fairness obligations of the Attorney General and her agents. Although the foregoing principles are expressed in the contextof criminal law, the public obligations of the Attorney General to the Court and to a civil respondent do not diminish simply because theAttorney General is seeking to enforce a statute by injunction. [99] A party applying for an ex parte order is required to make full and frank disclosure of all material facts (Ruby v. Canada(Solicitor General), 2002 SCC 75 at ¶27).

The rationale for doing so should be obvious but is explained by Sharpe J. in United States ofAmerica v. Friedland, [1996] O.J. No. 4399:

[26] It is a well established principle of our law that a party who seeks the extraordinary relief of an ex parte injunction must makefull and frank disclosure of the case. The rationale for this rule is obvious. The Judge hearing an ex parte motion and the absent partyare literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are notoperative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the movingparty in support of the injunction.

The situation is rife with the danger that an injustice will be done to the absent party. […] [27] [The moving] party is not entitled to present only its side of the case in the best possible light, as it would if the other side werepresent. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state itsown case fairly and must inform the Court of any points of fact or law known to it which favour the other side.

The duty of full andfrank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an orderwithout hearing from the other side. [Emphasis added.] [100] Materiality is key to the obligation, whether the undisclosed evidence is unfavourable or not.

As the Supreme Court said in Ruby: [27] […] The evidence presented must be complete and thorough and no relevant information adverse to the interest of that partymay be withheld […] [Emphasis added.] [101] A fact is material if it would have been “weighed or considered … in deciding the issues, regardless of whether its disclosurewould have changed the outcome” (MTS Allstream Inc. v. Bell Mobility Inc., 2008 MBQB 103 at ¶29, quoting Forestwood Co-operativeHomes Inc. v. Pritz (2002), 31 C.B.R. (4th) 243 (Ont. Div.

Ct.) at ¶26; see generally Sharpe at pp. 2-7, 2-8, 2-9). [102] The obligation for full disclosure is especially acute in a case like this with a new and emerging disease about which ourknowledge is incomplete and developing. Any failure by the Attorney General to fulfil this obligation of full and frank disclosure wouldaffect both the type and extent of potential relief available to the applicants. [103] In Canadian Paraplegic Association (Newfoundland and Labrador) Inc. v.

Sparcott Engineering Ltd. (1997), (NL CA), 150 Nfld & PEIR 203 (NLCA), the Court of Appeal of Newfoundland and Labrador described the obligation in ex parteapplications to ensure grounds of consideration of the issue as a “super-added” duty: [18] On any ex parte application, the utmost good faith must be observed. That requires full and frank disclosure of all material factsknown to the applicant or counsel that could reasonably be expected to have a bearing on the outcome of the application.

Becausecounsel for the applicant is asking the judge to invoke a procedure that runs counter to the fundamental principle of justice that allsides of a dispute should be heard, counsel is under a super-added duty to the court and the other parties to ensure that as balanced aconsideration of the issue is undertaken as is consonant with the circumstances. [Emphasis added.] [104] Justice Fichaud disagrees that there was a want of full and frank disclosure: [347] Citing para. 31’s “recent evidence”, Justice Bryson says Dr.

Strang “neither describes that evidence nor is that evidence attachedas had been done to support a number of his other assertions”. My colleague does not suggest any concealment. Rather, he points out thedegree of disclosure from the “recent evidence” does not match that from Dr. Strang’s other exhibits. From this, he concludes there is aninfringement of the duty of full and fair disclosure. [348] With respect, the conclusion is based on a misunderstanding of Dr. Strang’s affidavit. The affidavit attaches only two exhibits.Exhibit “A” is the Public Health Order that Dr. Strang authored.

Exhibit “B” is the table of COVID-19 statistics in Nova Scotia that Dr.Strang’s office compiled. The affidavit attached the exhibits of which Dr. Strang had personal knowledge. It did not attach studies thatwere authored outside Dr. Strang’s office. Personal knowledge, or lack of it, is a proper distinction to govern the attachment andomission of exhibits. It underlies the hearsay rule. [105] Hearsay may be exhibited to an expert opinion (¶107 below). The test for disclosure is an objective one, related to the importanceof the evidence at issue.

This is plain from Rule 22.05 and Friedland on which both Justice Fichaud and I rely: [36] It is also clear from the authorities that the test of materiality is an objective one. Again to quote the Gee text at page 98: ... The duty extends to placing before the court all matters which are relevant to the court’s assessment of the application, and it is noanswer to a complaint of non-disclosure that if the relevant matters had been placed before the court, the decision would have been thesame.

