Perpetual Injunctions: General Principles

AuthorJeffrey Berryman
An injunction can be sought and awarded as a f‌in al judgment of a court
— either in equity’s auxili ary jurisdiction, as a supplement to the
common law, or in equity’s exclusive jurisdiction — as the appropriate
remedy for breach of an equitable right. The signif‌icant di fference from
interlocutory injunctions is that the court has now adjudicated on the
plaintiff ’s substantive claim. Whereas t he main objective for an inter-
locutory injunction is to ensure that effective relief can be rendered at
trial, the objective of a per petual injunction is to remedy an existing
proven wrong or to prevent the incursion of one in the future. The
plaintiff must sati sfy three criteria before a perpetual injunction wil l
be granted:
1) There is a cause of action.
2) Damages are an inadequate remedy.
3) There is no impediment to the court’s discretion to grant an injunc-
There are no limitations on what causes of action can support an in-
junction. However, a perpetual injunction will not be gra nted to protect
Perpetual Inju nctions: General Princ iples 185
a fanciful or unrecognized legal, equitable, or statutory right. Thus, a
man has been un able to get an injunction against his former girlfriend
to prevent an abortion.1 In some rare situations, an applicant does
not need a cause of action to gain a perpetual injunction; for example,
where the plaintiff is simply seeking to restrain a w rongful arbitration2
or to gain an anti-suit injunction which has permanent effect.
In Chapter 8, the typical c auses of action which support the major-
ity of perpetual injunctions are analyzed. The headings follow the ap-
proach adopted by Sharpe3 and are al so followed in the only Canadian
published ca sebook on remed ies.4
Historically, equity was subser vient to the common law and only inter-
vened where the latter was def‌icient in either substant ive content or
appropriate remedy. In the area of remedies, the chief manifestation
of subservience was t he notion that an injunction was only available
where damages were inadequate. Unfortun ately, the concept of inad-
equacy has never been fully articulated in the law. And while there is
still ritual istic reverence paid to the concept today, it is almost devoid
of any presc riptive content.
Inadequacy of damages covers m any forms. Cassels,5 in spired by
Rendleman,6 suggest s six possible meanings:
1) d amage to person or property that is impossible to repair
2) damage to an interest th at is not easily susceptible to economic
3) a legal wrong that causes no f‌inancial or economic harm
4) where damages a re ascertainable but unlikely to be recovered
1 See Tremblay v. Daigle, [1989] 2 S.C.R. 530. Nor does a fetus have right s to an
injunction, it not bein g a “human bein g” within the law. See also Paton v. Briti sh
Pregnancy Advisory Service Trustees (1978), [1979] Q.B. 276.
2 See Bremer Vulkan Schiff bau and Maschinenfabrik v. South India Shipping Corp.,
[1981] A.C. 909 and 962 (H.L.).
3 See R.J. Sharpe, Inju nctions and Specif‌ic Performan ce, looseleaf (Aurora, ON:
Canada L aw Book, 2012).
4 See J. Berr yman et al., Remedies: Ca ses and Materials, 6th ed. (Toronto: Emond
Montgomery, 2012) c. 7.
5 Ibid., c. 6.
6 See D. Rendleman, “The Inadeq uate Remedy at Law Prerequis ite for an Injunc-
tion” (1981) 33 U. Fla. L. Rev 346.

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