2005 BCCA 37 Vancouver (City) v. Maurice

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 the Appellants
T.M. Zworski	Counsel for the Respondent
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] The appellants seek to overturn an interlocutory injunction granted to the City of Vancouver (the "City") on 22 November 2002, during a period of political and social protest about the lack of social housing for the poor and homeless in Vancouver. In part, the protest took place on the sidewalks surrounding the former Woodward's department store building (the "Woodward's Building").

[2] The appellants do not attack the legal foundation for the granting of the order under appeal. There is no issue that the placement and maintenance of tents, shelters, mattresses and other objects and structures on City sidewalks around the Woodward's Building constituted an obstruction to the free use of those sidewalks and was in contravention of the City's Street and Traffic By-law (the "By-law"). Instead, the appellants seek to have the injunction set aside on procedural grounds.

[3] The appellants argue that since Everywoman's Health Centre Society (1988) v. Bridges (1990), 54 B.C.L.R.(2d) 273 (C.A.), it has become almost settled practice in British Columbia for corporations or government entities to attempt to quash political or social protest activities by inviting the courts to grant injunctions and then to exercise the court's powers to punish for contempt. It is the appellants' submission that when the extraordinary remedy of an injunction is sought, the court must ensure that fundamental procedural safeguards are met. The appellants argue that, in this case, the City failed to add as parties in the style of cause those persons who had filed Appearances to the City's action and that certain unrepresented persons were denied an opportunity to make submissions when the motion for the interlocutory injunction was heard.

[4] The City does not dispute the appellants' basic proposition that when injunctive relief is sought, the procedures set out in the Rules of Court and the principles of fundamental justice must be followed. The City's position is that neither the style of cause in its action nor its motion for injunctive relief were procedurally flawed and that the chambers judge was not in error in not adding parties and in exercising his discretion not to hear further from those persons who had filed Appearances but had not filed a Response to the City's interlocutory injunction application.

[5] For the reasons which follow, I am of the view that the appellants' complaints of procedural error and their potential consequences are not well-founded in this case and that the appeal must be dismissed.

II. Background

[6] In September 2002, various people began to occupy the Woodward's Building and to camp on the sidewalks adjacent to it. Tents, mattresses and other objects were placed around the building in contravention of the City's By-law.

[7] The occupation of the Woodward's Building and the erection of structures on the sidewalks around the building were part of a social or political protest about the lack of social housing available for poor and homeless people in the Vancouver area.

[8] On 16 September 2002, the owner of the Woodward's Building obtained an interlocutory injunction prohibiting entry into the building. On 21 September 2002, 54 people were arrested in the building and were brought before the court. Reasons for judgment in the appeals from orders made in those proceedings are being released contemporaneously with these reasons.

[9] The City has the power to seek an injunction to enforce its by-laws by reason of ss. 334 and 571 of the Vancouver Charter, S.B.C. 1953, c. 55.

[10] Outside the Woodward's Building, there was a changing population in the tents and other structures that had been put up by the protesters on the City's sidewalks. On 30 October 2002, the City commenced an action naming five individuals as defendants (the "Named Defendants") in the style of cause. The Writ also named as defendants "Jane Doe, John Doe and Other Persons Unknown, erecting, maintaining, or occupying tents, structures and other objects on City of Vancouver Streets in the 100 block West Hastings Street, the 300 block Abbott Street, or the 100 block West Cordova Street, Vancouver, British Columbia."

[11] The appellants are three of the Named Defendants.

[12] Between 31 October 2002 and 2 November 2002, the Writ was served on the Named Defendants. As well, the City had 32 copies of the Writ handed out to persons present on the sidewalks outside the Woodward's Building and a further 81 copies of the Writ were left inside the tents, shelters, couches and on mattresses on the sidewalks outside the building.

