Show Notes:

Link to Ministry of Attorney General guide for enforcement proceedings in small claims court:
https://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/After_Judgement_Guide_to_Getting_Results_EN.html

Lecture Slides:

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel.

You have fought a case in civil court in Ontario, won a judgment against the other party that requires the other party to pay you certain amount of money... you asked the other party to give you that money and they refused to pay. What do you do next? How do you go about collecting your money? This procedure of collecting your debt, collecting your money is called the enforcement of judgments, and today we’ll talk about the process of enforcing a judgment in Ontario and we’ll give you an overview of this complicated time consuming and costly process.

We begin with our disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer paralegal or the Law Society of Upper Canada for any referrals.

We’ll discuss today the applicable legislation or at least some of the applicable legislation or rules that govern the mechanism of enforcement of judgments or orders. We’ll talk about some of the types of enforcement proceedings that you can undertake. We’ll talk about examination in aid of execution– what is that examination and how do you go about conducting that examination? We’ll talk about, briefly, the enforcement process in small claims court, we’ll talk about some of the potential changes that may come in force with respect to the enforcement mechanism in Ontario.

Applicable Legislations

Number one, you want to keep in mind is called Execution Act. This act provides for the appointments of sheriffs and how do they go about doing their job, what is the limit or extent of their authority... execution act talks about that. Rules of civil procedure, we have talked about it a number of times, these rules are essential with respect to any civil matters in Ontario. So, what do the rules say about the enforcement of judgment or orders. We’ll discuss that briefly. Rules of small claims court, if your matter is in small claims court. Bankruptcy Insolvency Act, that may apply in certain circumstances, so, that may be relevant legislation. Wages act may also apply especially if you’re if you’re trying to garnish someone’s wages. Personal property and Security Act is another legislation that may be applicable and there may be other legislation that are not covered in today’s discussion.

So, types of enforcement... how do you go about enforcing the judgment there are a few ways to do that the most common is garnishment. You garnish the money from a third party. Writ of seizure and sale of personal property, writ of seizure and sale of land, writ of sequestration and receivership... these are some of the ways in which you can enforce your judgement or order we’ll briefly talk about each one of these now.

So garnishment, what is garnishment? Garnishment is that you claim money that is owed to your debtor by someone else, so, let’s say you’ve got a judgment against John and someone else owes money to John. Then you actually go after that third party and basically get a court order asking the third party to give you the money that they owe to John. Not to give it to John, but give it to you. So that’s called a garnishment. What are some of the common examples of garnishment? You can garnish someones wages, so, essentially, you find out where that person work, you get a garnishment order, you you serve it on the employer, and the employer is obligated under law to give you the money... and give you the money, meaning that they will they will provide the money in court, and then you get the money from the court... but essentially, rather than employer paying that amount of money to that debtor, their employee, they paid into court and then you can get your money from that. So, it’s one of the common ways of garnishing, it’s called garnishing wages. If the person is not an employee, as a contractor, that person may still be owed money by the company that they’re working for and so you can garnish those fees for services from that company. Another debtor could be, you know, a company has accounts receivable. So, they don’t have any cash at hand but they have provided services or products to third parties and are expecting to get money... and so that accounts receivable, you get that information and then you contact those parties and require them to pay you the money as opposed to giving the money to the debtor. The money can also be garnished from a bank account, so, if you know that the person, the debtor, has a bank account and there is sufficient money, that you can have that money garnished... then you can get a garnishment order and require the bank to pay you that money. So, those are some of the common examples off garnishing the money... if you know that someone else has to pay the money to the debtor and you can go after that third party.

There are limits in garnishment you want to keep in mind and with respect to that, wages act is the one that I mentioned you may want to look at that. There are some moneys that you cannot garnish, for example someone’s pension, you cannot garnish it... if the person is receiving social assistance you cannot garnish it, if the person is receiving employment insurance benefits then you cannot garnish those and there may be others, so there are limits on garnishment and you can look at the wages act to figure out what respect to the wages what monies can be garnished and what cannot be.

