Interlocutory Injunctions: Specific Areas

• Author: Jeffrey Berryman
• Pages: 66-102

66

CHA PTER 3

INTERLOCUTORY

INJUNCTIONS:

SPECIFIC AR EAS

This chapter covers particul ar specif‌ic areas where interlocutory in-

junctions have been applied. The chapter is not intended to be an ex-

haustive digest of all area s, but examines the more commonly awarded

interlocutory injunctions and the special rules or adaptations to the

general principles detailed i n the previous chapter.

A. M ANDATORY INTERLOCUTORY

INJ UNCTIONS

It is necessary to add a f urther ref‌inement to our injunction taxonomy.

Most injunctions are normally cla ssif‌ied 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 “mand atory” injunction,

can be broken down into two sub-classif‌ications: The f‌irst, “restor-

ative mandatory i njunctions,” requires the defendant to repair the

consequences of her own wrongful act. The second type requires the

defendant to continue performing some positive obligation that m ay be

derived from a contractual or statutory undertaking.

In the past, it was commonly said that a prohibitive injunction

was more easily obtained t han a mandatory injunction. Furt hermore,

the latter would not be granted in an interlocutory application unless

there was a “high degree of assurance that at the trial it w ill appear

Interlocutory Injunc tions: Specif‌ic Areas 67

that the injunction was r ightly 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 superv ision, 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 aff‌irma-

tive obligations can be expressed in negative form and thus lead to

enforcement through the back door. This realization ha s given way to

the current position, where the court w ill 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 b een framed in prohibitive rather than

mandatory la nguage.2 This approach also mirrors t hat which is now

adopted when considering the use of injunctions to enforce negative

covenants which appear to amount to speci f‌ic performance in a round-

about fashion. There, as explained in chapter 15, courts w ill look at the

substance of the relief being requested rather than the form.3 R ec en tl y,

Lord Hoffmann suggested that the classif‌ication between prohibitive

and mandatory injunctions wa s a “barren” exercise and that what mat-

tered were the likely “practical cons equences of the actual injunction.”4

In addition to the general principles descr ibed in Chapter 2, a court

will consider the following factors before ordering an interlocutory

injunction requiring the defendant to t ake 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 br ing the matter on for trial? In other words, is the

plaintiff getting complete relief at the interlocutory stage, making

the proceeding determin ative of the dispute?5

3) Can t he order be expressed with suff‌icient clarity so that the de-

fendant, and any subsequent court, knows what was expected of

the defendant to be in compliance?

1 Shepherd Homes Ltd . v. Sandham (1970), [1971] Ch. 340 at 351, Megarry J.

2 See Films Rover Intern ational Ltd. v. Cannon Film Sales Ltd., [1987] 1 W.L.R. 670

(Ch .) [Films Rove r]; and Businessworld Compu ters Pty. Ltd. v. Australian Telecom-

munications Commi ssion (1988), 82 A.L.R. 499 (F.C.A.).

3 See Chapter 15.

4 National Commercial Ba nk Jamaica Ltd. v. Olint Corp. Ltd., [2009] 1 W.L.R. 1405

at para. 20 (P.C.).

5 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.).

THE LAW OF EQUITABLE RE MEDIES68

4) Are there any other “due process” concerns about the use of coer-

cive and intrusive power to achieve the par ticular end without the

protection of a full trial?

5) Has the defendant increased the impugned activities after being

informed of the plaintif f’s request for judicial assist ance?6

The appropriate threshold test for interlocutory mandatory injunc-

tions is not settled, and there is quite a divergence in Canadian juris-

prudence. In Ontario the court s appear to require the plaintiff to prove

a strong prima facie case. One court has indicated that under th at test

the plaintiff must “sati sfy the court that there is a serious issue to be

tried, but also th at they are clearly right and almost cert ain to be suc-

cessful at trial.”7 Another has applied the strong prima facie te st because

the facts of the case brought it with in a recognized exception of Amer-

ican Cyanamid Co. v. Ethicon Ltd.8 as applied by RJR-MacDonald Inc. v.

Canada (Attorney General),9 namely, that the order would likely be de-

f‌initive of the dispute.10 And another has simply applied a strong prima

facie te st as if it is the only test applicable to mandator y interlocutory

injunctions.11 Courts in Alberta sim ilarly adopt a high strong prima

facie test,12 as do Manitoban courts.13 In Prince Edward Island,14 Br it-

ish Columbia,15 Newfoundland,16 Nova S cotia,17 and Sa skatchewan,18

6 Criteria taken f rom Films Rover, above note 2.

7 Barton-Reid Can ada Ltd. v. Alfresh Beverages Canada Corp., [2002] O.J. No. 4116

at para. 9 (S.C.J.).

8 [1975] A.C. 396 (H.L.) [American Cyanamid].

9 [1994] 1 S.C.R. 311 [RJR-MacDonald].

10 Quisno’s Cana da Restaurant Corp. v. 1450987 Ontario Corp., [2009] O.J. No. 1743

at paras. 37–46 (S.C.J.).

11 Hennigar v. Target Corp., 2011 ONSC 2271.

12 B-Filer Inc. v. TD Canada Ltd ., 2008 ABQB 749.

13 Western Paint & Wallcovering Co. v. Benjamin Moore & Co., 2009 MBQB 1 at para. 2 2.

14 Prince Edward Islan d (Minister of Fisheries, Aquacult ure and Environment) v. Sum-

merside Seafood Supreme Inc., 2006 PESCAD 11 at par a. 64.

15 Peerless (Guardian ad litem of ) v. British Columbia School Spor ts (1998), 157

D.L.R. (4th) 345 (B.C.C.A.); RCG Forex Service Corp. v. HSBC Bank Canad a, 2011

BCSC 315; and Mercer Gold Corp (Nevada) v. Mercer Gold Corp. (B.C.), 2011

BCSC 1664 at para. 132.

16 Hart Leas ing and Holdings Ltd. v. St. John’s (City) (1992), 101 Nf‌ld. & P.E.I.R. 131

(Nf‌l d. C. A.).

17 Society for th e Prevention of Cruelty v. Cape Breton Humane Socie ty, 2012 NSSC

128, but not uniform ly. See Movie Gallery Ca nada Inc. v. 9070-7720 Quebec Inc.,

2005 NSSC 61 at para. 16.

18 LaPlante v. Saskatche wan Society for the Prevention of Cruelt y to Animals, 2011

SKCA 43 at paras. 16–17; and Potash Corp. of Saskatchewan Inc. v. Mosaic Potash

Esterhazy Ltd . Partnership, 2011 SKQB 283 at paras. 23 –24.