[13] By 15 November 2002, 34 people, including the five Named Defendants, had filed Appearances to the City's action. The fact that many of those filing Appearances did not include an address for delivery, as required by the Rules of Court, may reflect the fact that a number of the protestors were apparently homeless. However, the City went to considerable lengths to ensure that notice was given to all those who might be affected by an application for an injunction. On this appeal, no issue arises from the fact that the Appearances failed to comply with the Rules of Court.

[14] Between 5 and 10 November 2002, the City served the Named Defendants as well as the majority of other persons who had filed Appearances to the action with a Notice of Motion for an interlocutory injunction. The Notice of Motion and supporting materials were served mainly on individuals on the sidewalks around the Woodward's Building. The Notice of Motion showed the date for hearing as 19 November 2002.

[15] Eight persons, four of whom were the Named Defendants, Claude Maurice, Kerry Pakarinen, Anton Pilippa and Craig Ballantyne, delivered Responses to the City's Notice of Motion. Those who delivered Responses were represented by counsel at the hearing of the City's injunction application. None of the other persons served with the Motion and materials delivered a Response to the City's motion.

[16] The hearing of the interlocutory injunction application took two days. The eight individuals who had filed Responses and an intervenor, the British Columbia Civil Liberties Association, appeared by counsel to oppose the City's application. Near the end of the second day of the hearing of the City's application, eight persons, who had not filed Responses to the City's application but who said they had filed Appearances, asked to address the court. The chambers judge agreed to permit them to make submissions but specifically cautioned them not to give oral evidence and to limit themselves to making submissions. Despite the caution, the first four speakers attempted to offer unsworn evidence. After the fourth person had spoken, there was cheering and clapping in the courtroom. At that point, the chambers judge refused to hear from any more of the unrepresented persons. The identities of the four individuals who were not permitted to address the court are unknown.

[17] The chambers judge found that there was a clear contravention of the By-law and that there were no exceptional circumstances present and consequently granted the injunction the City sought. No issue is taken with the findings made by the chambers judge.

[18] In its material part, the order under appeal reads as follows:

THIS COURT ORDERS that:

1. the Defendants and all other persons having knowledge of this order remove all structures or objects belonging to them, or used by them, which are located upon City of Vancouver streets or any part thereof, in the 100 block West Hastings Street, the 300 block Abbott Street, and the 100 block West Cordova Street, Vancouver, British Columbia by noon on Monday, November 25th, 2002;

2. the Defendants and all other persons having knowledge of this Order be prohibited and restrained, from noon on Monday, November 25th, 2002 until the trial of this matter or further order of this Court, from constructing, placing, or maintaining structures or objects upon City of Vancouver streets or any part thereof, in the 100 block West Hastings Street, the 300 block Abbott Street and the 100 block West Cordova Street, without having first obtained written consent from the City of Vancouver Engineer;

3. 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;

4. for the purposes of this Order:

(a) "structures and objects" include tents, sofas, chairs, mattresses, tarpaulins, tables, buckets, shopping carts, traffic delineators, traffic cones, wood pallets and other items or objects, and any other items which encroach on or obstruct the free use of the street; and

(b) "street" includes public road, lane, and sidewalk, and any other way normally open to the use of the public;

5. the Plaintiff shall distribute and post copies of this Order to give sufficient notice to the Defendants as to the terms of this Order; and

6. the approval by the Parties as to form of this Order be dispensed with except for approval by Counsel present at the pronouncement of this Order.

[19] The order was served on the Named Defendants and copies were distributed to persons on the sidewalks around the Woodward's Building.

[20] On 29 November 2002, the City brought a further motion before the court and obtained an order permitting the City Engineer to remove the structures and objects on the City's streets. The order reads as follows:

THIS COURT ORDERS that:

1. the City Engineer and any person directed by him be authorized to remove any structures and objects which are located upon City of Vancouver streets, or any part thereof, in the 100 block West Hastings Street, the 300 block Abbott Street, and the 100 block West Cordova Street, Vancouver, British Columbia;

2. the Defendants and all other persons having knowledge of this Order be prohibited and restrained from interfering with or obstructing the City Engineer, or any person directed by him, from removing any structures or objects pursuant to this Order;

3. any police officer of the Vancouver Police Department be authorized to arrest and remove any person who the police officer has reasonable and probable grounds to believe is interfering with or obstructing, or is attempting to interfere with or obstruct, the City Engineer, or any person directed by him, from removing any structures or objects pursuant to this Order;

4. any police officer of the Vancouver Police Department who arrests and removes any person pursuant to this Order be authorized to:

(a) bring such person before this Court at Vancouver, British Columbia forthwith 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; or

(b) release that person, once the police officer is satisfied that the person will no longer contravene the provisions of this Order.

