2005 BCCA 36 Provincial Rental Housing Corporation v. Hall

Before:	The Honourable Madam Justice Rowles
	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Oppal

A.C. Ward and L.J. Tessaro	Counsel for T. Hall and K. Pakarinen
R.G. Kuhn and K.L. Boonstra	Counsel for Provincial Rental Housing Corporation
N.A. Quastel	Counsel for R. Lavallie, S.N. Wright, C.S. Ballantyne, S. Bundock, D. Botten, M. Oleson and J. Peart
Place and Dates of Hearing:	Vancouver, British Columbia
7 and 8 June 2004
Place and Date of Judgment:	Vancouver, British Columbia
24 January 2005

Written Reasons by:

The Honourable Madam Justice Rowles

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Oppal

Reasons for Judgment of the Honourable Madam Justice Rowles:

I. Overview

[1] We heard three appeals at the same time, all of which concern orders made during a period of protest about the lack of social housing for the poor and homeless in Vancouver. The protest was centred in and around the former Woodward's Department Store building on Hastings Street in Vancouver ("Woodward's Building"). At the time of the protests, proposals for redevelopment of the Woodward's Building for low cost or social housing had floundered.

[2] The first two appeals, which are dealt with in these reasons, are from orders made in an action brought by a Crown corporation, the Provincial Rental Housing Corporation ("PRHC"), which was then the owner of the Woodward's Building. The appeal in CA030118 is from an ex parte (without notice) interlocutory injunction granted by Madam Justice Loo on 16 September 2002, the terms of which are set out later in these reasons. The appeal in CA030302 is from the order of Madam Justice Dillon dated 7 November 2002, awarding costs of the day against PRHC to a number of protestors who had been arrested and released on an undertaking to comply with Madam Justice Loo's order and to appear before the court on 7 November 2002.

[3] The third appeal, Vancouver (City) v. Maurice, 2005 BCCA 37, was brought from an interlocutory injunction granted by Mr. Justice Lowry in an action commenced by the City of Vancouver against certain named defendants as well as "John Doe, Jane Doe and Other Persons Unknown". The City's action concerned the erection of structures and other objects on the sidewalks surrounding the Woodward's Building and was founded on the alleged violation of its Street and Traffic By-law and the provisions of the Vancouver Charter, S.B.C. 1953, c. 55, regarding enforcement of by-laws. The City served its Writ on the named defendants as well as various protestors who appeared to be in violation of the by-law. When the City later brought its application for an interlocutory injunction, it served the named defendants and those who had entered appearances and went to some lengths to ensure that notice of the application was widely distributed to the protestors. The order made in that case specifically provided that it did not "prohibit or limit the right of the Defendants, or any other persons, to lawfully assemble on any street or any part thereof." Reasons for judgment dismissing the appeal in Vancouver v. Maurice are being released at the same time as these reasons.

[4] In the Writ issued in PRHC's action, the only defendants shown in the style of cause were "John Doe", "Jane Doe" and "Persons Unknown". When PRHC's application for an interlocutory injunction came before Madam Justice Loo, no notice of either the Writ or the application had been given to any of the protestors.

[5] Mr. Terry Hall, one of the protestors, retained a lawyer who was alerted through media reports that an injunction application was going to be made. Mr. Cameron Ward, the lawyer retained by Mr. Hall, appeared in court before Madam Justice Loo and asked that the application be adjourned so that the protestors who might be affected by the order could be notified, but that request was refused. Mr. Ward then asked to make submissions with respect to the granting of the interlocutory injunction sought by PRHC, but the chambers judge refused that request as well. The interlocutory injunction was granted with one minor exception in the terms sought by PRHC in its motion.

[6] An enforcement order was made on the evening of the same day the interlocutory injunction was granted. Although Mr. Hall had been added as a party to the proceedings when the application had earlier come before Madam Justice Loo, no notice was given to his lawyer of PRHC's application for an enforcement order.

[7] Five days later, a number of protestors were brought before the court by the police for having allegedly violated the terms of the interlocutory injunction. All were released by Madam Justice Bennett on certain undertakings, one of which was to appear in court on 7 November 2002.

[8] On the morning of 7 November 2002, 34 of the 54 protestors who had been released on undertakings appeared before Madam Justice Dillon. Counsel for PRHC told the chambers judge that he had been informed the previous evening that the Attorney General did not intend to pursue criminal contempt proceedings against the protestors who had been arrested. No material had been filed by PRHC under Rule 56(7) of the Rules of Court which would allow it to pursue civil contempt proceedings against any of the protestors, and counsel for PRHC told the court that PRHC did not intend to do so. Madam Justice Dillon dismissed the contempt proceedings and ordered costs of the day to the protestors who had appeared pursuant to the undertaking each had given.

[9] On the appeal brought from the ex parte interlocutory injunction granted by Madam Justice Loo, the appellant contends that the chambers judge erred in failing to give the appellant the opportunity to be heard before granting the interlocutory injunction and erred in failing to ensure that identified persons were before the court.

[10] In appeal CA030302, PRHC argues that Madam Justice Dillon erred by failing to consider or appreciate the nature of the hearing she was conducting and erred by concluding that there was an event for which costs could properly and judicially be ordered against PRHC.

[11] In my respectful view, both appeals must be allowed.

[12] The essence of the appellant's argument on the appeal from Madam Justice Loo's order is that when the extraordinary remedy of an interlocutory injunction is sought, the courts must ensure adherence to fundamental procedural safeguards and, in particular, the right to be heard, before any injunctive relief is granted. The jurisprudence and Rules 45(3) and 52(12) through (12.3) of the Rules of Court provide support for that argument.

