Hall v. Durham Catholic District School Board, 2005 CanLII 23121 (ON SC)
Hall v. Powers et al.
[Indexed as: Hall v. Powers]
80 O.R. (3d) 462
Ontario Superior Court of Justice,
Shaughnessy R.S.J.
June 28, 2005*
* This judgment was recently brought to the attention of the
editors.
Injunctions -- Interlocutory injunctions -- Setting aside -- Plaintiff obtaining interlocutory injunction restraining defendants from preventing him from attending high school prom with his boyfriend -- Injunction being granted in expectation that matter would proceed to trial -- Plaintiff subsequently seeking to discontinue action -- Defendants seeking to set aside injunction under rule 59.06(2) on basis of "newly discovered fact" that plaintiff did not intend to proceed to trial -- Rule 59.06(2) not applying -- Court not having jurisdiction to set aside interlocutory injunction in circumstances of this case -- Plaintiff being granted leave to discontinue action -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 59.06(2). [page463]
The plaintiff obtained an interlocutory injunction restraining the defendants from preventing him from attending his high school prom with his boyfriend. The plaintiff subsequently sought to discontinue the action without costs. The defendants opposed the request and instead moved to set aside the injunction, which they say was issued on the basis that there would be a later trial at which the legal issues would be finally determined. The defendants relied on rules 23.01(6) and 59.06(2) of the Rules of Civil Procedure. The defendants submitted that the use of a lower standard for the interlocutory injunction had an impact on the decision, which was now a precedent of sorts, and that the plaintiff's present intention not to proceed to trial was a "newly discovered fact".
Held, the defendants' motion should be dismissed; the plaintiff's motion should be granted.
Rule 59.06(2) was not applicable. That rule applies to newly discovered evidence. It does not come into play where the plaintiff has a change in position or change in circumstances. The court did not have jurisdiction to set aside an interim injunction in the circumstances of this case.
MOTION by the plaintiff for leave to discontinue an action without costs; MOTION by the defendants to set aside an interlocutory injunction.
Cases referred to Becker Milk Co. Ltd. v. Consumers' Gas Co. (1974), 1974 CanLII 545 (ON CA), 2 O.R. (2d) 554, 43 D.L.R. (3d) 498 (C.A.); Govan Local School Board v. Last Mountain School Division No. 29, 1992 CanLII 2725 (SK CA), [1991] S.J. No. 635, 3 C.P.C. (3d) 143, 88 D.L.R. (4th) 658, 100 Sask. R. 1, [1992] 2 W.W.R. 481 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 15(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 23.01, 59.06(2)
Andrew M. Pinto, for plaintiff.
Peter Lauwers, for defendants.
Fay Faraday and Sheilagh Turkington, for intervenor The
Ontario English Catholic Teachers' Association.
Cheryl Milne and Kathy Murphy, for intervenor Canadian
Foundation for Children, Youth and the Law.
R. Douglas Elliot and Gabriel Fahel, for intervenor The
Coalition in Support of Marc Hall.
Brad Elberg, for intervenor The Ontario Catholic School
Trustees' Association.
[1] Amended endorsement of SHAUGHNESSY J.:-- This proceeding is on the trial list and is set to be heard on October 11, 2005 at Whitby, Ontario. The trial of this action engages the issue of whether a publicly funded school board can establish [page464] and implement policies of general application that are subject to the Canadian Charter of Rights and Freedoms. The policy in this case relates to a student wishing to bring a same-sex date to a school prom and whether the School Board's decision violates s. 15(1) of the Charter, which prohibits discrimination on the basis of sexual orientation and age.
[2] An interlocutory injunction was granted in this proceeding by Mr. Justice Robert MacKinnon, restraining the defendants and their agents from preventing or impeding Marc Hall from attending his high school prom with his boyfriend on May 10, 2002 ((2002), 2002 CanLII 49475 (ON SC), 59 O.R. (3d) 423, [2002] O.J. No. 1803 (S.C.J.)).
[3] On June 7 and June 27, 2005, counsel for the parties attended before me. The plaintiff has requested permission to discontinue this action without costs. The defendants oppose this request, not on the basis, however, that they will be denied the customary order for costs thrown away if the request is granted, but because they want to have the issue tried. The defendants point out that the injunction was issued on May 10, 2002 by Justice R. MacKinnon on the basis that there would be a later trial at which the legal issues would be finally determined. Justice MacKinnon made the following comment at para. 13 of his decision:
There is Ontario authority for a proposition that a plaintiff bears a higher onus in cases where the granting of the injunction in effect gives him the ultimate relief which is sought. This is not the case at bar. It is true that Mr. Hall's immediate interest is in being permitted to attend this Friday's prom with his boyfriend. However, the substantive thrust of his claims for trial, as pleaded, are for trial court declarations that his Charter rights have been violated. Included among the matters in issue for an eventual trial, if pursued, will be the question of whether the School Board's decision falls within its power to make decisions with respect to denominational matters and thus is protected under s. 93(1) of the Constitution Act, 1867 and whether the Board's decision violates individual human rights protected under the Canadian Charter of Rights and Freedoms, including the right to be free of discrimination on the basis of sexual orientation and age.
