Emergency Injunctive Relief by Ontario Courts

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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A frequent concern in bringing a lawsuit to solve a problem is that it often takes a long time for lawsuits to get resolved (ie. years rather than months).

This is particularly problematic if you are suffering imminent or ongoing harm as opposed to having suffered an identifiable monetary loss and are simply seeking to recover the lost amount. 

Foreseeing this problem, Rule 40 of the Ontario Rules of Civil Procedure (the “Rules”) provides the opportunity to seek interim and final injunctions in either a pending or intended proceeding:

40.01  An interlocutory injunction or mandatory order under section 101 or 102 of the Courts of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding.

Therefore, where time is of the essence, a potential plaintiff or applicant may even seek an injunction prior to commencing an action or application.  Rule 31.17 permits the bringing of a motion in an intended proceeding provided the moving party undertakes to “commence the proceeding forthwith”.

The granting of an interlocutory or interim injunction is always a matter of the Court’s discretion, but there are three main criteria:

First, the applicant must establish that there is either a prima facie case or that the claim is not frivolous or vexatious.  The higher prima facie threshold will apply where the applicant is seeking a mareva injunction, which is an injunction restraining the respondent from disposing of its assets until the disposition trial or further order of the Court.  Otherwise, the leading modern test requires the applicant to show that its claim is not frivolous or vexatious, ie. that there is a serious question to be tried.  The existence of a serious question is a low threshold to be determined on the basis of common sense and an extremely limited review of the merits.

Second, the applicant must show that it will suffer irreparable harm if the injunction is refused.

Third, the applicant must show that it will suffer the greater harm from the refusal of the injunction than the respondent(s) will suffer from the granting of the injunction.

(See RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.) at para 48)

The requirements are considered simultaneously and are guidelines to assist the court in exercising its discretion. The ultimate question is whether it is just and equitable in the circumstances of the case to grant the injunction.

(See 2645 Skymark Investments Inc. v. Canadian Neher Holdings Corp., 2000 CarswellOnt 23 (Ont. Sup.Ct.))

Most applications for injunctive relief turn on the issues of irreparable harm and in assessing the balance of convenience between the parties.

It is noteworthy, that the courts have held that where non-compliance with a negative covenant is established, such as a non-competition clause, the need to satisfy the second and third branches is not required.

(See DCR Strategies Inc. v. Vector Card Services LLC, (2011) CarswellOnt 11057 (Ont. Sup.Ct.) at para 20)

In assessing whether irreparable harm will occur the Court must determine whether the harm caused is of such a nature that it cannot be compensation by damages.  However, irreparable harm may also be found where one party will suffer permanent market loss or irrevocable damage to its business reputation which is not capable of being calculated.

(See RJR MacDonald at para 64 and Canpages Inc. v. Quebecor Media Inc., (2008) CarswellOnt 3193 (Ont. Sup.Ct.) at para 14)

While injunctions can be difficult to secure, Courts will grant relief where the above criteria are satisfied.  The following three cases illustrate successful requests for injunctive relief.

In Bettencourt v. Ontario (2005) CarswellOnt 106 (Ont. S.C.J.) the Court ordered theOntario government to continue funding treatment for autistic children pending trial, or the outcome of a related case

In Metro Toronto v. N.B. Theatrical Agencies Inc. (1984), 44 O.R. (2d) 574 (Ont. H.C.) an injunction was granted to prevent violations of municipal by-laws pending a decision challenging the constitutional validity of the by-laws.

In Micropublishing Services Canada Ltd. v. Lee (1998) CarwellOnt 5178 (Gen. Div.) the court restrained two physicians from violating a non-solicitation/non-competition agreement by establishing medical practices too close to the plaintiff’s clinics.


Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca