Décision

McGill University c. Students for Palestine's Honour and Resistance McGill

2024 QCCS 3671

SUPERIOR COURT

(Civil Division)

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

No.:

500-17-131597-240

DATE:

8 October 2024

_____________________________________________________________________

BY

THE HONOURABLE

babak barIN, J.S.C.

_____________________________________________________________________

MCGILL UNIVERSITY

Applicant

v.

STUDENTS FOR PALESTINE’S

HONOUR & RESISTANCE MCGILL

Defendant

_____________________________________________________________________

EX PARTE PROVISIONAL INJUNCTION

(Articles 509 C.c.p. et seq.)

_____________________________________________________________________

• Limit protestors from blocking or otherwise obstructing or hindering, in whole or in part, the entrance to any buildings on McGill’s campus, as well as any building identified as being used for McGill’s operations;
• Limit protestors from engaging in protest activities within 5 metres of any building on McGill’s campus, as well as any building identified as being used for McGill’s operations;
• Limit protesters from intimidating, harassing, and/or threatening students, faculty, and employees attempting to enter or exit buildings on McGill’s campus, as well as any building identified as being used for McGill’s operations, and;
• Limit protesters, whether inside or outside any building on McGill’s campus or identified as being used for McGill’s operations, from disturbing the peace and acting in a manner that obstruct the delivery of courses or disturbs their flow.

Prohibitory injunction

[27]           Under the general prohibitory injunction test, McGill, is stricto sensu only required to demonstrate that there is a serious question to be determined. Under that test, it suffices that the plaintiff satisfy the court that its claim is not frivolous or vexatious, or said differently, that there is a serious question to be tried.

[28]           Historically, this is the test that was initially put forward more than forty years ago by the House of Lords, as it was called then, in American Cyanamid Co. v. Ethicon Ltd.[8]

[29]           In RJR-MacDonald, the Supreme Court of Canada adopted the American Cyanamid test and described how a court must determine whether there is “a serious question to be tried”:

There are no specific requirements […and the] threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case […] 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.

[Underlining is mine]

[30]           McGill submits that it has a right at law to control access to and the use of its property.  It also submits that its students and community members have a fundamental right to security and to be free from discrimination and harassment under the Quebec Charter of Human Rights and Freedoms[9] and its students, in particular, have a right to benefit from safe and suitable conditions for learning and study, free from harassment, intimidation and violence, as set out in the university’s Charter of Student Rights.

[31]           Similarly, McGill argues, its community members have a right not to be intimidated or harassed when attending classes or work, or otherwise seeking to gain access or use the educational institution’s buildings and campus.

[32]           I agree.

[33]           In my view, at this stage and prima facie, McGill’s claims appear neither frivolous nor vexatious, and the court is certainly before a serious question to be tried. The combination of the university’s own Charter of Student Rights, Student Code of Conduct and article 1457 of the Quebec Civil code (C.C.Q.), certainly permit McGill to control the use of its property by students and non-students alike in the manner the university deems appropriate.

[34]           Article 1457 C.C.Q., requires “every person” in this province to abide by the rules of conduct incumbent on him or her, according to the circumstances, usage or law, so as to not cause injury to another. The rights and obligations encysted in this provision apply to everyone who attends, visits, studies, works, teaches, or even simply passes through the university’s property. All of these individuals, regardless of their sex, color, age, origin or background are entitled to the protections offered by law.

[35]           McGill submits that it does not intend to and is in no way interested in restricting or infringing upon the ability of anyone to freely express his or her views or beliefs.  Indeed, McGill adds, its Charter of Student Rights provides in article 38 that “every group of students has a right to organize and promote the interests of its members, provided that the purposes of such a group are lawful and every such group has “the right to publicize and hold meetings, to debate any matter and to engage in lawful and peaceful demonstration”.

[36]           According to McGill, these are among the reasons why it is asking for an order limiting protestors from engaging in protest activities within 5 metres of any building on McGill’s campus, as well as any building identified as being used for McGill’s operations.

[37]           Again, I do not disagree with McGill. There is certainly nothing unreasonable about McGill’s request or the position it adopts in the present circumstances in this particular regard.

[38]           The plaintiff, therefore, has prima facie satisfied the appearance of right requirement of an injunctive relief and a further or prolonged examination of the merits of this case, at this stage, is neither necessary nor desirable.

