Case information

Civil procedure — Injunctions — Whether the balance of convenience stage of the test for injunctive relief in the constitutional setting involves a merits assessment of the underlying claim — Whether there is a presumption of constitutionality that attaches to the impugned state action that an applicant must rebut to satisfy the threshold for the merits assessment at the balance of convenience stage of the analysis —Whether the courts below gave adequate weight in the balance of convenience analysis to death as a harm caused by the impugned state action.

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The applicant, Lethbridge Overdose Prevention Society, operates a mobile supervised drug consumption site in Lethbridge. The applicant, Moms Stop the Harm Society, advocates on behalf of those who live with opioid use disorder. The Lethbridge Overdose Prevention Society’s services are subject to regulation under the Alberta Mental Health Services Protection Regulation which authorizes the issuance of the Recovery oriented Overdose Prevention Services Guide.
On August 13, 2021, the applicants filed a Statement of Claim against the respondent, Her Majesty the Queen in Right of Alberta, wherein, the applicants seek an order declaring portions of the regulation pertaining to the consumption of illicit drugs at Supervised Consumption Sites to be constitutionally invalid and inoperable and of no force and effect as a result of alleged breaches of the Canadian Charter of Rights and Freedoms. On August 26, 2021, the applicants filed an application for an interlocutory injunction seeking an order suspending one component of the program — that is, the requirement in the Services Guide that the supervised consumption sites request the Personal Health Numbers from those using the site, and maintain a record of the Personal Health Number, and any information a client may provide regarding the client’s critical incident contacts and substitute decision-makers, in accordance with applicable privacy legislation and best practices.

A judge of the Court of Queen’s Bench of Alberta concluded that the Lethbridge Overdose Prevention Society had not met the burden of demonstrating that the suspension of the challenged regulation would provide a public benefit greater than the public interest provided for in the challenged regulation. The application for an interlocutory injunction was dismissed. The Court of Appeal dismissed the applicants’ appeal.