Writ of seizure and sale of personal property, essentially, what it means is that the debtor, your debtor, has certain personal property. You take over that personal property…. the possession of that property... as long as it’s not money or land. So, you take that over, and then that property is sold in a public auction and the monies are recovered and paid back to you. You cannot do it yourself... essentially, it’s done through local enforcement office of that county, which is the sheriff of that county. You contact them, there’s a whole process that you have to follow with respect to requiring the sheriff to go and get the possession of that property and then sell it in the public auction and then give you the money that that they recover. Keep in mind, a few things with respect to this, each sheriff’s office has their specific processes and so you want to be clear about those processes... you need to fill out the forms, give the costs, or certain fees to the sheriff’s office to proceed with the execution off the writ of seizure and sale. With respect to personal property, the requirement of sheriff’s office may be very specific. They may require you to provide the specifics of the property that you want them to take possession of. So, if there are computers at the debtor’s property, then they may ask you the, you know, the more detailed description of those computers. So, those computer can be identified correctly. If there is a sofa that you may want the the sheriff to possess... they may ask you the colour and the size of the sofa and whatnot. So, the identification of the specific item is is necessary for the sheriff’s office, so, you will be required to provide that information. It is not up to Sheriff to go inside that property, that person’s property, and pick up whatever item is there... that’s not how the writ of seizure and sale of personal property takes place. You also want to keep in mind that the items that you may have thought that this person, the debtor has, who owns those items? So, for instance, if the person has, the debtor has at his or her office certain computers or printers... does that debtor own those printers or computers or are they on lease... because if they are leased items then the sheriff will not be able to take those items and sell them because they’re not even owned by the debtor. So it is important for you to have a very clear knowledge of what items you can take from the debtor and then direct the sheriff to take those items, sell them in a public auction, and then give you your money, your debt.

The second item is writ of seizure and sale of land... which is similar to the writ of seizure and sale of personal property, except that this is for the land. Again, in this case, you filed a writ with the respective county in which the person may have land or may intend to buy land. So, you can even file a writ in a county where you believe that the person will buy a property in the future because what happens is, once you file that writ, it in encumbers that person’s property... So, what that means is even if the person buys a property in that county in the future, the person will not be able, the debtor will not be able to sell the property until your writ is clear... until your payment is made. So, just because the person does not have a property, does not mean that you can’t file the writ, you can still file the writ but then you have to figure out if the person is going to to buy a property in that specific county, because it goes county by county. You can’t fall a writ in the entire Ontario in one go. So, you file the writ, and that puts sort of a lien on that property and when the person sells that property and you get to your share... provided that there is sufficient money coming out of the equity in that land. The other thing that it is that you can also force the sale of that land and in with respect to the land, there is a certain time period for which the sheriff has to wait, so for the sheriff to take possession of the property... usually, it’s about four months after you have filed the writ that sheriff can take over the possession of the property and then I believe it’s about six months after the filing of the writ then the sheriff can actually sell the property to recover the moneys.

Now, you want to be very clear whether the debtor has sufficient equity in the land because if there’s no equity then you’re not going to get your debt regardless of the sale of the land. So, if it’s a million dollar property but it has a mortgage of, you know, $980,000 that $980,000 is the bank’s money. Or the mortgagees money and only $20,000 may be the equity for the debtor and so, if your debt is you know $200,000, you’re not going to get your money out of it just because the value of the property is a million dollars. So it is important for you to understand whether or not, whether the debtor has sufficient equity to discharge your debt. You have to consider secured creditors. And a secure creditor, an example of secure creditor, is the bank in this case, because a secured predator is the one that has some collateral over the loan or the debt that they have given to this person. So, in a common example is your house, when you mortgage your house, if you don’t pay your mortgage payment, the bank or the mortgagee can take the possession of the house and sell it to realize their debt... so, that’s a secure creditor. Another example could be when you buy or finance a car and if you don’t pick, make your payment car payments, the financing company can take over the car and realize their debt. So, where there are collaterals for the debt those are called secured creditors. So, if you are taking possession of the property or the land and they are secured creditors, they get their money first. If you are an unsecured creditor, you are further down the line, you’re at the end and if if the secured creditors are paid and there’s no money left for the unsecured creditors, you don’t get any money. You also want to consider that there may be other creditors, unsecured creditors, that this debtor owes money to and if their debt is registered, if there writ is registered, then, regardless of who forces the sale of the property everyone gets their money pro-rated. So, if there is sufficient money to discharge everyone’s debt, then that’s fine but if there is insufficient money then the sheriff will pro-rate the money and distribute the funds accordingly.