Serious or irreparable harm

[39]           In the context of a request for an injunction, the word “irreparable”, imported into Quebec law from the common law, refers to the nature of the harm suffered and not its magnitude. It is a harm which either cannot be quantified in monetary terms, or which cannot be cured, usually because one party cannot collect damages from the other.[10] It is useful to mention that the availability of monetary damages is not necessarily fatal to obtaining a provisional injunction in Quebec. Article 511 C.C.P. explicitly says so and the Quebec Court of Appeal affirms it in Groupe CRH Canada inc. v. Beauregard[11].

[40]           The issue to be examined under this rubric consists of deciding whether McGill, its students, staff and faculty would, unless the injunction is granted, suffer serious or irreparable harm. Said differently, the issue to be decided at this stage is whether the refusal to grant relief could so adversely affect the plaintiff’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the provisional injunction[12]. The risk of harm at this stage must be immediate and not subject to compensation or remedy in any other way than through the injunction.

[41]           McGill submits that in addition to it’s property rights being irreparably violated, SPHR’s actions cause serious and irreparable harm to the university and its community members by consistently and continuously creating public safety threats and an environment of intimidation and harassment.

[42]           According to McGill, the intimidation and harassment created by SPHR’s protests and demonstrations have caused widespread and irreparable harm both to McGill’s learning environment, through interference with the delivery of classes and other academic activities, and to McGill’s campus climate through their corrosive effect on institutional norms regarding freedoms of expression and peaceful assembly.

[43]           McGill adds that protests and demonstrations organized by SPHR have impeded safe access to the entrances and exits of its buildings and classrooms, and they have damaged the university’s property through acts of vandalism, which can create additional safety risks.

[44]           McGill also submits that SPHR’s announcement of inciting a “Week of Rage” from 7 to 11 October 2024 poses an imminent and major threat to the stability of academic life and the rights of students, staff and faculty at the university.

[45]           According to McGill, the coming week, in other words, the week of 7 to 11 October 2024, is peak midterm examination period during the Fall semester, and therefore, in addition to regularly scheduled classes, some of which will hold exams during class hours, midterm examinations are scheduled during the evenings outside of class hours.

[46]           For example, McGill explains, midterms for forty-four (44) classes are scheduled in the evenings of the coming week alone and others are scheduled during regular daytime class hours. This represents more than 13,600 midterms being written by McGill students this week. These midterm examinations are, McGill argues, vitally important for the students’ learning and assessment. They have consequences that may affect a student’s future.

[47]           Once again, I can not disagree.

[48]           Like my colleague, Justice Daniel Urbas, j.s.c.,[13] I am of the view that disruptions in academic learning and evaluation are intangible, irreparable and certainly time sensitive and they cannot equitably and fairly be remedied at a later date or be possibly compensated by any money.  

[49]           The plaintiff, therefore, has been able to satisfy this part of the RJR – MacDonald test as well.

Balance of convenience

[50]           This brings me to the last and final criterion that McGill must, prima facie, satisfy before its application can be granted. As explained by the Supreme Court, this criterion requires a determination of which of the parties will suffer the greater harm from the granting or refusal of an injunction pending a decision on the merits.

[51]           As a general rule, the factors which may be considered in this regard are many and they will vary from case to case.[14] The questions of irreparable or serious harm and balance of convenience are often intertwined and closely connected.

[Balance] of convenience […] relates to matters difficult to quantify in monetary terms. Apart from, and in addition to, the risks of monetary loss and gain, what will be the relative impact upon the parties of granting or withholding the injunction? Does the benefit the plaintiff will gain from preliminary relief outweigh the convenience to the defendant of withholding relief? Is the convenience to the defendant, should the injunction be granted, more substantial than the inconvenience the plaintiff will suffer if relief is withheld? Which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits? […] Would withholding the injunction result in an injustice?[15]

[Underlining is mine]

[52]           Here, the plaintiff has been able to satisfy the irreparable harm criterion for the issuance of a provisional injunction.

[53]           I am also of the view that the balance of convenience is in favour of McGill. In this case, again like my colleague, Justice Urbas in Zorchinsky[16], I am of the view that the defendant will suffer no inconvenience by abiding by basic rules of civility and good faith conduct, either as enshrined in the Quebec Charter or as set out in articles 6, 7 and 1457 C.C.Q. that apply to all citizens in this province, regardless of their sex, color, age, culture, faith, belief, political orientation or other.