[13] In Gulf Islands Navigation Ltd. v. Seafarers International Union of North America (Canadian District), (1959), 27 W.W.R. 652, 18 D.L.R. (2d) 216 (B.C.S.C.); aff'd 28 W.W.R. 517, 18 D.L.R. (2d) 625 (B.C.C.A.) [cited to W.W.R.], an ex parte injunction had been granted in the context of a labour dispute, which the defendants were seeking to set aside. Wilson J., as he then was, made the following observation about applications for ex parte interlocutory injunctions, at 653:

A great many interlocutory injunctions are applied for, particularly in actions relating to labour disputes. Where the application is made ex parte the utmost scrupulosity and care must be exercised by the judge. In the course of trying to restrain "irreparable" damage to one litigant, he may cause it to another. The first inquiry to be made in all cases is, "Why did you not give notice?"; and if the answer elicited does not reveal extraordinary urgency, the application must be refused.

[14] Today the courts are not infrequently faced with applications for interlocutory injunctions in civil actions in which plaintiffs seek to enforce their property or other private rights in the context of political protest that may have trenched on those rights. In Everywoman's Health Centre Society (1988) v. Bridges (1990), 54 B.C.L.R. (2d) 273 (C.A.), which was a case arising out of demonstrations outside a Vancouver abortion clinic, Southin J.A., with McEachern C.J.B.C. and Hollinrake J.A. concurring, expressed unease about the circumstances in which injunctive relief is granted in cases involving public protest and the form such relief takes (at paras. 31-37):

Today, the citizenry take to the streets over many social issues. Once upon a time, the citizenry rarely took to the streets save in labour disputes...

I think it is not unfair or unkind to say that by the 1950's, the courts of British Columbia were thought to be anti-labour because of the number of injunctions granted in labour disputes.

Ultimately, to the relief of most, if not all, judges, the jurisdiction to deal with what is commonly called picketing was, in large measure, placed in the hands of what is now the Industrial Relations Council.

There is today the grave question of whether public order should be maintained by the granting of an injunction, which often leads thereafter to an application to commit for contempt or should be maintained by the Attorney General insisting that the police who are under his control do their duty by enforcing the relevant provisions of the Criminal Code.

* * *

It is obvious to me that the terms of this order were taken from precedents developed during the course of labour disputes. There is much to be said for the proposition that such precedents should be put permanently away and the court should give, in these cases where the citizens take to the streets and an injunction is sought, a fresh consideration to the extent to which the court should go. That consideration should, in every case, depend on the precise nature of the dispute, the precise conduct in issue and so on.

[15] In MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, which was decided after Everywoman's Health Centre, the Supreme Court of Canada dispelled any question about whether the courts have the power in the context of civil litigation to enjoin non-parties or members of the public from specified conduct, regardless of whether such conduct would also constitute a criminal offence. That 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, following a government decision to permit certain harvesting of old-growth forest in the Pacific Rain Forest. People opposed to the harvest mounted protests and one form of protest was to block public roads so as to prevent the logging trucks from sending cut logs out of the forest area.

[16] The fundamental conflict inherent in such litigation was described by McLachlin J., as she then was, in MacMillan Bloedel, (at para. 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.

[Underlining added.]

[17] In this case, the chambers judge, after refusing either to adjourn the application or to hear submissions from counsel for Mr. Hall, granted an ex parte interlocutory injunction which provided that the order could be set aside on 48 hours notice. As the extract from the transcript set out later in these reasons indicates, the chambers judge apparently took the view that because the ex parte interlocutory injunction could be set aside on 48 hours notice, any concern about the rights of Mr. Hall and the other protestors that might be affected by the order was adequately met.

[18] Criticism about the use of interlocutory injunctions in cases involving social or political protest include complaints that such orders are frequently obtained ex parte (without notice to the persons the applicant wishes to enjoin) in circumstances where notice could and should be given and that such orders are given without regard for the possible harm they may cause in curtailing freedom of expression, including the right to express dissenting views. When the failure to obey an injunction subjects the persons enjoined to liability to fine or imprisonment for contempt of court, it is not difficult to understand how ex parte interlocutory injunctions may be regarded as a means of stifling unwanted or inconvenient protest, as the appellant in this case contends.

[19] Rule 45(3) of the Rules of Court provides that "[i]f an application for an interlocutory injunction is made without notice, the court may grant an interim injunction." In this case, no consideration appears to have been given to granting injunctive relief limited to a short, stated period of time rather than the interlocutory injunction granted in this case. Had a time-limited interim order been granted, the burden of establishing the need for injunctive relief would have remained with PRHC when it moved to continue the injunction. By contrast, the ex parte interlocutory injunction the chambers judge granted in this case cast the burden on the protestors to make any further application and to show that the order ought to be set aside or varied as to its terms.

[20] When no notice is given to protestors of an application for injunctive relief, it seems to me that even where extraordinary urgency can be made out by the applicant, the granting of a short, time-limited injunction would be a preferable form of order. Granting an injunction for a short period limits the risk of irreparable harm to the plaintiff while ensuring that notice can be given to the protestors and others who may be affected by the order. Preparation of material and a contested hearing are then possible. Among other matters that can be heard at the contested hearing, submissions can then be directed at how the lawful exercise of the right of freedom of expression, which includes protest, is to be taken into account in weighing the balance of convenience and, if an interlocutory order is required, how freedom of expression can be minimally impaired.

[21] When the protestors who had been released on undertakings came before Madam Justice Dillon on 7 November 2002, PRHC had not filed any material as required under the Rules of Court to pursue civil contempt proceedings against the protestors. Indeed, given the state of the pleadings at that time, there might have been some question about whether civil contempt proceedings could be maintained against any of the protestors. PRHC appears to have been waiting to see whether the Attorney General would pursue criminal contempt proceedings against the protestors who had been apprehended for breach of the court order, but PRHC did not discover what the Attorney General intended to do until the evening before the date on which the protestors were scheduled to appear in court.