Writ of Sequestration is, again, enforced by the sheriff. It happens usually where the Sheriff takes the possession of the property and holds the property, usually where there is some rental income expected... that could be an example of a property. Writ of Sequestration is usually done when the matter is still being disputed, being resolved by the court, in the meantime, the sheriff has taken the possession, so, that the property’s in control and eventually when the matter is decided, those monies are distributed accordingly.

Appointment of a receiver. There are two kinds of receivers that could be appointed in Ontario, private and court appointed or focused in court appointed receiver. You hear this term in the newspapers a lot and you hear this with respect to companies that going into receivership... and essentially a receiver is a regulated person or a body and the purpose of the receiver is that they maximize debtor’s assets in a way to help the secured creditors. So, you take control or possession, the receiver takes control and possession of the debtors assets and then it deals with them in such a way that the secured creditors could get most of their, if not all of their loans or debts back. So, essentially it’s for the interest of secured creditors... but once the secured creditors are paid and if there is money left, then unsecured creditors are paid as well.

So, a question will come to your mind that you got through this court process and obtained a judgment, but you don’t know whether that debtor has any assets and how do you go about figuring that out? The rules allow you to examine that person and figure out what kind of assets that person may have, so, that you can go and get your judgment enforced... and that examination is called examination in aid of execution. Execution is essentially all of those enforcement processes that were talked about, they are all execution processes. So, this is an examination to help you execute your order or your judgment... and rules of civil procedure rule 60.18 to 60.20 deals with the examination and ease of execution... and rule 60 in general is the rule that talks about the entire enforcement mechanism in the Rules of Civil Procedure. So, the purpose of the examination is that you determine the debtor’s assets, so, essentially what you can require in that examination is the debtor to come and bring all the bank statements, banking information, their income statements, their tax returns, their property statements, any debts that they’re owed, anything and everything to do with their financing... you can require them to bring that information, you can review that information, and figure out where this person may have assets or money that you can go after and then materialize your collection of debt. Just, sort of a word of caution, in the examination is that obviously you have this right and if the debtor is unwilling to pay you the money, the debtor may not attend the examination, even if you have served notice on that person to come and attend the examination. So there is also a process for that. Generally, you have to serve notice a few times and if the person does not show up, you can seek a contempt order from the court... for the person failing to come to the examination and that contempt order can allow the court to then give an order, issue a warrant of arrest for that person, and the person can be arrested and forced to attend the examination. So, the examination process can be pretty helpful, especially if the person has any assets that you can find out and then and then go after.

Small claims court enforcement is not much different then the superior court process... there’s an excellent guide post by the Ministry of Attorney General, I’ve provided a link here and this link is also below in the description of this lecture. By all means review that, it’s a pretty detailed and simplified explanation of how you proceed with enforcement in small claims court. As I said, the enforcement process, the mechanism is complex... it’s complicated, it’s hard to follow, it’s costly, so, there are some potential changes the Ontario province may bring in third parties or nonprofit parties which will be regulated entities who may be given the task to enforce the judgments or orders on creditors behalf... that may happen, it already happens in British Columbia and Alberta and a recent approach that has taken place in 2016 is court supervised land sales which is already permitted in the rules but it was not utilized as much... and this is a process in which rather than using the sheriff use the court to supervise the sale of land, it is generally considered to be a bit more efficient process and less costly and that could be another way of enforcing your judgment.

So, in conclusion, what you want to keep in mind is, first of all, the caution that you don’t want to spend good money to chase the bad money and that’s the idea that even before you go after suing someone in court, you want to have some understanding of even if you’re successful would you be able to get your money back from the debtor? Does the debtor have sufficient assets or solvency, so, that you can actually go and enforce your judgment because it may not be worthwhile for you to expend the time and effort and money to just get a simple paper judgment, which you cannot go enforce and so, spending good money for bad, is never a good idea and so you should consider that even before you commence a court action. Also, keep in mind that the enforcement of judgments is a complicated process and it’s expensive and time consuming, and you can spend this time and effort and money and you still may not be able to get your judgment. So, you’ve got to be careful about the enforcement process understand it better and then, if needed, you should seek legal expertise to get your judgments enforced.

