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david hunt farms ltd. v. canada

A-44-94

David Hunt Farms Ltd. (Applicant) (Appellant)

v.

Minister of Agriculture (Respondent) (Respondent)

Indexed as: David Hunt Farms Ltd. v. Canada (Minister of Agriculture) (C.A.)

Court of Appeal, Stone, Robertson and McDonald JJ.A."Ottawa, February 4; Vancouver, February 8, 1994.

Animals " Appeal from denial of interlocutory injunction restraining destruction of cattle " Subsequent to imposition of ban on importation of cattle from U.K. imported beef cow found to be diseased " Severe economic repercussions if second reported case and all imported cattle not destroyed " Given long incubation period of disease, Minister, under Health of Animals Act, ordering all cows imported from U.K. between first diagnosis in 1986 and imposition of ban in 1990 destroyed " Appeal allowed " Application of tripartite test in Turbo Resources Ltd. " "Serious issue" test met by respondent's undertaking not to destroy imported cows pending disposition of application for judicial review in similar Nova Scotia case " Irreparable harm as amount recoverable restricted by statute to less than loss " Although Canadian Beef Breeders Council may supplement regulated maximum, no legal obligation to do so " Appellant entitled to more than mere possibility of recovering over and above amount prescribed by Act " No practical tort remedy against Minister if animals destroyed as Act, s. 50 prima facie limiting Minister's liability " Irreparable harm to public interest if injunction issuing assumed " Minister's willingness to permit short delay to allow similar case to be decided on merits establishing balance of convenience in favour of appellant although financial loss relatively minor.

Crown " Torts " Appeal from denial of interlocutory injunction preventing destruction of appellant's cattle pending disposition of application for judicial review " Tripartite test in Turbo Resources Ltd. applied " Minister submitting appellant not suffering irreparable harm notwithstanding regulated maximum compensation less than value of animals to be destroyed as can sue in tort " Health of Animals Act, s. 50 prima facie limiting Minister's liability " No practical tort remedy " Minister not undertaking s. 50 would not be raised as bar to action.

Judicial review " Equitable remedies " Injunctions " Minister directing destruction of all cattle imported from U.K. between 1986 (outbreak of fatal cattle disease) and 1990 (imposition of ban on cattle imports from U.K.) " Appellant seeking interlocutory injunction to prevent destruction of imported cattle pending disposition of judicial review application " Application of tripartite test in Turbo Resources Ltd. " When determining irreparable harm in context of public authority, issue not to be decided on basis of pecuniary considerations alone " Inability of public authority to carry out legislated mandate in protecting public interest sufficient " Balance of convenience paramount " Respondent's duty to protect public interest of all Canadians " Cannot ignore financial repercussions " Minister's willingness to permit another case to be decided on merits after short delay before taking irreversible action tipping balance of convenience in favour of appellant " Injunction issued subject to conditions.

This was an appeal from the Trial Judge's decision dismissing the appellant's application for an interlocutory injunction. A fatal neurological disorder, "Bovine Spongform Encephalopathy" (BSE) was first diagnosed and reported in 1986 in adult cattle in the U.K. Typically the diseased cow degenerates rapidly following a several-year incubation period, and the presence of the disease can only be verified by post-mortem examination of the brain tissue of the diseased animal. A ban on imports of cattle from the United Kingdom was imposed in 1990. In 1988 the appellant purchased and imported into Canada two Lincoln Red cattle from the U.K. In 1993 a beef cow imported into Canada from the U.K. in 1987 by an Albertan farmer was found to have the disease. After Canada reported the occurrence to an international health agency, several countries threatened to restrict Canada's access to the export market if it did not take appropriate measures to eliminate the risk of spread of this disease. Failure to promptly destroy all cattle imported from the U.K. and a second reported case of the disease would result in revocation by Canada's key trading partners of its recognition as being free of the disease, which would have severe financial repercussions. Of 11 U.K. herds from which cattle had been exported to Canada between 1982 and 1990, 8 had reported their first case of the disease within the preceding 24 months. The Minister directed that all cattle imported from the U.K. between 1986 and 1990 be destroyed. On January 10, 1994 a notice was issued under the Health of Animals Act requiring the appellant to deliver his cattle for destruction as they were suspected of either being contaminated or having been in contact with other diseased animals. The appellant maintained that there was no evidence that its cattle were diseased; that the cattle did not originate from any of the infected United Kingdom herds; and that the cattle's vendor confirmed that no animal in his herd had contracted the disease or been exposed to contaminated feed. The appellant also argued that the belief that the disease is contagious was unsupported. Finally, it alleged that the true reason for the Minister's decision to destroy cattle imported prior to 1990 was the threat of trade embargoes. If the Minister's concern was the spread of the disease, he had within his possession sufficient information as of 1990 to make the decision ultimately made in 1993.