[22] In awarding costs of the day to the protestors, the chambers judge seems to have considered that what had brought the protestors to court was analogous to the situation in which parties to an action appear in response to a motion that is withdrawn by an applicant on the day it is set for hearing. With respect, that does not seem to me to be a sound analogy, for it rests on the assumption that PRHC could have controlled the process and therefore could have controlled whether the protestors, some of whom had retained lawyers, were required to appear. That assumption overlooks the fact that the undertakings of the protestors to appear on 7 November had been given to the court, not to PRHC, and it was only the court that could release the protestors from their undertakings. It also overlooks the decision in Poje v. A.-G. B.C., [1953] 1 S.C.R. 516, 2 D.L.R. 785; 105 C.C.C. 311, in which it was held that a court could hold parties who had breached a court order in contempt, regardless of whether the party who had originally obtained the interlocutory injunction was no longer pursuing the matter.

[23] The standard of review that is applied by this Court on an appeal from a discretionary order is not in dispute. Whether or not to grant an injunction is a matter of discretion and so is the award of costs. This Court will not interfere with a discretionary order unless the chambers judge has erred in law or in principle, or the result is so plainly wrong on the facts as to work an injustice: Creasey v. Sweny, [1942] 3 W.W.R. 65 (B.C.C.A.); Taylor v. Vancouver General Hospital, [1945] 3 W.W.R. 510 at 517 (B.C.C.A.); and Re Down (2000), 85 B.C.L.R. (3d) 173 at 176, 2000 BCCA 637.

[24] In my view, the orders under appeal resulted from errors in principle and must be set aside.

[25] I will now set out in greater detail the background leading to the two appeals from the orders made in PRHC's action and expand on my reasons for concluding that the appeal from the order made by Madam Justice Loo must be allowed.

II. Background

[26] On 14 September 2002, various people entered and occupied the Woodward's Building. On the morning of 16 September 2002, PRHC filed a Writ and Statement of Claim in the Supreme Court of British Columbia, as well as a "without notice" motion for an interlocutory injunction enjoining anyone from entering or occupying the Woodward's Building. The only defendants shown in the style of cause on the Writ filed by PRHC were "John Doe, Jane Doe and Persons Unknown".

[27] In its Statement of Claim the PRHC alleged:

5. On or about September 14, 2002, the Defendants, and others, without legal justification, entered into, beset and occupied the Woodwards Building.

6. The Defendants did not have authorization from PRHC [or] its agents to enter or occupy the Woodwards Building.

7. PRHC and its agents have demanded that the Defendants leave the Woodwards Building but the Defendants have wrongfully refused to do so. The Defendants remain within the Woodwards Building at the time of the filing of this Statement of Claim.

8. The Defendants' entrance into the Woodwards Building and their continued occupation of the Woodwards Building constitutes a trespass.

9. Upon entering the Woodwards Building, the Defendants intentionally, or alternatively, negligently, caused damage (the "Damages") to improvements within the Woodwards Building and chattels stored in the Woodwards Building that are owned by PRHC and its agents and employees.

10. The Damages caused by the Defendants constitute a nuisance and a trespass.

11. As a result of the wrongful conduct of the Defendants, PRHC has sustained damages, the quantum and extent of which are not currently known or determinable but which damages will be disclosed prior to the trial of this matter.

WHEREFORE the Plaintiffs claim against the Defendants jointly and severally:

(a) General damages;

(b) Special damages;

(d) An interim injunction;

* * *

[28] In its motion, PRHC sought the following orders, "pending the trial of this action or until further Order of this Court":

1. The Defendants, by themselves, their servants, agents or otherwise, and all other persons having knowledge of this Order, that are trespassing on or occupying the Lands as described in this paragraph, or any structure or building on the Lands, immediately leave and cease and desist any trespass on or occupancy of the lands and premises at 101 West Hastings Street,...:

(the "Lands")

unless they have the express authorization of the Plaintiff to enter on or remain on the Lands or in the building or structure on the Lands.

2. The Defendants, by themselves, their servants, agents or otherwise, and all persons having knowledge of this Order, are enjoined from entering onto or into the Lands or any structure or building on the Lands, or encouraging or counselling others to enter onto or into the Lands or any structure or building on the Lands, without the express authorization of the Plaintiff.

3. The Defendants, by themselves, their servants, agents or otherwise, and all persons having knowledge of this Order, be enjoined from obstructing or interfering with, or encouraging or counselling others to obstruct or interfere with the operations of the Plaintiff, or its agents or employees, on the Lands or in any structure or buildings on the Lands, including the access to and egress from the Lands and any structure and building on the Lands.

4. The Plaintiff be excused from serving copies of the Affidavit material heard on this Application when serving this Order, provided that the Plaintiff will provide copies thereof on the of [sic] request any Defendant who is served with this Order.

5. Any person affected by this Order be at liberty to apply to set aside or vary this Order on 48 hours notice. Rule 51A of the Rules of Court shall not apply to any application to vary or set aside injunctions in this action.

[29] PRHC filed three affidavits in support of its motion for an ex parte interlocutory injunction. Mr. Shayne Ramsay, the Chief Executive Officer of the British Columbia Housing Management Commission ("BCHMC") deposed that BCHMC is the agent of PRHC and manages its affairs, including the buildings it owns. He deposed that the Woodward's Building was purchased by PRHC in about March 2001, that it was unoccupied at the time of purchase and had remained unoccupied. Mr. Ramsay stated that some construction work had been undertaken but none had been done for about four months.

[30] Mr. Ramsay stated that PRHC had contracted with Vancouver Security Management Ltd. to provide security services for the Woodward's Building. He acknowledged that he had not gone into the building before swearing his affidavit. Mr. Ramsay deposed, in part, as follows:

13. I and PRHC are concerned that the Woodwards Building is not suitable for human habitation and that the Protestors may be injured if they continue to occupy the Woodwards Building.