I hope this gives you a good understanding of a broader understanding of how the judgments are enforced in Ontario, love to hear from you with respect to any feedback that you may have about the process, how fair the process is, is it a fair process for people who have been harmed, have obtained a judgment and are still not able to get those judgment enforced... if you have any questions or comments, please contact us, we always love to hear from you and thank you for watching.

Show Notes:

N/A

Lecture Slides:

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel.

In yesterdays lecture, we had talked about an injunction... we had provided you with an overview of what an injunction is, what are some of the types of injunctions, and what is the concept of getting an injunctive relief in a civil proceeding in Ontario. Today, we’ll talk about some of the procedural steps in the event that you wish to seek an injunctive relief, how do you actually go about scheduling that motion in a court and then go and argue that motion?

We begin, as always, with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or paralegal or contact the law side of Upper Canada.

We will explain the process of scheduling a motion for injunction in five steps. First step is that you must review the applicable legislation and the rules to determine what is the appropriate process for you to bring about your motion for injunction. In the second step, you must review the applicable practice directions which further modify the rules and so, you need to understand what are the specific requirements in the court that you are going to bring your motion for injunction and understand the process in that specific court. Then, you must determine what kind of relief, what kind of injunctive relief are you seeking... because depending upon the kind of relief you will be seeking, the process of scheduling and arguing the motion may vary, so, you need to understand that and then you attend or contact the court office to actually schedule your injunction motion and then finally, you prepare the materials that are necessary for you to schedule the injunction motion and argue it and then get the relief that you are seeking.

So, step number one, you must review the legislation, and the rules the first legislation that you want to review is called the course of justice act and specifically, sections 101-107... you can Google this, I have provided a link here and then you will also find the links in my lecture underneath the description in the youtube. I’ve opened the course of justice act, you can Google it, and if you scroll down... over here, interlocutory orders, which an injunction and an order for injunction, is an interlocutory order... so interlocutory orders are covered in section 101 to 107 and you must review the sections and understand that in your specific circumstances what are the rules that apply and then, so that you are clear about the about the legislation. An example of this is 101 sub 1, “in this fair court of justice, an interlocutory injunction or a mandatory order, may be granted or a receiver and a manager may be appointed by an interlocutory order where the peers do judge of the court to be just or convenient to do so”. So this section, 101 sub 1, is in fact, providing a judge the authority to issue the interlocutory order or the mandatory order that you are seeking... and then the nature of that relief that you’re seeking is really in the discretion of the judge as subsection 2 explains, “an order in subsection one may include such terms as are considered just” so it’s a very broad discretion for the judge to award you the injunctive relief that you are seeking... and if you scroll down, Section 102 deals with injunction and labour disputes and if your injunction is relating to a labor dispute that you can review this section... Section 103 is about certificate of a pending litigation. There’s another section that is about interim recovery, yes here it is... section 104 interim order for recovery of personal property and so on and so forth. So, review Courts of Justice Act, it’s important for you to review the clickable sections 101-107 being the most important ones.

Rules of civil procedure, as you may know, from previous lectures that I have given on Rules of Civil Procedure... these are the rules that provide how a specific action proceeding is handled in the courts of Ontario and so, you must review rules of civil procedure and specifically rules 37 and then rules 40-45. Rule 37 is the one that deals with all kinds of motions... an injunction motion being one of those. So, it covers all kinds of motions, so, you must review those and then 40 to 45 deal with motion with respect to an interlocutory order. So, you can also find the rules of civil procedure online and if you look at rules 40, 40.1 to 45.03 the heading is preservation of Rights and pending litigation... and injunctive relief is really an order in a pending litigation, so that specific motion or the order that you’re seeking comes under these rules... and again, if you briefly look at the rules here, 40.01,“ an interlocketery injunction or mandatory order under section 101 or 102 of the Courts of Justice Act, may be obtained on a motion to a judge by a party to a pending or intended proceeding”... it’s very important to understand that, that you can actually commence a motion, you can bring a motion, for an injunctive relief even when you have not commenced the court action. So intended proceeding, you have not commenced the proceeding yet, but you are seeking the order even before then or pending which is already ongoing. So, this this rule deals with what you need to do, how do you need to understand what is the court process in granting an injunction.

