February 22nd, 2021 by Kevin K. Cheung

Last week a decision from British Columbia’s Supreme Court denied an application from the province for an injunction against three churches on the lower mainland ignoring the COVID-19 rules blocking in-person services.

Chief Justice Christopher Hinkson dismissed the application by Provincial Health Officer Dr. Bonnie Henry and the BC Attorney General. The original application was submitted after the churches filed a petition challenging the current pandemic restrictions arguing they violate parishioners’ rights and freedoms.

Following the decision, the court’s website posted Hinkson’s reasons; "Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotee. To be clear, I am not condoning the petitioners' conduct in contravention of the orders that they challenge but find that the injunctive relief sought by the respondents should not be granted."

The churches are located in Langley, Chilliwack and Abbotsford and a challenge is scheduled to be heard in March. Associate Kevin Cheung explores the injunction a bit deeper in "Within The Law."


Transcript:

There is a new story that made headlines this week involving the BC Supreme Court denying the province's application for an injunction against three churches.

Let’s take a step back and provide a little bit of context. We are in the middle of a global pandemic and the province is issuing orders in an effort to control the spread of the covid-19 virus. Many of these orders have restricted gatherings and crowd sizes. Back in November, the province issued another order and this one specifically suspended in person faith services, so three churches bring a petition to the court to overturn this order and they're arguing that this order violated their rights to free expression and Religious worship guaranteed by the Constitution. In the province’s response, they conceded the order did limit the rights and freedoms protected by the charter but they said that these limits were justified because we need to protect people from severe illness and death and we also need to protect the healthcare system from being overwhelmed. The arguments over the case are to be heard in March but in the meantime the province still wants people to comply with these orders and they want the churches to comply with these orders so they bring an application for an injunction to force these churches to comply with the order.

Let’s take a side step and talk about injunctions. An injunction is something granted by the court to enforce or maintain of somebody's legal rights. They are granted in a variety of different situations, an interlocutory injunction is often characterized as an extraordinary remedy because it is requiring people to do something or to not do something and it requires this before a final determination is made whether that restriction or requirement is warranted.

So the Supreme Court of Canada has set out a three-part test to determine whether an injunction is appropriate in a given circumstance. The first question to ask is there a fair question to be tried and that is usually a pretty low bar. The second question is will the applicants suffer irreparable harm if an injunction is granted? Usually the irreparable harm is something that can't be compensated with money. The third question to ask is does the balance of convenience favour the granting of the application? This third question allows the courts to weigh on a number of factors including the timing of the application, whether undertakings have been given, the prejudice to third parties and also the weighing of the harm to the other side.

So back to the story, the province brings this application for an injunction against these three churches to try to force them to comply with their orders to suspend in faith services. The province fails, why is that?

Let’s take a look at the legal tests and see where the province fell short. The first question was there a fair question to be tried? The court says yes. The ability of a government to make orders that affect the charter of rights of these churchgoers is a fair question to be tried. The second question would there be irreparable harm if an injunction is not granted? Again the court says yes, the public is probably going to face a greater likelihood of exposure of this virus if this injunction isn’t granted. So now we are really down to the third part of the test, does the balance of convenience favour the granting of an injunction?

In this particular case, the court really looks to the harm that each party or each side would face if an injunction was either granted or not. Looking at these churches, there is no question that their Charter rights would be restricted and compromised if the injunction is granted. Then they look to the province and what harm would befall the province if an injunction was not granted. The province says we have an order and it's a duly enacted law and there is the presumption that this law is operable until the court says otherwise. The courts really take issue with the province. The court says yes there is a valid and operable law. Within this law you have made there are enforcement mechanisms built into the law that you can take advantage of the province and yet you are asking us, the courts, to enforce the law when you can do so yourself. In fact, the RCMP had already asked the BC Prosecution Services to assess charges against the churches for alleged violations.

So at the end of the day, the court says we are going to dismiss this application for an injunction essentially because the province has other means of enforcing the laws or the orders without the need of an injunction.

So what’s the lesson learned? Injunctions are pretty difficult to obtain but this is a case that deals with the province and the province has the resources of the RCMP and Bylaw enforcement officers to try to enforce their legal rights. Usually with the clients that we deal with, for example, business people and individuals they obviously don't have an RCMP officer or other officers to enforce those legal rights. So they do rely on the courts more heavily and so if you are in a situation where you think you need to do something to protect your legal rights or maintain your legal rights, speak to a lawyer and an injunction may be part of the process to protect those rights.

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