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Injunctions - Quia Timet (Anticipatory). 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Div Court, 2023) the Divisional Court considered an appeal from a quia timet (precautionary or anticipatory) injunction, here in an expressive internet interim context where the expression had been withdraw and was in abeyance for several months:Did the motion judge err in granting the interim order given that Ms. Dietrich had not engaged in any of the impugned activity for over four months?
[43] 40 Days submits that the court should not rule on the March 1 order [SS: the 'interim' order], since it was effectively replaced by the March 10 order and is no longer in force. In my view, given the nature of the motion judge’s error, it is appropriate to rule on the March 1 order.
[44] The motion judge erred in principle when he granted the March 1 order because of the failure to take into account principles applicable to quia timet injunctions – that is, injunctions intended to provide relief where the anticipated act has yet to happen and no harm has yet been suffered.
[45] In the motion judge’s March 1 endorsement, he did not explain the basis for his conclusion that 40 Days had met the test for an injunction, stating only that he was satisfied the test was met.
[46] In his March 10 endorsement, however, he expressed his concern that Ms. Dietrich would renew what he considered to be harmful activity. He was not satisfied with Ms. Dietrich’s statement that she had no plans to engage in the impugned activity, stating:Apart from the possibility that Dietrich’s “plans” may change, this defendant provides no comfort to the Court that she will not in the future post videos and threads that on their face promote sabotage strategies of the plaintiff’s prayer vigils and encourage harassment of the plaintiff’s employees and volunteers. [47] Courts have jurisdiction to grant quia timet injunctions to prevent activity even though no harm has yet been suffered. But for such an injunction to be granted, “there must be a high probability that the harm will in fact occur” if not restrained: Sharpe, at 1:20.30. This is because, without evidence of the defendant having already caused harm, the court is put in the unenviable position of having to predict that harm will occur in the future and the degree of that harm. Given this difficulty, the court must be satisfied that the relevant factors which bear upon the granting of injunctive relief have crystallized: Sharpe, at 1:20.50.
[48] Here, the motion judge relied on conduct from several months earlier but failed to advert to the principle that the harmful activity must have crystallized at the time the injunction was sought. The evidence before the motion judge was that Ms. Dietrich had not posted any new videos alleged to be harmful for over four months, since late October 2021. When she was contacted by counsel for 40 Days in December 2021, she took down all videos referring to 40 days. These included the initial video in which she encouraged people to register online with 40 Days then not attend the vigil and videos referencing individuals’ emails or contact information. Upon being served with the injunction motion materials, she took down all remaining videos which might have been understood to relate to 40 Days’ activities.
[49] In her unchallenged affidavit evidence, Ms. Dietrich stated that she had never indicated an intention to post new videos or engage in acts of protest with respect to the 40 Days Spring 2022 campaign. She was not even aware of the Spring campaign until she was served with the motion material. She also reiterated that she had not engaged in the impugned protest activities since October 2021, stating: “While I believe these are legitimate means of protest, I have no plans to engage in this practice in relation to the Plaintiff’s spring campaign.”
[50] The principles applicable to quia timet injunctions -- requiring crystallization and a high probability of harm -- are particularly important in the expressive context. Ms. Dietrich’s activities were intended as a form of digital protest to express her views on a contentious social issue. Both parties agree on the importance of preserving freedom of expression with respect to the availability of abortion. Indeed, the injunction curtailing Ms. Dietrich’s digital protest activity was granted in order to facilitate 40 Days’ own anti-abortion protests. While 40 Days submits that Ms. Dietrich’s activity crossed the line into tortious conduct, there can be little dispute that her activity had an expressive component.
[51] Canada (HRC) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, at para. 47, discusses the need for a modified test for injunctions related to allegedly defamatory statements and hate speech. The modified test is necessary to sufficiently safeguard freedom of expression. Interlocutory injunctions to restrain in advance written or spoken words should only be granted “in the rarest and clearest of cases – where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed” (adopting Champagne v. Collège d’enseignement general et professionnel (CEGEP) de Jonquière, 1997 CanLII 10001 (QC CA), [1997] R.J.Q. 2395).
[52] One of the reasons for a modified test to enjoin expression is that the existing test arose in commercial contexts, where the parties’ respective tangible interests could be weighed. In the expressive context, “[t]he speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest.” Therefore, as stated by the Supreme Court, the test “stacks the cards against the non- commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself.”
[53] The discussion in Liberty Net demonstrates the importance of limiting early interference with expressive activity. Ms. Dietrich’s activities in October 2021 were largely speech, although they showed her engaging in some internet activity. However, no such speech or activity was underway in February/March 2022. In this context, there was no imminent harm to justify limiting Ms. Dietrich’s freedom of expression. Quia timet injunctions, particularly those restraining expression, should not be issued “to be on the safe side.”
[54] The motion judge issued a sweeping order using broad language, such as, for example, prohibiting “sabotage or interference ... by electronic means.” These are not defined legal terms; “interference,” especially, could cover a wide swath of activity. The order further prohibited activity that “intend[ed] to or likely [would] result in harm to 40 Days for Life’s business interests, charitable interests, and/or property, including intellectual and intangible property, reputation, and goodwill.” Activity that was likely to harm reputation or goodwill captures allegedly defamatory statements, meaning Ms. Dietrich’s freedom of speech was curtailed by the order. In short, this broad order pre-emptively limited Ms. Dietrich’s freedom of expression when there was no ongoing or imminent concrete harm at stake.
[55] The order also captured activity by “John Doe, Jane Doe, and Persons Unknown, and any other persons with notice” of the order, thus limiting the freedom of expression of persons who had, to that point, done nothing.
[56] 40 Days relies on Automotive Parts Manufacturers’ Association, discussed above, as an example of where an injunction was granted in relation to protest activity, which was to blockade the Windsor bridge. There was no speculation in that case as to what would occur. As I have said, at the time the injunction was granted, the protesters had blocked all Canada bound traffic and severely limited US bound traffic. The court found that the protest had significantly negatively affected the residents and businesses in the immediate area and that numerous City by-laws had been breached.
[57] By contrast, in the case of Li v. Barber, 2022 ONSC 1037, the court initially refused to grant an interim injunction in response to a class action alleging damage caused by horn blaring in Ottawa, which formed part of a truckers’ protest in February 2022. The court was not satisfied it had the proper record to order an interim injunction and therefore scheduled a further date before it was prepared to decide the matter.
[58] I do not need to decide whether Ms. Dietrich’s activities in October 2021 would have justified an injunction at that time because the October 2021 activities were historical. Ms. Dietrich’s uncontested evidence was that she had taken down the impugned videos and that she did not intend to renew this activity. In the face of this evidence and in the absence of any recent activity, the motion judge failed to take into account the principle that the injunction was premature. It was an error in principle for the motion judge to grant interim relief, unless and until Ms. Dietrich took allegedly harmful steps that could be specifically addressed.
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