Another one that you want to keep in mind is 40.02 sub 1 an interlocutory injunction or a mandatory order may be granted on motion without notice, for a period not exceeding ten days, and if you have reviewed my lecture on injunction, you will understand that what is a concept of an interlocutory injunction and I had mentioned that you can actually bring it on with or without notice... but if you bring on on it without notice basis the time period for which it is granted is really short. So, the rule specifies that it cannot be for more than ten days so you’ve got to review these rules to make sure that you understand them and then you want to review any other legislation that may apply to your specific case, so that if there’s anything else that that legislation specifies, you’re following that with respect to the scheduling and attendance of your motion.

Step number two– review practice directions. I have a separate lecture on practice directions it will be a good idea for you to review it, if you haven’t already but practice directions are essentially further modifications or fine tuning of the rules that we just talked about, the rules of civil procedure, and those practice directions may vary from court to court. So, what you must do is, you should review practice directions province wide, so that the practice directions that apply across the province of Ontario... you understand those and once you Google this, you will get practice directions for Ontario, province wide... they’re available online... and then you must review practice directions that are regional because what may be the court’s process in Newmarket court may not be at the same process in Toronto court. So, you must review the specific Practice Direction for the reason in which you’re bringing your motion. I’ve given the link here for Toronto practice directions, but other practice directions are also available, I think in my previous lectures, I’ve shown you what these practice directions look like but this is essentially the practice direction for Toronto region. It deals with civil actions, applications, motions and procedural matters and you can review... it’s not a very lengthy document but it is important for you because if you don’t follow those practice directions then you may have a difficulty in getting your motion heard.

Step number three– determine the type of relief and in my previous lecture, as I indicated, that there are generally four kinds of injunctive relief that you are seeking interim, interlocutory, permanent and mandatory and I’m not going to discuss that here today but what’s important for you to understand is that depending upon the kind of relief that you are seeking, your process may be different. So for an interim, interim injunctive relief, on a without notice basis as I just read you the rule, it can’t be granted for more than ten days. An interlocutory is not much different than interim, except that the time period for grounding the relief may be longer... so, review the other lecture if you’re not clear, but once you determine the kind of relief that you are seeking, your process may be different. So, it’s important for you to figure that out. Then you contact or attend the court office. To schedule a date and time for the motion, how do you do that is varies from court to court. So, I’ll give an example of Toronto... in Toronto the process is, you contact the court office, ideally, you actually show up at 396 University on the tenth floor, where the staff is available, get your ticket, line up, go to the motion scheduling clerk, and then request that you need to bring an urgent motion– a motion for injunction– and then the process in Toronto, if you have read the practice directions by now, you will know that you can only get your injunction motion heard if you attend a C.P.C. session. Civil Practice Court Session and I have a supper lecture on C.P.C. if you’re not clear what that is and kindly review that. So you attend C.P.C.... so, what are the steps? You actually line up, you go to the motion scheduling clerk, and you say, “I have an urgent motion to bring and I need to see a judge today, tomorrow, you know what time?“. So, depending upon the urgency of your case, the clerk will directly accordingly. So, if you need to see a judge that very day it may be possible, there may be a judge on duty that day... if you need to see the judge, if your matter is so urgent that you need to see the judge within a few hours then the motion scheduling clerk or the manager of the court may be able to arrange that.

