Nova Scotia judge refuses to hear challenge of injunction that banned gatherings

The Nova Scotia Supreme Court is seen in Halifax in this file photo.

A Nova Scotia Supreme Court judge has refused to hear a challenge of an injunction obtained by the provincial government that banned protests and other gatherings during the recent COVID-19 lockdown in the province.

The injunction, which was granted on May 14, was lifted last week by another judge at the province's request as novel coronavirus case numbers continued to decline.

During a hearing Wednesday, Justice James Chipman ruled that a challenge of the original court order by the Canadian Civil Liberties Association is now moot because the injunction had been lifted.

"In my view there is no longer a live controversy or adversarial context," Chipman said.

The civil liberties group had criticized the injunction as being too broad, saying it raised legal and constitutional issues. The order was primarily aimed at two anti-mask protests set for mid-May, but its reach extended to other gatherings and also banned their promotion on social media. The association also raised concerns that it had been obtained without the protest organizers being notified ahead of the hearing.

Chipman said the injunction was consistent with the province's existing public health restrictions and it was made under the "exceptional circumstance" of the outbreak of the third wave of the pandemic in Nova Scotia.

"The injunction order was an extraordinary remedy granted in extraordinary circumstances," he said. "No injunctive relief was sought during the first or second wave. No injunctive relief is now being sought."

Chipman suggested that with an evolving pandemic, there could be a future injunction that would merit a court hearing. He also noted that the province is on record as stating that it would provide the CCLA with notice if it were to seek another injunction.

The judge added that while the association's issues were "interesting and thought-provoking," they didn't necessitate a lengthy hearing. "This is a courtroom not a classroom," Chipman said. "Should it become necessary, the court will be well placed to make a decision based on the circumstances which exist at that time."

Cara Zwibel, the association's director of fundamental freedoms, expressed disappointment in the decision.

"We didn't think this was just an academic exercise," Zwibel said in an interview. "We think there are important points of law, and we are worried about the possibility this kind of thing could be brought again." She said the one positive is that her organization has a promise that it will be notified if a similar injunction is sought in the future.

This report by The Canadian Press was first published June 30, 2021.