* * *

6. the approval by the Parties as to the form of this Order be dispensed with except for approval by Counsel present at the pronouncement of this Order.

[21] Although the latter order was obtained by the City, no enforcement action was necessary and no contempt proceedings were ever brought in relation to the interlocutory injunction the City had been granted. The structures were removed from the City's sidewalks in early December 2002.

III. Grounds of Appeal

[22] The grounds of appeal, as set out in the appellants' factum, are that the chambers judge:

(i) ... erred in failing to grant unrepresented persons who had filed Appearances the opportunity to be heard before granting the Respondent an injunction.

(ii) ... erred in failing to ensure that identified persons were before the Court.

IV. The Appellants' Arguments

[23] Although the grounds of appeal concern procedural matters, appellants' counsel urged us to consider the significance of the points raised in the context of the loss of liberty that may occur when an interlocutory injunction has been granted and enforcement proceedings are taken. In the appellants' submission, there can be no doubt that applications for interlocutory injunctions in cases such as the one at bar are brought for the purpose of effecting the arrest of any and all persons who are considered to be interfering with the rights of the party bringing the application. The appellants argue that where a civil proceeding could result in a remedy that deprives persons of their liberty through the enforcement and arrest provisions contained in a court order, the court should be scrupulous in ensuring that the principles of fundamental justice and fairness are followed.

[24] The appellants argue that an interlocutory injunction is an extraordinary discretionary remedy and that the discretion to grant such relief must be exercised with caution. To support those submissions, the appellants referred us to Aetna Financial Services v. Feigelman, [1985] 1 S.C.R. 2.

[25] Relying on British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), the appellants further argue that injunctive relief should only be granted when it is "just and equitable in all the circumstances of the case".

[26] As to the importance of the procedural points raised, the appellants submit that it is trite to assert that the civil justice system is founded on the concept of notice and on principles of fundamental justice, including affording the parties to an action the opportunity to be heard.

[27] As noted earlier, in this case the City commenced an action against five actual persons as well as "Jane Doe, John Doe and Other Persons Unknown". The appellants argue that the terms John Doe and Jane Doe are "misnomers" in that they are ordinarily used to refer to identifiable but unascertained persons and that once the identities of the persons are ascertained, real names ought to be substituted. To support that argument, the appellants referred to Jackson v. Bubela and Doe, [1972] 5 W.W.R. 80 (B.C.C.A.), Davies v. Elsby Bros. Ltd., [1960] 3 All E.R. 672 (C.A.), and Fraser and Horn, Conduct of Civil Litigation in British Columbia, Issue 33, looseleaf (Vancouver: Butterworths, 1978) vol. 1 at c. 5, para. 7.4.

[28] The appellants submit that when injunctions are granted summarily to restrain "Jane Doe, John Doe and Other Persons Unknown", injustices can and do occur because the effect or consequences of granting injunctive relief cannot necessarily be foreseen when those against whom the order may be enforced have not had an opportunity to be heard.

[29] In this case, some 34 persons had filed Appearances before the application for an injunction came on for hearing. The appellants contend that the City ignored the fact that, as a result of the Appearances having been entered, there were ascertained defendants, but the City did not seek to add them as parties, even though serious consequences, including loss of liberty, could follow a failure to obey the injunction being sought.

[30] The appellants further argue that the unrepresented persons ought to have been allowed to prepare and to address the court on the merits of the injunction application. Although no reasons or examples were provided, the appellants assert that had all the unrepresented persons who had filed Appearances been allowed to speak, the result may have been different.

