The application led the court to grapple with the following two issues: (1) whether it had jurisdiction to grant the injunction; and (if it had such jurisdiction) (2) whether the applicant met the three-stage test for a pre-trial injunction set out in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117, [1994] 1 SCR 311(SCC).

Jurisdiction to grant an injunction

On the jurisdictional issue, the court found that, despite Jewish National Fund of Canada Inc. v Minister of National Revenue, 2025 FCA 110, the Federal Court of Appeal didn’t have exclusive jurisdiction over this matter, which meant the BC Supreme Court did have concurrent jurisdiction:

[44]      With respect, I disagree [with Jewish National Fund]. Subparagraph 168(2)(b) of the [Income Tax] Act sets out that the FCA may extend the period during which a notice of revocation cannot be published when issuance of a notice has been appealed. However, this section of the Act does not contain “clear and explicit statutory wording” to the effect that exclusive jurisdiction to delay publication is vested in the FCA in all circumstances, for example, where the decision to revoke a charity’s registration is to be challenged in the superior court as ultra vires the Federal government.

[45]      Given that it is the intention of the Charity to challenge the validity of the Act, as opposed to an assessment of taxes, I am satisfied that I have jurisdiction to decide whether it is appropriate to grant an injunction to stay publication of the Notice. See Myers [v Canada (Attorney General), 2022 BCCA 160] at para. 43.

Elements of the RJR-MacDonald test

On the second issue, the court summarized the test from RJR-MacDonald as follows:

The party seeking an interlocutory injunction must establish that:

1.   there is a serious issue to be tried;

2.   irreparable harm would result if the injunction is not granted; and

3.   the balance of convenience, considering all of the circumstances, favours granting the injunction.

The minister of national revenue acknowledged that the charity met the first element.

On the second element, the court noted that it was significant that the applicant was a charity: “It is usually the harm suffered by the applicant that must be considered, although this principle is modified, at least in respect of those dependent on a charity: Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255”. Taking this point into account, the court found that, on balance, the charity had met the second element of the test:

[60]      However, I am satisfied based on the evidentiary record before me, that there is clear evidence that proves on a balance of probabilities that deregistration of the Charity will cause irreparable harm to donees, beyond those associated to the “ordinary consequences” of losing registered charity status.

[61]      I am, furthermore, satisfied that publication of the Notice will irreparably harm the reputation of directors and senior management of the Charity.

On the third element, the court noted that it “must consider potential impacts not only to the Charity, but also to the public interest”. The court found, nevertheless, that the balance of convenience favoured the charity:

[74]      On the evidence presented, I cannot conclude that there is presently any ongoing risk to the public interest.

[75]      I am satisfied that the balance of convenience favours the granting of an interlocutory injunction for a short period of time to permit the Charity to file its petition. It is clear that the Charity will suffer greater harm from refusing an injunction than the public interest will be harmed by the granting of an injunction.

[76]      Once the petition is filed, the Charity can apply to extend the injunction. At that time, the balance of competing interests can occur with full knowledge of the seriousness of the issue to be tried, as well as a timeline for the hearing of the petition.

Concluding remarks

In its concluding remarks, the court noted that it was

guided by the words of Justice Groberman in Snuneymuxw [First Nation et al. v R., 2004 BCSC 205]:

[72]      The jurisdiction of the court, in appropriate cases, to interfere in legislative and executive decisions that are under challenge should not be too hastily exercised. The courts have a supervisory role to play, and should be wary of usurping legislative and executive roles and effectively governing by interlocutory order.

[73]      In the case at bar, the injunction that I have indicated I will grant is a very limited one. It does not seriously interfere with governance.

The post Injunction restrains MNR from deregistering Vancouver charity pending constitutional challenge first appeared on British Columbia Law Institute.

As the court noted, “the appeal is focused on three discrete legal issues: a) Does a Supreme Court judge have jurisdiction to grant an interim injunction in the federal labour relations context before the appointment of an arbitrator? b) If an injunction is available, must it end the day an arbitrator is appointed? c) Is a judge obliged to require an undertaking as to damages?”

