Vancouver Aquarium Marine Science Centre v. Charbonneau

2017 BCCA 395 Vancouver Aquarium Marine Science Centre v. Charbonneau

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 Date: 20171115 Docket: CA43575 Between: Vancouver Aquarium Marine Science Centre Respondent (Plaintiff) And Gary Charbonneau, Evotion Films Inc. also known as Evotion Inc., John Doe and Jane Doe Appellants (Defendants) And British Columbia Civil Liberties Association and Animal Justice Intervenors Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett On appeal from: An order of the Supreme Court of British Columbia, dated April 4, 2016 (Vancouver Aquarium Marine Science Centre v. Charbonneau, 2016 BCSC 625, Vancouver Docket S161497). Counsel for the Appellant: A. Beddoes B. Oliphant Counsel for the Respondent: D. Burnett, Q.C. J. Zaitsoff Counsel for the Intervenor British Columbia Civil Liberties Association: M. Pongracic-Speier Counsel for the Intervenor Animal Justice: B. McLean Place and Date of Hearing: Vancouver, British Columbia March 20, 2017 Place and Date of Judgment: Vancouver, British Columbia November 15, 2017 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Donald Concurring Reasons by: The Honourable Madam Justice Saunders (Page 29, Para.

85) Concurred in by: The Honourable Mr. Justice Donald Summary: The appellants ask this Court to overturn an interlocutory injunction issued in the context of the respondent's copyright and breach of contract claims. They argue that the chambers judge erred in her application of all three stages of the interlocutory injunction test. They also argue that a more rigorous test should be applied where the injunction sought would restrain social and political expression on a matter of public interest, and that the balance of convenience stage of the test required the chambers judge to consider potential harm to constitutionally protected freedom of expression. Held: Appeal allowed: The chambers judge committed two errors in applying the test for an interlocutory injunction: (1) she made a finding of irreparable harm unsupported by the evidence; and (2) she did not assess the impact the injunction could have on constitutionally protected speech at the balance of convenience stage. Reasons for Judgment of the Honourable Madam Justice Bennett: Introduction [1] In the spring and summer of 2015, the appellants Gary Charbonneau and Evotion Films Inc., also known as Evotion Inc. (collectively "Evotion"), filmed and produced an hour-long, low-budget documentary film called "Vancouver Aquarium Uncovered" (the "Documentary"). The Documentary is primarily about the respondent Vancouver

Aquarium Marine Science Centre ("Aquarium"). The Documentary relies on interviews with experts and statistics that challenge claims regarding the Aquarium's research and education efforts, and it is critical of the Aquarium's practice of keeping cetaceans in captivity. The Documentary includes footage shot by Evotion inside the Aquarium. [2] Evotion showed the Documentary publicly seven times between July 2015 and January 2016, and then posted it on Vimeo and YouTube on January 17, 2016. The Aquarium filed an action claiming copyright infringement and breach of contract relating to some of the footage in the Documentary, and sought injunctive relief in the Supreme Court. In the initial application, the Aquarium sought to have the entire Documentary removed from all public viewing locations. However, the application before the chambers judge was limited to 15 segments of the Documentary. The Aquarium sought to remove photos and short video clips showing its cetaceans, as well as footage Mr. Charbonneau shot at the Aquarium. [3] On April 4, 2016, the chambers judge granted the interlocutory injunction pending the disposition of the action (indexed as 2016 BCSC 625). The injunction required Evotion to remove 15 segments from the Documentary, comprising roughly four minutes and 46 seconds of the 61 minutes of footage (the "Contested Segments"). [4] Evotion appeals from the order of

the chambers judge granting the interlocutory injunction. For the reasons that follow, I would allow the appeal and set aside the injunction. Background [5] On April 15, 2015, Mr. Charbonneau attended the Aquarium with a school group and brought a camera with him to shoot footage for the Documentary. He was advised the same day, via e-mail by Deanna Lancaster, Communications Advisor for the Aquarium, that his footage could not be used for a commercial purpose, including a documentary, and was directed to the Aquarium's Photography, Video and Filming Policy. According to the affidavit #2 of Catherine Imrie, Senior Vice-President Business and Chief Financial Officer of the Aquarium, that policy found on the Aquarium website (http://www.vanaqua.org/visit/policies/photography) is as follows: Policy · Staff, volunteers and guests are welcome to shoot still photos, video or film at the Vancouver Aquarium for personal use only. · Anyone capturing images or footage at the Aquarium may be asked to provide access to the image/footage for use by the Aquarium, the rightful holder of all images/footage. · Any reuse or reproduction for commercial purpose without written consent of the Vancouver Aquarium is strictly prohibited. · Staff, volunteers and guests do not have the right to distribute or sell images/footage taken at the Aquarium for commercial use, which includes third party sellers

(e.g. Getty). · As the Aquarium is the rightful holder of any image/footage taken within the Aquarium's premises, the Aquarium has the right to share the image/footage with its partners for use in marketing, promotions or communications. [6] The Terms and Conditions of Use for the Aquarium's website are appended to Ms. Imrie's affidavit #1, as follows: [ ] Unless otherwise stated, all or any information, text, video, audio, animation or image files on this web site are provided for private or educational use only. All other uses are prohibited without authorization from the Aquarium, including: reproduction; redistribution in any manner; storage in any medium; extraction; and alternation in any respect. [7] On April 28, 2015, Mr. Charbonneau returned to the Aquarium after entering into an agreement between Evotion and the Aquarium referred to as the "Filming Location and Trademark Usage Agreement", drafted by the Aquarium (the "Agreement"). Clause 2 of the Agreement stipulates that previous or future recordings taken at the Aquarium shall not be used by the producer, Evotion. Mr. Charbonneau was permitted to shoot 28 minutes of footage consisting of interviews with the Vice-President/General Manager and the Aquarium's head veterinarian, which was about half the time he anticipated. Clips of these interviews are in the Documentary, and are not challenged. The Aquarium is