V. Discussion

[31] In this case, the City commenced an action in the Supreme Court of British Columbia relying on the provisions of the By-law authorizing the City to remove obstructions from the sidewalks. The City then sought an interlocutory injunction to enforce the By-law and restrain continuation of its contravention. As noted earlier, the appellants do not attack the legal foundation for the granting of the interlocutory injunction, which is the order under appeal. The placement and maintenance of tents, shelters, mattresses and other objects and structures on City sidewalks around the Woodward's Building constituted an obstruction to the free use of those sidewalks and contravened the City's By-law.

[32] Sections 334 and 571 of the Vancouver Charter, S.B.C. 1953, c. 55, specifically give the City the power to seek an injunction to enforce its by-laws. Section 334 provides:

334. Without limiting the right to enforce any proprietary, contractual or other rights, where an offence is committed against any by-law passed in the exercise of the powers of the Council or the Board of Parks and Recreation, in addition to any other remedy provided or penalty imposed, the continuance of such offence may be restrained by action of the city or the Board of Parks and Recreation as the case may be, or by action at the instance of a registered owner of real property in the city.

[33] It is true that it was open to the City to enforce its By-law by prosecution under the Offence Act, R.S.B.C. 1996, c. 338. It is also true that the decision whether to prosecute or to seek injunctive relief was one for the City to make. In this case, City officials were apparently of the view that the injunction process would be more effective in restraining continuing contravention of the By-law than would be a prosecution under the Offence Act.

[34] Contrary to the submissions made by the appellants, where a public authority, such as the City, turns to the courts to enforce an enactment, it seeks a statutory rather than an equitable remedy, and once a clear breach of an enactment is shown, the courts will refuse an injunction to restrain the continued breach only in exceptional circumstances: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 47 M.P.L.R. (2d) 249 (B.C.C.A.), and British Columbia (Minister of Forests) v. Okanagan Indian Band (2000), 187 D.L.R. (4th) 664 (B.C.C.A.).

[35] The following passage from the decision in City of Toronto v. Polai (1969), 8 D.L.R. (3d) 689 at 696-697 (Ont. C.A.), aff'd [1973] S.C.R. 38, 28 D.L.R.(3d) 638, is useful in explaining the role of a city corporation in the enforcement of its by-laws:

As members of the city corporation the inhabitants are entitled to look to the duly elected representatives who comprise the municipal council for enforcement of the provisions of by-laws passed for their protection, and in enforcing those by-laws the corporation, whether by means of a prosecution or in a suit for injunctive relief, acts on behalf of all the inhabitants. The municipality, acting through its council and duly appointed officials, occupies in a more restricted sense the same position as does the Attorney-General who represents the Crown in its capacity as parens patriae charged with the responsibility of enforcing the rights of the public when they are violated. The decision whether or not the Attorney-General should prosecute or sue is a matter for him, and the Courts have no power to question his right to do so or to refrain from doing so as distinct from his right to relief.

[Underlining added.]

[36] In this case, the relief the City sought in its Writ was directed entirely to the contravention of the City's By-law. The specific relief sought included:

a. a declaration that the Defendants have constructed, placed or maintained Structures on City of Vancouver sidewalks in contravention of the Street and Traffic By-law of the City of Vancouver;

* * *

c. a permanent injunction restraining the Defendants or anyone acting on their behalf and all other persons to whom notice of the order may be given, by themselves, their servants or agents, from constructing, placing or maintaining Structures on City of Vancouver streets or sidewalks;

d. an interlocutory injunction restraining the Defendants or anyone acting on their behalf and all other persons to whom notice of the order may be given, by themselves, their servants or agents, from constructing, placing or maintaining Structures on City of Vancouver streets or sidewalks;

e. an interlocutory mandatory injunction requiring the Defendants to remove all Structures belonging to or used by then from City of Vancouver streets.

