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Appellate Litigation

An injunction is a court order that either prohibits certain actions or behaviour, or compels a party to take a certain action. Injunctions may be awarded in various civil matters, from civil fraud, in which an injunction may be granted to prevent a party from disposing of or destroying certain property, to contract disputes, in order to prevent a party from breaching the terms of an agreement.

Injunctions can be granted for a variety of reasons and may be broad or very specific. Further, they can be awarded on a temporary or interim basis, or they can be permanent, depending on the circumstances. Injunctions are a powerful tool which may be used at the discretion of the court, however, as they are a severe and restrictive remedy, a court must be confident the remedy is warranted.

In the recent case of Hawke v. Western University, a group of applicants sought a permanent injunction preventing Western University from collecting vaccination information from incoming students, as well as faculty and staff, and the Court considered whether such a sweeping remedy would be appropriate.

Applicants Claimed School Was Not Permitted to Require Disclosure of Vaccination Status

In May of 2021, Western University implemented a policy effective for all campuses and affiliated colleges mandating that each student who planned to live on-campus for the 2021-2022 academic year was required to provide proof of vaccination against COVID-19 prior to arriving at the school. Since then, the school has had a consistent policy in place regarding vaccination, which has since been expanded to all students on campus, as well as staff, faculty members, and visitors.

The policy was set to expire on September 7, 2022, but was updated to extend throughout the 2022/2023 school year. The updated policy required all students, faculty, and staff to show proof of at least 2 doses of an approved COVID-19 vaccine, in addition to one booster, by October 1, 2022. The deadline to get a booster has since been extended to January 9, 2023, to accommodate Health Canada’s recent approval of a new bivalent booster dose.

On September 7, 2022, a group of five students filed an application in the Ontario Superior Court of Justice seeking a permanent injunction prohibiting Western University from implementing the policy. The applicants’ argument is that the school is not authorized to collect the personal health information necessary to enforce the policy under the provincial Freedom of Information and Protection of Privacy Act (the “Act”).

The Collection of Health Information and the Freedom of Information and Protection of Privacy Act

The collection of personal information under the Act is specifically addressed in s. 38(2), which states:

“No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.” [emphasis added]

The applicants argued that the University’s mandate regarding the vaccines and booster was not a “lawfully authorized activity” as contemplated by the Act. The applicants took the position that while the school was within its rights to collect this personal information while the provincial vaccine mandate was authorized under the Reopening Ontario Act, this is no longer the case. Since the province no longer mandates proof of vaccination to attend public spaces, the applicants claimed that the school could not continue to call this health and safety measure a “lawfully authorized activity”.

The applicants sought a declaration from the Court stating that the school’s vaccine policy was a violation of s. 38(2) of the Freedom of Information and Protection of Privacy Act, and as such, the school is not permitted to collect health information such as vaccination history from students, faculty, and staff. Further, the applicants sought a permanent injunction prohibiting Western University from mandating students provide this information as a prerequisite to enrolment or of attending campus.

Tests Differ for Interim and Permanent Injunctions

Many applications for an injunction are seeking an injunction on a temporary basis, most often to prevent certain actions during the course of ongoing legal proceedings. For example, shareholders engaged in a dispute over the sale of shares might request an interim injunction prohibiting the parties from selling any shares pending the outcome of litigation. In other cases, an applicant may request a permanent injunction, which has the effect of prohibiting certain actions indefinitely.

In an application for an interim or interlocutory injunction, a Court must assess the factors originally set out by the Supreme Court of Canada in 1994, in RJR-MacDonald Inc. v. Canada (Attorney General), which are as follows:

  1. Whether there is a serious issue to be tried;
  2. Whether the moving party would suffer irreparable harm if the injunction is not granted; and
  3. Whether the balance of convenience favours granting the injunction.

In 2014, the Ontario Court of Appeal held that the test for an interim injunction cannot be applied when deciding on whether to order a permanent injunction. In 171181 Ontario Inc. (AdLine) v. Buckley Insurance Brokers Ltd., the Court held that a permanent or final injunction can only be ordered at the conclusion of litigation, and so the test for an interlocutory injunction does not apply. Instead, the Court adopted the test set out by the British Columbia Court of Appeal in Cambie Surgeries Corp. v. British Columbia (Medical Services Commission) in 2010, which held that the irreparable harm and balance of convenience tests are no longer the primary considerations at the conclusion of litigation. Instead, a party must establish its legal rights:

“The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.”

Western University’s Collection of Vaccination Data was Authorized, but if not, a Permanent Injunction Was Not Justified

The Court determined that Western University had the necessary autonomy to implement a vaccine policy and that the collection of vaccine data was necessary in order to enforce the policy. As such, the Court found that the collection of this data was a lawfully authorized activity under s. 38 of the Freedom of Information and Protection of Privacy Act.

In the event the Court erred in its reasoning above, it considered the application for a permanent injunction, but considered the legal rights of the parties. The applicants claimed the policy was “coercive” as it required compliance to attend the campus. However, the Court determined that the applicants did have a choice; they could either comply with the policy and submit proof of vaccination, or they could not attend the school. Even if the applicants did not prefer either option, the choice remained with them.

The Court reiterated that a permanent injunction is an extraordinary remedy and was not appropriate in the case at hand. Even if Western University had been found in violation of the Freedom of Information and Protection of Privacy Act, the remedy should be a simple declaration.

For Unparalleled Legal Guidance on Obtaining Injunctive Relief Contact Milosevic & Associates in Toronto

If you require legal guidance with a commercial litigation matter and require injunctive relief, or if you are an organization or individual defending against an application for an injunction, contact Milosevic & Associates. Our highly experienced litigation lawyers help our clients navigate even the most complicated disputes, at the first instance and on appeal to various levels of court from the Divisional Court to the Court of Appeal and the Supreme Court of Canada. We take pride in guiding clients to a creative, cost-effective solution. To learn more about how we can help, call us at 416-916-1387 or contact us online.