The Court’s Power to Issue Injunctions Against “Persons Unknown”

Can the courts make orders against unidentified persons not named in the action or named only in proxy as "Jane Doe" and "John Doe"? Or must the persons enjoined be sued and named before an order is enforceable against them?

Those were the questions answered by the Supreme Court of Canada in the 1996 case of MacMillan Bloedel Ltd. v. Simpson, 1996 CanLII 165 (SCC), [1996] 2 SCR 1048.

Facts

The case arose out of protests against the logging operations of the MacMillan Bloedel Forest Products Company on Vancouver Island in the Clayoquot Sound region of British Columbia. MacMillan Bloedel was engaged in harvesting trees on its properties in the Bulson Creek Watershed. Following a government decision to permit certain harvesting of old-growth forest, the logging of the Pacific Rain Forest in which MacMillan Bloedel and others were engaged became the focus of controversy. People opposed to the harvest of the forests mounted protests. One form of protest was to block public roads in order to prevent the logging trucks from sending cut logs out of the forest area.

MacMillan Bloedel took legal action to end these blockades. On September 17, 1991, it brought an action to restrain the protesters from blocking the roads on which it trucked its logs. It named as defendants five named individuals, and "John Doe, Jane Doe and Persons Unknown", seeking damages for trespass, nuisance, intimidation, interference with contractual relations and conspiracy, as well as injunctive relief.

The day after its action was launched, MacMillan Bloedel proceeded to apply for and obtain an ex parte order enjoining "all persons having notice" of the order from impeding MacMillan Bloedel's logging operations on the Bulson Creek Watershed. In a series of subsequent applications the order was amplified, refined, and extended both in duration and to include other sites: Spencer J. added arrest and detention provisions on September 20, 1991; Bouck J. converted the interim injunction to an interlocutory injunction on September 25, 1991; Hamilton J. expanded the geographical scope of the injunction on June 30, 1992; following further protest activities in July 1992, Tysoe J. granted an interim injunction of one year's duration covering yet more territory; and on July 16, 1993, Esson C.J.S.C. extended the injunction to August 31, 1993.

Public demonstrations escalated from July 5, 1993 onwards, with 56 persons ultimately being charged with contempt.

On August 26, 1993, the application which gives rise to the order under appeal was brought. It came on before Hall J. He granted an interim injunction prohibiting the named defendants, as well as "John Doe, Jane Doe and Persons Unknown" and "all persons having notice of th[e] Order" from engaging in conduct which interfered with MacMillan Bloedel's operations at specified locations. He also extended the injunctions granted by Esson C.J.S.C. and Hamilton J. to August 31, 1994. The appellants appealed from that order. The British Columbia Court of Appeal dismissed the appeal, Wood J.A. dissenting. The appellants then appeal to the SCC.

The injunction barred members of the public from blocking the Kennedy River bridge and authorized the police to remove offenders in the following terms:

AND THIS COURT FURTHER ORDERS that any persons attending at or near the Kennedy River Bridge during working hours of the Plaintiff and while vehicles are travelling along the travelled roadway in such area shall situate themselves off that roadway and shall not attend within fifteen feet of that roadway;

AND THIS COURT FURTHER ORDERS that any peace officer be authorized to arrest and remove any person who the peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this order;

The police arrested over 800 individuals during the summer and fall of 1993 for violating the interlocutory orders obtained by MacMillan Bloedel. The vast majority of the people arrested were not named as defendants in the Statement of Claim. Six hundred and twenty-six people were convicted of criminal contempt of court and sanctioned by fines of up to $3,000 and jail terms of up to 60 days. The individuals arrested came from all parts of Canada and a number of other countries. The evidence establishes that before arresting a protester, the police followed the practice of handing the injunction to the protester and then reading its contents to him or her. Upon this being done, most protesters peacefully left the blockade.

The Issues

Before the Supreme Court, the appellants made one main point: the court, in the context of civil litigation between private parties, does not have the power to grant an injunction which binds non-parties or the general public. Nor could the problem be cured, they argued, by the use of terms like "John Doe", "Jane Doe" or "Persons Unknown". One appellant, Valerie Langer argued that if the courts have the power to make orders against non-parties, it is not appropriate to include provisions authorizing the police to arrest and detain strangers to the litigation. Three issues, therefore, arise:

(1) Do the courts have the power in the context of civil litigation between private parties to enjoin non-parties or members of the public from designated conduct?

