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:

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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.

Second comes the interlocutory Junction which is similar to interim injunction. The only difference is that once you get an interim injunction, which is for about ten days, now you come back and you may have to ask for an interlocutory injunction... in which the parties are now present, the arguments are more thorough, there’s a more detailed discussion, maybe more evidence, and the court is now looking at the issue in a bit more detail... and so if the interlocutory injunction is granted, it is usually longer, for a longer period, than the interim injunction and usually you may get the interlocutory injunction up to the time that the trial takes place because the trial is when the matter will be adjudicated and the court will decide who’s right and who’s wrong. So, you may get an interlocutory injunction up to trial or up to the final disposition because sometimes the matter could get resolved prior to trial, so proof by all disposition off that matter. So that’s that’s an interlocutory injunction.

Third category, third type, is called a permanent injunction and as the name implies, the injunction is permanent, the order is permanent, and usually you get permanent injunction after the matter is finally adjudicated. So, in the example of our tree, once you have for two years or so, you have fought this case you go to trial and the judge agrees with you that the trees should not be cut, then, the judge can issue a permanent injunction requiring the developer not to cut the trees. So, that’s usually granted after final adjudication... it’s called permanent injunction.

And mandatory injunction, as the name implies, requires someone to act positively. It’s not easily granted... it’s actually rarely granted and based on the nature of relief, most of the time it is permanent. One example that I can you give of a mandatory injunction is, for example, let’s say that around the coast of British Columbia there was an oil spill and it’s causing harm to the marine life and different parties are blaming each other and there’s a court auction that is underway with respect to whose fault it is, who’s liable for what, but in the meantime, you know, the ministry of environment may require, may ask the court to issue a mandatory injunction requiring certain parties to clean up the spill because the ongoing harm to the marine life needs to be prevented immediately and that cannot wait for two or three years or something. So, in that situation, the court may grant a mandatory injunction requiring a party or parties to do something positive. So, positive means they now actually have to go and get arrangement and get that site, that area of the sea cleaned from the spillage and that’s called a mandatory injunction.

What is the test for injunction, how do the courts decide whether an injunction should be granted in a specific case? It’s based on a three part test, which is stipulated in a Supreme Court of Canada case called R.J.R. McDonald case... you type it on Google, you will see this case, R.J.R. McDonald. I’ve put the link here... and that case has three tests. Number one, you have to show as the plaintiff, that you have a prima facie case. Number two, you have to show that there is potentially irreparable harm that will be caused if the injunction is not granted and then the balance of convenience is in your favor. So, let’s look at, you know, these three text really briefly very quickly. So Prima Facie case, what does that mean? Fundamentally, what it means is the court is going to look at your evidence and decide whether your case, which will be adjudicated three years, four years from now, is not a frivolous case, it’s not a vexatious case. So, the court is not deciding whether you have merits... they’re not deciding on the merits of your case, but the court is looking at based on the evidence, whether it makes sense that you have a case that is not frivolous or vexatious. So, that’s generally, if you have a valid case, it’s not a difficult burden to meet. So, the first part of the test is usually easily overcome.

In some cases, the court will require you to establish a strong enough prima facie case... which is different then just a prima facie case. One example in which that may happen is if you are seeking an injunction against a former employee of your company because in that situation, you may be asking the court not for that employee, not to compete against you, not to open a competing business or something like that, and it’s a significant restraint on that person to his or her living. So, in that situation the court may require you to establish a strong prima facie case. In some cases, the court may require you to establish that there is actually a serious issue to be tried. So, all these three strengths, prima facie case, strong prima facie case, or serious issue to be tried, these are sort of three separate categories and depending on your specific situation, court may require you to show that... but in most cases, showing that your case is not frivelous or vexatious is sufficient and you will meet the first part of the test. The second part of the test is really the most important part of the test and if you cannot meet this part of the test, you will absolutely not get your injunction. So, one thing you want to keep in mind is that when you’re trying to show to the court that the harm is irreparable. One of the things the court is looking at, is that is this a situation where if we grant money would that be sufficient... and if the court finds that that will be sufficient, then the court is not going to grant you an injunction. So, the court must believe that damages is not an adequate remedy in your case and therefore you should get an injunction... but if something be compensated by money adequately, then the court is not going to give you an injunction.

