Perpetual Injunctions: General Principles

• Author: Jeffrey Berryman
• Pages: 184-201

184

CHAPTER 7

PERPETUAL

INJUNCTIONS:

GENERAL PRINCIPLES

A. INTRODUCTION

An injunction can be sought and awarded as a f‌in al judgment of a court

— either in equity’s auxiliary 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 the main objective for an inter-

locutory injunction is to ensure that effective relief can be rendered at

trial, the objective of a perpetual injunction is to remedy an existing

proven wrong or to prevent the incursion of one in the future. The

plaintiff must satisfy three criteria before a perpetual injunction will

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-

tion.

B. A CAUSE OF ACTION

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 unable 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 causes of action which support the major-

ity of perpetual injunctions are analyzed. The headings follow the ap-

proach adopted by Sharpe3 and are also followed in the only Canadian

published casebook on remedies.4

C. INADEQUACY OF DAMAGES

Historically, equity was subservient to the common law and only inter-

vened where the latter was def‌icient in either substantive content or

appropriate remedy. In the area of remedies, the chief manifestation

of subservience was the notion that an injunction was only available

where damages were inadequate. Unfortunately, the concept of inad-

equacy has never been fully articulated in the law. And while there is

still ritualistic reverence paid to the concept today, it is almost devoid

of any prescriptive content.

Inadequacy of damages covers many forms. Cassels,5 inspired by

Rendleman,6 suggests six possible meanings:

1) damage to person or property that is impossible to repair

2) damage to an interest that is not easily susceptible to economic

measurement

3) a legal wrong that causes no f‌inancial or economic harm

4) where damages are 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.