The test as to materiality is an objective one, and it is not for the applicant or his advisers to decide the question; hence it is noexcuse for the applicant subsequently to say that he was genuinely unaware, or did not believe, that the facts were relevant or important.All matters which are relevant to the 'weighing operation' that the court has to make in deciding whether or not to grant the ordermust be disclosed. [Emphasis added.] [106] Nothing could be more crucial to the weighing operation than knowing the real risk of outdoor transmission when one seeks aninjunction to prevent an outdoor event. [107] The unrevealed “recent evidence” of outdoor transmission is hearsay.

But that does not necessarily make the opinioninadmissible. In R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, Justice Wilson commented on the treatment of expertevidence relying on hearsay evidence:

[66] For present purposes I think the ratio of Abbey can be distilled into the following propositions: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidencegoing to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4.

Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. [Emphasis added.] (Also see: R. v. Giesbrecht (1993), (SCC), 91 C.C.C. (3d) 230 (Man. C.A.) at p. 235, aff’d [1994] 2 S.C.R. 482; R. v.J.-L.J., 2000 SCC 51 at ¶59. The fourth criterion from Justice Wilson’s list in Lavallee was more recently applied in Inkster v. Manitoba(Workers Compensation Board), 2021 MBCA 14 at ¶49). [108] Justice Fichaud says I would exclude Dr. Strang’s opinion or deny its weight for infringing the duty of full disclosure. That isincorrect.

I would do so because, in the absence of evidence of outdoor transmission, the failure to disclose means his opinion lacks afactual foundation (¶90, 94, 104 above;110, 113, 116 below). Then Justice Fichaud says I would “overturn” Norton J.’s findingrespecting “a risk of COVID-19 transmission at Freedom Nova Scotia’s outdoor rallies”. First, it is not a question of a risk but of a “veryhigh probability” of irreparable harm if not enjoined. Second, I would not purport to overturn a factual finding. I point out the factualfinding is based on an opinion which lacks the evidentiary foundation to sustain it.

The finding is therefore erroneous in law. [109] Justice Fichaud adds that a failure to disclose and outdoor transmission of COVID-19 were not raised as grounds of appeal. Butthe CCLA appealed the awarding of an injunction to enforce the Public Health Order because the Province did not meet the criteria forthat relief. Both the failure to disclose and outdoor transmission are relevant to the Province’s alternative argument that it was entitled toan injunction to enforce the Public Health Order because it had proved “irreparable harm” through Dr. Strang’s evidence.

That evidence—and what is omitted—cannot escape judicial scrutiny when so prominently relied upon to resist CCLA’s claim that no injunctionshould have been granted. [110] Justice Fichaud would dismiss the absence of the evidence of outdoor transmission on which Dr. Strang relies for his opinion thatthere “is a substantial risk of COVID-19 transmission” at the planned outdoor gatherings, because it “supports the injunction”. We donot know that. The legal question is whether there was a high probability of irreparable harm.

To repeat—the Province led no evidenceof outdoor transmission of COVID-19 in Nova Scotia or anywhere else. Not only is Dr. Strang’s opinion on this point inadmissible, it isnot factually grounded and cannot supply the evidentiary deficiency. Evidence that COVID-19 was “even” transmissible out-of-doorsdoes not support a finding of a high probability of irreparable harm unless the risk of outdoor transmission was significant.

The burdenof proving this rested with the Province. [111] Justice Fichaud concludes his response on non-disclosure: [342] Justices Sharpe and Green found, based on evidence, that the ex parte applicant had withheld facts or evidence that weighedagainst the applicant’s position to the ex parte judge.

This behaviour was incompatible with what Justice Sharpe termed the required“balanced presentation”. [112] Justice Fichaud adds that: [345] In Nova Scotia, the test is whether the applicant was aware of any fact or evidence that “weighed against” the granting of theinjunction. […] [113] Disclosure under Rule 22.05 is not so limited. Disclosure is not confined to evidence weighing against the relief sought.

Rule22.05(3) requires “full and fair disclosure”: A judge who is satisfied that an ex parte order was obtained without full and fair disclosure may set aside the order. [114] To similar effect is Sharpe, 2:2 at p. 2-7, citing the cases in ¶93 above: More important is the obligation on counsel to see that full and frank disclosure is made of all material facts.

A fact may bematerial even if not determinative: “any fact that would have been weighed or considered by the motion’s justice in deciding the issues,regardless of whether its disclosure would have changed the outcome, is material.” [115] The duty of full disclosure is not limited to adverse facts. The test is objective. The Attorney General cannot be coy aboutmaterial facts. Moving parties who proceed without notice control the record because they invite no one else to court. It was not“balanced” or “accurate” to allude to but not describe crucial evidence necessary to weigh whether an injunction was justified.

