Injunctions are a powerful remedy that are sought and granted in
a wide range of disputes.
An employer might seek an injunction to stop a former employee
from soliciting the employer's clients. A business may seek an
injunction to stop a competitor from unfairly using a registered
trademark. Your neighbour may seek an injunction to stop you from
cutting down that hideous tree in your back yard that provides
oh-so-much shade and privacy for your neighbour, or perhaps they
may seek a mandatory order requiring you to cut down that same
hideous tree that they view as an eye-sore.
Here is your injunction cheat sheet, courtesy of Justice Gillese
who wrote the decision for the unanimous court.
An Interim Injunction
Can be requested with or without notice to the opposing party.
Argument in front of the judge is usually quite limited.
If the injunction is granted it is typically for a brief,
specified period of time. When an interim injunction is granted
without notice it usually requires the party seeking (and
obtaining) the injunction to return to court (on notice to the
opposing party) to have the interim injunction continued. In
practice, interim injunctions are often used to preserve
the status quo for a short period of time until an
interlocutory injunction can be argued.
An Interlocutory Injunction
Like the interim injunction, the interlocutory injunction is a
form of pre-trial relief. An interlocutory injunction is an order
straining the defendant from engaging in conduct for a limited
period of time, such as until the trial or other disposition of the
lawsuit. Argument in front of the judge is typically more thorough
than that for an interim injunction and the duration is generally
longer than that of an interim injunction.
A Mandatory Injunction
A type of injunction that requires the defendant to act
positively. Mandatory injunctions are rarely ordered and must be
contrasted with the usual type of injunctive relief, which
prohibits certain specified acts as opposed to imposing an
obligation to act positively. Due to their nature, mandatory
injunctions are often permanent.
A Permanent Injunction
Interim and interlocutory injunctions are imposed in ongoing
cases. Permanent injunctions are granted after a final adjudication
The Legal Tests
For lawyers, the legal test for interim and interlocutory
injunctions is well known and was set out by the Supreme Court of
Canada 20 years ago (the "RJR-Macdonald Test").
The court must decide (1) is there a serious issue to be tried; (2)
would the moving party otherwise suffer irreparable (i.e. not
compensable with $$$) harm; and (3) does the balance of convenience
favour granting the injunction.
Justice Gillese clarified that the test for a permanent
injunction is not the same as the RJR-Macdonald
Test. The Ontario Court of Appeal adopted a test set out
recently by the British Columbia Court of Appeal. In short, in
order to obtain final injunctive relief, a party is required to
establish its legal rights. The court must then determine whether
an injunction is an appropriate remedy. Irreparable harm and
balance of convenience are not, per se, relevant to the
granting of a final injunction, although those issues may come into
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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