With respect to irreparable, the courts or the cases say, that it is the nature of the harm that should be irreparable and not its magnitude. So, what do we mean by that? Let’s take our tree example, it does not matter whether it is one tree that is old or one hundred or one thousand trees. So, it’s not the magnitude, it’s the nature of harm. If one tree is one hundred years old tree and cutting down that tree is irreparable and that’s sufficient... you don’t need to have a case of one hundred, or one thousand trees to get an injunction. So, it’s magnitude is not what the court is looking at, it’s the nature of the harm. Then, with respect to damages, again, the harm should be something that cannot be quantified or cured and it’s important because if it can be quantified in money... then the court is not going to grant you an injunction or if it can be cured, court is not going to grant you an injunction.

So, some of the examples of where it cannot be quantified or cured, is that, in our situation, if the tree is cut, you cannot cure the harm. The tree is gone, it’s already cut and so even, if you get a judgment three years from now, the harm cannot be cured. So, this would be an appropriate case, where an injunction is an appropriate remedy. If you will go out of business, then the harm cannot be cured and so an injunction could be an appropriate business. If you end up losing market share and it is hard to quantify market share, the loss of market share, and so that could be a situation. If you believe that your reputation is going to get lost because of what the defendant is doing or going to do, then that cannot be quantified and so that could be a situation where the injunction would be appropriate remedy. So, irreparable harm is essentially the most important step in the court deciding whether you should get an injunction or not.

Now, third part is balance of convenience and in terms of its application, it’s pretty straightforward. The court is going to consider that if the injunction is not granted, what kind of harm it will cause you, the plaintiff... and on the other hand, if the injunction is granted, what kind of harm would it cause to the defendant? So, for instance, in our tree cutting example, if at the end of three years, the court decided that the developer had full right to cut down that tree, hundred year old tree, and now you’ve wasted three years of time... the cost of construction has gone up, so, on and so forth. So, you have basically by getting an injunction, made the defendant suffer for a lawful act that they could have done but because of your injunction, they have suffered that harm. So, the court is going to review the balance of convenience, and then decide whether the balance of convenience is in the plaintiff’s favor. If it’s not in your favor, you will not get the injunction.

Some of the specific examples quickly we’ll go through, one kind of injunction that plantiffs ask for is called Anton Pillar Order. In simple terms, it’s called a Civil Search Warrant and an example of that is you believe that the defendant has a computer at home which has very strong evidence in support of your case and you have strong evidence that if that computer is not retrieved the defendent is going to destroy all the evidence on that computer and strong evidence... so it’s kind of a civil search warrant where you can actually get the possession of that computer even before your case has gone to trial or even before you have commenced your court action.

Another example is Mareva Injunctions, these are called freezing orders in common terms and this is an order when you believe that by the time the matter is adjudicated three years or four years from now, a defendant will dispose off certain assets and you will not be able to make good on your judgment So, the court issues an order, freezing order, where the defendants cannot dispose of their assets.

Another example is a Norwich Order, which is an order that allows you to conduct discoveries of third parties... an example of that, would be, let’s say if it’s a defamation case where someone on the Internet made some defamatory remarks... you don’t know who the person is... but your ISP, the Internet service provider, can trace that person because of the IP address and obtain the name of that person and you can get a Norwich Order compelling that ISP, who is not a party to your litigation, to produce the name of that person. So, that’s called a Norwhich order and so, these are some of the common examples of injunctions that people ask in civil cases. Now, what you want to keep in mind, is that injunction as you should understand by now, is a very powerful tool. It gives you certain remedies even before your matter is adjudicated and because of it’s power, it is very cautiously used... it’s not easily granted but that is not to say that you may not have merits... if you have strong merits to get an injunction the court will grant you an injunction.

There’s a procedural mechanism, of course, in place…. how do you schedule a motion, you know, what are the steps you have to do and all of that... that’s contained in rules of civil procedure and in my future lectures, I will actually try to explain how do you go about scheduling a motion for injunction and then go and argue it before a Judge.

Thanks for watching, if you have any questions or feedback, we’ll appreciate to hear from you. Bye.