By PRADEEP CHAND, Founding Partner

In law, there are remedies available to bring justice to individuals that have been wronged. Some legal remedies involve monetary compensation, while others do not. Injunctive relief is one type of legal remedy that falls into the latter category.  Here is what our civil litigation lawyer Toronto has to say about injunctive relief.

What is Injunctive Relief?

In some cases, money may not be adequate or appropriate for compensating the harm suffered by an individual. In such cases, equitable remedies such as injunctive relief, also known as injunctions, may be awarded. Injunctive relief can be described as a court order requiring an individual to either perform a particular action or refrain from taking a particular action.

What is The Purpose of Injunctive Relief?

The purpose of injunctive relief is to prevent further harm to one or more individuals involved in a lawsuit.

Generally, injunctive relief is available when a party’s certain action(s) may cause irreparable harm to another party and when monetary compensation is not sufficient to address the wrongdoing. Courts have full discretion to decide whether a party should be granted injunctive relief. Such determination depends on the facts and circumstances of each case.

Examples of injunctive relief include:

  • preventing a party from publishing confidential material related to your business.
  • requiring a party to carry out a specific term in a commercial contract; or,
  • preventing a former employee from stealing your clients.

What are the Different Types of Injunctive Relief?

Injunctions are classified based on their type of effect on parties and their level of permanency. Injunctions can be mandatory, requiring a party to take a specific action, or prohibitory, requiring a party to cease from taking a specific action.

In Canada, the three most common types of injunctions granted are interlocutory, interim and permanent injunctions. Interim and interlocutory injunctions are temporary in nature. They are ordered at the beginning of a lawsuit and serve the purpose of preserving the status quo and rights of the parties until the outcome of the trial, whereas permanent or final injunctions are ordered after the final judgement and may apply in perpetuity.

The aforementioned terms are described in more detail as follows:

  • Interim injunctions are the shortest type of injunctions. They require a party to perform a particular act or to refrain from taking a particular act until a certain date or the delivery of a further order. These injunctions are used in urgent matters that must be addressed immediately.
  • Interlocutory injunctions require a party to perform a particular act or to refrain from taking a particular act pending the final judgment of the case. An interlocutory injunction may become a permanent injunction if the court accepts a party’s request for an interlocutory injunction to be issued and later provides a judgment in that party’s favour.
  • Permanent injunctions are the longest type of injunctions. They require a party to perform a particular act or to refrain from taking a particular act indefinitely.

When is an Interlocutory Injunction Ordered?

The Supreme Court of Canada has established a 3-part legal test in RJR MacDonald Inc. v. Canada (AG) (1994) 111 DLR (4th) 385, [1994] 1 SCR 311 for determining whether an interlocutory injunction ought to be ordered. The test focuses on the following three issues:

1. Is there a serious issue to be tried?

To answer this question, the judge will use their common sense and conduct a preliminary assessment of the case on the merits. If the judge determines there is a serious issue to be tried, the judge will move to the second stage of the test. However, if the judge determines there is not a serious issue to be tried, the test fails and an interlocutory injunction will not be ordered. If the judge determines that the case on its merits is frivolous or vexatious, or that the constitutionality of the statute at issue in the case is a pure question of law, then the judge will find that there is no serious issue to be tried and the interlocutory injunction will not be ordered. The moving party will generally be successful at this stage of the test.

2. Would the plaintiff suffer irreparable harm if the injunction were not granted?

At this stage, the party seeking the order of an interlocutory injunction must establish that irreparable harm will occur to them if the injunction is not granted. The word “irreparable” refers to the nature of the harm suffered by the party seeking the order of an interlocutory injunction, rather than the magnitude of the harm. Generally, the harm itself cannot be cured with monetary compensation.

3. The balance of inconvenience:

At this stage, the court assesses which of the parties would suffer more harm on the granting or refusal of the interlocutory injunction. Subsequently, the court makes a final decision based on what it considers to be just and equitable with consideration of the legal situation and the facts of the case.

There are exceptions to the above-noted test. Ultimately, the court will determine whether an interlocutory injunction must be granted based on the individual facts and circumstances of each case. At Chand & Co., we can help you identify whether obtaining injunctive relief may be a possibility in your case.

When is a Permanent Injunction Ordered?

A court will consider many of the factors described above for interlocutory injunctions when determining whether to issue a permanent injunction.  One of the major differences between interlocutory and permanent injunctions, however, is the uncertainty of the requesting party’s rights during the pre-trial stage. This key difference is one of the reasons why the judge conducts a heavy assessment of the balance of inconveniences on both parties when determining whether to issue a permanent injunction. Once the legal right of the requesting party is established, and it is determined that their right(s) is or are violated, generally the requesting party will be granted a perpetual injunction to prevent further harm to them.

How Can Chand & Co. Assist You?

At Chand & Co., our civil and commercial litigation lawyers have experience requesting and defending against injunctions for our clients. If you are involved in a situation where you believe injunctive relief may be necessary, or where you want to prevent injunctive relief from being ordered against you, we invite you to reach out to our firm for a consultation at 416-583-2377.

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