14. Further, I and PRHC are very concerned about the property damages referred to in Mr. Singh's Affidavit and are concerned that further property will be damaged if the Protestors remain in the Woodwards Building. We are also concerned that the heating and cooking equipment referenced in Mr. Singh's Affidavit may cause a fire in the Woodwards Building.

15. PRHC undertakes to abide by any Order this Court may make as to damages as the result of obtaining the injunctive relief that it seeks in this application for an interlocutory injunction....

[31] Mr. Sarjit ("Dennis") Singh Dhaliwal is the owner of Vancouver Security Management Ltd. In his affidavit, he stated that since about March 2001, his company has had a contract with BCHMC to provide security services for the Woodward's Building. He described the building as having eight stories with two levels of basement, and as being in the following state:

3. The Woodwards Building is not occupied and has not been occupied since Vancouver Security first start[ed] providing the security services as set out in the previous paragraph. It has been under construction for some time, although no construction work has been done therein for approximately three to four months.

4. The interior partitions of the former Woodwards department store have been demolished, but little reconstruction has occurred. There are some partially constructed walls. The floors are uneven. It is very dusty. There are exposed electrical wires and cables in the walls and running across the floors in some locations. There is rubble strewn around the building in various places.

5. Many of the floors and areas of the Woodwards Building are not safe. The building is quite old and some of the floors, which are constructed from wood, have deteriorated. There are numerous holes in the wooden floors, ranging from approximately 1/2 inch to two feet in diameter. Prior to the events described in this my Affidavit, there was plastic yellow "hazard" tape (the "Hazard Tape") blocking off some particularly most unsafe areas within the Woodwards Building.

6. As a result of some of the construction work that has been done in the past at the Woodwards Building, there are three large openings that extend from the basement levels up through to the eighth floor. I estimate that these openings are approximately 30 feet by 30 feet in size.

[32] Mr. Dhaliwal stated that the security service provided at the Woodward's Building consisted of one full time guard 24 hours a day with patrol dogs to patrol the ground floor at night. He deposed that he had received a report from an employee at the building at about 1:30 p.m. on Saturday, 14 September 2002. The employee reported that he had heard the dogs barking and, after leaving the building to see what was happening, saw that "individuals had set up a protest under a canopy of the building at the corner of Abbott Street and West Hastings Street" and that the Vancouver Police were already in attendance. Mr. Dhaliwal said he immediately went to the Woodward's Building. His affidavit, which describes what he observed, contains references to the actions of the police at the Woodward's Building:

13. I saw people (the "Protestors") using ladders to climb into the second floor of the Woodwards Building. There were three Vancouver Police officers at the Woodwards Building at the time. I spoke with the police officers, and particularly with Sergeant G.P. Meeres and received an incident report number from them.

14. I allowed the police to handle the situation at that time.

15. At 1:47 pm, I received a telephone call from Intercon Security, which is an alarm monitoring company that monitors the security alarm that has been set up in the BCHMC office on the second floor of the Woodwards Building. Vancouver Security has access to this office. This office contains plans, tools, furniture and documents in one area, and computer equipment and other office equipment in another area.

16. I told the police that the Protestors must have broken into the BCHMC office on the second floor. The BCHMC office was kept locked at all times and was locked prior to the Protestors entering the Woodwards Building.

17. At approximately 2:00 p.m., Mr. Tolosa then went into the Woodwards Building to investigate what the Protestors were doing, taking a camera with him. Mr. Tolosa advised me that he had previously taken pictures of the outside of the Woodwards Building, including pictures of the banners erected by the Protestors on the outside of the Woodwards Building.

18. When Mr. Tolosa came out of the Woodwards Building, he reported to me that the Protestors were damaging the BCHMC office and other parts of the Woodwards Building. He gave me the film from his camera, which he told me had pictures that he had taken of the events inside the Woodwards Building.

[Underlining added.]

[33] In his affidavit, Mr. Dhaliwal described later events as follows:

22. At approximately 4:00 p.m. on Saturday, September 14, 2002, a senior officer with the Vancouver Police arrived and I went in with him to meet with the Protestors. There were approximately 30 Protestors. The police officer advised the Protestors that the building was unsafe and asked them not to be on the wooden portions of the floor. The Protestors agreed to remove their ladders from the Woodwards Building at 7:00 p.m. that evening to avoid any further persons coming into the building.

23. I noticed that the Hazard Tape that had previously been surrounding dangerous areas of the floor of the Woodwards Building had been removed.

24. I also saw that the Protestors had brought cooking equipment and gas powered space heaters into the Woodwards Building. They had also set up a make-shift toilet in the BCHMC office, which is essentially a box surrounded by a canvass, presumably for privacy.

25. I also noticed that many of the safety barricades that had been erected at various places in the Woodwards Building had been removed. Some of the stairwells in the Woodwards Building had been barricaded.

26. After exiting the Woodwards Building, I saw a banner had been hung from the large "W" that is on a tower on the roof.

27. At approximately 10:00 pm, on Saturday, September 14, 2002, I went back into the Woodwards Building to investigate the activities of the Protestors. I approached one of the Protestors who appeared to be leading the rest and asked if he would provide a list of their names. He indicated to me that his name is "Ivan" and stated that while he would provide the number of Protestors that are in the Woodwards Building, they would not provide their names. "Ivan" advised me that there are 17 Protestors in the Woodwards Building.

28. "Ivan" told me that the Protestors were waiting for an injunction to be obtained from this Court and that they wanted the police to physically remove them from the Woodwards Building.

29. "Ivan" also told me that some of the Protestors had to go to the roof of the Woodwards Building for fresh air because they suffer from asthma. The only way for the Protestors to access the roof is for them to break through the door to the roof, which is always locked.

30. On the evening of Saturday, September 14, 2002 and during the day of Sunday, September 15, 2002, I observed tents and protestors on the sidewalks surrounding the Woodwards Building on West Hastings Street and Abbott Street. I also observed banners and signs that the Protestors had erected and attached to the Woodwards Building.

