ONSC 5577
DIVISIONAL COURT FILE NO.: 457/12
DATE: 201210DD
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Barbra Schlifer Commemorative Clinic, Moving Party/Applicant
AND:
Her Majesty the Queen in Right of Canada as Represented by the Attorney General of Canada, The Commissioner of Firearms, The Registrar of Firearms and the Chief Firearms Officer, Responding Parties/Respondents
BEFORE: Pardu J.
COUNSEL: Shaun O'Brien and Elichai Shaffir, for the Moving Party/Applicant
Gina M. Scarcella and Christine Mohr, for the Responding Parties/Respondents
HEARD: September 28, 2012
ENDORSEMENT
[1] The Applicant moves for leave to appeal from a decision of Brown J. refusing an interlocutory injunction. The Applicant had sought orders
restraining the government of Canada from destroying data about unrestricted firearms contained in the Firearms Registry,
requiring the federal government to allow access to all persons legally entitled to have access to the registry and to continue the employment of all staff to allow that to happen, and finally,
to continue to register all transfers of non-restricted firearms.
[2] In its motion for leave to appeal, the Applicant limits its challenge to the refusal to grant an injunction preventing destruction of the data.
[3] The test applicable to a motion for leave to appeal from an interlocutory decision is set out in rule 62.02(4):
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
The Applicant submits that leave should be given pursuant to paragraphs 62.02(4)(a) and (b).
Conflicting Decisions
[4] In other proceedings, the government of Quebec was successful in obtaining an interlocutory injunction requiring continuation of the registry for unrestricted firearms. In that case, the motion judge was satisfied that irreparable harm would result if the data was destroyed as required by the legislation, and ordered Canada to maintain for the duration of the litigation “the integrity of, access to and the availability of the computer system housing the general firearms registry”. He ordered that the government continue to employ all required personnel to maintain the registry, to continue to register transfers and to preserve the data. The Applicant submits that this amounts to a conflicting decision.
[5] The jurisprudence has established that a conflicting decision means a decision which applies different principles, not a decision that results from a differing exercise of discretion. (See for example Comtrade Petroleum Inc. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] O.J. No. 652, Carfagnini v. Carfagnini Estate, 2012 ONSC 4193) The Quebec decision took place in the context of a division of powers analysis, where the province asserted an interest in the data, and proposed to establish its own registry for unrestricted weapons. This is far different from a challenge under s. 7 and 15 of the Charter, where the submission is that repeal of the requirement to register unrestricted firearms affects women in a disproportionate fashion, and where it is alleged that such a legislative course would endanger the safety of women. In the former case, loss of the data was key to the province’s legislative agenda. Here the significance of the loss of the data depends on there being a causal relationship between the loss of the data and increased risk to women, and the focus of analysis of irreparable harm would be different.
[6] Both the Quebec decision and the decision of Brown J. apply the principles set out in R.J.R. Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, and Manitoba (Attorney General) v. Metropolitan Stores Ltd, 1987 79 (SCC), [1987] 1 S.C.R. 110. There are no conflicting principles in play which would attract the application of Rule 62.02(4)(a).
[7] I turn then to the second branch of the test, and the assessment of whether there is good reason to doubt the correctness of the motion judge’s decision. The Applicant submits that the correctness of the decision is open to serious debate, in light of the decision granting the injunction in Quebec, and submits that the motion judge erred in focusing on the merits of the Charter application at such a premature stage. In R.J.R. Macdonald v. Canada, supra the court cautioned against a prolonged examination of the merits, at paragraph [50],
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.
[8] I begin with the observation that the decision whether to grant an interlocutory injunction is a discretionary one. It is not enough to demonstrate that another judge might have exercised his or her discretion differently. In Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, the House of Lords restored the judgement of first instance and Diplock J. described what error in this context means:
Before adverting to the evidence that was before the judge and the additional evidence that was before the Court of Appeal, it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. On an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn on the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal, or on the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own.
[9] Here the motion judge was required to examine the merits of the application because he had before him motions to strike out the application as disclosing no reasonable cause of action and beyond the jurisdiction of the court. In relation to the motion for the injunction while he noted that the application was weak on the law and the facts, he expressly indicated that it was not frivolous or vexatious and thus met the first branch of the test established by R.J.R Macdonald for an interlocutory injunction.
[10] The motion judge concluded that the application fell short in establishing that irreparable harm would result in the event an interlocutory injunction was not granted. As he noted, the Applicant submitted that “were an injunction not granted, women who experience domestic violence would suffer two main types of irreparable harm: (i) serious physical and psychological harm, and possible death; and, (ii) the loss of information in the Registry as a result of the planned destruction of registration data concerning non-restricted firearms and the failure to collect information about non-restricted firearms transferred since the enactment of the Repealing Act.”
[11] Keeping in mind that gun owners have to have a licence, and that the right to possess any firearm can be constrained by the loss of a licence where there are concerns about domestic violence, or mental health issues, the motion judge concluded that there was scant evidence that repeal of the requirement to also register individual non-restricted firearms would have any effect on the risk of violence towards women. He was entitled to consider this in assessing whether to grant an injunction. The Applicant’s interest in the preservation of the data also depended on this link.
[12] The motion judge went on to consider the balance of convenience and the presumption that a democratically elected legislature can be assumed to have acted in the public interest, and that in most cases a court could “assume that irreparable harm to the public interest would result from the restraint of that action.” (RJR Macdonald, at p. 346). As observed in Ferrel v. Ontario (Attorney General) SCJ, December 28-29, 1995, MacPherson J.),
This creates a very low hurdle for governments and a high one for applicants seeking an interim injunction to restrain, even briefly, the operation of a law enacted by a democratically elected legislature. In this case, the government clears its low hurdle. The Minister responsible for the legislation has said that the 1993 law was "unnecessary, unfair and ineffective" and that Bill 8 signalled a restoration of the merit principle in the employment context. Good people can certainly disagree with this characterization. However, the point remains that the government is openly proceeding in the public interest, as it sees it. It is entitled to do this.
[13] I can find no errors in principle which would justify appellate intervention in the decision to refuse the interlocutory injunction, nor any feature of the reasons which illustrates an approach which was arguably incorrect. In these circumstances, the Applicant has not established that there is good reason to doubt the correctness of the decision refusing to grant the injunction.
[14] On this basis the Applicant has failed to satisfy the test for leave to appeal from an interlocutory decision, and the motion for leave was dismissed following the hearing, with these reasons to follow.
Pardu J.
Date: October , 2012