[37] Some of the appellants' arguments raise issues surrounding the use of "John Doe", "Jane Doe" and "Persons Unknown" in the style of cause in proceedings in which injunctive relief is sought. With deference, the thrust of those arguments overlooks important points decided by the Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048. In that case, issues were raised as to whether the courts can make orders against unidentified persons not named in the action or named only in proxy as "Jane Doe" and "John Doe". Those issues were squarely before that court because of the dissent of Wood J.A. in this Court, who concluded that court orders are binding only on named parties to the action and that the epithets "John Doe, Jane Doe and Persons Unknown" did not make members of the public parties to the action. In his opinion, the proper remedy when mass protest action threatens to overrun private rights is for the Attorney General to enforce the criminal law.

[38] In MacMillan Bloedel Ltd. v. Simpson, McLachlin J., as she then was, speaking for a unanimous court, made clear, at paragraph 23, that "non-parties who violate injunctions may be found in contempt of court" and that "non-parties may be seen as being, if not technically bound by the order, bound to obey the order." [Underlined in original.] The distinction between being bound by an injunction and being bound to obey an injunction and the use of language that alerts non-parties to the risk of violation was discussed by McLachlin J. at paragraphs 30 and 31:

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, [1971] 2 W.W.R. 449 (B.C.C.A.), 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, [1979] 1 S.C.R. 120, 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. [Emphasis [of McLachlin J.].]

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, [1987] 3 All E.R. 276 (C.A.), at pp. 314-15, 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.

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.

[39] On the issue of whether the use of "John Doe", "Jane Doe" and "Persons Unknown" invalidated the order and what the procedure is for objecting to such an appellation, McLachlin J. said, at paragraphs 38 to 40:

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.

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: Jackson v. Bubela and Doe, [1972] 5 W.W.R. 80 (B.C.C.A.). 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".

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.

[40] As against the background, I turn now to the specific points raised by the appellants in their grounds of appeal.

[41] The appellants contend that the chambers judge "erred in failing to ensure that identified persons were before the Court." The appellants argue that the City, after having included "Jane Doe, John Doe and Other Persons Unknown" as defendants in the Writ, was obliged to add as named defendants each of the individuals who entered Appearances to the action before being able to take any further proceedings against them.

[42] In my opinion, the reference to "Jane Doe, John Doe and Other Persons Unknown" in the style of cause in this case did not impose on the City, or the court, any procedural obligation to add any persons as parties as a result of their having filed Appearances before the chambers judge could make a valid interlocutory order.

[43] The City's action and the interlocutory application that is the subject matter of this appeal were governed by the Rules of Court in the same way the action and application would have been had the City only included the Named Defendants.

[44] In addition to four of the Named Defendants, 30 persons filed Appearances in the City's action. However, none of those persons applied to be added as parties to the action or to amend the style of cause. In other words, the chambers judge was not asked to make any order with regard to the addition of parties to the action.

[45] After an action is commenced, parties may be added or substituted and the style of cause amended only with the leave of the Court: see Martin and Corbett v. British Columbia (1986), 3 B.C.L.R. (2d) 60 (S.C.), and Rule 15(5) of the Rules of Court.

[46] Rule 15(5) of the Rules of Court governs removing, adding or substituting parties. It specifically provides that "at any stage of a proceeding, the court on application by any person" may order that a person be removed, added or substituted as a party to the proceeding. In this case, the persons who had filed Appearances could have applied to be added as parties but in the absence of such an application, it appears to me that the chambers judge could not be said to have erred when he heard the City's application on the basis of the existing style of cause and pleadings.

[47] Apart from the fact that there was no application or order made with regard to adding or substituting parties, I note that there is no indication of any prejudice being occasioned to those who had entered Appearances but were not added as parties. Under the Rules of Court, a person does not have to be a named party to obtain standing at an interlocutory application. It is sufficient that the person may be affected by the order which is sought, in which case the person may deliver and file a Response under Rules 44 and 51A of the Rules of Court. In this case, eight individuals appeared by counsel to oppose the City's application, although only four of them were Named Defendants. Of the other four, only three had filed Appearances. However, all eight had delivered and filed Responses as required by the Rules of Court and, therefore, had a right to appear at the hearing of the interlocutory application.