31. I overheard some of these Protestors on the outside of the Woodwards Building speaking to the media and telling them that the reason for the protest was their dissatisfaction with the state of social housing on the downtown east-side of Vancouver.

32. On the afternoon of Sunday, September 15, 2002, I saw a number of the Protestors climbing on the "W" tower on the roof of the Woodwards Building and the police had to attend once again to persuade them to climb down from the tower.

[Underlining added.]

[34] The affidavit of Mr. Joe Tolosa, the security guard at the Woodward's Building to whom Mr. Dhaliwal had spoken, simply confirms that the photographs were those he had taken and that they accurately depicted what he saw when he went into the building.

[35] At the time PRHC's motion was to be heard, Mr. Cameron Ward appeared before Madam Justice Loo and asked that PRHC's motion be adjourned. Mr. Ward had been retained by Mr. Terry Hall, one of the protesters, and had been alerted by media reports of an impending injunction application. When his application to adjourn the motion was refused, Mr. Ward asked to make submissions on the substance of the application but that request was also refused. Madam Justice Loo made an order adding Mr. Terry Hall and another as parties to the proceeding and immediately thereafter granted the interlocutory injunction.

[36] The following extract from the transcript of the proceedings before Madam Justice Loo on 16 September 2002 contains, among other things, Mr. Ward's request to have PRHC's application adjourned and to be able to make submissions, as well as the response of the chambers judge to those requests:

MR. WARD: ...

My friend has said that here, as I understood his submission, nobody has identified themselves or the person's identity cannot be ascertained, which is why the Style of Cause reads the way it does. As I say, I was retained this morning, but I did watch the news and read the newspapers in the last few days and I saw people being identified on news broadcasts by name. These people occupying the premises may be homeless, but they are not nameless or faceless and there is no evidence, as far as I can tell on my quick scan of the affidavits, that the plaintiff has taken any diligence or has used any diligence in ascertaining the identities. As I say, when I watched the television coverage on the evening news, I saw people identified by name on the coverage.

THE COURT: Then do you have their names down?

MR. WARD: I do not --

THE COURT: All right.

MR. WARD: -- but I would have to muster the evidence, and that is one of the additional reasons for seeking the adjournment is so that the evidence is before Your Ladyship.

The reason that this point is particularly important, My Lady, is this. This process, as I have personally seen as counsel many times and this Court may well be aware of, is the first step in what I submit is a -- is the first step in seeking the exercise of police powers and ultimately the exercise of the court's contempt powers for if people, people who may not be my clients, disobey the court injunction, they will undoubtedly be arrested and brought before this court and be alleged to be in contempt. The court's tendencies to impose very serious sanctions on these people ‑‑the current range of sanctions is about fourteen to twenty-one days' incarceration.

This type of proceeding, the civil injunction, is one of the rare civil proceedings in these courts which results in incarceration. Therefore, in my submission, great care must be taken at the outset to ensure that the procedural regularities that apply to other actions in this court are followed here. In other words, at a minimum, those persons who may be affected by the granting of the relief and ultimately by the order sought ought to be given notice of this proceeding and ought to be identified where their identities are ascertainable.

THE COURT: All right, Mr. Ward. I am not inclined to adjourn this application. Dealing with your two points, I am not about to adjourn this application on the basis of what you refer to as a procedural irregularity. I am satisfied that the plaintiff has made an attempt to identify the persons or the protestors and they have not identified themselves. I would say this, though, that Mr. Kuhn does now have the names of two of the protestors, that is, Terry Hall and Kelly Alm, and they should be named as defendants in the action, so the Writ of Summons will be amended to include their names.

As to your first point, I agree that this is a matter for the police, but the protestors are trespassing on private property, taking the law into their own hands, and the plaintiff is not precluded from pursuing its civil remedy....

* * *

MR. KUHN: Yes, My Lady.

THE COURT: I think there should also be, at or about the location where the ladder is --

MR. WARD: My Lady, I am sorry to interrupt. I have not yet made any submissions on the merits of the application. I seek an opportunity to address the merits of the application before the order is pronounced.

THE COURT: No, but you have told me that you could not speak to the merits of the application and what you were doing is you were applying to adjourn the application as you did not have --

MR. WARD: I stand to be corrected, but I do not believe I said I could not speak to the merits. I said it would take time for me to make copies of the authorities I wish to produce and to refer to them and muster my submissions. If the merits are to be dealt with, then I wish to make those submissions as best I can. I will have to read from case law which I have available here. I have several boxes of case law at my office, but I will read from the case law and make copies at the break.

THE COURT: No, Mr. Ward. The order specifically provides that the persons affected by the order can apply on two days' notice so --

MR. WARD: Sorry, My Lady. It is a fundamental principle of natural justice that persons affected by the court's pronouncements have an opportunity to be heard. I seek the opportunity to be heard.

THE COURT: No, Mr. Ward.

MR. WARD: Thank you, My Lady.

THE COURT: Thank you. Is there anything else, Mr. Kuhn?

MR. KUHN: Yes, My Lady. I would like to perhaps satisfy Mr. Ward's concern that there is no enforcement sought in the order itself. Our assumption, My Lady, is that Mr. Ward's client together with any other clients or people affected by the order will comply with the law rather than seeking a specific enforcement involving the police. So my concerns are simply that parties of record, including Mr. Ward's client, understand that our assumption as private holders of land is that people will respect the court order made by this.

THE COURT: Is that why your form of order did not include the usual clause that the police would arrest?

MR. KUHN: Yes. We see no basis upon which to impose upon the Police Department an obligation by a specific order and we are assured that the Police Department will carry out their roles without the necessity of this Court seeking to compel them, so to speak, to do so and also our assumption is that these individuals, while they may have a misguided view of how to express their free right of speech, are law-abiding individuals who are very likely to comply with the law rather than not comply with an order of this Court and as Your Ladyship indicates, the normal 48-hour ability to set aside or vary the order is available and we would be happy to comply with whatever timing Mr. Ward or anybody else who seeks to affect the order wishes to make.