(2) If so, can such orders be made using terms like "John Doe" or "Jane Doe" or "Persons Unknown"?

(3) If the courts can make such orders, is it appropriate to include in them provisions authorizing the police to arrest and detain strangers to the litigation?

Decision of the Supreme Court of Canada

The Supreme Court reached the following conclusions:

1. The British Columbia Supreme Court has jurisdiction to make orders enjoining unknown persons from violating court orders;
2. Such orders are enforceable on the long-standing principle that persons who are not parties to the action, but who violate an order of the court, may be found guilty of contempt for interfering with justice; and
3. Provided that contempt is the only remedy sought, it is not necessary to join all unknown persons in the action under the designation, "John Doe, Jane Doe and Persons Unknown". Nor, strictly speaking, is it essential that the order refer to unknown persons at all. However, the long-standing Canadian practice of doing so is commendable because it brings to the attention of such persons the fact that the order may constrain their conduct. Similarly to be commended is the practice followed by the courts in this case of ensuring that the wording of the orders is clear and that their effect is properly circumscribed.

Then-pusine Justice McLachlin wrote the following reasons on behalf of the Court (Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:)

Do the Courts Have Jurisdiction to Make Orders Binding on Non-Parties?

[13] This case, like most, rests on a fundamental conflict. The conflict is between the right to express public dissent on the one hand, and the exercise of property and contractual rights on the other. Thus the appellants are wrong in asserting that the orders in question are nothing more than "government by injunction" aimed at suppressing public dissent. The respondent is equally wrong in asserting that this case has nothing to do with the public expression of dissenting views and pertains only to private property. This case is about both. In a society that prizes both the right to express dissent and the maintenance of private rights, a way to reconcile both interests must be found. One of the ways this can be done is through court orders like the one at issue in this case. The task of the courts is to find a way to protect the legitimate exercise of lawful private rights while preserving maximum scope for the lawful exercise of the right of expression and protest.

[14] At issue in this case is the power of the courts to use an injunction granted in private litigation to regulate or curtail public conduct. The protesters, members of the public, were blocking public roads. The injunction ordered them not to do so and provided for their arrest if they persisted. The submission of the appellant Greenpeace comes down to this: private parties cannot use the courts to curtail the activity of members of the public because private litigation is confined to named, identifiable parties. If members of the public violate the law, disturb the peace or interfere with the lawful exercise of private rights, it is a matter for the Attorney General to prosecute under the criminal law or seek an injunction in the public interest.

[15] It is accepted by all that the British Columbia Supreme Court, as a court of inherent jurisdiction, possesses the power required to maintain the rule of law. More specifically, the broad power of the Court to grant interlocutory injunctions is confirmed by the Law and Equity Act, which provides for their grant "in all cases in which it appears to the court to be just or convenient that the order should be made ... on terms and conditions the court thinks just". Relying on these powers, MacMillan Bloedel argues that where a court of inherent jurisdiction has jurisdiction over a dispute or lis by reason of private litigation, it can make all orders necessary to preserve the rights of the parties, including orders against unknown persons where this is necessary to make the relief effective. Citing this Court's recent decision in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), MacMillan Bloedel argues that if the rule of law is to be maintained, it must not be deprived of an effective remedy. MacMillan Bloedel contends that the sole purpose of the injunction at issue was to remove the physical blockades that prevented it from exercising the property rights asserted in the action. Having made out a prima facie case that its property rights were being violated, MacMillan Bloedel takes the position that it was entitled to an interim order protecting those rights. An order going merely against named parties, i.e., those who had blocked the road in the past, would be ineffective because new people were arriving daily to participate in the blockades. Since the only effective way to protect its rights was, in MacMillan Bloedel’s submission, by means of an order directed at unknown persons, it contends that the British Columbia Supreme Court had jurisdiction to grant the order sought.

[16] Against this position, the appellants raise two arguments. The first is that the courts have no inherent jurisdiction to make orders against members of the public in criminal law matters. The second is that the courts have no jurisdiction to make orders against unnamed parties. I will consider each in turn.

(1) The Criminal Law Argument

[17] The appellant Langer argues that there was no need for the B.C. Supreme Court to assume jurisdiction over unknown parties because an alternative remedy was available. MacMillan Bloedel's "most obvious" remedy, she submits, was to "prevail upon law enforcement officials to enforce the Criminal Code".

