Ontario Court Refuses to Grant Interlocutory Injunction Under Competition Act

On May 27, 2010, Justice Darla Wilson of the Ontario Superior Court of Justice refused to grant Bell Canada an interlocutory injunction restraining Rogers from claiming in Ontario that its Internet service is the “fastest” and/or the “most reliable” and/or that Rogers's Internet service offers the “Fastest and Most Reliable Speed.”

In Bell Canada v. Rogers Communications Inc. et al., 2010 ONSC 3010 (S.C.J.), Justice Wilson held that Bell Canada had failed to discharge its onus to show compelling evidence of irreparable harm.

Rather, Bell Canada's evidence was “speculative, suggestive of the possibility that some customers may terminate with Bell.”

The balance of convenience favoured Rogers, as it was unclear whether Bell would be successful at trial, and “it would be inappropriate to grant an injunction in circumstances where the risk of harm to the defendant is greater than the risk of harm to the plaintiff.”

Justice Wilson also held that Bell Canada's delay in bringing the injunction was strong evidence that it was not suffering irreparable harm.

Justice Wilson adopted the following comments from a decision of Justice Ian Nordheimer regarding an application for an interlocutory injunction under the Competition Act: “In my view, courts should generally be averse to entering into the competitive fray unless it is clear that a false statement is being made which has the prospect of causing irreparable harm or which may impact on the health and welfare of members of the public. Neither of these situations present themselves here. I am also concerned that the injunction being sought has a very real impact on freedom of speech and, as a consequence, carries the genuine prospect of creating a chilling effect on person who has a legitimate interest in engaging in the debate. Even commercial speech is worth of protection ….”

The Ontario Superior Court also refused to grant Bell Canada interlocutory injunctions against Rogers in two other recent Ontario cases [2009 CanLII 39481 (ONSC) and 2010 ONSC 2788].

There are conflicting decisions in New Brunswick and British Columbia.

Edward Babin, Cynthia Spry and Clifford Jackman of Babin Barristers LLP represented Rogers.

Peter Lukasiewicz, Deborah Templer and James Camp of Gowling Lafleur Henderson LLP represented Bell.