Held, the appeal should be allowed.

The tripartite test in Turbo Resources Ltd. v. Petro Canada Inc. was applied. The Minister's undertaking in a similar case in Nova Scotia not to destroy the cattle until disposition of the application for judicial review was persuasive evidence that there was a serious issue to be tried.

The appellant will suffer irreparable harm if the injunction is refused. Under the Maximum Amounts for Destroyed Animals Regulations the Minister is required to pay a maximum of $2,000 per destroyed animal. Each of the animals in question is worth substantially more than this amount. Where the amount of the recoverable loss is restricted by statute, and that amount is significantly less than the actual loss to be incurred if the injunction does not issue, irreparable harm is established. It is the adequacy of compensation which is available under the Regulations which is in issue. Adequate compensation is to be measured in accordance with common law principles. Although the Canadian Beef Breeders Council has announced that it will supplement the regulated maximum to "approach the fair market value" of the cattle, no mechanism for providing additional compensation is yet in place. Moreover, the Council does not owe any legal obligation to the appellant by which the appellant could enforce payment of full compensation. The appellant was entitled to more than a mere possibility of recovering over and above the prescribed minimum compensation. Finally, the proposed scheme did not embrace an understanding that compensation would approximate that recoverable at common law.

Section 50 of the Act prima facie limited the Minister's liability. The appellant did not have a practical and viable tort remedy in the event that the animals were wrongfully slaughtered. The respondent would not concede that section 50 would not present a bar to such an action or that the issue would not be raised.

It was assumed for the purposes of this appeal that the public interest would be harmed if the interlocutory injunction issued. When determining irreparable harm in the context of a public authority, the issue is not to be decided on the basis of pecuniary considerations alone. The inability of a public authority to carry out its legislated mandate in protecting the public interest is sufficient.

The balance of convenience test is of paramount importance. It enables a court to consider diverse factors which cannot be quantified in monetary terms and which ensures flexibility in the application of equitable principles in diverse factual situations. The respondent had a duty to protect the public interest of all Canadians, not just those directly affected by notices issued under the Act. The substantial financial repercussions which could follow a second reported case could not be ignored. But the Minister's willingness to let another case, predicated on the same reasoning (that the public interest was best served by destroying all cows imported from the U.K. between 1986 and 1990 on the suspicion that they carried BSE), be decided on the merits, after a short delay, before taking the irreversible action contemplated in this case, tipped the balance of convenience in the appellant's favour. The evidence did not support the assertion that cattle from one part of the U.K. were more at risk than those from another. If the Minister's undertaking in the Nova Scotia case was based on this criterion, it conflicted with his decision not to treat the disease on a regional or individual basis in Canada because that solution would not address the demands of our international trade markets.

statutes and regulations judicially considered

Health of Animals Act, S.C. 1990, c. 21, ss. 48(1), 50(a).

Maximum Amounts for Destroyed Animals Regulations, SOR/91-222, s. 3(a) (as am. by SOR/93-491, s. 1).

cases judicially considered

applied:

Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451; (1989), 22 C.I.P.R. 172; 24 C.P.R. (3d) 1; 91 N.R. 341 (C.A.); Attorney General of Canada v. Fishing Vessel Owners' Association of B.C., [1985] 1 F.C. 791; (1985), 61 N.R. 128 (C.A.); revg. Fishing Vessel Owners' Assn. of B.C. v. Canada (Attorney General), T-1356-84, Collier J., order dated 13/7/84, F.C.T.D., not reported; Eng Mee Yong v. Letchumanan s/o Valayutham, [1980] A.C. 331 (P.C.).

considered:

Macdonald v. Canada (Minister of Agriculture), T-3017-93, 7/3/94.

referred to:

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.); Nintendo of America Inc. v. Canamerica Corp. (1991), 36 C.P.R. (3d) 352; 127 N.R. 232 (F.C.A.).

authors cited

Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed. Toronto: Canada Law Book, 1993.

APPEAL from the denial of an interlocutory injunction to prevent the destruction of cattle pending disposition of an application for judicial review. Appeal allowed.

counsel:

Robert L. Armstrong for applicant (appellant).

John Vaissi Nagy and Neelam Jolly for respondent (respondent).

solicitors:

Meighen, Demers, Toronto, for applicant (appellant).

Deputy Attorney General of Canada for respondent (respondent).

The following are the reasons for judgment rendered in English by

Robertson J.A.: This is an expedited appeal from a decision of a Trial Judge rendered on January 27, 1994, dismissing the appellant's application for an interlocutory injunction. Given the urgency of the matter the initial application was heard by telephone conference. The Trial Judge did not offer written reasons and his oral reasons were not recorded. Consequently, we are obliged to assess, as a matter of first impression, whether the Trial Judge erred in law in applying the well-established tripartite test analyzed in Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (C.A.). Pending the disposition of this appeal the respondent agreed not to take the impugned action which the injunction seeks to prohibit. The essence of the dispute may be summarized as follows.

In 1986, a fatal neurological disorder was diagnosed and reported in adult cattle in the United Kingdom. The disease, "Bovine Spongform Encephalopathy" (BSE) is more commonly known as "Mad Cow Disease". It is contracted through contaminated feed and has two distinct attributes. First, the affected animal degenerates rapidly after the first symptoms appear, typically following a several-year incubation period. Second, its presence can only be verified by post-mortem examination of the brain tissue of the deceased animal.

Since BSE was first reported, it has attained epidemic proportions: over 112,000 cases have been tallied in the United Kingdom alone, where approximately one-half of all dairy herds and one-tenth of all beef herds have been affected. In response to these realities, Agriculture Canada discontinued issuing import permits for cattle from the United Kingdom in 1990. It currently requires incidences of the disease to be reported and has instituted an "active surveillance network" to ensure that suspected cases are submitted to a laboratory for confirmation.

In 1988, two years prior to Agriculture Canada's ban on cattle imports, the appellant purchased and imported into Canada two Lincoln Red cattle from the United Kingdom. In November of 1993, a beef cow imported into Canada from the United Kingdom in 1987 by an Albertan farmer was slaughtered after exhibiting neurological symptoms of the kind associated with BSE. In December of 1993, laboratory testing confirmed the preliminary diagnosis of the presence of the disease. Agriculture Canada has subsequently learned that of the eleven United Kingdom herds from which cattle had been exported to Canada between 1982 and 1990, eight had reported their first case of BSE within the preceding twenty-four months.

In fulfilment of Canada's international obligations, Agriculture Canada notified the Office international des Épizooties, an international health agency, of the Alberta occurrence of BSE in December, 1993. That organization had established guidelines for the treatment, diagnosis, and reporting of the disease on a global basis. Agriculture Canada also alerted foreign governmental authorities of the incidence of BSE in Alberta. This information engendered an immediate and negative reaction. Several countries threatened to restrict Canada's access to the export market if it did not take appropriate measures to eliminate the risk of BSE spreading. It is maintained that the Canadian farm economy, both domestic and export, will sustain substantial damage unless all cattle imported from the United Kingdom since 1986 are promptly destroyed. Apparently a failure to take such action, compounded with a second reported incidence of BSE, will result in a revocation by Canada's key trading partners of its recognition as being free of this disease. Under these circumstances, the respondent Minister directed that all cattle imported from the United Kingdom between 1986 and 1990 be destroyed.

On January 10, 1994, a notice was issued under subsection 48(1) of the Health of Animals Act, S.C. 1990, c. 21 (the "Act"), compelling the appellant to deliver the cattle in question for destruction on January 31, 1994. The notice states that the cattle are suspected of either being contaminated by the disease or being in contact with other diseased animals. On January 26, 1994, the appellant initiated an application for judicial review and an interlocutory injunction. The appellant's attack on the validity of the notice hinges on three arguments.