[18] On a practical level, this remedy offered little assistance to MacMillan Bloedel in the summer of 1993. The Attorney General of British Columbia had a specific policy not to lay criminal charges against environmental groups engaging in civil disobedience, but to leave it to affected parties to seek injunctive relief. MacMillan Bloedel submits that it was precisely because the Attorney General was not acting that it needed the protection of an interim injunction.

[19] Underlying the argument that the proper remedy lay in the criminal law is the proposition that, as a matter of law, it is for the Attorney General alone to decide whether and how to deal with conduct of a criminal nature. If the Attorney General decides that it is not in the public interest for the government to act, it is not open to a private party to enlist the aid of the courts to stop the conduct. The appellant Langer relies on Robinson v. Adams (1924), 1924 CanLII 406 (ON CA), and Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.), in support of this contention.

[20] I cannot accept the appellant’s position. The mere fact that conduct may be characterized as criminal does not deprive a person whose private rights are affected from seeking relief in the civil courts. Robinson and Gouriet deal with the narrower issue whether a person who asserts no private right has standing to advance the public interest without first obtaining the consent of the Attorney General. Where, as here, a private litigant's rights are affected by criminal conduct, there is no question that the litigant has such standing. More specifically, where criminal conduct affects property rights, the person so affected may invoke the equitable jurisdiction of the court to obtain an injunction prohibiting the conduct. Sharpe cites the following passage from , as a classic statement of the right of a private individual to seek relief from criminal conduct in the civil courts:

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

Section 11 of the Criminal Code, codifies this principle in unqualified terms: "No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence".

[21] I conclude that the fact that the conduct of blocking the roads can be characterized as criminal does not deprive the British Columbia Supreme Court of the right to grant an injunction against potential offenders in a civil action.

(2) The Problem of Unidentified Persons

[22] The second jurisdictional attack on the interim injunction is the assertion that the courts do not have the jurisdiction to make orders binding on non-parties. On this submission, an order can bind only parties named in the action. Wood J.A. accepted this argument. In his view, it is "a principle fundamental to our notion of justice" (p. 231) that "the single-minded purpose of the modern day writ of summons and its ancestors has been to give the defendant notice of the proceedings against him, by virtue of which notice the courts then had jurisdiction to grant relief at the behest of the plaintiff" (pp. 231-32). Relying on English authority, Wood J.A. concluded that, absent a writ directed against an individual personally, the court lacks jurisdiction to make an order against that person.

[23] I propose to consider this argument in two ways: first, from the perspective of the authorities, and second, from the perspective of the effect that such a rule would have on maintaining the rule of law in Canadian society. I turn first to the authorities. I conclude that while the relevant principles have been articulated somewhat differently in England and Canada, the practical effect is the same: in both countries, non-parties who violate injunctions may be found in contempt of court. Hence, non-parties may be seen as being, if not technically bound by the order, bound to obey the order. The same rule, it will be seen, has been accepted in other countries with legal systems similar to our own.

[24] It is important at the outset to keep one distinction firmly in mind, as the failure to do so led to some confusion in the submissions before us. I refer to the distinction between the question whether an order may refer to classes of unnamed persons, and the quite separate question whether an order can bind persons not party to the litigation. The first is a procedural question, a matter of pleading. The second is the real question raised by the dissenting opinion of Wood J.A. It is with the second question that I am concerned at this point.

[25] The argument that the jurisdiction of the courts is confined to parties named and served in the action rests on the notion that the courts can act only in personam; that is, against named individuals. In Marengo v. Daily Sketch and Sunday Graphic, Ltd., Lord Uthwatt cited Iveson v. Harris for the proposition that a court is not competent "to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause". He went on to say (at p. 407):

The reference to servants, workmen, and agents in the common form is nothing other than a warning against wrongdoing to those persons who may by reason of their situation be thought easily to fall into the error of implicating themselves in a breach of the injunction by the defendant. There its operation, in my opinion, ends.

The traditional English rule thus appears to be that only named parties can be bound by a court order. While general terminology referring to others may be included in the order, this is done only to capture the idea that the named party -- often a corporation -- is enjoined from committing the specified act both directly and through the actions of others, such as servants and agents, whom it may direct. The general terminology also serves to provide a warning to third parties who might otherwise implicate themselves in a breach of the order.