Otherwise, the court will direct you to attend a C.P.C. civil practice court and there’s a process for you to schedule your attendance in C.P.C. but because of the urgency of your situation, the court staff may squeeze you in on the next C.P.C. which may be happening, it happens I believe twice a week in Toronto, so you can come and attend on C.P.C. So, when you attend C.P.C., then you are basically telling, explaining to a judge why do you need an urgent motion, what is the nature of your issue... you’re not arguing anything, you’re basically explaining why do you want an urgent motion for injunction to be heard and then that judge will then provide you with a date when your motion will be heard. So, it all comes down to your urgency of this motion and this is the process in Toronto... whereas in Newmarket the process may be different, I believe I had dealt with Newmarket Court recently too, and they have every Thursday, they have a judge available who can who can hear urgent motions or injunctive injunction motions. So, you can show up basically, with your material Thursday morning and then ask for the staff to introduce you to one of the judges who will be there to deal with your matters. So, every court office has a different mechanism and I believe the Toronto has sort of the most availability in terms of dealing with these because of just the sheer volume of disputes that come, so, if you have read the rules, you know that you can commence a proceeding anywhere in Ontario. So, if your matter is really urgent and you can’t get ahold of a judge in any other jurisdiction, you may want to come to Toronto and see if you can meet with a judge and duty and then have your injunction motion heard.

And, in terms of the procedures, when you are, let’s say in Toronto court, you cannot attend before a judge for an injunction motion even on an urgent basis without actually having a court file number because that Clark has to put you in the system of the court and they have to issue your court file number... because you have not commenced your court action, you have not issued a statement of claim, if that’s your situation…. you don’t have a court file number, so, what you have to do is you have to provide an undertaking to the court staff that you will commence your proceeding whether it’s an application or an action forthwith usually within ten days... and that’s pursuant to rule 37.17 of the rules of civil procedure and only then the court staff will issue you a court file number stating in their computer that it’s an intended proceeding and charge you the fee for the motion and schedule it. So, the process may vary from court to court... so you must understand what the process is in your specific court.

Once you have the date scheduled then you go on and prepare your material. You obviously need a notice of motion if you’ve read Rule 37 and that’s essential whether you need to serve that motion or simply file with the court will depend upon whether your motion is on notice or without notice. Then, you have to decide how you are presenting your evidence to the judge when you are going to argue your motion. Is it by an affidavit, is it a viva voce, which means oral evidence? Are you bringing in witnesses to provide evidence and you need to figure that out.

You have to decide or determine whether a factum is required, if it’s a very urgent motion that needs to be dealt with the same day or something you may not need to bring in a factum for the judge but in other motions which which are on notice and may require some time for you to prepare…. a factum may be necessary. When you attend before the judge, it’s a smart idea to have your draft order ready... what you are asking the judge, what kind of order you want the judge to give... and it’s a good idea to have that ready and you can present it to the judge, if the judge believes that you have a valid argument and your request must be granted.

You must also check whether you need to confirm your motion, if your motion has been scheduled. For the days down the line. then the Practice Direction and the rules may require that you confirm the motion two or three days…. usually three days before the date that it is being heard and if you don’t confirm it, your motion is not heard. So it’s an important step and you want to make sure that in your specific case, do you need to confirm the motion or not. So, the bottom line is that no matter how strong your case for injunction is, if you are not clear about the process of how do you go about scheduling that injunction motion and present your case before a judge... you will have huge problems... and oftentimes these rules are a bit complex, they vary from court to court and so you must put in time and effort before you actually show up in the court and say that, “I want my motion to be heard”... understand the rules, understand the processes before hand.

I hope that gives you a practical understanding of the steps that you need to take in order for you to bring a motion for injunction... please provide us with your feedback or any questions you may have and will be happy to address those. Thank you for watching.

Show Notes:

Link to the Supreme Court of Canada case on granting an injunction – https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1290/index.do

Lecture Slides:

Have a question about this video?

The team at Formative LLP has created a free discussion forum where anyone can post a legal question and get feedback from the wider audience of self represented litigants.  Join the discussion today!

Machine Transcription:

Welcome everyone, this Amer Mushtaq from You Counsel.

Today, we’ll talk about civil injunction in Ontario and we’ll provide you with an overview of what injunctions are. Sometimes, you will read in the newspapers that the court has granted an injunction to a party and what do we exactly mean by that and how are the injunctions granted? So, we’ll cover that topic in today’s discussion.

We begin with our disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or a paralegal or contact the Law Society of Upper Canada for any referrals.