First, the appellant maintains that there is no evidence that its cattle are diseased. It alleges that the cattle did not originate from any of the eleven infected United Kingdom herds and that the cattle's vendor has confirmed that no animal in his herd had contracted the disease or been exposed to contaminated feed. Second, the appellant argues that the belief that the disease is contagious is unsupported. Third, it alleges that the true reason underlying the Minister's decision to destroy cattle imported prior to 1990 was the threat of trade embargoes after the Albertan case was reported. The appellant maintains that if the Minister were truly concerned with the spread of disease, he had within his possession sufficient information as of 1990 to make the decision ultimately made in 1993.

Against this background we now turn to the application of the tripartite test in determining whether the Trial Judge erred in refusing to exercise his discretion to grant interlocutory relief.

It is common ground that the first prong of the tripartite test has been satisfied. We are told by both parties that the Trial Judge agreed at the hearing below that the appellant had raised a serious question, at least in part, on the basis of an undertaking made in a similar case which will be heard on March 7, 1994, in Nova Scotia before a Trial Judge of this Court (Macdonald v. Canada (Minister of Agriculture), Court File T-3017-93). In that proceeding, the respondent Minister gave an undertaking that the cattle of the applicant therein would not be destroyed until disposition of the application for judicial review. In return, a consent order expediting the judicial review application was placed before the Court and granted by a Judge of the Trial Division.

Apparently, the Trial Judge below found the respondent's undertaking in the Nova Scotia case persuasive evidence that the "serious issue" test had been satisfied in the case before him. The respondent takes no issue with this finding, although as discussed below he does challenge the relevance of the undertaking when weighing the balance of convenience.

The second prong of the tripartite test is concerned with the issue of irreparable harm. It must be remembered however, that while an applicant may be exposed to irreparable harm if injunctive relief is withheld, so too may a respondent should an injunction be granted. Obviously, the issue of irreparable harm must be addressed from the perspective of both parties. I shall deal first with irreparable harm to the appellant.

In the present case, Regulations adopted under the Act require the Minister to pay a maximum compensation of $2,000 per destroyed animal [(Maximum Amounts for Destroyed Animals Regulations, SOR/91-222, paragraph 3(a)) [as am. by SOR/93-491, s. 1]]. It is common ground that each of the animals in question is worth substantially more than this amount. The respondent's evidence estimates the value of each animal at $5,000. The appellant believes the value of each to be $7,500.

Subject to the submissions discussed below, I think it self-evident that the appellant will suffer irreparable harm if the injunction is refused. It is not the adequacy of the "damages" remedy which is in issue. Rather, it is the adequacy of the "compensation" which is available under the Regulations. Where, as in the present case, the amount of the recoverable loss is restricted by statute, and that amount is significantly less than the actual loss to be incurred if the injunction does not issue, irreparable harm is established. I take it to be accepted law that adequate compensation is to be measured in accordance with common law principles: See American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), at page 408.

In anticipation of this finding, the respondent sought to persuade us that in fact and law the appellant will be able to recover compensation exceeding the statutory maximum as fixed by the Regulations. He informs us by way of a press release that the Canadian Beef Breeders Council, an agency which represents the interests of beef producers, intends somehow to supplement the regulated maximum to "approach the fair market value" of the cattle. There are obvious objections to this submission. No mechanism for providing additional compensation is yet in place. Moreover, there is no legal obligation which could be owed by the foregoing agency to the appellant and by which the appellant could enforce payment of full compensation. The appellant is entitled to more than a mere possibility of recovering over and above the prescribed minimum compensation. Finally, the proposed scheme does not embrace the understanding that compensation is intended to approximate those recoverable at common law.

The respondent's alternate submission on this issue is to the effect that if the appellant is not satisfied with the total amount of the compensation, it is free to sue the Minister in tort. This submission invokes section 50 of the Act, which prima facie limits the Minister's liability. That section provides:

50. Where a person must, by or under this Act or the regulations, do anything, including provide and maintain any area, office, laboratory or other facility under section 31, or permit an inspector or officer to do anything, Her Majesty is not liable

(a) for any costs, loss or damage resulting from the compliance; or

(b) to pay any fee, rent or other charge for what is done, provided, maintained or permitted.