[54]           In my view, the criteria of irreparable harm and balance of convenience would have also under the present facts supported McGill’s request for a quia timet provisional injunction had the request been lodged in that way. But again, it was not.

CONCLUSION

[55]           Finally, one must not lose sight of the fact that the terms ‘irreparable harm’, ‘status quo’ and ‘balance of convenience’ do not have etched-in-stone and precise meanings associated to them. They are not stagnant notions. They are not separate and water-tight containers that do not communicate with one another. Rather, they are watermarks that take color, shape, and define each other each in their own way, in order to, when examined together and globally, shed light on the overall circumstances of each case.[17]

[56]           Here, based on the overall circumstances presented, and given the important issues at stake, I am of the view that the interests of justice militate in favour of issuing a provisional injunction to be in force for a period of ten (10) days from the date of this judgment.

[57]           I am also of the view that the circumstances of this case favour the granting of the special mode of service application filed by the plaintiff. Given the defendant’s unknown legal status and in the absence of any place of business for its activities, it is important that the defendant be notified and apprised of the content of this judgment without any delay via its active Instagram account.

FOR THESE REASONS, THE COURT:

GRANTS the plaintiff’s Originating Application for the issuance of a provisional, dated 7 October 2024;

ISSUES a provisional injunction to be valid for a period of ten (10) days from the date of this judgment;

ORDERS the defendant, Students for Palestine’s Honour and Resistance, as well as any person having knowledge of or having received service of this judgment to cease, desist and refrain from blocking or otherwise obstructing or hindering, in whole or in part, the entrance or exits to any buildings and streets or walkways directly connected to entrances or exits of buildings on McGill University’s campus, as well as any buildings identified as being used for McGill’s operations, including but not limited to offices, classrooms and research labs;

ORDERS the defendant, Students for Palestine’s Honour and Resistance, as well as any person having knowledge of or having received service of this judgment to cease, desist and refrain from engaging in protest activities within 5 metres any building on McGill’s campus, as well as any building identified as being used for McGill’s operations, including but not limited to offices, classrooms and research labs, with protest activities being understood as, but not limited to, blocking or otherwise obstructing or hindering, in whole or in part, any entrances or exits to buildings and streets or walkways directly connected to entrances or exits of buildings, setting up tents or other structures, and making excessive noise;

ORDERS the defendant, Students for Palestine’s Honour and Resistance, as well as any person having knowledge of or having received service of this judgment to cease, desist and refrain from intimidating, harassing and/or threatening, any student, employee, contractor or visitor of McGill while they attempt to enter or exit any buildings on McGill University’s campus, as well as any buildings identified as being used for McGill’s operations, including but not limited to offices, classrooms and research labs;

ORDERS the defendant, Students for Palestine’s Honour and Resistance, as well as any person having knowledge of or having received service of the present judgment to cease, desist and refrain from disturbing the peace or engaging in public disturbance, whether inside or outside a building on McGill’s campus, as well as any building identified as being used for McGill’s operations, including but not limited to offices, classrooms and research labs, and acting in a manner that obstructs the delivery of courses or disturbs their flow;

ORDERS the defendant, Students for Palestine’s Honour and Resistance, to publish the present judgment on its Instagram, Facebook, TikTok and “X” social media pages;

AUTHORIZES the bailiffs tasked with serving this judgment to call upon any peace officer to assist them with such service and AUTHORIZES any peace officer called upon by the bailiffs to provide them with the requested assistance;

AUTHORIZES any peace officer to enforce this judgment, and to arrest and remove any person who the peace officer has reasonable grounds to believe is contravening or has contravened this judgment;

DISPENSES the plaintiff, McGill University, from furnishing any suretyship;

AUTHORIZES the service of this judgment any time, including between 9:00 pm and 7:00 am;

AUTHORIZES the plaintiff, McGill University, to serve this judgment on the defendant, Students for Palestine’s Honour and Resistance, by electronic means to its Instagram account;

ORDERS the provisional execution of this judgment notwithstanding appeal, given the nature of the issues raised by the plaintiff and the importance of this judgment for the students, staff and faculty at McGill University during the, in particular, coming week;

WITHOUT LEGAL COSTS.

__________________________________

babak barin, j.S.C.

Me Douglas Mitchell

Me Jessica Michelin

IMK s.e.n.c.r.l./ LLP

Attorneys for Plaintiff

Hearing date:

7 October 2024 at 2 p.m.