credited in the Documentary for photos and video. [8] The Documentary was pre-screened on July 14, 2015, and Ms. Lancaster attended. There were seven public screenings of the Documentary between July 2015 and January 2016. On January 17, 2016, Evotion made the Documentary available on Vimeo and YouTube. The Documentary is also on Evotion's website. [9] Mr. Charbonneau deposed that he did not, nor did he ever intend, to make money from the Documentary. He said he made $124 net from the public screenings. He raised $12,133 from Indiegogo, a fundraising website. The costs of making the Documentary were $12,091.65, which does not include personal expenses incurred by Mr. Charbonneau for Internet, telephone, food and gas, nor the thousands of hours of time he says he invested in the Documentary. [10] The Aquarium commenced the underlying action against Evotion on February 15, 2016, and notified Vimeo and YouTube of it. On notification of the copyright infringement claim, Vimeo removed the Documentary from its website. However, YouTube refused on the basis that it believed that the "content is protected by fair use, fair dealing, or similar exception to copyright protection." [11] It responded to Ms. Imrie as follows: "Hello, We are very concerned that your copyright notification may not be valid for some or all of the videos identified in your notification. Please keep in mind that

in many countries, it is legal to use copyrighted works in specific ways without the owner's authorization, particularly for transformative purposes such as news reporting, parody, commentary, or review. Some countries protect such uses under doctrines of "fair use" or "fair dealing", while others allow for specific exceptions to copyright protection. [12] YouTube's response to Mr. Charbonneau is below: Hello, We received the copyright infringement notification below regarding your video(s). We believe your content is protected by fair use, fair dealing, or a similar exception to copyright protection. We are writing to let you know we do NOT plan to remove your video(s) at this time. You have control over the availability of videos on your channel, including the ability to delete them if you choose [13] After corresponding with Vimeo and YouTube, the Aquarium filed its notice of application seeking the interlocutory injunction on March 15, 2016. Chambers Judge's Reasons [14] The chambers judge set out, at paras. 16-17, the two-pronged test for an interlocutory injunction from British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), aff'd [1991] 1 S.C.R. 62: the applicant must prove there is a fair question to be tried and that the balance of convenience favours granting an injunction (with irreparable harm being "integral to [that] assessment": Wale at

para. 46). [15] The chambers judge concluded that there is a fair question to be tried in respect of whether the Aquarium's contractual rights under the Agreement or copyright were breached. [16] The chambers judge identified the claim for breach of contract as it relates to four of the Contested Segments that were filmed on April 15, 2015. She concluded whether Evotion was bound by the Agreement were issues for the trial court. [17] She concluded that the Aquarium's copyright claim was not made frivolous by the application of the fair dealing and non-commercial user-generated content exceptions under the Copyright Act, R.S.C. 1985, c. C-42, given that there was a fair question for trial whether those exceptions apply in the circumstances. In particular, she concluded that it is a fair question whether the Documentary was for a non-commercial purpose or could be considered fair dealing for the purpose of research and education, or criticism and review. [18] Moving to the next branch of the test from Wale, the chambers judge found irreparable harm was made out because damages would not place the Aquarium in the position in which it formerly stood. In making that finding, the chambers judge relied on the affidavit of Ms. Imrie, who deposed that "[t]he harm to the Aquarium and its copyrighted material by virtue of its unauthorized use by the Defendants, including the derogatory manner of their use, is impossible to calculate or to repair." The chambers judge held that, having "considered the relative risks of harm to the parties from granting or withholding the interlocutory relief sought", the balance of convenience favoured ordering the removal of the 15 Contested Segments from the Documentary: para.

31. The Chambers Order [19] The order of the chambers judge appends "Appendix A". The Appendix references only 13 segments because segments 12-14 are combined in the Appendix: Time Stamp Image / Footage Used Taken From Aquarium Copyrighted material 0:20-0:23 Photo of whale at MMRC Aquarium Website or Aquarium Blog site 0:26-0:30 Photo of Chester stranding Blog 1:00-1:09 Cetaceans in our care footage from video Website/ Aquarium Youtube Channel 3:30-3:41 Cetaceans in our care footage from video Website/Youtube 3:42-3:48 Photos of rescued animals Website or Blog 24:28-24:35 Belugas swimming in habitat On-site 26:26-27:43 Students interviews near beluga habitat On-site 33:02-33:05 Footage of dolphin show On-site 36:53-37:02 Photo of dolphin Website 49:35-49:44 Footage of children at beluga habitat On-site 50:38-52:38 Footage of Qila swimming for two minutes On-site 57:44-58:00 Photo of beluga and whale with staff [and rescue centre and photo of dolphin, containing three segments] Blog 1:00:11-1:00:17 Photo of Helen swimming in habitat On-site [20] The times in Appendix A do not completely coincide with the times referred to in the chambers decision, as there was a second chart in the material before the chambers judge that referred to the Contested Segments with slightly different time stamps. In her reasons for judgment the chambers judge refers to one chart, and the order refers