Incomplete disclosure is not full disclosure. One cannot be “accurate” by omission. [116] If the “recent evidence” in question had been provided, there may have been a factual foundation for the opinion expressedregarding the transmissibility of COVID-19 outdoors. Without that evidence, either the opinion cannot be admitted or it can be given noweight.

Either way, it is an error of law to give effect to an opinion unsupported by facts material to the opinion expressed. [117] Justice Fichaud excuses non-disclosure of the “recent evidence” of out-of-door “transmission” because supporting hearsayevidence need not be disclosed and indeed could be criticized. Respectfully, this misses the point. Dr. Strang relies on the undisclosedhearsay evidence to express his opinion, but then denies the court the foundation for that opinion. [118] In The Law of Evidence in Canada, 5th ed at ¶12.201-12.203, Sopinka, Lederman and Bryant discuss the English case of R. v.

Abadom, [1983] 1 All E.R. 364, leave to appeal ref’d (MB CA), [1983] 1 W.L.R. 405 (H.L.). An expert wasexpressing an opinion on whether glass fragments found embedded in the accused’s shoes had come from a window which had beensmashed during a robbery. The expert relied upon statistics compiled by the Home Office and found that the refractive index of the glassoccurred in only four percent of all glass sampled by the Home Office.

The expert testified there was a strong likelihood the glassfragments originated from the smashed window. [119] The English Court of Appeal accepted that the expert could rely on secondary facts consisting of generally available materialproduced by others in the field in which her or his expertise lay. But the court went on to say that experts should refer to the material intheir evidence so that the cogency and probative value of their conclusion could be tested and evaluated by reference to it. [120] From the foregoing, it is plain that no conclusion can be drawn from evidence referred to but not quoted in Dr.

Strang’s affidavitbecause the basis of the opinion expressed cannot be tested. [121] In this case, three important principles converge respecting the Province’s incomplete disclosure:

(1) The obligation on an ex parte applicant to make full and frank disclosure;

(2) The requirements of impartiality and independence of an expert witness;

(3) The obligation that material evidence supporting an expert opinion be disclosed. [122] To conclude in response to Justice Fichaud’s comments on my analysis, the following apposite concession in the Court of Appealby the Attorney General warrants quotation: Justice Bryson: Mr. Eddy, just to follow up on Dr. Strang’s impartiality and objectivity about which you’ve been speaking. I’dlike to just first of all refer you to a passage in the submissions of CCLA, it’s paragraph 93, on page 30, and it’s talking about theobligations at an ex parte hearing. I’ll just wait until you turn that up.

Just to be clear, I’ll read this out, it’s the second sentence, “It iswell established that parties appearing before the court on an ex parte basis [that means without notice to anyone else] are under a duty ofutmost good faith in the representations that they make including the duty to not present only their side of the case”. And I take it that’sa statement of law that the Attorney General would endorse. Mr. Eddy: That’s correct. Justice Bryson: Okay. Now, can we just have a look then at Dr.

Strang’s affidavit, paragraph 31 again, and I just, I referred tothis earlier, but I’ll read out the sentence in question once you get there. Do you have his affidavit, sir? Mr. Eddy: (Inaudible). Justice Bryson: Okay. So paragraph 31, last sentence, he says, “Recent evidence also shows that even outdoors [and that’s myemphasis] even outdoors, if people are not distanced from each other or masked, transmission can happen from an infectious person tosomeone else”. He uses the modifier “even outdoors” to contrast it, I take it, from indoors. And he refers to recent evidence.

Do youthink it would be appropriate for an expert who is being impartial and objective to disclose the evidence on which he relies to expressan opinion. Mr. Eddy: Yes. Justice Bryson: But he did not do that in this case, did he? Mr. Eddy: No, he did not. [Emphasis added.] [123] I hasten to emphasize that I attribute no personal fault to Dr. Strang. The usual practice is that lawyers draft the affidavits of theirclients on the basis of information given to them by the client.

To repeat the admonition to counsel by the Court of Appeal forNewfoundland and Labrador in Canadian Paraplegic Association (Newfoundland and Labrador) Inc.: [18] […] Because counsel for the applicant is asking the judge to invoke a procedure that runs counter to the fundamental principle ofjustice that all sides of a dispute should be heard, counsel is under a super-added duty to the court and the other parties to ensure that asbalanced a consideration of the issue is undertaken as is consonant with the circumstances. [124] Dr. Strang would have naturally relied on the advice of the Attorney General.

It is the lawyer’s obligation to ensure compliancewith the law and the Rules of court. [125] In this case, the Province apparently possessed evidence concerning the actual risk of outdoor transmission but failed to producethat evidence.

