Broadly speaking, an injunction is an order to a party to refrain from doing a particular act. This post covers some basic principles governing the granting of injunctions, such as the jurisdiction of the court, the nature of the remedy, and the various types of injunctions, including interim and interlocutory, mandatory, perpetual or permanent, quia timet, and statutory.
By: H. Peter Eccles, B.A., LL.B.
I: Principles Governing Grant
to access the CED and the Canadian Abridgment titles for this excerpt on WestlawNext Canada
See Canadian Abridgment: REM.II.1.b Remedies | Injunctions | Rules governing injunctions | Jurisdiction of court
A judge of the court may grant an interlocutory injunction or a mandatory order if it appears to be "just or convenient" to do so, and may include such terms as he or she considers just. The order may be made ex parte in the proper circumstances.
Notwithstanding this wide jurisdiction, the words "just or convenient" do not confer an arbitrary or unregulated discretion on the court. The court is to grant an injunction to protect rights or prevent injury according to established equitable principles. "Just or convenient" has the same effect as the words "just or equitable". In each case, the combination of words is not conjunctive, but rather one compendious expression.
The courts grant injunctions only to prevent or restrain injuries to civil property or the infringement of rights which are capable of enforcement at law or in equity. The applicant must establish a justiciable cause of action in order to obtain an injunction. Once he or she does so, the court may grant interim or interlocutory relief even if any final order will ultimately be granted by another court, tribunal or arbitral body, whether foreign or domestic. Even where a comprehensive statutory scheme exists for settling disputes, the court retains a residual jurisdiction to grant relief such as interlocutory injunctions which are not otherwise available under the legislated scheme.
When a statute provides a penalty for its breach but is silent as to whether a court may grant an injunction to restrain its contravention, a court must consider the statute as a whole, including its objects, to determine whether the court has such jurisdiction.
Injunctive relief is not restricted to cases in which there is no other remedy, nor must it wait until the other party has commenced the injurious act. If there is reasonable ground to believe that the threat may be carried into operation, an injunction may be granted. The right of action for an injunction is not dependent on proof of actual damage. Once a plaintiff shows that he or she has a legal right which is being violated, he or she is entitled to an injunction as a matter of course to prevent the recurrence of that violation. The court has inherent jurisdiction to interfere by injunction to prevent the commission of a palpable injustice.
The court will generally not grant an injunction for the purpose of enforcing moral obligations or in aid of, or as substitute for the criminal law or quasi-criminal law. There usually must be some property right or some other right infringed. However, an injunction may issue to restrain a public official from exceeding his or her statutory jurisdiction or issue in favour of the attorney general to prevent the flouting of the criminal law. The mere fact that conduct may be characterized as criminal does not deprive a person whose private rights are affected of the ability to seek relief in the civil courts. No civil remedy for an act or omission is suspended or affected because the act or omission is a criminal offence.
The court will not normally grant injunctive relief that will operate outside its territorial jurisdiction unless it has jurisdiction over the person of the defendant. It has a limited ability to restrain a person from proceeding with an action in a foreign court. Although an anti-suit injunction operates personally on the plaintiff in the foreign suit, it raises serious issues of comity by in effect determining the jurisdiction of the foreign court. In the proper circumstances, the court may enforce an injunction issued by a foreign court.
The court will not restrain a foreign defendant from removing assets from its territorial jurisdiction or issue an anti-suit injunction if it lacks jurisdiction over the substantive claim.
The court may properly make a restraining order against a defendant who commits a breach of statute within its jurisdiction, notwithstanding that he or she is a non-resident.
An injunction cannot be issued against the world at large. It would not be just to bind great numbers of people to the terms of an injunction.
I.2: Nature of Remedy
See Canadian Abridgment: REM.II.1.a Remedies | Injunctions | Rules governing injunctions | Nature of remedy
A plaintiff is not entitled to an injunction as of right. Every case must depend on its circumstances.
The granting of an injunction is always discretionary, but the court's power must be exercised reasonably and in harmony with well-established equitable principles. Hence the court will not grant an injunction merely because it will do the defendant no harm; nor will it restrain a trivial or temporary injury. The court is disinclined to grant an injunction which requires the supervision of details or if it is likely to prove futile or ineffective or unnecessary.
The courts avoid granting injunctions which would preempt the jurisdiction of a specialized body such as a tribunal or board.
The court will not grant an injunction which is impossible to enforce.
I.3: Types of Injunctions
I.3(a): Interim and Interlocutory Injunctions
See Canadian Abridgment: REM.II.1.d Remedies | Injunctions | Rules governing injunctions | Interlocutory, interim and permanent injunctions
An interim injunction continues in force until a specified date or further order, whereas an interlocutory injunction applies until the final hearing or final determination by the court of the rights of the parties or further order.