to another. Nothing turns on this, but I mention it to explain slight variations in the timeline referred to in the reasons and in Appendix A. [21] The Contested Segments are broken into three categories: 1. Third party segments, in which the Aquarium claims copyright because they were taken in and around the Aquarium building, displays, and sites, and are governed by its photo policy: 24:28 (belugas swimming in habitat), 36:53 (photo of dolphin), 57:44 (photo of beluga whale with staff), and 1:00:11 (a photo of Helen [a dolphin] swimming in habitat), taken by photographer Jo-Anne McArthur; 2. Footage filmed by Mr. Charbonneau on April 15, 2015, in which Evotion claims copyright and in respect of which the Aquarium claims both copyright infringement and breach of contract: 26:26 [26:35 in the reasons] (student interviews near beluga habitat), 33:02 (footage of dolphin show), 49:35 (footage of children at beluga habitat), and 50:38 [50:39 in the reasons] (footage of Qila [a beluga whale] swimming for two minutes); and 3. Segments that are said by Evotion to be generally available online and that the Aquarium says are from its website: 0:20 (photo of a whale at Aquarium), 0:26 (photo of Chester [a false killer whale]), 1:00 and 3:30 (Cetaceans in our Care footage), 3:42 (photos of rescued animals), 57:48 (photo of rescue centre), and 57:56 (photo of dolphin). [22] The impugned

footage is four minutes, 46 seconds in the 61 minute Documentary. A review of the Documentary shows that a number of the alleged infringements are simple photos, and the photos at the end of the video are in the context of the good work the Aquarium does. Interviews with the children were shot both inside and outside the walls of the Aquarium, and show little of the surrounding area. The two-minute video of Qila swimming alone, taken by Mr. Charbonneau, is akin to an exposé film taken to demonstrate animal cruelty. Issues on Appeal [23] Evotion raises several grounds of appeal. The primary issue is whether the chambers judge applied the correct test for an interlocutory injunction. Evotion says that she erred the following ways: a) in concluding that there was a fair question to be tried; b) in applying the wrong test in assessing irreparable harm; and c) in assessing the balance of convenience between the parties. Evotion also raises the admissibility of Ms. Imrie's affidavit #2. Evotion's Position on Appeal [24] Evotion contends that the chambers judge erred in finding the Aquarium raised a fair question to be tried. It submits that in the context of pre-trial injunctive relief to restrain political and social expression on a matter of public interest, a more searching merits analysis is required than what is contemplated by the traditional interlocutory injunction test.

Evotion points to the law regarding pre-trial injunctions in the defamation context and argues that the same freedom of expression concerns arise in these circumstances, Evotion says that an interlocutory injunction should not be available unless there is no question that the subject matter in question is covered by copyright, that the conduct sought to be enjoined constitutes a breach, and that there are no defences asserted and reasonably available at trial. [25] In any event, however, Evotion contends that the Aquarium did not meet the low threshold of demonstrating a serious question to be tried as required by the traditional interlocutory injunction test, arguing that the Aquarium does not own the copyright in many, if not all, of the Contested Segments. Moreover, even if the Aquarium owns copyright in some of the Contested Segments, Evotion says it has not infringed that copyright, emphasizing fair dealing as a user's right and the Documentary as non-commercial user-generated content. [26] Furthermore, Evotion argues the chambers judge erred in finding the Aquarium established it would suffer irreparable harm if the injunction were not granted. It submits that the chambers judge applied the incorrect test, failed to require evidence of irreparable harm and instead relied on a conclusion of law contained in Ms. Imrie's affidavit. [27] Finally, Evotion contends that the

chambers judge erred in analyzing the balance of convenience. Emphasizing that the Documentary is an artistic, expressive work on a matter of public interest, Evotion says the chambers judge was required to consider the potential for harm to constitutionally protected freedom of expression. It says that the Documentary involves social and political commentary, and that this expression lies at the core of s. 2(b) of the Charter. Evotion submits that the ostensible purpose for the claim and injunction application is to silence Mr. Charbonneau and deter criticism. It argues that this amounts to private censorship, and says that if the Documentary harms the Aquarium, it does so because it, as a whole, is critical of the Aquarium. This criticism, however, is protected expression. Position of the Intervenor British Columbia Civil Liberties Association ("BCCLA") [28] The BCCLA stresses the importance of freedom of expression, and argues that this constitutional right should be expressly recognized in the law governing interlocutory injunctions in civil proceedings. As a mechanism for doing so, it submits that the second leg of the Dagenais/Mentuck test should be incorporated into the balance of convenience analysis where the granting of an injunction would limit freedom of expression. In particular, in analyzing the balance of convenience to determine whether an interlocutory

injunction that would restrain expressive activity should issue, the court should weigh the salutary effects of the injunction against the deleterious effects on the freedom of expression of both speakers and listeners. The BCCLA submits that this would reflect both the constitutional significance of an injunction that limits expression and Canadian values. In addition, it would be consistent with the law's reluctance to affect the rights of third parties, here, the Documentary's audience, and would provide a flexible framework for addressing situations where the expression is neither "pure" speech nor entirely commercial. Position of the Intervenor Animal Justice [29] Animal Justice is an animal advocacy organization. It seeks to encourage law enforcement, law reform, and social change to protect animals. It says that, in order to advance animal rights, animal justice organizations must often rely on works that animal use industries may argue to be subject to copyright. Animal Justice notes that animal rights organizations work to expose animal use and abuse, often through publication of photographs and videos depicting their treatment. It emphasizes the power of the message conveyed through such images, as opposed to spoken or written descriptions, to increase public awareness and promote law enforcement and reform. [30] Animal Justice argues that cases such as this