[Underlining added.]

[37] The order made by Madam Justice Loo is in the same terms as the notice of motion (set out in paragraph 28 of these reasons) with the exception of the paragraph requiring posting of the order, which reads:

5. The Plaintiff be excused from serving copies of the Affidavit material heard on this Application when serving this Order, provided that the Plaintiff will provide copies thereof on the of [sic] request any Defendant who is served with this Order and post this Order in two conspicuous locations at the point of access to the Lands and building on the Lands, as used by the Defendants.

[38] A motion for an enforcement order was filed later in the day on 16 September 2002, along with an affidavit by Mr. Kuhn, who had earlier appeared before Madam Justice Loo, acting on behalf of PRHC. In his affidavit, Mr. Kuhn deposed:

2. I appeared and made submissions to the Court, Madam Justice Loo, on the morning of September 16, 2002 in respect of an Ex Parte Notice of Motion seeking relief in the form of interlocutory injunctions in this matter. The Court made the Order (the "Injunction Order"), a true copy of which is attached as Exhibit "A" to this my Affidavit.

3. I advised the Court, based on information provided to me by my partner, Kevin Boonstra that the Inspector on duty on September 15, 2002, Inspector Mansell, advised him that the Vancouver Police Department would enforce an interlocutory injunction in this matter.

4. I was instructed by the Plaintiff that, based on the advice from Inspector Mansell as set out above, and in order to allow the Defendants and those parties affected by the Injunction Order to peaceably comply with its terms, I should not seek an immediate enforcement terms [sic] in the Injunction Order. I advised the Court of these instructions and the basis of the Plaintiff's instructions in seeking the Injunction Order.

5. I attended with members of the Vancouver Police Department, and specifically, Inspector Irons and Inspector Frail, at the Lands and buildings described in the Injunction Order, and the Plaintiff's security personnel, for the purposes of serving and posting the Injunction Order pursuant to its terms. I was advised by Inspectors Irons and Frail that, unless there were destruction of property or harm or impending harm to persons, the Vancouver Police Department would not enforce the Injunction Order without enforcement provisions specifically authorizing a peace officer to do so, and that either we were mistaken about what Inspector Mansell said or meant, or the [sic] Inspector Mansell had been mistaken in his understanding of the policy of the Vancouver Police Department. Inspectors Irons and Frail advised me to seek enforcement provisions if it was the intention of the Plaintiff that the Injunction Order should be enforced by the Vancouver Police Department if and when the Defendants do not comply with it voluntarily.

[Underlining added.]

[39] In the early evening of the same day on which the interlocutory injunction was issued, Madam Justice Loo granted an "Enforcement Order" authorizing the police to arrest and remove any person believed on reasonable and probable grounds to be occupying the Woodward's Building in contravention of the earlier Order. No notice was given to Mr. Hall's counsel of the application for the Enforcement Order.

[40] In its material part, the Enforcement Order reads:

THIS COURT ORDERS THAT, pending the trial of this action or until further Order of this Court:

1. Any peace officer is authorized to arrest and remove any person from the Lands, or any structure or building on the Lands (as defined in paragraph 2 of the Order of Madam Justice Loo made in this action on Monday, September 16, 2002), whom the peace officer has reasonable and probable grounds to believe is trespassing on or occupying the Lands;

2. Any peace officer who arrests and removes any person pursuant to this Order be authorized to bring forthwith such person before this Court at Vancouver, British Columbia for the purpose of being proceeded against for contempt of Court, or for fixing a time for such proceedings, and the police officer may detain such person until it is possible to bring such person before the Court;

3. This Order shall take effect from and after 8 a.m. the morning of September, 17, 2002, and not before;

4. The Plaintiff be excused from serving copies of the Affidavit material supporting this Application when serving this Order, provided that the Plaintiff will provide copies thereof on the request of any Defendant who is served with this Order and post this Order in two conspicuous locations at or near the point of access to the Lands, as used by the Defendants.

5. Any person affected by this Order is at liberty to apply to set aside or vary this Order on 48 hours notice. Rule 51A of the Rules of Court shall not apply to any application to vary or set aside injunctions in this action.

[41] On 21 September 2002, members of the Vancouver Police Department entered the Woodward's Building, arrested 54 people and brought them before the court because they were allegedly in violation of the order of Madam Justice Loo. On the same day, Madam Justice Bennett ordered that 53 of the 54 people who had been apprehended pursuant to the Enforcement Order be released from custody, each on an undertaking not to enter the Woodward's Building. The Undertaking also provided that the person signing it would attend "before a Judge of the Supreme Court on November 7, 2002 at 10:00 a.m. at the Law Courts" and "at other times required by the court to be dealt with according to the law". The only person who remained in custody was ordered released on 23 September 2002 after he provided the same undertaking as was given by those released two days earlier.

[42] There was some correspondence between Mr. Kuhn and Mr. Ward in October 2002 regarding Mr. Terry Hall and, in early November 2002, about the fact that PRHC had not filed any material as required by the Rules of Court if it intended to pursue civil contempt proceedings.

[43] The following letter dated 4 October 2002 was sent from Kuhn & Company to Mr. Ward regarding Mr. Hall:

Given that your client apparently obeyed the Court's order by leaving the Woodwards building (assuming that he was there at some point), and given the current situation, our client has decided that it no longer will seek relief against Mr. Hall. As such, we have filed a Notice of Discontinuance with respect to the action against him. Please find a copy of same enclosed for service on you. Please acknowledge service by signing and returning the enclosed copy of this letter.

We trust that this matter is now at an end with respect to Mr. Hall.

