In the underlying constitutional challenge, the petitioner (the “Federation”) sought a declaration that ITA ss. 237.3 and 237.4 were of no force or effect to the extent they applied to legal professionals, in their role as such based on the reporting requirements in those sections contravening ss. 7 and 8 of the Charter. On this application for an interim injunction, the Federation sought to exempt legal professionals from the operation of ss. 237.3 and 237.4 until the constitutional challenge was determined on the merits.
Warren J noted (at para. 22):
RJR-MacDonald … [1994] 1 S.C.R. 311 … sets out the three-part test for determining whether a court should exercise its discretion to grant an interlocutory injunction: is there a serious issue to be tried; would irreparable harm result if the injunction were not granted; and is the balance of convenience in favour of granting the interlocutory injunction or denying it.
The “serious issue” test was met.
She found (at para. 35) that she was:
satisfied that the Federation has established at least two types of irreparable harm that would result if the injunction sought is not granted:
• if confidential or privileged information is disclosed as a result of legislation that is ultimately found to be unconstitutional, individual clients will be irreparably harmed by the loss of professional secrecy, which cannot be undone, and the prospect of that occurring will have a chilling effect on the ability of individual clients to consult with their lawyers fully and freely pending a final determination of the constitutional challenge; and
• the potential for the unconstitutional reporting of confidential and privileged information, and the conflicts of interest between lawyers and their clients that will arise as a result of potentially unconstitutional legislation, would irrevocably damage the solicitor-client relationship and harm the public interest by undermining the public’s confidence in an independent bar.
Regarding the balance of convenience test, she noted (at para. 52) that “the injunction sought grants an exemption for legal professionals as opposed to a wholescale suspension of the legislation” and (at para. 54) that “the Federation has committed to move expeditiously to have the constitutional challenge heard on the merits [and] the status quo will be preserved in the meantime”, whereas “[i]n contrast, the harm to the public interest if the injunction is not granted is significant and serious” (para. 55).
She determined to grant the requested injunction on the basis that it would apply to legal professionals only in their capacity as advisors.
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