illustrate the potential for animal use industries to claim copyright in film and photographs to suppress production of unfavourable and critical publications. In support of this position, it highlights the balance between promoting the public interest in the encouragement and dissemination of intellectual property and maintaining a just reward for the author, as well as the distinction between economic and moral rights, as discussed by the Supreme Court of Canada in Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34. It notes that in Théberge, the Court moved away from an author-centric approach to copyright. However, it contends that the injunction under appeal amounts to a reversion to this approach by giving the alleged owner complete control over the work. Further, Animal Justice says that to permit an animal use organization to assert copyright on the basis that use of a work is derogatory would be an overreach of moral rights. The Aquarium's Position on Appeal [31] In response, the Aquarium argues the chambers judge applied the appropriate test, considered the evidence and submissions, and properly exercised her discretion to make a tailored order. It says the decision properly recognized and balanced the interests at stake, and is therefore entitled to deference. In addition, the Aquarium argues that the existing test for interlocutory injunctions already

accounts for the public interest and freedom of expression, and need not be reformulated. [32] The Aquarium argues that the chambers judge applied the correct test in finding that it had met the low threshold of a fair question to be tried. In doing so, it says its ownership of copyright in the Contested Segments is clear, as is the Agreement restricting the use of Mr. Charbonneau's footage. Furthermore, the Aquarium argues that the chambers judge considered fair dealing as a user's right, and properly concluded that whether it applies is a question for trial. In addition, the Aquarium submits that the chambers judge was correct in holding that whether the Documentary is protected as non-commercial user-generated content raises a triable issue, pointing in particular to the issue of whether the Documentary has a commercial purpose. [33] As to irreparable harm, the Aquarium submits that the chambers judge considered the evidence and correctly concluded that damages were not an adequate remedy. It relies on evidence in Ms. Imrie's affidavit regarding its investment of time and money to create and maintain its copyrighted works, and says that the linking of its materials with the Documentary's critical message damages its business reputation. [34] In addition, the Aquarium says that the chambers judge applied the correct test in finding that the balance of convenience favoured

granting the injunction. It argues that the order struck a balance by restraining only the contested segments, and in making such an order, the chambers judge recognized the expressive interests at stake. The Aquarium emphasizes that the Documentary is still available, with less than five minutes of content removed, and still accomplishes its goal of providing critical commentary. Discussion Standard of review [35] The decision to grant an interlocutory injunction is discretionary, and is entitled to a high degree of deference. This Court must not intervene merely because it would have exercised that discretion in a different way: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at pp. 155-56; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para.

22. However, appellate intervention is necessary if the chambers judge erred in principle, made an order not supported by the evidence, or if it appears that the decision will result in an injustice: Wale at para.

43. Legislative Framework [36] The relevant provisions of the Copyright Act are: Copyright in works 3 (1) For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever and to authorize any such acts. Ownership of copyright 13 (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein. 14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. Infringement generally 27 (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do. 28.2 (1) The author's or performer's right to the integrity of a work or performer's performance is infringed only if the work or the performance is, to the prejudice of its author's or performer's honour or reputation, (a) distorted, mutilated or otherwise modified; or (b) used in association with a product, service, cause or institution. Fair Dealing Research, private study, etc. 29 Fair dealing for the purpose of research,

private study, education, parody or satire does not infringe copyright. Criticism or review 29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned: (a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work, News reporting 29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: (a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work, Non-commercial user-generated content 29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual -- or, with the individual's authorization, a member of their household -- to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if (a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes; (b) the source -- and, if given in the source, the name of the author, performer, maker or broadcaster -- of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the

circumstances to do so; (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter -- or copy of it -- or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one. Infringement of Copyright and Moral Rights 34 (1) Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right. (2) In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right. Test for injunctive relief [37] The test for issuing an injunction is well-known and stated in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334. The chambers judge refers to the two-part formulation of the test from Wale. There is no practical effect to the distinction between the two-part test and the three-part test: Coburn v. Nagra, 2001 BCCA 607 at para.

7. Before issuing an interlocutory injunction, there must be a preliminary assessment of the merits of the case to ascertain that there is i) a serious question to be tried, ii) a consideration of whether the applicant will suffer irreparable harm if the application were dismissed, and finally, iii) an assessment of the "balance of convenience", that is, which of the parties would suffer the greater harm from the granting or refusing the injunction pending a decision on the merits of the case. As noted in Google Inc. at para. 25, the fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. [38] In Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, 2011 SKCA 120 at para. 26, the Court discussed the overall nature of the test in RJR-MacDonald, and said: For the moment, let me observe that the strength of case, irreparable harm and balance of convenience considerations, although prescribed and necessary parts of the analysis mandated by the Supreme Court, are nonetheless not usefully seen as an inflexible straightjacket. Instead, they should be regarded as the framework in which a court will assess whether an injunction is warranted in any particular case. The ultimate focus of the court must always be on the justice and equity of the situation in issue. As will be seen, there are

important and considerable interconnections between the three tests. They are not watertight compartments. Serious question to be tried [39] Evotion acknowledges that the threshold for the first part of the test is a low one. It is sufficient if the applicant satisfies the court that "the claim is not frivolous or vexatious." At this stage, the chambers judge should not embark on a "prolonged examination of the merits" unless the injunction would in effect amount to a final determination of the action, which is not the case here: RJR at 335, 338. [40] In RJR-MacDonald at pp. 402-403, the Court addressed the assessment of whether there is a serious issue to be tried as follows: What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: see Metropolitan Stores, supra, at p.