[44] On 1 November 2002, Mr. Ward wrote to Mr. Kuhn:

Since we still have received no Notice of Motion, Notice of Hearing or supporting material from counsel for the Plaintiff, we assume that there will be no hearing on November 7, 2002 in the above-noted matter. Please confirm that the "Undertakings" signed by the fifty-four persons arrested have been vacated.

[45] On 4 November 2002, Mr. Kuhn responded:

We have in hand your letters of November 1, 2002.

You are incorrect that there will be no hearing on November 7, 2002. The "Undertakings" given by the 54 alleged contemnors are given to the Court and they are therefore required by the Court to attend on November 7, 2002. Even if our client were disposed to do so, it cannot "vacate" the Undertakings. We intend to advise counsel and the Court on or before November 7, 2002 how our client wishes to proceed. At this point we are not in a position to do so. Regardless of how our client may wish to proceed, the Court can proceed against the alleged contemnors as it deems appropriate.

[Emphasis in original.]

[46] On 7 November 2002, 34 of the 54 protestors who had been released on undertakings appeared before Madam Justice Dillon, as did a number of lawyers representing various protestors. Counsel for the PRHC told Madam Justice Dillon that the evening before, he had been advised by the Attorney General's Department that the Attorney General did not intend to take criminal contempt proceedings against any of the protesters and that PRHC did not intend to proceed with civil contempt proceedings.

[47] Madam Justice Dillon made an order dismissing the contempt proceedings and ordered that no warrants were to be issued for any person who had been arrested and released on an undertaking to appear but who had not appeared. She also made the following order as to costs, which is the order under appeal in CA030302:

3. The persons arrested on September 21, 2002 and appearing today in person, as listed in Schedule "A" hereto, shall have their costs of the day fixed at $100 each, payable forthwith by the Plaintiff in any event of the cause; and,

4. The persons arrested on September 21, 2002 and appearing today by counsel shall have their taxable costs of the day, payable by the Plaintiff forthwith in any event of the cause.

[48] At the outset of her oral reasons for judgment given on 7 November 2002, Madam Justice Dillon noted that "the plaintiff has indicated to the court that it is not proceeding with an application for civil contempt" and then went on to say:

[2] Since that time, I am advised that certain of those who were arrested under the injunction and who gave undertakings to this court have been represented by counsel, which counsel engaged in correspondence with the plaintiffs to ascertain what would be taking place on today's date.

[3] November 7, 2002 was the date fixed in the undertaking given to the court for the next appearance. At this time, all could reasonably have contemplated that civil contempt proceedings would have issued or not, or an application made for an adjournment.

[4] Despite the correspondence between counsel, no indication was given by counsel for the plaintiff as to what was to occur today until the appearance in court, for reasons related to the plaintiff alone.

[5] Therefore, the contempt proceedings are dismissed, and those who gave undertakings to the court are released immediately from their undertakings. No warrants will issue for those who have not appeared in court today.

[6] The injunction with respect to the premises known as "the old Woodward's building" remains in effect. In other words, there is still a court order outstanding to prevent trespass of that building. This court will not proceed on its own to initiate any contempt proceedings.

[49] On the question of costs, Madam Justice Dillon said:

[7] That leaves the matter of costs that have been requested. This is a civil matter of a relatively straightforward nature. Normally, if a party comes to the court and then the matter doesn't proceed for reasons related to the other party, they're given costs of the day. I see no reason in principle why that should not apply in this case, except for the consideration as to whether or not those who gave undertakings to the court, at the request of the plaintiff, are considered parties within the meaning of the costs rule; or are considered non-parties who should otherwise receive costs.

[8] In considering the style of cause, the only named person is Terry Hall, a person who filed an appearance and which action was later discontinued against Mr. Hall. The rest of the defendants are "John Doe, Jane Doe and persons unknown". Clearly, "John Doe" and "Jane Doe", in our court vernacular, refers to any person, the specific name not being known.

[9] The names of those who gave undertakings to the court have been known since September the 21, 2002. Those persons are within the contemplation of John Doe and Jane Doe and persons unknown, within the style of cause drafted by the plaintiffs. Accordingly, I consider them to be parties for the purposes of costs.

[10] Pursuant to Rule 57(13) the court can fix a lump sum award of costs. The award of costs that I intend to make is only for costs for today.

[11] The plaintiffs were clearly entitled to come to court to get an injunction, and to proceed with that matter as they have up till today, including not proceeding today. However, I see no reason why costs should not be given for today.

[12] Costs are fixed for those who have given undertakings to the court, and who have appeared today, in the amount of $100 per person.

[13] Costs for those represented by counsel, will be pursuant to a bill of costs. They may present their bills in the normal manner.

[14] Those who have given undertakings and who are here today should then make sure that Mr. Sheriff has your name, so that you may receive your costs, which will be payable forthwith. You will be required to provide an address where your costs can be mailed to you.

[Underlining added.]

[50] PRHC subsequently obtained leave to appeal the order for costs as well as a stay of execution pending appeal.

III. The appeal from the order granting the "without notice" interlocutory injunction to PRHC

[51] On the appeal from the ex parte interlocutory injunction granted by Madam Justice Loo, the arguments focused mainly on procedural and process issues rather than on the factors that go to the determination of whether injunctive relief ought to be granted, although the two cannot be separated entirely. The procedural and process issues arose in the context of injunctive relief being sought where acts of social or political protest appeared to be trenching on private rights.

[52] Rule 45 of the Rules of Court concerns injunctions. After amendments to the Rule in 2000, Rule 45(3) now provides:

(3) If an application for an interlocutory injunction is made without notice, the court may grant an interim injunction.

[53] The following subrules of Rule 52 are also relevant to the arguments on the appeal:

(12) If it appears to the court that a petition or notice of motion ought to have been but was not served on or delivered to a person, the court may

(a) dismiss the application or dismiss it only against that person,

(b) adjourn the application and direct that service or delivery be effected, or that notice be given in some alternate manner, to that person, or

(c) direct that any order made, together with any other documents the court may order, be served on or delivered to that person.

