2011 December 13

Nazerali v. Mitchell, 2011 BCSC 1846, disapproving ex parte decision 2011 BCSC 1581

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.”