Primer On Permanent, Mandatory And Interlocutory Injunctions

(1) OVERVIEW [1]

Injunctions are extraordinary remedies. Given their equitable nature, they are very flexible and an invaluable tool for litigators. An interlocutory injunction, if granted, can have a dramatic impact on a case. It is therefore important for lawyers to understand the basics of injunctions.

There are different forms of injunctive relief. Generally speaking, an injunction can be prohibitive or mandatory, permanent, interim or interlocutory.

A prohibitive (or prohibitory) injunction is an order that restrains the defendant from committing a specified act. It is the most common form of injunction.

A mandatory injunction is an order that requires the defendant to act positively.

A permanent injunction is permanent relief granted after a final adjudication of the parties' legal rights. Such final relief can be prohibitive or mandatory in nature.

An interim injunction is a pre-trial form of relief. It can be made ex parte or on notice. Argument on the motion is generally quite limited and if an order is made for interim injunctive relief, the order is typically for a brief period of time.

An interlocutory injunction is also a pre-trial form of relief, imposed in ongoing cases. It is normally enforceable until the conclusion of the trial or some other determination of the action. Interlocutory injunctive relief typically follows more thorough argument than that for an interim injunction, by both parties, and is generally for a longer duration than an interim injunction. There are interlocutory prohibitive injunctions and interlocutory mandatory injunctions.

In addition, there are some pre-judgment remedies in the nature of an injunction for which specific tests have been developed in the case law, such as Mareva injunctions, Anton Piller orders and Norwich orders. A discussion of these extraordinary remedies is beyond the scope of this paper.

(2) PERMANENT INJUNCTIONS

To obtain a permanent injunction, a party is required to establish: (1) its legal rights; and (2) that an injunction is an appropriate remedy. See, e.g., 1711811 Ontario Ltd. v Buckley Insurance Brokers Ltd., 2014 ONCA 125 at paras. 77-80 and Cambie Surgeries Corp. v British Columbia (Medical Services Commission), 2010 BCCA 396 at paras. 27-28.

Permanent relief can only be granted after a final determination of the underlying substantive claim on a balance of probabilities. However, even after such final determination, it does not follow that an injunction will be an automatic or appropriate remedy. Given that an injunction is an equitable remedy, its granting is discretionary and subject to the equitable considerations that govern the exercise of that discretion.

In deciding whether an injunction is an appropriate remedy in a particular case, the following considerations are relevant:

- Are the wrong(s) that have been proven sufficiently likely to occur or recur in the future? If not, a permanent injunction is likely not an appropriate remedy.

- Is there an adequate alternative remedy? In most cases, the question will be whether the claim can be adequately remedied by an award of damages.

Damages may be found to be an inadequate remedy in the following circumstances, among others: (a) the damage is impossible to repair; (b) the damage is not easily susceptible to be measured in economic terms; (c) the harm caused is not a financial one; (d) monetary damages are unlikely to be recovered; (e) an award of damages is inappropriate in light of the importance of the interest in issue; and (f) the harm has not yet occurred or the wrong is continuing.

If there is an adequate alternative remedy, the claimant should pursue such remedy.

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