That risk was material to the outcome because the events the Province wished to prohibit were to take place outdoors. [126] The unspecified evidence on which the Chief Medical Officer relied to say transmission could occur “even” outdoors was clearlya material fact that should have been disclosed, because in the absence of any examples of outdoor transmission, it was vital to anyfinding of probable irreparable harm. In the absence of admissible evidence about the “high probability of irreparable harm”, theProvince was not entitled to an injunction.

Scope of the order [127] Injunctions should impose only the restraint necessary to prevent the alleged mischief and in interlocutory cases preserve thestatus quo. Interlocutory injunctions should be tailored to the specific conduct that is alleged to give rise to that mischief (Hudson Bay

Mining & Smelting Co. v. Dumas, 2014 MBCA 6 at ¶81). Permanent injunctions must also be limited to the circumstances of the case(Cambie at ¶39; Nalcor at ¶72-73). [128] Ex parte injunctions should only be given for a very brief time in order to allow the respondents to appear in court and reply to theex parte order (Sharpe, pp. 2-4, 2-5). In Griffin Steel Foundries Ltd. v. Canadian Association of Industrial, Mechanical and AlliedWorkers (1977), (MB CA), 80 D.L.R. (3d) 634 at p. 640, the Manitoba Court of Appeal said, “In no case should an exparte injunction be given for an indefinite period.

It should be limited until the shortest possible time so that notice can be given to theparties affected by it.” [129] In Cambie, the British Columbia Court of Appeal set aside an injunction commenting that: [39] The injunction goes on, however, to prohibit the clinics from “hindering, molesting or interfering with the inspectors”. Thelanguage appears to have been taken from s. 36(10) of the Medicare Protection Act. Unfortunately, it is common practice for parties toseek injunctions and similar orders in very broad terms, often parroting the language of a statute.

A court should be cautious in adoptingstatutory language in an injunction. The purpose of a statute is to govern a wide variety of circumstances. Statutes are therefore oftencast in broad terms, designed to cover all foreseeable eventualities. An injunction, on the other hand, should be tailored to anindividual case. It is an extraordinary remedy, and anyone who infringes an injunction is subject to the possibility of being found incontempt of court. Injunctions must, of course, be drawn broadly enough to ensure that they will be effective.

They should not,however, go beyond what is reasonably necessary to effect compliance. [Emphasis added.] [130] In Nalcor, the court explained that the focus of an injunction is not to protect an applicant’s core rights but to prevent thebehaviour breaching those rights: [94] The purpose of an injunction is not to protect a claimant’s core rights but to enjoin only the behavior which has led to the breachof those rights.

It was not appropriate to provide a blanket protection to all of the rights of Nalcor flowing from the authorizations andpermits it received, only those portions of those rights that had been wrongfully interfered with. [Original emphasis.] [131] The Newfoundland Court of Appeal elaborated on the circumscribed character of interlocutory injunctions in Re Brake; Andersonv.

Nalcor Energy, 2019 NLCA 17: [28] The point being made in Nunatukavut Community Council was that the establishment of a cause of action leading to the decisionto grant an injunction is not a free ticket to protection by injunction of every legal and proprietary right held by the injunction-seeker.Only those rights which the claimant has asserted have been interfered with in the lawsuit are eligible for protection by injunctionand the consequent contempt power, and then only if the court decides to exercise its discretion to grant an injunction and only to theextent they have been interfered with or threatened to be interfered with.

Other rights, especially proprietary rights, that are not in issuein the lawsuit should not be protected. The protection of those rights should be left to separate action and the justification for issuance ofan injunction (as opposed to some other remedy) in those circumstances. [29] The court considering granting an injunction should therefore be cautious to ensure that the language employed in the injunctionprohibition does not extend to enjoining activities that are not being complained about.

To do otherwise risks dragging persons andactivities under the umbrella of injunction protection that cannot be justified by the claims that have been advanced. [Emphasis added.] [132] Ex parte injunctions should be for a strictly limited time and do the minimum necessary to prevent the irreparable harmanticipated. In this case, the Province sought to prevent anticipated rallies at Citadel Hill, Alderney Landing, and the Barrington baseballfield. The ex parte Order should have been confined to those events. [133] In Provincial Rental Housing Corporation v.

Hall, 2005 BCCA 36, the British Columbia Court of Appeal explained why ex parteorders should be time-constrained: [20] When no notice is given to protestors of an application for injunctive relief, it seems to me that even where extraordinaryurgency can be made out by the applicant, the granting of a short, time-limited injunction would be a preferable form of order. Grantingan injunction for a short period limits the risk of irreparable harm to the plaintiff while ensuring that notice can be given to the protestorsand others who ma

[…]