Tuesday, 4 October 2011

One Standard of Review for Ex Parte Injunctions

I confess that I like short and simple cases, concisely dealing with a discrete point and thus serving as an excellent precedent without felling a forest in the process.  The decision of Justice Hinkson in Ma v. Nutriview Systems Inc. (Court of Appeal Chambers) is one such decision dealing with the standard of review for ex parte injunctions.

The appellant in this case obtained an ex parte injunction that was later set aside by another judge.  Because the original judge was not available, the second hearing proceeded as a hearing de novo.  The appellant appealed this decision, arguing that a review by a hearing de novo was only for Mareva injunctions, and other types of ex parte injunctions were reviewed on the standard of "whether the judge granting the initial order failed to exercise his or her discretion in a judicially acceptable manner."

Justice Hinkson unequivocally disagreed with this proposition, finding that standard of review for all ex parte injunctions is the same, as follows:

[14]         In Netolitzky v. Barclay, 2002 BCSC 1098, 23 C.P.C (5th) 137, Madam Justice Dillon dealt with a Mareva injunction and found at para. 20:
Whether the injunction should be dissolved is to be approached as a hearing de novo with the acknowledgment that I should not substitute my view for that of the originating judge on the ground that I would have exercised my discretion differently ...
[15]         Gulf Islands Navigation was considered by this Court in Waruk v. Waruk, 83 B.C.A.C. 287, [1996] B.C.J. No. 2282, where at para. 22, the standard of review of an ex parte order other than a Mareva injunction was resolved as follows:
When an application to set aside or vary an ex parte order comes before a judge who has not made the original order, the following principles, as set out in Gulf Islands Navigation Limited v. Seafarers' International Union of North America (Canadian District) et al (1959), 28 W.W.R. 517, 18 D.L.R. (2d) 625 (B.C.C.A.), at 518, apply:
(1) He has power to discharge the order or dissolve the injunction;

(2) He ought not to exercise this power, but ought to refer the motion to the first judge, except in special circumstances, e.g., where he acts by consent or by leave of the first judge, or where the first judge is not available to hear the motion;

(3) If the second judge hears the motion, he should hear it de novo as to both the law and facts involved.