1998) No. 98-CV-5100 Ontario Ct. of Justice (General Division) (Chadwick J.)
This case involved a constitutional challenge of the conditions imposed upon observation licences for the East Coast seal fishery, issued under section 31 of the Marine Mammal Regulations.
The Plaintiff argued that the conditions imposed upon the licences prevented the Plaintiff from fulfilling its mandate of informing the public about the seal hunt and thus violated the Plaintiff’s rights to freedom of expression under section 2(b) of the charter.
Upon applying for an interlocutory injunction against the crown, the Plaintiff’s application was denied. In its reasons for judgment, the court said that when determining the balance of convenience in a constitutional case, one must go beyond considering just the interests of the parties to the suit. Interlocutory injunction are rarely granted because they have the effect of disrupting the orderly function of government (Manitoba A.G. v. Metropolitan Stores Ltd.  1.S.C.R. 110). The court refused to grant an injunction because it would cause harm to the public interest and restrain the Minister from exercising his power under the Fisheries Act.
In its reasons, the court referred extensively to Animal Welfare Inc. v. Canada 35 C.P.R.R. 359 where a similar application was reviewed by the Federal Court of Appeal. In that case, the court held that both regulations requiring observers to stay half a nautical mile from the hunt and the manner in which the regulations were implemented were not reasonably justified under section 1 of the Charter. A passage quoted from the Court of Appeal said as follows:
In fact, the permit procedure set up by the Regulations is official discretion at large, with no specified standards at all, not even verbal formulations of them. Limits on the freedom of expression cannot be left to official whim but must be articulated as precisely as the subject matter allows: Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983),5 C.R.R. 373, 147 D.L.R. (3d) 58, 41 O.R. (2d) 583 (Div.Ct.), affd (1984), 7 C.R.R. 129, 5 D.L.R. (4th) 766, 45O.R. (2d) 80 (C.A.); leave to appeal to S.C.C. granted[(1984), 10 C.R.R. 384n] but appeal discontinued December17, 1985.
The locus limitation therefore fails on at least the second and third means tests: the means, far from being a minimal interference with the freedom of expression, do not even purport to limit the infringement as much as possible; moreover, the effects of the Regulations are clearly disproportionate to the legislative objective ,going far beyond what is necessary for that purpose.
Counsel for the Plaintiff: Clayton Ruby and Lesli Bisgould
Counsel for the Defendants: Charlotte A. Bell, Q.C. and Cassandra Kirewskie