On the first issue, the court confirmed that the jurisdiction exists and affirmed the chambers judge’s decision on its availability in this case:

[24]      The parties agree that in the federal labour relations context, superior courts retain a residual discretionary power to grant interlocutory relief where an adequate alternative remedy is not available. This power emanates from the courts’ inherent jurisdiction and in British Columbia, it finds form in the Law and Equity Act, R.S.B.C. 1996, c. 253. . . .

[25]       The Supreme Court of Canada affirmed the existence of a residual discretionary power in Canadian Pacific. . . 

[26]       Although the parties agree on the existence of this power, they disagree on whether the power was available in the circumstances of this case. . . .

[32]      I agree with the judge that because the collective agreement at issue here allows for delay between the filing of a grievance and the appointment of an arbitrator, there is a remedial gap within the meaning of Canadian Pacific and the Supreme Court had jurisdiction to grant interim relief exercising its residual discretionary power. The plain fact is that until an arbitrator was in place, there was no tribunal in existence and available to the Union under the collective agreement or the statutory scheme that could grant the relief sought. As found by the judge, the Union’s affected members were facing the prospect of irreparable harm, and a forum was necessary to address that issue. With this practical reality, I do not find P.S.A.C. [2000 YTSC 20] (cited by TELUS) persuasive. It is unclear whether an arbitrator was in place at the time the bargaining agent in P.S.A.C. filed its application for interim relief; in any event, that decision is not binding on this Court.

[33]      TELUS is correct to point out that s. 60(1)(a.2) of the Canada Labour Code filled the specific void identified in Canadian Pacific, namely, a factual scenario in which neither the collective agreement nor the “machinery provided under the Canada Labour Code” offered a jurisdictional path to secure the postponement of intended job changes: at para. 6. However, it is also the case that Canadian Pacific stands for a broader proposition. It holds that where there is a “possibility” events will produce a difficulty not foreseen by the collective agreement and the statutory scheme that govern a labour relations relationship. . . .

[34]        In this case, the only “tribunal capable of resolving the matter” of irreparable harm at the time of the injunction application was the Supreme Court.

On the second and third issues, the court declined to reverse what were, in essence, discretionary decisions made by the chambers judge:

[39]      However, crafting the terms of an injunction involves discretion and I would not find that standing alone, the two-month expiry date justifies appellate intervention. It is readily apparent the judge was alive to the interim nature of the remedy he granted, recognized that once an arbitrator was in place, the latter was the decision maker with “domain” over injunctive relief and TELUS could raise the issue with the arbitrator, and he included terms allowing for an amendment or earlier termination of the injunction by written agreement or a further court order: at paras. 55–60. This flexibility provided for the amelioration of prejudice at TELUS’ behest.

***

[46]      The judge’s discretionary decision to not require an undertaking attracts a deferential standard of review and cannot be overturned in the absence of TELUS establishing a material error of law or principle, or a palpable and overriding error of fact: Interfor Corporation v. Mackenzie Sawmill Ltd., 2022 BCCA 228 at para. 26.

[47]      In my view, TELUS has not met this burden. The fact that another judge may have exercised their discretion differently does not mean this judge erred. On a functional and contextual review of the reasons for judgment, I am satisfied the judge did not misdirect himself on the law surrounding undertakings, misapprehend the record, fail to consider relevant factors, or wrongly emphasize one factor over another. Instead, as I interpret his reasons, he simply concluded that given the short duration of the interim injunction, the ability of TELUS to challenge the need for an injunction once before the arbitrator, and his direction that the proceedings be expedited, the usual approach taken to undertakings in the labour relations realm (a relevant consideration) was also appropriate here. This was an individualized assessment and TELUS has not displaced the deferential standard of review.

In the result, the appeal was dismissed.

The post Injunction available to fill remedial gap in labour case: BC Court of Appeal first appeared on British Columbia Law Institute.