Interlocutory Injunctions: Specific Areas
| Author | Jeffrey Berryman |
| Profession | Professor of Law. Faculty of Law University of Windsor |
| Pages | 39-59 |
CHAPTER
3
INTERLOCUTORY
INJUNCTIONS:
SPECIFIC
AREAS
This
chapter covers particular specific areas where interlocutory injunc-
tions
have been applied.
The
chapter
is not
intended
to be an
exhaus-
tive
digest
of all
areas
but
examines
the
more commonly awarded
interlocutory injunctions,
and the
special rules,
or
adaptations
to the
general
principles detailed
in the
previous chapter, which exist.
A
MANDATORY INTERLOCUTORY
INJUNCTIONS
It
is
necessary
to add a
further
refinement
to our
injunction taxonomy.
Most injunctions
are
normally classified
as
being "prohibitive,"
in
that
they seek
to
enjoin
the
defendant
from
continuing
a
particular course
of
action
— in the
case
of
interlocutory orders, down
to the
point
of
judgment.
The
other type
of
injunction,
the
"mandatory" injunction,
can
be
broken down into
two
sub-classifications:
The
first,
"restorative
mandatory injunctions," requires
the
defendant
to
repair
the
conse-
quences
of her own
wrongful act.
The
second
type requires
the
defen-
dant
to
continue performing some positive obligation that
may be
derived
from
a
contractual
or
statutory undertaking.
In
the
past,
it was
commonly said that
a
prohibitive injunction
was
more easily obtained than
a
mandatory injunction. Furthermore,
the
latter would
not be
granted
in an
interlocutory application
unless
there
was a
"high degree
of
assurance that
at the
trial
it
will appear that
the
39
40 THE LAW OF
EQUITABLE
REMEDIES
injunction
was
rightly
granted."1
This
was
because
an
order enjoining
an
activity
was
seen
as
being less complicated than
an
order
for
affirmative
action
— it
involved less cost
to the
defendant,
fewer
problems with
court
supervision,
and was
easier
to
formulate into
an
effective
order.
Of
course,
an
order
to
enjoin
an
activity
can
prove just
as
costly
as an
order
to
continue
performance. Similarly, many
affirmative
obligations
can be
expressed
in
negative
form
and
thus lead
to
enforcement through
the
back
door. This realization
has
given
way to the
current position, where
the
court will look more
at the
nature
of the
dispute,
and the
particular
risks
of
injustice
to the
parties, than
at the
fact
that
the
requested order
has
been
framed
in
prohibitive rather than mandatory
language.2
In
addition
to the
general principles,
a
court will consider
the
fol-
lowing
factors
before
ordering
an
interlocutory injunction requiring
the
defendant
to
take positive
steps
in
compliance:
1)
Will
the
order cause
the
defendant
a
greater waste
of
resources,
either time
or
money, than merely being delayed
in
commencing
something
he
would otherwise
be
entitled
to do?
2)
Will
the
granting
of the
relief make
it
unlikely that
the
plaintiff
will
return
to
bring
the
matter
on for
trial?
In
other words,
is the
plain-
tiff
getting complete relief
at the
interlocutory stage, making
the
proceeding determinative
of the
dispute?3
3) Can the
order
be
expressed with
sufficient
clarity
so
that
the
defen-
dant,
and any
subsequent
court, knows what
was
expected
of the
defendant
to be in
compliance?
4) Are
there
any
other "due process" concerns about
the use of
coer-
cive
and
intrusive power
to
achieve
the
particular
end
without
the
protection
of a
full
trial?
5) Has the
defendant
increased
the
impugned activities
after
being
informed
of the
plaintiffs
request
for
judicial assistance?
1
Shepheard
Homes
Ltd.
v.
Sandham
MegarryJ.
2
See
Films
Rover
International
Ltd.
v.
Cannon Film
Sales
Ltd.,
(Ch);
and
Businessworld
Computers
Pty. Ltd.
v.
Australian
Telecommunications
Commission
(1988),
82
A.L.R.
499
(EC.
Austl.).
3 See
2261324
Manitoba
Ltd.
v.
Domo
Gasoline
Corp.
(1995),
[1996]
3
W.W.R.
708
(Man. Q.B.),
aff'd
(1996),
110
Man.
R.
(2d)
158
(C.A.);
and
Olynick
v.
Kelvington
Credit
Union
Ltd.
(1991),
91
Sask.
R. 156
(C.A.).
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