[26] If third parties are not bound by an order, it would seem logically to follow that they cannot personally be held responsible for breaching it. Nevertheless, the English courts accept that non-parties may be held guilty of contempt for violating court orders. The House of Lords has recently confirmed that a person not named in an order may be held in contempt of court for doing the act prohibited by the order, even when acting independently and not aiding or abetting the named defendant. In this sense, it may be argued that the English authorities, despite an apparent rule to the contrary, in fact hold that injunctions are binding on persons other than the parties to the action.

[27] How is the fact that non-parties can be found guilty of violating court orders and sent to prison therefor to be reconciled with the assertion of the English authorities that only parties to the litigation can be bound by court orders? On the level of theory, these apparently contradictory positions are reconciled by the distinction between being bound by an injunction as a party to the action and being guilty of contempt of court by obstructing justice. Only parties are "bound" by the injunction. But anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court. Thus in Seaward v. Paterson, Lindley L.J. wrote (at p. 555):

A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing.

[28] On the level of practice, the distinction seems to be a distinction without a difference since in either case, a person not named in the action who violates the injunction may be brought before the courts, tried, and penalized. The difference vanishes in the Canadian context where the practice is to charge non-parties with contempt rather than for violating the injunction. In the case at bar, for example, the 626 people convicted under the various injunctions were convicted not of violating the injunction, but of criminal contempt.

[29] It thus emerges that Wood J.A. correctly asserts the existence of the English rule that injunctions bind only parties to the action. The assertion, however, is of little consequence because third parties who violate or interfere with the injunction may be prosecuted for contempt of court. The case at bar does not raise the issue whether non-parties are bound by an injunction in the technical sense discussed by Wood J.A.; it does raise the issue whether non-parties can be found in contempt of court for violating an injunction. On the English authorities, the answer to that question is indubitably affirmative.

[30] Canadian judges considering the problem of mass violations of private rights have made less of the distinction between being bound by an injunction (confined to parties) and being bound to obey an injunction (not confined to parties). In Bartle & Gibson Co. v. Retail, Wholesale and Department Store Union, Local 580, Tysoe J.A., considering a submission that non-parties should not be described in an order, stated (at p. 455):

I find it a little difficult to understand why, if it is true -- and it is, of course, quite true that persons who, with knowledge of an order, take any steps to assist in contravening it, may be proceeded against for contempt of court -- why the order should not provide that it covers somebody who, having knowledge of the order, disobeys it.

A similar recognition that anyone who violates a court order, whether a party or not, may be charged with contempt of court seems to underlie the comment of Estey J., speaking for this Court in International Longshoremen's Association, Local 273 v. Maritime Employers' Association, 1978 CanLII 158 (SCC) at p. 144:

However [language enjoining non-parties] has, for many years, been adopted in these injunctions ... no doubt for the good reason that it makes the impact and sense of the order clear to all those likely to be affected thereby and, in any event, such wording can hardly be said to harm any of the persons in law affected by the order.

In other words, since persons other than named parties may be affected by the order, and be held in contempt for violating it, it makes good sense to use language which alerts those people to that risk. More recent English authority suggests that courts there, too, may be coming to see the practical value of such an approach. Thus, in Attorney General v. Newspaper Publishing plc, Balcombe L.J. commented that in an appropriate case it may be "preferable" for the court to make its initial protective order in terms which make it clear to members of the public who may be affected by the order that they also are required to obey it.

[31] It may be confidently asserted, therefore, that both English and Canadian authorities support the view that non-parties are bound by injunctions: if non-parties violate injunctions, they are subject to conviction and punishment for contempt of court. The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey. The only issue -- and one which has preoccupied courts both in England and, to a lesser extent, here -- is whether the wording of the injunction should warn non-parties that they, too, may be affected by including language enjoining the public, or classes of the public, from committing the prohibited acts. On this point I share the view of Tysoe J.A. in Bartle & Gibson, supra, and Estey J. in International Longshoremen's Association, supra: if members of the public may be bound to respect court orders in private suits on pain of being held in contempt, it seems appropriate that the order apprise them of that fact.

[32] It remains to consider a final argument raised by the appellants. Underlying both their submissions and the dissenting reasons of Wood J.A. is the suggestion that it is improper to use private litigation for the sole purpose of obtaining an injunction to constrain public action. Hence the emphasis on the fact that MacMillan Bloedel’s main action against the named defendants has never proceeded to trial. Having given this concern my most serious consideration, I conclude that it provides no basis for invalidating the order made in this case. MacMillan Bloedel sued and named as defendants five persons identified at the first blockades. MacMillan Bloedel was entitled to claim against them such relief as the law allows. Although it contented itself with obtaining interim injunctions, MacMillan Bloedel could have proceeded to trial to obtain permanent injunctions and damages against them. The fact that it chose not to pursue the fullest remedy available is not a basis for denying it any other relief allowed by law. The interlocutory injunctions obtained against the named defendants for blocking the logging roads also bound members of the public at large. There is nothing new in this. Canadian courts have for decades followed the practice of issuing orders directed at prohibiting interference with private property rights, which orders affect not only the named parties but also the general public.

[33] For the purposes of this case, it is unnecessary to go further. I note, however, that where a final injunction is in issue, some cases suggest that caution should be exercised in including non-parties in the terms of the order. Subject to this caveat and other considerations bearing on the special circumstances of the case, the proposition that the courts possess inherent jurisdiction to issue injunctions to restrain large-scale public action violative of private rights enjoys wide recognition.

[34] Having considered the authorities, I turn to the practical consequences of ruling that courts cannot issue injunctions which non-parties are required to respect. Wood J.A., having concluded that the courts have no such authority, was required to face this problem. He wrote (at p. 248):

Can the courts stand by and watch helplessly when the private rights of the individual are overrun by the mob? Should we turn our backs on the person who looks to us for help in such circumstances over an issue so apparently technical as jurisdiction? If there were no alternative solution to that individual's dilemma, I would be quick to answer "no" to both questions. The progress of the law is an ever-evolving journey which must respond to new challenges lying within its path. Much of the jurisdiction which the Supreme Court exercises today was born out of just such necessitous circumstances.

However, in my view there is an alternative solution. It lies in the proper discharge of the obligations which attach to the office of the Attorney General.

Wood J.A. went on to state that it is "the responsibility of the Attorney General as the chief law enforcement officer ... to see to it that the criminal law is enforced" (p. 249).

[35] Every citizen would endorse these words. Yet, as this case demonstrates, to state the obligation of the Attorney General is not to ensure that it will be discharged in such a way as to provide the required protection to citizens injured by the conduct of others. It is to fill this gap that the equitable remedy of injunctions -- injunctions which not only the parties but also all others must respect on peril of being found in contempt of court -- has developed.

[36] What then of the other side? What are the dangers of empowering the courts to make orders to protect private interests which all must obey on pain of contempt? It is fundamental that no state founded on the rule of law can permit members of the public to be detained and punished for violating an order of which they are ignorant. If members of the public are to be charged with obstruction of justice for having disobeyed an injunction, they must first be apprised of the existence and terms of the order and be given an opportunity to comply. That is precisely what was done in enforcing the injunctions here. Before a protester was arrested, he or she was handed a copy of the order and its terms were read to him or her. The protester was then asked to quit the blockade. Most complied. Only those who refused were arrested. It is also desirable, as this Court suggested in International Longshoremen, supra, that the order's terms speak of the duty of non-parties to respect it. This, too, was done here. Finally, it is necessary that the orders be carefully worded and constrained to ensure that they are fair and not unduly broad. This requirement, too, was met in the case at bar. Over the months, a number of justices reviewed and amended the terminology of the injunctions to make them clearer and fairer. For example, in July 1993, Esson C.J.S.C. removed language enjoining "creating a nuisance" -- legal language which some members of the public might not have understood -- and replaced it by more precise language specifying that what was prohibited was "physical" obstruction. Words could be used, signs could be paraded; what could not be done was to physically block the road.

(3) Summary on Jurisdiction

[37] I conclude that the British Columbia Supreme Court had jurisdiction to make orders binding on persons who are not parties to the action.

Suing Unnamed Persons

[38] The second issue is whether the use of terminology such as "John Doe", "Jane Doe" and "Persons Unknown" in the style of cause invalidates the order. The appellants argue that these terms represent an attempt to sue the general public, and that such terms are not justified under the British Columbia Rules of Practice and the principles developed under the Rules.

[39] The practice of using terms like "John Doe" is directed at permitting a plaintiff to sue a person whose name the plaintiff does not know. Under the British Columbia Rules, the procedure for objecting to such an appellation is to apply to have the terms struck out. Alternatively, an application by the plaintiff to have the defendant's name substituted for "John Doe" for the purpose of obtaining relief against him may be dismissed if the use of the "John Doe" designation is found to have been inappropriate. We have been referred to no authority suggesting that an order made under a valid action is invalid because the style of cause of the action included a reference to "John Doe, Jane Doe and Persons Unknown".