I.3(b): Mandatory Injunctions
See Canadian Abridgment: REM.II.2.d Remedies | Injunctions | Availability of injunctions | Mandatory injunctions
A mandatory injunction requires the defendant to perform some positive act rather than merely restraining him or her from committing a specified act, as a prohibitory injunction does. Although it exercises extreme caution in granting a mandatory order and accordingly requires a higher standard of proof than in issuing a prohibitory injunction, the court is bound to grant a mandatory injunction if, in its opinion, it is "just or convenient" to do so.
An injunction ordering the defendant to refrain from doing a specified act, such as ceasing to refuse inspectors access to the establishment, is not a mandatory injunction.
An order is mandatory if it establishes a new right that was never agreed upon by the parties, while an order which requires parties to act in accordance with an agreement is prohibitive and not mandatory.
When the right of the plaintiff is clear, the court is prima facie bound to grant a mandatory injunction to enforce it, unless it is impossible for the court to make its order effective. However, if there is one definite thing to be done and no doubt how to do it, a mandatory injunction should be granted.
A mandatory injunction will be granted if the applicant's case shows strong merits, the applicant will suffer irreparable harm if the injunction is not granted and the inconvenience to the respondent will not outweigh the positive effects to the applicant.
In order for the court to interfere by mandatory injunction on an interlocutory application, the plaintiff must make out a strong prima facie case to the right he or she asserts. A strong prima facie case is one in which the applicant has established that he or she will probably win at trial. To establish a strong and clear prima facie case a plaintiff must establish that he or she will probably prevail at trial or is likely to succeed at trial. If the right is reasonably clear, particularly if there is an urgent and paramount necessity for the order to prevent the commission of serious damage to the plaintiff, an injunction will issue before trial. Before granting a mandatory interlocutory injunction which will finally dispose of the action, the court must conduct a more extensive review of the merits than in a motion for a prohibitory injunction. It must then determine whether the applicant's case is sufficiently clear to conclude, with a high degree of assurance, that it would appear at a trial that the mandatory order should have issued.
If an application for a mandatory interlocutory injunction involves an issue under the Canadian Charter of Rights and Freedoms, such as promoting official language rights, the threshold test for granting an injunction is whether there is a serious question to be tried and not whether there is a strong prima facie case.
A mandatory injunction may be granted as the appropriate remedy to enforce some contractual rights. However, even an express term entitling one party to that remedy in the event of a breach of contract by the other will not induce the court to grant a mandatory injunction if the usual preconditions to the order are not satisfied. In an appropriate case, the court will compel recourse to the dispute resolution process dictated by the contract between the parties.
If a franchisee seeks an injunction to require the franchisor to reinstate the franchise agreement, a positive act, which the franchisor has terminated for alleged breaches of contract, the franchisee in reality is not seeking a mandatory injunction but rather an order prohibiting the franchisor from allegedly breaching the franchise agreement and for both parties to agree to act in accordance with their agreement.
The court will refuse to grant a mandatory order which would be unduly difficult to enforce and supervise. The court is reluctant to make an order that will require further judicial direction or intervention, especially with respect to mandatory injunctions.
The court will refuse to grant a mandatory order if the plaintiff is unable to show there is a strong probability that damages will accrue in the future.
The court will not grant a mandatory injunction if other relief is available. This includes damages, a statutory remedy, arbitration or some other relief. However, there is an increasing tendency to grant a mandatory injunction rather than mandamus to enforce a statutory right.
I.3(c): Perpetual or Permanent Injunctions
See Canadian Abridgment: REM.II.2.b.iii Remedies | Injunctions | Availability of injunctions | Prohibitive injunctions | Permanent injunctions
Injunctions are either interlocutory or perpetual. Interlocutory injunctions continue until the hearing of the case. Perpetual injunctions ordinarily form part of the judgment made upon hearing the merits. Although the application is heard summarily and based on affidavit evidence, an anti-suit injunction is nonetheless a permanent injunction. Thus a perpetual injunction is directed towards the final settlement and enforcement of the rights of the parties that are in dispute, and it is nonetheless perpetual if those rights are themselves of limited duration.
Although most of the factors and considerations in granting interlocutory and perpetual injunctions are the same, there are a few differences. An interlocutory injunction is granted while the rights of the parties are uncertain and in the knowledge that the respondent may ultimately prevail, while the issuance of a perpetual injunction follows the final determination of the parties' rights on the merits. Thus considerations of hardship to the respondent are usually much less significant in relation to a perpetual injunction and the undertaking in damages has never been a feature of permanent injunctions.
If the plaintiff establishes a legal right and the fact of its violation, he or she is, in general, entitled to a perpetual injunction to prevent the recurrence of the wrong unless there are special circumstances.
If an application for an injunction is final and not interlocutory, the applicant must first establish his or her legal rights and the court in considering whether to grant the injunction might also consider the elements of irreparable harm and balance of convenience, although these factors are not, strictly speaking, relevant.
When the basis for judicial review of a decision of a voluntary association is established, a court may grant a perpetual mandatory injunction.
