I fail to see any substantive difference actually between what IPIC is proposing and what the government has already done. What they're proposing is to deem a contravention of section 4 to be evidence of irreparable harm.
The court still has to look at the other two parts of the test. And most importantly, the court has to look at whether there is a serious issue here to be tried. And in looking at the serious issue, the court is going to be looking at the merits of the case, and in particular whether there is a prima facie case that there has been a breach of our section 3 or our section 4 of the act.
So the court is going to be looking at that evidence in any event. So there is really, in my view, no substantive difference between what IPIC has proposed and what the government has proposed.
In moving forward, VANOC is going to have to demonstrate that there is adequate evidence to support their cause of action under section 3 or section 4, and the court is going to have to be satisfied that there is a serious issue to be tried with respect to the contravention of section 3 or section 4 before moving forward.
I think it's also important to mention that there is a balance of convenience test and that it's not just a waiving of the irreparable harm. We're going to look at serious issue, and we're also going to look at the balance of convenience. Where does the convenience lie? Is it more convenient to give the injunction to VANOC, or is it more convenient to let the party who is alleged to have infringed to continue its activity pending trial?
Another point that's worth mentioning is that under the various rules of court, the party moving for an injunction—and in this case it would be VANOC—is in most cases required to provide an undertaking with respect to damages. So, assuming that VANOC gets an injunction and the court later finds at trial that it was an improper injunction, VANOC would be liable to pay damages to that party that they alleged had contravened this bill.
Lastly, this is not an unprecedented amendment. We have examples of this in the United States; in Australia's Sydney Games, the act of 2000; and even in our own 1976 act for the Montreal Games.