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Ex Parte Applications, Materiality, and “Grass Bruising”

The Newfoundland and Labrador Court of Appeal Rules in Favour of Justin Brake



Justin Brake is a Canadian journalist, and was working as editor of The Independent at the time he was covering the protests against the Muskrat Falls project in Labrador in October, 2016. Protesters had created a blockade and prevented Nalcor employees and contractors from accessing the construction camp at the work site. Nalcor, the developers of the Muskrat Falls project, were granted an ex parte injunction enjoining “protesters”, any other person acting under their instruction, and anyone having notice of the Order from blocking access to or trespassing upon the Muskrat Falls site.


The Order sought was against four named individuals and “unknown persons”, defined in Nalcor’s application as “…those individuals who are engaged in unlawful conduct, the particulars of which are described below, which conduct has prejudiced and continues to prejudice the Plaintiff’s property and contractual rights and interests”. The conduct referred to was conduct of the nature in which the protesters were engaged. When the protests continued, Nalcor sought leave to commence contempt proceedings. The Court ordered, in part, that the “Sheriff shall cause the following persons [Mr. Brake and 21 others]…to forthwith Appear before the Court…to show cause why he or she should not be held in contempt of Court”. The Court was not advised on either application that Mr. Brake was a working journalist.


Geoff Budden brought an application on behalf of Mr. Brake in the Supreme Court of Newfoundland and Labrador seeking to vacate the ex parte orders on the basis that Nalcor had failed to disclose a material fact, namely, that Mr. Brake was not a protester himself, but rather a working journalist covering the protests as a matter of public interest. The Honourable Justice Murphy found that Mr. Brake’s status as a working journalist was not a material fact and declined to exercise his discretion to vacate the injunction and discontinue the contempt proceedings.


Ex Parte Applications


An ex parte application is one that is made by a party to an action in the absence of the other party or parties. In most proceedings, the Court hears from all parties prior to making a ruling, but this is not so in an ex parte application. Because the Court does not have the benefit of hearing the perspectives of both parties, it is a long-standing legal principle that a party seeking an ex parte order has a “super added duty” to the Court to act in utmost good faith and make full disclosure of all material facts.


The Appeal Decision


In a landmark decision giving direction on the treatment of journalists in relation to ex parte matters, the Honourable Justice Green of the Newfoundland and Labrador Court of Appeal allowed Mr. Brake’s appeal of the Supreme Court decision, vacating the injunction and the contempt appearance notice, and granting costs against Nalcor in the Court of Appeal and in the court below.


In the decision, Justice Green describes an injunction as having the capacity to be “a very blunt instrument”. He went on to note that “Because the application is made ex parte, there is a special obligation placed on the applicant to be scrupulously fair and balanced in the manner of presentation of the material before the judge. That includes an obligation to present any information known (or with reasonable inquiry could have been known), whether favourable or unfavourable, that may be material to the decision to be made”.


In examining the scope of the injunction in this case, Justice Green wrote: “Those persons having notice of the order who were intended to be caught by the injunction were obviously only those who engaged in the behaviour of which [Nalcor] were complaining in their statement of claim, namely, the protest activity. Those persons who had notice of the injunction but who were not engaging in any of the prohibited activity could therefore ignore it”.


The Court found further that the nature of the relief sought by Nalcor was limited to those activities incidental to the protest. Justice Green determined the scope of the injunction was not to protect Nalcor from any trespass (ie. not mere “bruising of the grass” by persons unconnected with the protest). Justice Green found there to be a “significant difference” between what Mr. Brake was doing and what was covered by the injunction.


The Court noted that “although [Mr. Brake] was present with the protesters and followed them as they trespassed on the construction site and occupied the buildings, his role was otherwise as a passive journalistic observer”. Justice Green went on to find that it was incumbent on Nalcor to bring these matters to the attention of the court so that the injunction would not be given greater reach than necessary.


To do so, he opined, “…unnecessarily risks impeding the media function for no good reason with the result that the public would be deprived of access to information of public interest”. Justice Green further noted that Mr. Brake was not within the intended scope of the injunction, and that being subject to unnecessary prohibitions by the contempt and injunction had significant consequences. He wrote: “By doing his job, he would be exposing himself to potential arrest in circumstances where he should not have been constrained”.


Justice Green recognized that these considerations are only heightened in the context of this case, given that Mr. Brake was reporting on aboriginal issues, which have historically been underrepresented in news coverage. According to this decision, “that makes freedom of the press to cover stories involving indigenous land issues even more vital”. Justice Green noted that independently reported information about aboriginal issues being available is an important contribution to the understanding of aboriginal peoples and issues, which in turn is required if we are to work towards reconciliation.


Going forward, this decision makes it clear that parties have a duty to advise and courts must consider the presence of a working journalist when contemplating whether to grant orders of this nature. As it was put by Justice Green “any potential significant effect of an injunction or a contempt order on the proper functioning of the press is a highly relevant factor in exercising the discretion as to whether the order should issue”.


To assist in this exercise, Justice Green enumerated a list of “non-exhaustive considerations” that could inform the Court and the parties as to when the presence of a journalist in a protest amounts to a material fact in the context of ex parte injunctions or ex parte orders granting leave to invoke the contempt process. These factors include: (1) whether the person is engaged in an apparent good faith news-gathering activity, (2) that the person is not actively assisting, participating or advocating in the protests, (3) that the person does no act that could be construed as aiding or abetting the protesters, (4) that the person is not otherwise obstructing or interfering with those seeking to enforce the law, and (5) that the matters being reported on are matters of public interest in a broad sense. Justice Green found that all of these considerations applied in Mr. Brake’s case.


Justice Green acknowledged that while the non-disclosure of a material fact will not automatically give rise to an injunction being set aside, it was justified in this case. He further indicated that where a material fact is significant to the potential outcome and has not been disclosed, the normal response would be to set aside the order. Unless it is clear that the outcome would have been the same, the starting point is that where the integrity of the decision is compromised, it should be set aside, as was done in this case.


Budden & Associates lawyers Geoff Budden and Allison Conway were pleased to represent Mr. Brake in this matter. The full text of the decision can be found here:

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