150. Similarly, a decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but a refusal of leave in a case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits. Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. (Emphasis added.) [41] Evotion argues, however, that the threshold should be higher on two bases in this case - first, because they say that this is actually a defamation suit dressed up as a copyright action, and second, because constitutionally protected expression is at issue. Evotion relies on Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at paras. 47-49, in which Bastarache J., for the majority, rejected the RJR-MacDonald three-step test in cases of hate speech, and by analogy, defamation, on the basis of freedom of expression, both on the irreparable harm and balance of convenience parts of the test. At para. 49, the Court referred to the following passage: In his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at

paras. 5.40-5.70 (pp. 5.2-5.4): There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. . . . The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify. . . . it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor. [42] In my view, it is not necessary to consider this appeal by way of analogy to injunctions in defamation actions. Although there are parallels, this appeal may be disposed of on a different basis. I will address freedom of expression under the discussion regarding the balance of convenience. [43] Evotion says that, in any event, the chambers judge erred in finding a serious issue to be tried even if the RJR-MacDonald threshold applies because: a) the Aquarium does not own the copyright in at least eight of the contested segments; b) that if the Aquarium does own the copyright, Evotion's use of the material constitutes "fair dealing"; and; c) Evotion's use is covered by s. 29.21 of the Act relating to non-commercial

user-generated content. [44] Copyright law underwent a considerable change with the decision of Théberge. The law moved from a focus on protecting and rewarding authors/owners, such as that evident in Bishop v. Stevens, [1990] 2 S.C.R. 467, to a "conception of copyright as a mechanism through which to encourage the creation and dissemination of expression": Graham Reynolds, "The Limits of Statutory Interpretation: Towards Explicit Engagement, by the Supreme Court of Canada, with the Charter Right to Freedom of Expression in the Context of Copyright" (2016) 41:2 Queen's LJ 455 at 466. [45] In Théberge, Binnie J., for the majority discussed this change, at paras. 30-32: [30] The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated). The elements of this balance are discussed in more detail by J. S. McKeown, Fox Canadian Law of Copyright and Industrial Designs (3rd ed. 2000), at p.

3. See also D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (1997), at p.

22. This is not new. As early as 1769 it was said by an English judge: It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the property of their own works. . . . He who engages in a laborious work, (such, for instance, as Johnson's Dictionary,) which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family. (Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201, per Willes J., at p. 218) [31] The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it. [32] Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to

copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and "ephemeral recordings" in connection with live performances. (Emphasis added.) [46] Next, Evotion submits that the chambers judge failed to adequately address the issue of fair dealing when considering whether there is a serious question to be tried. [47] In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Court examined "fair dealing" under the Copyright Act. Chief Justice McLachlin affirmed, at para. 23, the purpose of the Act: As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author's or creator's rights, at the loss of society's interest in maintaining a robust public domain that could help foster future creative innovation. [48] Fair dealing is not considered a defence, but an integral part of the Copyright Act: CCH at para.

48. It is more properly characterized as a "user's right." An act that is captured by the fair dealing provisions of the Act will not infringe copyright. [49] As noted above, s. 29 of the Act sets out fair dealing for the purpose of research, private study, education, parody or satire, and use in that context does not infringe copyright. Section 29.1 exempts fair dealing for the purpose of criticism or review, and s. 29.2 exempts news reporting. Section 29.21 exempts non-commercial use, with specified conditions. [50] In order to sustain the balance between the users' rights and those of the copyright owner, fair dealing "must not be interpreted restrictively": CCH at para.

48. CCH addressed research in the context of headnotes and other additions by publishers to judgments, and whether permitting photocopying at a law library fell within the research exemption in fair dealing. In concluding that it did, McLachlin C.J.C. concluded that "research" was to be given a large and liberal interpretation to ensure that users' rights are not "unduly constrained": para.

51. It is not limited to non-commercial or private contexts. [51] In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 [SOCAM], a case involving whether previews of songs on song purchase websites were exempt from copyright as a result of fair dealing, the Court affirmed that fair dealing extends to commercial dealing. At para. 21, the Court discussed the goals of fair dealing: It is true that an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity: Abraham Drassinower, "Taking User Rights Seriously", in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (2005), 462, at pp. 467-72. But that does not argue for permitting only creative purposes to qualify as "research" under s. 29 of the Copyright Act. To do so would ignore the fact that the dissemination of works is also one of the Act's purposes, which means that dissemination too, with or without creativity, is in the public interest. It would also ignore that "private study", a concept that has no intrinsic relationship with creativity, was also expressly included as an allowable purpose in s.

29. Since "research" and "private study" both qualify as fair dealing purposes under s. 29, we should not interpret the term "research" more restrictively than "private study". [52] The Court in CCH, acknowledging that they will not arise in every case, identified six non-exhaustive factors that provide a useful framework to consider when assessing whether the dealing of a work is fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work: paras. 53-60. [53] I agree with Evotion's submission that the judge did not sufficiently analyze the issue of fair dealing, including whether it was non-commercial user-generated content under s. 29.21, however, this does not lead to a conclusion that there is no serious issue to be tried. [54] I agree with the Aquarium that this threshold test has been met with respect to whether there is a serious question to be tried on the issues relating to the claim under copyright. The issue of the ownership of the copyright (or even whether it is covered by the Act), is a matter for the trial judge, thus meets the first stage of the interlocutory injunction test. The assessment of fair dealing in this case, including whether it falls under s. 29.21, is substantially fact driven. The assessment of

whether the material falls within the user right of fair dealing will be for the trial judge. [55] Finally, the allegations of a breach of contract by Evotion for the four segments shot prior to entering into a contract also raises a serious issue to be tried. [56] I conclude that there is a serious issue to be tried. Irreparable harm [57] In RJR-MacDonald, the court described irreparable harm at 341: At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577

