British Columbia Court of Appeal Enters Fairy Creek – Litigation, Mediation and Arbitration

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A unanimous BC Court of Appeal decision extended an interlocutory injunction restraining protesters’ unlawful interference with logging operations in the Fairy Creek watershed.

This is the last time BC courts have been called upon to issue an injunction to address civil disobedience affecting a private entity. Although the dispute over logging in the Fairy Creek watershed on southern Vancouver Island has garnered considerable national and international attention (it has grossed $1 million through social media) , there is a long history in British Columbia where civil courts have been called upon to provide relief. where protests against natural resource extraction cross the line from peaceful protest to illegal conduct.

As the Supreme Court of Canada said in upholding an injunction stemming from the historic protests in Clayoquot Sound in the early 1990s, “the task of the courts is to find a way to protect the legitimate exercise of legitimate private rights while preserving the maximum scope of the legal exercise of the right of expression and demonstration”.1 In this latest decision, the British Columbia Court of Appeal emphasizes that the court’s role in issuing injunctions is not about the wisdom of government forest policy or its own views on historic logging. These are matters for elected governments. Nevertheless, the involvement of the court in prohibiting illegal behavior is a necessary and fundamental aspect of both civil society and the rule of law. In the case of the Fairy Creek Watershed, the public interest in having the court uphold the rule of law tipped the scales resoundingly in favor of extending the injunction.

Supreme Court grants injunction

Teal Cedar Products Ltd. (“teal cedar”) holds Tree Farm License 46, a forest tenure located on southern Vancouver Island. The permitted area is nearly 60,000 hectares and contains old growth forest. Teal Cedar also holds permits that allow it to cut timber and conduct road construction activities in parts of its license area.

Beginning in August 2020, Teal Cedar’s forestry operations faced roadblocks, which interfered with Teal Cedar’s operations.2 Teal Cedar sought an injunction against unidentified people operating as the “Rainforest Flying Squad”, the organizers of the blockades, on the grounds that its business would suffer irreparable harm if the blockades were allowed to continue.

The British Columbia Supreme Court granted the interlocutory injunction on April 1, 2021, restraining interference with the injunction area for a period of six months. An interlocutory injunction is an injunction issued for a limited period of time before the final trial of the case. The court found that Teal Cedar had met the three-part test for an interlocutory injunction:

  1. a serious matter to be tried, as Teal Cedar has alleged trespass, nuisance, unlawful interference with economic and contractual relations, and other torts against the defendants;

  2. Teal Cedar would suffer irreparable harm if the injunction were not granted, as there was no reasonable prospect that Teal Cedar could recover damages from the defendants for its losses; and

  3. the balance of convenience favored the granting of the injunction, as denial of the injunction application would leave Teal Cedar without remedy and allow the defendants to unlawfully interfere with Teal Cedar’s lawful operations.

In granting the injunction, the Supreme Court held that the protesters were free to protest, demonstrate and attempt to influence the government in any legal way they choose. However, no one has the right to disobey a court order, no matter how passionately they believe in their cause.3

Supreme Court denies request to extend injunction

On September 28, 2021, another BC Supreme Court judge denied Teal Cedar’s request to extend the interlocutory injunction for an additional 12 months.4 The extension was refused on the grounds that the harm caused to the company was outweighed by the public interest in protecting the reputation of the tribunal. The judge was of the view that there is a substantial risk to the reputation of the court whenever an injunction draws the court into this type of dispute between citizens and the government.

Application for temporary stay

Ten days later, the British Columbia Court of Appeal granted an interim stay, extending the injunction pending the outcome of an application for leave to appeal and appeal.5 The interim stay was granted by the Court of Appeals in an effort to preserve the status quo – in this case, the long-standing injunction and the continuation of Teal Cedar’s licensed and authorized activities.6

In granting the stay, the Court of Appeal emphasized the difference between a peaceful protest and an unlawful and dangerous interference. The Court of Appeal concluded that there were serious public safety concerns in the absence of the injunction, in part because it was a situation where the criminal law had not been effective and that, without the stay, Teal Cedar would face serious harm.seven

Court of Appeal extends injunction

On January 26, 2022, the Court of Appeal allowed the appeal and extended the interlocutory injunction until September 26, 2022.8

In a judgment written by “the Court” (which departs from the usual practice of assigning judgment to a particular judge of the committee), the Court of Appeal strongly rejected the idea that the courts “take sides” in executing civil injunctions. . In cases of persistent and significant civil disobedience, the court has a constitutional role to fulfill. The rule of law requires access to independent courts with the power to uphold the law by granting effective remedies to those whose rights have been violated.9

The Court of Appeal noted that the judge’s refusal to extend the injunction was discretionary and deserved great deference,ten but found that the judge made three errors in refusing to extend the injunction:

  1. the judge erred in conducting an enforcement gap analysis and concluding that there were no enforcement gaps;

  2. the judge erred in concluding that the reputation of the court would be tarnished by the continuation of the injunction; and

  3. the judge erred in giving insufficient weight to the public interest while respecting the rule of law.11

In considering whether the reputation of the court would be diminished by the continuation of the injunction, the Court of Appeal stated that it is wrong to say that the court’s role in upholding the law, which is the duty of the court , means that his reputation is damaged.12 The court’s reputational interest is not related to the popularity of its decisions. Countless litigation forces the court to make unpopular decisions, from staying serious criminal charges over Charter violations to enforcing public health orders.13

The Court of Appeal further weighed in on the difficult issue of concerns about alleged police excesses in enforcing the injunction. While noting that there were remedies for concerns legitimately raised by the judge about police conduct, the Court of Appeal found that the judge erred in turning a private law matter into a of public law. As this was a civil matter, the proper balance of wrongs was between Teal Cedar and the protesters.14

Finally, the Court of Appeal considered whether the availability of the criminal law to charge and prosecute offenses should prevent Teal Cedar from obtaining a civil injunction. The Court of Appeal rejected this suggestion, finding that even if the criminal law could be used, neither Teal Cedar nor the court could compel the police and the Crown to lay charges and prosecute offenders. An injunction was all that stood between Teal Cedar and those who intended to break the law.15

Conclusion

Although an injunction is now in place until September 2022, there is no reason to believe that protests in the Fairy Creek watershed will diminish anytime soon. The protests continue despite recent announcements by the BC provincial government that logging of some old-growth forests (including in the Fairy Creek watershed) will be postponed. It is in this context that the Court of Appeal stated forcefully that, although the courts have no role to play in the political debate on forest policy, the courts will continue to issue civil injunctions to protect private rights against unlawful interference.

Footnotes

1 MacMillan Bloedel Ltd. vs. simpsons, 1996 2 SCR 1048.

2 Teal Cedar Products Ltd vs. Rainforest Flying Squad, 2021 BCSC 605.

3 Same at paragraphs 74-75.

4 Teal Cedar Products Ltd vs. Rainforest Flying Squad, 2021 BCSC 1903.

5 Teal Cedar Products Ltd vs. Rainforest Flying Squad, 2021 BCCA 387.

6 Same in para 16.

seven Same in paragraph 17.

8 Teal Cedar Products Ltd. against Rainforest Flying Squad, 2022 BCCA 26.

9 Same at para 61.

ten Same in paragraph 28.

11 Same in paragraph 27.

12 Same in paragraph 56.

13 Same at para 60.

14 Same at paragraphs 71-72.

15 Same at paragraphs 75-77.

The above provides an overview only and does not constitute legal advice. Readers are cautioned not to make any decisions based solely on this material. Rather, specific legal advice should be obtained.

© McMillan LLP 2021

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