Ironically, it is the respondent who argues that section 50 may be interpreted as limiting the liability of the Crown where the Minister acts pursuant to subsection 48(1) of the Act. While counsel's interpretation was interesting, I am not persuaded that the appellant has a practical and viable tort remedy in the event it is determined that the animals were wrongfully slaughtered. It is one matter for a party to be able to litigate the actual loss suffered and quite another to prevail in a contested argument that a statute does not immunize the other party (the Minister) from liability. In reaching this conclusion, I could not ignore the fact that the respondent was not able to concede that section 50 would not present a bar to such an action or indeed that the issue would not be raised. I am satisfied that the appellant will be exposed to irreparable harm if the injunction does not issue. This determination leaves us to consider the irreparable harm from the respondent's perspective.

It would be wrong in law to assume that the respondent cannot sustain irreparable harm. It is equally wrong to assume that a clear finding of irreparable harm to a defendant, such as the respondent Minister, is a condition precedent to deciding whether on a balance of convenience an injunction should issue. Both legal propositions are reflected in the jurisprudence of this Court to which I now turn.

The first proposition was firmly established by this Court in Attorney General of Canada v. Fishing Vessel Owners' Association of B.C., [1985] 1 F.C. 791 (C.A.). In that case, an interlocutory injunction had been granted to prevent the implementation of a government plan to extend the salmon fishing season for vessels using gill nets. Fishing vessels equipped with purse seine nets would have a shorter fishing season. The "seiners" sought an injunction arguing that the decision was discriminatory in that it was premised not on conservation objectives but rather on socio-economic considerations which promoted the interests of "gill netters" at the expense of "seiners".

The Trial Judge granted the injunction [T-1356-84, Collier J., order dated 13/7/84, F.C.T.D., not reported]. On appeal, this Court held that the Trial Judge erred in his assumption that the Attorney General would not suffer irreparable harm if an injunction were issued. Writing for this Court, Pratte J.A. concluded, in part, at page 795:

[T]he Judge assumed that the grant of the injunction would not cause any damage to the [Attorney General]. This was wrong. When a public authority is prevented from exercising its statutory powers, it can be said, in a case like the present one, that the public interest, of which that authority is the guardian, suffers irreparable harm.

It is apparent from the above facts that had the injunction issued, two groups would have been exposed to irreparable harm: "gill netters" who would have been deprived of the opportunity to fish during the extended season and the public interest to the extent that the government plan furthered conservation objectives could not be implemented. I should point out that when determining irreparable harm in the context of a public authority, the issue is not to be decided on the basis of pecuniary considerations alone. The inability of a public authority to carry out its legislated mandate in protecting the public interest is sufficient. The question we must address is whether the public interest will suffer irreparable harm if the appellant is granted injunctive relief. The question is a difficult one.

I am in agreement with Professor Sharpe when he writes that "[i]t is exceptionally difficult to define irreparable harm precisely." (R. J. Sharpe, Injunctions and Specific Performance (2nd ed.) (Toronto: Canada Law Book, 1993) at page 2-24, paragraph 2.440). To this observation I would add that it is not always self-evident whether the public interest will suffer irreparable harm if injunctive relief is either granted or denied. I am prepared to assume for purposes of the appeal that the public interest will be harmed if the interlocutory injunction issues. In any event, such a finding is not a condition precedent to the application of the third prong of the tripartite test.

The significance of the balance of convenience component of that test was clearly enunciated in Eng Mee Yong v. Letchumanan s/o Valayutham, [1980] A.C. 331 (P.C.), per Lord Diplock, at page 337:

The guiding principle in granting an interlocutory injunction is the balance of convenience; there is no requirement that before an interlocutory injunction is granted the plaintiff should satisfy the court that there is a "probability," a "prima facie case" or a "strong prima facie case" that if the action goes to trial he will succeed; but before any question of balance of convenience can arise the party seeking the injunction must satisfy the court that his claim is neither frivolous nor vexatious; in other words that the evidence before the court discloses that there is a serious question to be tried: American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396.

In Turbo Resources, supra, Stone J.A. emphasized the paramountcy of the balance of convenience test while cautioning decision-makers against a purely mechanical application of legal criteria. At pages 474-475 he observed:

I should say here that I favour the view that these factors do not constitute a series of mechanical steps that are to be followed in some sort of drilled progression. Professor Robert J. Sharpe cautions against such rigidity of approach in Injunctions and Specific Performance (Toronto, 1983), when he notes that each of the factors should be "seen as guides which take colour and definition in the circumstances of each case." He further observes that they are not to be seen "as separate, water-tight categories," and also that they "relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness in another". In other words, considerable flexibility is called for, bearing in mind that the balance of convenience is of paramount importance. [Emphasis added.]