(B.C.C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)). [58] The Federal Court of Appeal has taken the view that the evidentiary foundation required to establish irreparable harm must be clear and non-speculative evidence that irreparable harm will occur if the injunction is not granted. The party seeking the injunction cannot simply rely on assertions: United States Steel Corporation v. Canada (Attorney General), 2010 FCA 200 at para. 7, citing Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129 (F.C.A.) at para. 15, leave to appeal ref'd [1991] S.C.C.A. No. 309. [59] However, in Wale, McLachlin J., as she then was, cautioned against applying too stringent a standard. She found that "clear proof of irreparable harm is not required" (at para. 50). The court in Potash Corp. notes similarly: The purpose sought to be achieved by giving a judge the discretion to grant interlocutory relief will be "stultified," to use Lord Diplock's term, if he or she could consider in the balance of convenience only such irreparable harm as is certain or highly likely to occur: para. 60. [60] However, there surely must be a foundation, beyond mere speculation, that irreparable

harm will result. Interlocutory injunctive relief pending the trial of the issues is a significant remedy, and should be invoked only when the test in RJR-MacDonald is satisfied on a sound evidentiary foundation. [61] The chambers judge accepted the affidavit of Ms. Imrie as the evidentiary basis for her conclusion that there was irreparable harm. Ms. Imrie deposed: The harm to the Aquarium and its copyrighted material by virtue of its unauthorized use by the Defendants, including the derogatory manner of their use, is impossible to calculate or repair. The longer the unauthorized use continues, the greater the harm. [62] This was the only material speaking to irreparable harm before the chambers judge. She accepted this statement without any further analysis, concluded that damages would not place the Aquarium in its former position, and found irreparable harm on that basis. There was not a shred of evidence in support of that conclusion. If the damage was in the form of loss of donations, the loss of attendance, or a similar basis, that could have been articulated in Ms. Imrie's affidavit, but it was not. [63] In my view, the chambers judge's holding on irreparable harm cannot stand. In the language of RJR-MacDonald at 341, Ms. Imrie's affidavit does not provide a sufficient evidentiary basis to conclude that the harm "could not be remedied if the eventual decision on the

merits does not accord with the result of the interlocutory application". [64] Additionally, by accepting the assertion in Ms. Imrie's affidavit that Evotion's use is indeed "unauthorized", the chambers judge essentially decided the issue in the underlying action. A similar situation arose in Syntex. In that case, the chambers judge had concluded that the "unauthorized use of the registered trademark is irreparable harm to the owner." The Federal Court of Appeal held that the finding of unauthorized use was the very issue to be determined at trial, and should not have been found at the interlocutory stage, particularly in light of the highly contested nature of that use: Syntex at para. 20. [65] In addition, the aspects of the film that are highly critical of the Aquarium come from clips of public hearings where Aquarium officials have spoken and of their public positions and budgets, juxtaposed with interviews of experts, and former and current Park Board members, all critical of the Aquarium, and not covered by the injunction. It is difficult to discern where any of the disputed segments are of a derogatory nature, as deposed by Ms. Imrie. [66] Harm to reputation and business interests is a basis for a finding of irreparable harm. However, the evidence must support that the harm is generated by that which is sought to be prohibited by the injunction: RJR-Macdonald at 334. The

bad publicity and loss of business that the Aquarium might experience as a result of this Documentary arises from content that is generally not drawn from the impugned material. I appreciate that the Contested Segments must be taken within the context of the Documentary as a whole. While the segments add to the Documentary as a creation, they do not appear to add to the criticism, except perhaps for the footage of Qila. The student footage is the response given by the students to the question of what they learned from their visit to the Aquarium. The essence of their response is: "not much." [67] The final segments focus on the good work the Aquarium performs. [68] In my view, the judge erred in concluding that the inclusion of these segments could cause irreparable harm as the evidence does not support this conclusion. Balance of convenience [69] The third prong of the test involves an assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: RJR-MacDonald at 342. [70] The chambers judge's analysis of the balance of convenience is brief. At para. 31, she said: With regard to the balance of convenience, I have considered the able submissions of both parties. I have considered the relative risks of harm to the parties from granting or withholding the interlocutory relief sought. In order to

achieve the necessary balance, the order of the court is that the defendants remove the 15 contested segments from the video. Those 15 segments of the video must not be published in any manner. [71] With respect, and again, acknowledging her efforts to issue a decision on the interlocutory injunction promptly, the chambers judge failed to conduct a sufficient analysis of the balance of convenience. Specifically, she did not consider the s. 2(b) Charter right to freedom of expression, which in my view, needed to be considered on the facts of this case. [72] While the Copyright Act withstood a s. 2(b) constitutional challenge to its validity in Michelin v. Caw, [1997] 2 F.C.R. 306, this does not mean that freedom of expression, as a Charter value, should not be considered in an interlocutory injunction concerning copyright issues. In my opinion, it may be highly relevant, depending on the circumstances. [73] The Supreme Court of Canada attaches great weight to freedom of expression and stresses the societal importance of this Charter right as guaranteed by s. 2(b). It has said that freedom of expression plays a critical role in the development of our society. See R. v. Guignard, 2002 SCC 14 at paras. 19-20; R. v. Sharpe, 2001 SCC 2 at paras. 21-23. In Sharpe at para. 21, McLachlin C.J.C. identified freedom of expression as "[a]mong the most fundamental rights possessed by