We’ll talk about what is an injunction, I’ll explain the concept, we’ll talk about different types of injunctions. I will explain to you what is the test for a court to actually grant an injunction and we’ll talk about some of the common injunctions that the courts have granted or lawyers use to get certain orders. So what is an injunction? It’s actually an order from a court, which is prohibiting a party from doing something or requiring the party to do something, so either restraining someone from doing something or imposing a positive duty obligation on someone to do something. So, the injunctions are either prohibited in nature or mandatory in nature, so, it’s restraining somebody to do something are requiring someone to do something. That’s what an injunction is.

So, how do we understand this? Let’s take an example. In an ideal world, when you would have a dispute, your dispute arises, at eight o’clock in the morning, you show up at the court at 9 o’clock…. you find a Judge, right at nine fifteen... you present your case to the judge, provide all the evidence, the other side provides all of their evidence the judge, the judge hears the whole case, conducts a trial and by the afternoon you have a judgement that gives the final verdict from the judge, deciding on the merits of your case, and whatever the rights or damages that are flowing from that decision.

So, that is an ideal situation, but in the real world that’s not how the judicial system operates. In the real world, when you have a dispute with another party, you have to draft and file a statement of claim, you have to share the statement claim on the other side... then, the other side, the defendant will have thirty days, forty days, sixty days or so, to file their statement of defense. Then you have to exchange evidence, both parties have to exchange more evidence, then conduct examinations for discovery, if necessary... and then they end up going to trial where the matter is adjudicated and the judge provides his or her decisions. So, this whole process, by the time you get to a trial, in Ontario it maye take two years, three years, or sometimes longer for you to get through all of those steps and get to the matter of adjudicated and get a judgment. So, it takes a long time and then there could be circumstances, in which by the time you get to a trial and you succeed, the harm that is done to you cannot be cured or cannot be compensated properly by money. So, what is the value of then doing that court action for a number of years, when even when you succeed, you’re not getting a proper remedy out of this. So, that’s where the injunction comes into play.

A live example of this could be that you live in a neighborhood... a developer buys a property close to your property and then that property has a number of old trees one hundred years old or important, significant species of trees... and the developer is planning to cut down those trees and build a condo. So, in an ordinary course of things, you have to bring a statement of claim and go through that process which may take two or three years and by the time the court may decide that the developer has no right to cut down those trees... the trees were cut three years ago. So, how do you prevent that from happening? The only way you can do that is by asking for an injunction and getting an injunction. So, essentially you go to court and you say that this developer is going to cut these old trees and these are the issues and we want you, the court, to issue an order and tell or compel the developer– do not cut the trees, until we have this matter at trial and it is adjudicated... and then, whatever the court decides. So, we want you to maintain that status quo because if the trees are cut, then there is no value in me having that trial and being successful at a judgment because the judgement will primarily be a paper judgment and trees are gone. So, that’s as an example of where an injunctive relief may be an a appropriate approach to deal with that.

So, in that situation, remember that when the court is granting an injunction, the court is not deciding on the merits of your case... the court is only trying to either maintain the status quo until the matter is tried and adjudicated and the decision is made... or even before, if the matter is disposed of or concluded by other means, right? So that’s the purpose of an injunction– that you can get an order prior to the final adjudication of your claim.

There are different types of injunctions. This first one is called an interim injunction and it could be, you could ask for an interim injunction with or without notice to the other parties. So, in the case where you’re seeking an interim injunction, you could actually you have not commenced a court action you have not issued anything... you could simply show up at court, with your evidence, without even telling the defendants that you’re asking for this relief and then you unilaterally go to the judge and basically say that you want this interim injunction because the issue is so urgent that there’s not sufficient time to put other parties on notice and ask them to show up. So, you showed up by yourself and you ask the court to give this order. So, you know in this situation, if the injunction is granted the court requires you to have a full disclosure of all the facts and evidence... but even if the court grants the injunction, the injunction is granted for a very a short period. Usually, in Ontario, for about ten days or so... so, that that allows you time... now, you got your injunction, served it on the defendant and now you come back to the court and argue– have a lengthy discussion– with the court both sides present their arguments and then get either an extension of that injunction or, you know, your injunction is no longer granted further. So, interim junction, it’s really for a short period of time usually for about ten days.