It is difficult to read an article on the occupy movement and not read a reference to an injunction. An injunction, is a legal remedy, whereby a court orders a party to refrain from acting in a particular way that infringes the rights of another party. Although usually negative in aspect, a mandatory injunction can require the rights violator to take positive steps to respect the rights of another party. Typically, injunctions are only granted in exceptional circumstances and only when monetary damages fail to remedy the situation.
When constitutional rights are at issue, an injunction may be ordered to ensure a Charter violation is not repeated. In cases involving constitutionally suspect legislation, injunctions have also been used to order a party to obey the legislation until the validity of the law has been fully determined. Thus, injunctive relief has been sought by the government where sports' bars refused to comply with a City by-law banning smoking in restaurants. It has also been used to prohibit homeless people from erecting tents in public parks. Most recently, as we read in the media almost daily, injunctive relief has been requested to prohibit the occupy movement from occupying public space by erecting tents and by staying in the public areas overnight.
The test for whether or not an injunction should be granted, similar to a stay of proceedings application, is articulated in the Supreme Court of Canada RJR - MacDonald case. The three-step determination is made on the basis of the following:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
Additionally, as the issue is whether or not the law is constitutionally valid, a court considering an injunction in a Charter context must be mindful of the possible continuation of Charter breaches should the injunction be allowed. As briefly touched upon in my previous blog "Teachable Moments" And The Charter of Rights and Freedoms, in a case involving Charter rights, Charter values imbue and colour the legal principles. In those instances, the black letter of the law transforms into a kaleidoscope of possibilities with our fundamental values and beliefs providing the backdrop. It is in this heady context that the court must apply the three-step injunction analysis.
In tomorrow's blog, I will take this test and review it in light of the Charter possibilities to explain how injunctive relief looks in the kaleidoscope of Charter values and shed some light on the injunctions granted and still being sought against the occupy movement.