Canadians": It makes possible our liberty, our creativity and our democracy. It does this by protecting not only "good" and popular expression, but also unpopular or even offensive expression. The right to freedom of expression rests on the conviction that the best route to truth, individual flourishing and peaceful coexistence in a heterogeneous society in which people hold divergent and conflicting beliefs lies in the free flow of ideas and images. If we do not like an idea or an image, we are free to argue against it or simply turn away. But, absent some constitutionally adequate justification, we cannot forbid a person from expressing it. [74] While the Charter right to freedom of expression is not absolute, "[b]ecause of the importance of the guarantee of free expression [ ] any attempt to restrict the right must be subjected to the most careful scrutiny": Sharpe at para. 22. [75] The BCCLA submits that this Court should adopt the second part of the well-known Dagenais-Mentuck test that is applied when a court is considering imposing a publication ban. The test is derived from the decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, and was summarized in Mentuck at para. 32: b) Do the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and public, including

the right to free expression and the efficacy of the administration of justice? [76] This framework was created in the context of the "open court" principle. While it may have application to other contexts, in my view, the chambers judge erred in her application of the traditional framework for injunctive relief, so it is not necessary to reconsider the appropriate test in this case. [77] In the particular context of interlocutory injunctions, in Provincial Rental Housing Corporation v. Hall, 2005 BCCA 36, a decision involving persons engaged in protest over the lack of social housing prior to the redevelopment of the Woodward's Department Store in Vancouver, Rowles J.A., for the Court, set aside an ex parte injunction, and in doing so, said, at para. 58: When injunctive relief is being sought in a case such as this, it seems to me to be essential that the potential for "harm" to our constitutionally entrenched right to freedom of expression must be taken into account as part of the familiar balance of convenience test referred to in the case authorities. [78] This proposition in Hall is supported by RJR-MacDonald, a case that specifically engaged a constitutional challenge to legislation on the basis of freedom of expression. There, the Court held, at 344, that it was open to both parties to attempt to "tip the scales of convenience" by demonstrating to the Court a compelling

public interest. [79] The parties have clearly engaged s. 2(b) of the Charter. Evotion created the documentary to contribute to the conversation on the social and political issue of keeping cetaceans in captivity. This is an unusual copyright case in that the injunction will, in part, silence criticism of the Aquarium and potentially stifle public debate on a topic of great interest to the community. In addition, the Aquarium is not seeking to protect works that are being unfairly used to profit others, such as was alleged in SOCAM. [80] On the other hand, it is clear that the debate regarding cetaceans in captivity continues, despite the injunction. It is a matter of public record that the Vancouver Park Board, earlier this year, voted to ban the bringing of new cetaceans to the Aquarium. More litigation may ensue from this, so no more need be said. [81] The engagement of s. 2(b) in the analysis also responds to the concerns of Animal Justice in terms of bringing the issue of cases of animal cruelty to the public's attention. [82] In my opinion, the balance of convenience lies with Evotion. The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief. In addition, irreparable harm was not shown by the Aquarium, which in and

of itself is a reason for not granting the injunction, and in this case, weighs against granting the injunction. [83] In my view, the judge erred in granting the injunction. Given my conclusion, I need not consider the argument raised by Animal Justice concerning the issue of moral rights, nor do I need to address the admissibility of Ms. Imrie's affidavit. Conclusion [84] I would allow the appeal and set aside the injunction pending a determination of the action on its merits. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Mr. Justice Donald" Reasons for Judgment of the Honourable Madam Justice Saunders: [85] I have had the privilege of reviewing the reasons for judgment of Madam Justice Bennett. I agree with her that the appeal should be allowed, but with different emphasis. [86] The notice of civil claim alleges breach of the Copyright Act, R.S.C. 1985, c. C-42, and breach of contract. The breach of contract allegation has two arms: breach of terms of use found on the Aquarium's website accepted by anyone using the website, and breach of a written agreement signed by the appellant, Gary Charbonneau, ostensibly on behalf of the appellant, Evotion Films Inc. The appellants contest the copyright asserted and advance particular defences to the copyright claim. They deny breach of contract and, in particular, allege the contract was voided by fundamental

alteration by the Aquarium of its written terms. [87] It was with these claims before her that the judge granted an interlocutory injunction enjoining the appellants from showing 15 segments of their film until the Aquarium's claim was determined. [88] The written contract contains the term described by my colleague as prohibiting the use of recordings, past and present. That term may be characterized as a negative covenant. Where a prima facie breach is found, a negative covenant may be enforced by a court without great consideration of irreparable harm: see, for example, Montreal Trust Co. v. Montreal Trust Co. of Canada (1988), 48 D.L.R. (4th) 385, 24 B.C.L.R. (2d) 238 (C.A.), McLachlin J.A.; Gulf Islands Navigation v. Seafarers' International Union of North America (Canada District) (1959), 18 D.L.R. (2d) 216, 27 W.W.R. 652 (B.C.S.C.), aff'd 18 D.L.R. (2d) 625, 28 W.W.R. 517 (B.C.C.A.); see also Belron Canada Inc. v. TCG International Inc., 2009 BCCA 577. This stance has the benefit of preventing the disquieting denial by a litigant of his or her commitment, freely made. Setting aside for the moment the claims in copyright and for breach of the terms of use found on the Aquarium's website, the question arises whether this approach should apply. [89] On reflection, and considering both the evidence and the Response to Civil Claim denying the enforceability of the contract, I