(12.1) If the nature of the application or the circumstances render service of a petition or notice of motion impracticable or unnecessary, or in case of urgency, the court may make an order without notice.

(12.2) If an order is made without notice by reason of urgency, a copy of the order and the documents filed in support must be served by the party obtaining the order on each person who is affected by the order.

(12.3) On the application of a person affected by an order made without notice, the court may vary or set aside the order.

[54] In this case, PRHC filed both its Writ and application for an interlocutory injunction on the same day. The application was immediately brought on for hearing without notice to the protestors. The force of what Wilson J. said in Gulf Islands Navigation Ltd. v. Seafarers International Union of North America (Canadian District), supra, at 653 is undiminished with time and bears repeating:

... Where the application is made ex parte the utmost scrupulosity and care must be exercised by the judge. In the course of trying to restrain "irreparable" damage to one litigant, he may cause it to another. The first inquiry to be made in all cases is, "Why did you not give notice?"; and if the answer elicited does not reveal extraordinary urgency, the application must be refused.

[55] There are, of course, occasions when injunctive relief must be sought without notice because of fears that irreparable harm will occur if there is any delay in obtaining an order restraining the conduct that would produce that harm. In this case, that may have been what prompted PRHC to bring on its motion for an interlocutory injunction without notice, but regardless of that, it was incumbent on the chambers judge to consider whether the affidavit material filed by PRHC supported such a conclusion before making the ex parte order.

[56] Whether the material could support the conclusion that irreparable harm would have ensued if injunctive relief was not obtained immediately in this case seems to me to be open to serious question. According to the affidavit material filed by PRHC on its application, the Woodward's Building had been vacant at the time it was purchased by PRHC and little work had been done on it thereafter. The fact that PRHC's corporate building manager had a private security company on site obviously did not prevent the Vancouver police from attending for the purpose of investigating the crime of wilful destruction of property and to ensure that those who had entered the building were not injured because of the state of the building. Indeed, the affidavits filed by PRHC confirm that the police were in attendance for these purposes. As Mr. Kuhn's affidavit filed in support of PRHC's application for an enforcement order reveals, what the police were not prepared to do without an enforcement order was to remove the protestors, who were trespassers on PRHC's property, from the Woodward's Building.

[57] While the chambers judge may have thought that there was no risk of harm to the protestors if the interlocutory injunction were granted in this case, I think that view is not legally correct. It may be true to say that the risk of harm to the protestors would have little or nothing to do with monetary loss but that does not mean there was no legally recognizable risk of harm. An unwarranted or unnecessary stifling of freedom of expression, including the right to dissent, is not something that can be measured monetarily, but "harm" is not confined to monetary loss.

[58] When injunctive relief is being sought in a case such as this, it seems to me to be essential that the potential for "harm" to our constitutionally entrenched right to freedom of expression must be taken into account as part of the familiar balance of convenience test referred to in the case authorities.

[59] If the court concludes that some injunctive relief must issue, it is also essential that the order be carefully and precisely worded so as to ensure that the order does not limit freedom of expression unnecessarily. In that regard, it may also be useful to note that the order made in the action brought by the City of Vancouver, which is the subject of the appeal in CA030345, contained the following provision which was one way of guarding against an unwarranted restriction of freedom of assembly:

this injunction Order does not prohibit or limit the right of the Defendants, or any other persons, to lawfully assemble on any street or any part thereof;

[60] It appears from the transcript that the chambers judge considered that a term in the order permitting the ex parte injunction to be set aside on 48 hours notice obviated the need to hear submissions from counsel for Mr. Hall or to require that notice of the application be given to the other protestors. With deference, I disagree with that view. It has always been the case that an order made without notice can be set aside by the court that made it. Having the right to apply to set aside or vary an order is not an adequate substitute for being heard at the time the application for an interlocutory injunction is before the court for determination. As noted earlier, the harm that may result from such an order is the curtailment of freedom of expression in a case such as this.

[61] There is no indication in the transcript of the hearing before Madam Justice Loo that any consideration was given to granting an interim injunction for a short, limited period of time in order to give PRHC an opportunity to serve the protestors. Had such an interim injunction been granted, the burden of establishing the need for injunctive relief would have remained with PRHC when it moved to continue the injunction. The interlocutory order that was granted by the chambers judge, providing as it did that it could be set aside on 48 hours notice, put the burden of showing that the order ought to be varied or set aside on the shoulders of the protestors.

[62] In summary, in a case such as this where no notice of the application for an injunction was being given to the protestors who might have been affected by the order, I am of the view that regardless of whether the injunctive relief is seen as urgently required to prevent irreparable harm to the applicant, any order made ought to take the form of an interim injunction for a short, specified period rather than an ex parte interlocutory injunction that may be set aside on 24 or 48 hours notice. Granting an interim injunction for a short, specified period enables notice of the application to be given, and permits the protestors to prepare for and make submissions at a contested hearing, including those directed at how the lawful exercise of the right of freedom of expression, which includes protest, is to be taken into account in determining the balance of convenience.

IV. Result

[63] For the reasons stated, I would allow the appeal from the ex parte interlocutory injunction granted by Madam Justice Loo and the appeal from the order of Madam Justice Dillon awarding costs of the day to the protestors.

[64] Unless counsel wish to make submissions to the contrary, I would make no order as to costs in respect of the appeal of the order of Madam Justice Dillon.

[65] As the appellant in CA030118 was successful on the appeal brought from Madam Justice Loo's order, he is entitled to his costs of the appeal.

“The Honourable Madam Justice Rowles”

I Agree:

“The Honourable Madam Justice Prowse”

I Agree:

“The Honourable Mr. Justice Oppal”

Citation:	*Provincial Rental Housing Corporation v. Hall,*
	2005 BCCA 36