[40] In fact, the use of "John Doe, Jane Doe and Persons Unknown" in the present action appears to be surplusage. As discussed above, a person who is not a party to an action is bound to respect an order made in the action, on pain of being found in contempt of court. This was the procedure used to enforce the order here at issue. None of the protesters was charged or sued as a party to the action. So the question whether relief may be obtained against them in the action on the basis of having sued them as "John Doe, Jane Doe and Persons Unknown" never arose. Accordingly, it is unnecessary for this Court to decide whether, as a matter of pleading, the use of these terms in the style of cause could validly engage members of the public served with the writ.

Provisions Authorizing Arrest and Detention

[41] The appellant Valerie Langer has questioned the appropriateness of including a provision authorizing the police to arrest and detain persons breaching the injunction. She argues that no authorization or direction from the court is necessary to enable the police to act. The respondent accepts that the authorization is superfluous, and states that it is included only because the police have requested such wording. No objection to this term was made before Hall J. and it is not suggested that it vitiates the order. In these circumstances, this Court need not consider it further. I observe only that the inclusion of police authorization appears to follow the Canadian practice of ensuring that orders which may affect members of the public clearly spell out the consequences of non-compliance. Members of the public need not take the word of the police that the arrest and detention of violators is authorized because this is clearly set out in the order signed by the judge. Viewed thus, the inclusion does no harm and may make the order fairer.

Commentary

Concerns about issuing injunctions against “persons unknown” at the behest of private actors is a frequent issue in labour cases, where employers wish to throttle the right of striking workers to picket, etc.

As set out by the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, protesting, including picketing, by labour groups and trade unions is a fundamental freedom protected by section 2 of the Canadian Charter of Rights and Freedoms and freedom of expression is particularly critical in the labour context. The Supreme Court held that (secondary) picketing is generally lawful unless tortious or criminal conduct is involved.

However, as with everything in law, there must be a balancing of rights.

In another BC cases concerning environmental protests, the BC Court of Appeal wrote the following at para 78 of its reasons for decision in the case of Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26: “The public interest in upholding the rule of law... must be the dominant consideration in all cases involving significant and persistent acts of civil disobedience.”

But enough of the posturing. It is Sunday, February 6, 2022. I am a resident of the city of Ottawa. For over one week now, a number of persons, with varying intentions and interests – some quite legitimate – have besieged Ottawa. Of greatest concern is the unrelenting honking. It’s loud. It’s constant. It’s harmful.

On February 5, 2022, a hearing was convened to obtain an interim injunction against persons unknown to stop, or at least curtail, the honking. The application was heard by Justice Hugh McLean, who appeared to express concern at issuing such an order, at least in part, because the order would issue against persons unknown.

This post is, in large part, a response to that concern.

MacMillan Bloedel Ltd. v. Simpson is a textbook on why His Honour has the requisite jurisdiction to make such an order, should he find it appropriate to do so. Myriad decisions out of BC have settled this point of law.

Section 101 of the Ontario Courts of Justice Act is clear, “an interlocutory injunction or mandatory order may be granted … where it appears to a judge of the court to be just or convenient to do so.”

Cases in which Ottawa judges have issued injunctive orders against the blockage of roads and the making of excessive noise are not new either. For example, in the case of Ottawa MacDonald Cartier International Airport Authority v Madi, 2015 ONSC 6336, Justice Robert Beaudoin on application by the Airport Authority against striking taxi drivers made an order prohibiting protesters from “[making] noise on the Airport premises using drums or improvised percussive devices or any other instruments or any noise amplification devices.”

With respect to the balancing of Charter rights, the right to protest, the right to free expression, etc., I would commend readers to the decision of the Supreme Court of Nova Scotia in Nova Scotia (Attorney General) v. Freedom Nova Scotia, 2021 NSSC 170. Again, in that case, an injunctive order was issued against “John and Jane Does”.

With respect to the constitutionality of public health measures to address the COVID-19 pandemic, readers are commended to the decision of the Court of Queen’s Bench for Alberta in Ingram v Alberta (Chief Medical Officer of Health), 2020 ABQB 806. Let alone the countless labour decisions finding that employer action taken to “stop the spread” are permissible.

Point? This isn’t new. The law is there. These concerns have been considered and evaluated by the Supreme Court of Canada and countless courts since. There is no legitimate question this "can be done." The question the court needs to answer is whether it should.

In this case, on these facts, at this time it should.

About Me

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Employment Law. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.