(Emphasis added)
[4] Further, Justice MacKinnon stated that in his view, the School Board could have its rights protected at trial, noting at paras. 54 and 56:
This third branch of the injunctive test considers relative hardship between the parties. My decision will finally determine whether in fact Mr. Hall goes to the prom but will not, as a matter of law, finally determine either whether he is entitled to trial declaratory relief under the Charter or whether the defendants are entitled to continue to permit same-sex couples to attend only selected school social events in the future . . . [page465]
. . .[I]f the order is not granted, then until trial it will be acceptable for the defendant school to restrict gay and lesbian students from selected school activities on the basis of their demonstrated sexual orientation . . . The Board can always seek to have its ongoing rights thoroughly protected at trial . . .
(Emphasis added)
[5] The defendants submit that the use of a lower standard for the interlocutory injunction had an impact on the decision, which is now a precedent of sorts. In this regard, I would note that injunction reasons are not often accorded great weight, as they are written on an urgent basis based on limited material and the legal issues, out of necessity, are dealt with in a cursory and preliminary manner.
[6] It was the expectation of Justice MacKinnon and the parties, that this matter would proceed to trial and the defendants have expended a considerable amount of money in trial preparation.
[7] The defendants are sympathetic to the plaintiff's stated desire to focus on his university studies. Further, they have graciously agreed not to seek costs from the plaintiff, to which they would ordinarily be entitled on the filing of a Notice of Discontinuance. The defendants are to be commended for their position. It is further regrettable that the defendants will be deprived of the opportunity to advance their legal arguments with the benefit of a more complete evidentiary record that would be available to the trial judge. Their ability to assemble such evidence in the context of the original injunction, was necessarily constrained by the short time frame within which that motion had to proceed. On the basis of that evidence, a trial judge might have reached the conclusion that the defendants' legal position is correct. Accordingly, Justice MacKinnon's Reasons should be read in light of these developments.
[8] The defendants do not allege that there has been any bad faith on the part of the plaintiff, or his counsel, but note that the interlocutory injunction was obtained with an advantage created by the expectation that the matter would proceed to trial.
[9] It is the defendants' position that in the unusual circumstances of this proceeding, the interlocutory injunction of Justice MacKinnon dated May 10, 2002 should be quashed. The defendants state that I have jurisdiction to make such an Order, both as a term of the granting of leave to the plaintiff to discontinue (rule 23.01(b) [of the Rules of civil Procedure, R.R.O. 1990, Reg. 194]) and pursuant to rule 59.06(2), which allows the court to set aside an order "on the ground . . . of facts arising or discovered after it was made". It is submitted that the material fact arising or discovered is that the plaintiff no longer intends to [page466] proceed to trial, which then results in the legal issues not receiving a full consideration as contemplated in the Reasons of Justice MacKinnon.
[10] The plaintiff's position is that he attended his high school prom on May 10, 2002, which is more than three years ago. The plaintiff, a university student, wishes to discontinue this proceeding and focus on his studies. It is submitted that even if I have jurisdiction to quash this injunction, no useful purpose would be served by doing so.
[11] Counsel for the intervenors, the Canadian Foundation for Children, Youth and the Law and the Coalition in Support of Marc Hall, support the plaintiff's position.
Analysis
[12] Rule 59.06(2) on its face, relates to setting aside or varying an Order based on newly discovered evidence or facts. The test for setting aside, or varying an Order is found in Becker Milk Co. Ltd. v. Consumers' Gas Co. (1974), 1974 CanLII 545 (ON CA), 2 O.R. (2d) 554, 43 D.L.R. (3d) 498 (C.A.), at p. 557 O.R. as follows:
(1) That the evidence "might" probably have altered the judgment and,
(2) That the evidence "could not with reasonable diligence have been discovered sooner".
[13] I find that rule 59.06(2) is not applicable as it applies to newly discovered evidence. In my opinion, this rule does not come into play where, as in the present case, the plaintiff has a change in position, or change in circumstances.
[14] I have not been provided with any Canadian authority for the proposition that I have the jurisdiction to set aside an interim injunction in the circumstances of the present case. I am not the trial judge and I do not have a sufficient evidentiary record to satisfy me that the interim injunction is based on a wrong interpretation of the law. The issue of the right to determine a point of law "empowering" a judge to set aside an injunction where there was no final determination of the whole action, was raised, but not decided in Govan Local School Board v. Last Mountain School Division No. 29, 1992 CanLII 2725 (SK CA), [1991] S.J. No. 635, 88 D.L.R. (4th) 658 (C.A.).
[15] Accordingly, I find that since there was no determination of the whole action, it is not appropriate for me on this application, to set aside the injunctive relief granted by Justice MacKinnon. Even if I am wrong on the jurisdictional issue, it [page467] appears to me that no useful purpose would be served by doing so, particularly in the present case where the interim injunction has no continuing effect.
[16] Therefore, I decline the defendants' request to set aside the interlocutory injunction and I grant leave to the plaintiff to discontinue this proceeding without costs.
Plaintiff's motion granted; defendants' motion dismissed.