conclude the negative character of the covenant should not determine the case. Here the issue of the continuing efficacy of the contract is a serious question to be tried, and so the underpinning for the common approach that short-changes the effect of irreparable harm is not reliably present. [90] This leads to the larger question of the application of the criteria for an interlocutory injunction. In his text Injunctions and Specific Performance (Aurora, ON: Thomson Reuters, 2016), Mr. Justice Sharpe of the Ontario Court of Appeal observes at 2.60 that the "problem posed by interlocutory injunction applications may best be understood in terms of balancing the relative risks of granting or withholding the remedy". He describes these risks: These risks may be stated as follows. The plaintiff must show a risk that his or her rights will be destroyed by the defendant's actions before the court has rendered its judgement at trial. The risk to the plaintiff is that if an immediate remedy is not granted, his or her rights will be so impaired by the time of trial and judgement that it will be simply too late to afford an adequate remedy. [91] It is in the search for a framework for this balancing act that the courts have moved between the three-pronged test described in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and the two-pronged formulation of the test

articulated by Madam Justice McLachlin (as she then was) in British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.) aff'd [1991] 1 S.C.R. 62. [92] The distinction between the two formulations is the role played by irreparable harm in the availability of the remedy: is it a free standing requirement for an injunction or is it one feature, albeit highly influential, to be considered in the balance? [93] Most often the distinction is likely without practical effect, as I observed in Coburn v. Nagra, 2001 BCCA 607. On reflection, however, I cannot say the distinction is never without practical effect, depending on the meaning attributed to the term "irreparable harm" and the object of the posited harm. The term irreparable harm itself invites debate and is inconsistently applied. Moreover, the major harm of the impugned action may fall not on the plaintiff but rather on the community at large. It is perhaps for that reason that there continues to be hedging on the three-pronged test and drift between including or not including the existence of irreparable harm, however that term is understood, as a factor to be considered in a balancing process. One means that has been employed by courts in resolving the proper place of irreparable harm is a relaxed standard of proof as in Potash Corporation of Saskatchewan Corp. referred to by my colleague in her para.

39. [94] Although written before RJR MacDonald, Mr. Justice Lambert discussed the two-part approach in Canadian Broadcasting Corporation v. CKPG Television Ltd. (1992), 64 B.C.L.R. (2d) 96 (C.A.) ("CBC"), referring to Wale and Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110: 20 An interim injunction may be granted where it is just or convenient to do so. See s. 36 of the Law and Equity Act. 21 The long standing test for the granting of an interim injunction in British Columbia is a two-pronged test. The test has never been altered and its force has never been affected by a decision of the Supreme Court of Canada. The two-pronged test is this: "First, the applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alleges and a breach thereof, actual or reasonably apprehended. Second, he must establish that the balance of convenience favours the granting of an injunction." 22 In stating the two-pronged test in that way I have adopted the wording used by Madam Justice McLachlin in A.G. British Columbia v. Wale (1987), 9 B.C.L.R. (2d) 333 at p.

345. This Court's judgment in that case was affirmed by the Supreme Court of Canada. See [1991] 1 S.C.R.

62. The test so stated is couched in general terms. With the generality of the statement comes a measure of flexibility in its application. Resort to the decided cases in which the test has been applied will provide the necessary limits to that flexibility, not so much through what those cases say, but more through what they decide about whether an interim injunction should be granted on each set of particular facts. 23 I would also adopt and follow the approach of Madam Justice McLachlin to the second prong of the test, namely the assessment of balance of convenience. I would summarize that approach in this way: in assessing the balance of convenience a judge should consider those points: ‒ the adequacy of damages as a remedy for the applicant if the injunction is not granted, and for the respondent if an injunction is granted; the likelihood that if damages are finally awarded they will be paid; the preservation of contested property; other factors affecting whether harm from the granting or refusal of the injunction would be irreparable; which of the parties has acted to alter the balance of their relationship and so affect the status quo; the strength of the applicant's case; any factors affecting the public interest; and any other factors affecting the balance of justice and convenience. 24 It should be noted that the strength of the applicant's case is a separate factor,

which should be considered under the second prong of the test, quite apart from the question under the first prong of the test of whether the applicant has established a fair question to be tried. But the assessment of the relative strength of the parties' cases must recognize the degree to which those cases have not yet been revealed because of the nature of the evidence and the way it has been presented on the injunction application, which may be markedly different from the way it would be presented at trial. 25 I would also follow the reasons of Mr. Justice Beetz, for the Supreme Court of Canada, in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at p. 128 and the reasons of Madam Justice McLachlin in A.G. British Columbia v. Wale, at pp. 346-7, in saying that the process of applying the second prong of the test is not a process of considering each possible factor separately, and then doing a tally, nor is it a process that can be regarded as effectively discharged by the mechanical application of a formula or checklist of points. Rather, it is a process of assessing all of the relevant factors at one time and in one unified context and reaching a single overall conclusion about where the balance of convenience rests. [Emphasis in original.] [95] Respectfully, and recognizing that RJR MacDonald did not disapprove Wale, I would adopt the approach of CBC,

recognizing that irreparable harm is an important factor to be considered in balancing the interests of justice, but its absence does not preclude an injunction where such is considered appropriate by a judge exercising the inherent jurisdiction assigned by the Law and Equity Act, R.S.B.C. 1996, c. 253. [96] In this case I consider the balance does not favour the injunction for the reasons that are discussed by my colleague under her headings of irreparable harm and balance of convenience. I agree with her that more was required to establish irreparable harm than was provided in this case, and that the value of freedom of expression should be a consideration in assessing the balance of convenience. That freedom of expression affects not just the parties to this litigation but also the larger community whose interests are engaged by the application. In my view, the balance of relevant factors does not favour the modest editing of the film in the manner ordered before trial. As my colleague describes, the thrust of the film remains in the film even after elision, reducing the efficacy of the order. [97] I would allow the appeal as proposed by my colleague. "The Honourable Madam Justice Saunders" I AGREE: "The Honourable Mr. Justice Donald"