Executive Summary: Key Legal and Evidentiary Issues

• At issue was whether the Motion Judge erred in dismissing the appellant's motion for an interlocutory injunction to stop her union from applying two policies she alleges are age-discriminatory under sections 9 and 10 of the Canadian Human Rights Act.
• Central to the appeal was the appellant's argument that her request should be treated as a statutory injunction — where irreparable harm need not be proven — rather than a common law injunction.
• Enforceability of a prior Canadian Human Rights Tribunal decision (2025 CHRT 11) under section 57 of the Act was disputed, given that the decision addressed liability only and expressly bifurcated remedy.
• Whether the appellant established irreparable harm proved decisive, since the Motion Judge found the alleged harms either compensable by money, speculative, or unsupported by evidence.
• Her delay in challenging the policies bore on whether the alleged harm was serious enough to justify interlocutory relief.
• Governing the appeal was the deferential palpable-and-overriding-error standard applicable to a discretionary refusal of an injunction.

Facts of the case

Gale Kinsey is an employee of the British Columbia Maritime Employers Association and a member of the International Longshore & Warehouse Union, Local 500. When she turned 71 in 2020, she automatically began receiving pension benefits. This triggered the application of two union policies — the Pensioner Dispatch Rule and the Pensioner Equalization Rule — with the effect that her accrued seniority was no longer recognized for the purposes of work assignments. She filed a complaint with the Canadian Human Rights Commission on April 24, 2025, alleging that these policies amount to age-based discrimination contrary to sections 9 and 10 of the Canadian Human Rights Act, and she is separately seeking declaratory relief in the Federal Court that the two policies contravene those provisions. Pending final determination, she brought a motion for an interlocutory injunction to prohibit the union from continuing to apply the policies. The Federal Court (per Manson J., the Motion Judge) dismissed that motion on August 8, 2025, and this is her appeal from that order to the Federal Court of Appeal, heard and decided from the Bench on May 25, 2026.

Policies and statutory provisions at issue

The dispute centres on the union's Pensioner Dispatch Rule and Pensioner Equalization Rule, which the appellant says produce age-based discrimination once a member begins drawing a pension. The governing statutory provisions are sections 9 and 10 of the Act. The appellant also relied on section 57 of the Act, which allows a certified copy of a Tribunal order to be filed in the Federal Court for the purpose of enforcement; she filed a certified copy of a Canadian Human Rights Tribunal decision released on February 6, 2025 in Sidhu & Kopeck v. International Longshore and Warehouse Union, Local 500, 2025 CHRT 11 — a case to which she was not a party — in which the Tribunal found the two policies constituted age-based discrimination. That Tribunal decision was on liability only and is itself being challenged by the union on judicial review.

The court's reasoning and analysis

The Court began from the settled principle that refusing an interlocutory injunction is a discretionary decision reviewable only for palpable and overriding error. Applying that deferential standard, it saw no basis to interfere. It first rejected the appellant's main contention that the Motion Judge misconstrued the motion as a common law injunction when it was, in her view, more akin to a statutory injunction for which irreparable harm need not be shown. Her argument rested on the idea that section 57 rendered the Tribunal Decision — and thus her statutory rights — enforceable. The Court found her reliance on RHRA v. Wesley Moore, 2023 ONSC 2079, misplaced: that case involved a public authority seeking to compel compliance with legislation, whereas this matter opposes two private parties, so its principles do not carry over. The Court added that, quite apart from the fact that the Tribunal Decision concerns third parties and is under judicial review, that decision determined liability only, expressly bifurcated remedy, and did not direct the union to cease applying the policies — so there was nothing enforceable at this stage. The Court next held that the appellant's argument about the Motion Judge requiring a statutory grant of jurisdiction was of no moment, since the Motion Judge had, assuming jurisdiction, considered the actual merits of the request and made no firm pronouncement denying the Federal Court's jurisdiction to grant such relief. Finally, addressing the appellant's rule-of-law and access-to-justice concerns, the Court was satisfied the Motion Judge applied the correct legal test — the tripartite test for interlocutory mandatory injunctions, under which he assumed the more stringent "strong prima facie case" threshold was met and decided the motion on irreparable harm and balance of convenience — and committed no palpable and overriding error. It noted the Motion Judge's observation that the appellant had been aware of the policies for years, had taken no action before her April 2025 complaint, and had offered no explanation for the delay — a delay suggesting the alleged harm was not sufficiently important to justify interlocutory relief — and that the balance of convenience accordingly favoured the respondent.

Ruling and outcome

The Federal Court of Appeal dismissed the appeal in its entirety, finding no reviewable error in the Motion Judge's refusal of the interlocutory injunction. The union, as respondent, was the successful party, and the Court awarded it costs in the amount of $2,000.00, all inclusive.