I.3(d): Quia Timet Injunctions
See Canadian Abridgment: REM.II.1.f Remedies | Injunctions | Rules governing injunctions | Quia timet injunctions
An injunction quia timet is sought literally "because [the plaintiff] fears"; that is, injunctive relief is sought in apprehension of future harm. If a fair case of prospective injury is made out, the court has jurisdiction to interfere before the harmful act is actually committed.
The court will only grant relief quia timet where there is a high degree of probability that injury will result, that the occurrence is imminent, and that the harm will be irreparable. However, the criterion by which the applicant must establish the degree of probability of future injury is not fixed or invariable but depends on the other relevant circumstances of the case. The greater the prejudice or inconvenience that the apprehended injury may cause, if it occurs, the more readily will the court intervene despite uncertainties and deficiencies of proof. The court will take account of all relevant matters and will make such orders as appear most just in view of the various interests of the parties and of third persons.
While the mere prospect or apprehension of injury or belief to that effect is insufficient to warrant an injunction, if the intention to do the act complained of is proved to exist, or if an act is threatened which, in the court's opinion, if completed would give a ground of action, there is a foundation for exercising the court's jurisdiction to grant an injunction.
The degree of probability of harm and the severity of the apprehended injury must be weighed against the hardship to the defendant.
As with all types of injunction, an injunction quia timet will not be granted if damages will fully compensate.
Applicants for an injunction being sought quia timet to prevent apprehended future harm must establish all three of the following elements: that there is a serious issue to be tried; that there is a high degree of probability that they will suffer irreparable harm if the injunction is not granted; and that the balance of convenience favours the granting of the injunction.
In a criminal case, the court may grant a quia timet injunction to prevent a possible publication from influencing the jury if, as a question of fact, there is a real and substantial risk that a fair trial of the accused would be impossible unless an injunction is granted.
I.3(e): Statutory Injunctions
See Canadian Abridgment: REM.II.2.f.iii Remedies | Injunctions | Availability of injunctions | Injunctions in specific contexts | Enforcement of by-laws and statutes
Many special statutory provisions confer on the court the power to grant an injunction in certain circumstances; for example, to enforce a zoning by-law on the application of the municipal corporation. In those circumstances, the relief is statutory, not equitable, and factors that might be considered in an application for an equitable injunction are of limited relevance. Therefore, equitable considerations such as the lack of diligence by a municipality in enforcing its bylaws is not a defence when a municipality applies for a statutory injunction to enforce its bylaws as it is seeking to enforce a public right.
Where a municipality seeks an injunction to enforce a by-law which it has established is breached, the courts will refuse the application only in exceptional circumstances. However, the municipality must establish a clear breach of the by-law meaning that the party to be enjoined failed to establish an arguable or reasonable defence.
If an applicant applies for a mandatory injunction against a municipality to compel it to restrain an alleged contravention of its bylaws, in the absence of bad faith or unreasonable conduct by the municipality, a municipality has a broad discretion in determining how it will enforce its own bylaws.
A municipality in enforcing its bylaws may utilize statutory injunctive relief for a breach of the bylaws and is not confined to seeking only a pecuniary penalty for such a breach. Only in very exceptional circumstances would a court refuse the statutory remedy of an injunction on the basis that it would be inequitable to grant it. In considering whether to exercise such limited discretion, the court may consider the hardship that may result if the injunction is granted, although private hardship will rarely outweigh the public interest in having the law obeyed, and the court may also consider the utility in granting an injunction.
When there is a question whether or not municipal bylaws apply to a construction project, a municipality in seeking injunctive relief to restrain a contractor from allegedly contravening such bylaws must prove there is a serious issue to be tried, that the municipality would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours the municipality.
An application for an injunction to prevent the continuing contravention of a municipal by-law is a civil proceeding whereby a municipality seeks the assistance of the courts to control certain behaviour and it is not prevented by a criminal prosecution for the same conduct.
If in an application by a municipality for an interlocutory injunction for breach of a municipal by-law, the respondent raises the defence that the by-law is invalid as violating the respondent's freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms, the court should not, at this stage of an application for an interlocutory injunction, declare the by-law invalid. Instead the court should apply the usual tests for an injunction: whether there is a serious issue to be tried, will the party seeking the injunction suffer irreparable harm if it is not granted, and whether the balance of convenience favours the applicant.
When seeking to enforce a by-law, a municipality is obliged to have acted in good faith in enacting the by-law; however, a by-law is presumed to be valid and enacted in good faith and the onus is therefore on the person attacking the by-law to establish bad faith.
In enforcing a statutory interlocutory injunction restraining a clear breach of a municipal by-law, a municipality is entitled to rely on the presumption of validity of bylaws unless the contrary is plain and obvious.
It is preferable that a statutory injunction not simply repeat the language of the statute relied upon for the practical reason that such an injunction may be difficult to enforce by way of contempt proceedings if the terms of the order are not sufficiently specific and clear.