I do not think that it can be doubted that the questions of irreparable harm and balance of convenience are inextricably linked. But it is the balance of convenience which enables a court to take into account diverse factors which cannot be quantified in monetary terms: see Sharpe, supra, at page 2-30, paragraph 2.530. It is the balance of convenience component of the test which ensures flexibility in the application of equitable principles in diverse factual situations. For example, the likelihood of irreparable harm is but one of the factors that might be weighed when deciding whether to grant an interlocutory injunction: see Nintendo of America Inc. v. Canamerica Corp. (1991), 36 C.P.R. (3d) 352 (F.C.A.).

In this case, the respondent has a duty to protect the public interest of all Canadians, not simply those directly affected by notices issued under the Act. Nor can one ignore the substantial financial repercussions which could well follow a second reported case of the disease. We have been told that Canada's beef export business is valued at $1.6 billion. Given the relatively minor financial loss the appellant would suffer coupled with the Minister's efforts toward ensuring adequate compensation, it is arguable that the balance of convenience favours the respondent.

The appellant, however, seeks to inject into the balancing formula an additional factor, namely the Minister's undertaking in the Nova Scotia case not to destroy the cattle until the conclusion of that judicial review hearing scheduled for March 7, 1994. It argues that it is entitled to "equal treatment", to which the respondent counters that the appellant's characterization of the two cases as "equal" is mistaken. The respondent's principal objection to this Court considering the Minister's undertaking stems from the supposedly discrete factual circumstances of each case. He argues that it is both inappropriate and wrong in law to tip the balance of convenience in favour of the appellant on the basis of an undertaking rendered within a different factual context.

In my opinion the argument is flawed. The action taken by the respondent in both the case before us and in Nova Scotia was predicated on the same reasoning: that the public interest was best served by destroying all cows imported from the United Kingdom between 1986 and 1990 on the suspicion that they carry BSE. The reason why the respondent seeks to have the appellant's cows destroyed is the self-same reason that it seeks to have the cattle in the Nova Scotia case destroyed.

The respondent argued that the appellant's cattle were more at risk than those owned by the Nova Scotia farmer because of the precise origin and breed of the respective cattle. That argument must fail for two reasons. First, the evidence does not support the assertion that cattle from one part of the United Kingdom are more at risk of disease than those from another. Second, if the Minister's undertaking in the Nova Scotia decision was based on this criterion, it conflicts with his decision not to treat the disease on a regional or individual basis in Canada because that solution "would not address the demands of our international trade markets."

I cannot accept the respondent's argument that the balance of convenience should be tipped in his favour. The Minister's willingness to permit another case to be decided on the merits, after a short delay, before taking the irreversible action contemplated in the case before us today is decisive of that issue. I therefore conclude that an injunction should issue on the terms appearing below.

During the period of the injunction, which should extend until the judicial review application is finally disposed of by the Trial Division, the appellant should not sell or otherwise dispose of either of the said cows or otherwise permit either of them to be taken or sent away from the appellant's farm property where they are presently located. The appellant should also be required to keep the said cows in strict quarantine separate or apart from the remainder of its herd. If either of the said cows should manifest any of the symptoms of BSE, the appellant should be required to notify immediately the respondent of the symptoms so observed.

At the hearing of this appeal counsel for the appellant stated that his client would move expeditiously to perfect the judicial review application and to bring it on for hearing in the Trial Division not later than March 7, 1994 when the Nova Scotia case is set to be heard. Accordingly, the respondent should be at liberty to apply to this Court for the dissolution of the injunction upon the ground that the appellant had failed to act bone fide in perfecting the judicial review application or for failure to so act in seeking to have the application heard by the Trial Division on an urgent basis that is to say as early as possible, preferably not later than March 7, 1994.

For the foregoing reasons, I would allow the appeal, set aside the order of the Trial Judge dated January 27, 1994 dismissing the application for an interlocutory injunction and grant the order on the terms outlined above. The appellant is entitled to its costs both here and below.

Stone J.A.: I agree.

McDonald J.A.: I agree.