[48] The appellants were served with the Writ and the application materials. There is no suggestion that they did not have enough time to prepare their Responses, and they were represented at the hearing by counsel. Other Named Defendants were also served with the Writ and the application materials. As noted earlier, some of the Appearances did not include an address for delivery, but the City went to some length to ensure that notice of the City's application for an interlocutory injunction was given to all those who had erected structures and objects around the Woodward's Building. The application materials were served on most of the persons who had filed Appearances. The City's process server attended at the sidewalks around the Woodward's Building on a number of occasions to serve the application materials. There is no evidence that any affected person was not aware of the City's application or the hearing date.

[49] I agree with the City's submission that the chambers judge did not err when he allowed the application to proceed on the basis of the existing style of cause and pleadings.

[50] The other ground advanced by the appellants is that the chambers judge "erred in failing to grant unrepresented persons who had filed Appearances the opportunity to be heard before granting the Respondent an injunction".

[51] Generally speaking, there is no unqualified right to participate in a hearing of an interlocutory application. The Rules of Court, which are aimed at ensuring fairness to both sides, prescribe the procedures that must be followed by all persons before the court.

[52] An interlocutory application is governed by Rules 44 and 51A of the Rules of Court. Under Rule 44(5), the applicant is required to serve all parties of record and all persons affected by the order sought with the Notice of Motion and supporting materials. Any person who wishes to respond to the application must deliver to the applicant a Response and materials he or she intends to rely on within the prescribed time limits. Rule 51A, which sets out the procedure for interlocutory applications, specifically defines "respondent", at subsection (2), as the person who has delivered a Response.

[53] Under Rules 44 and 51A, only those who have delivered a Response have the right to oppose the application. Therefore, neither the four unrepresented persons who were allowed to speak, nor the four unknown persons who were not, were entitled under the Rules of Court to participate in the hearing as of right. To hold otherwise would negate the clear requirements of Rule 44(6) and would tend to invite hearings by ambush. Nonetheless, no one would suggest that the chambers judge was wrong in agreeing to hear from those who had filed Appearances and who said they wished to make submissions.

[54] The chambers judge had inherent jurisdiction to control the process and to maintain order within the courtroom. It was pursuant to that authority that the chambers judge exercised his discretion to allow persons who had not filed Responses to speak: R. v. Hothi, [1985] 3 W.W.R. 256 (Man. Q.B.), aff'd [1986] 3 W.W.R. 671, leave to appeal to S.C.C. refused [1986] 5 W.W.R. lxviii.

[55] It was also within the chambers judge's discretion, once it became clear that the speakers continued to offer unsworn evidence and without contributing anything relevant to the issues before the court, to refuse to hear from any additional persons.

[56] Appellate courts are reluctant to interfere with the exercise of discretion in such circumstances and will do so only where it can be said that the decision was so clearly wrong as to amount to an injustice. The appellants have not provided any foundation from which such a conclusion could be drawn.

[57] As discussed above, once a breach of an enactment is established, a statutory injunction will only be refused in exceptional circumstances. In this case, the appellants have not put forward any material or argument that would support the possibility that exceptional circumstances existed in this case that could have altered the outcome of the City's application.

VI. Summary and conclusion

[58] For the reasons given, I am of the view that in this case the reference to "Jane Doe, John Doe and Other Persons Unknown" in the style of cause did not impose upon the City or the court any procedural obligation to add those who had filed Appearances as parties to the proceedings. I am also of the view that there is no basis upon which this Court could properly interfere with the discretion exercised by the chambers judge in refusing to hear from some of those who had filed Appearances but not Responses to the City's application.

[59] I would dismiss the appeal.

“The Honourable Madam Justice Rowles”

I Agree:

“The Honourable Madam Justice Prowse”

I Agree:

“The Honourable Mr. Justice Oppal”