INTERLOCUTORY INJUNCTIONS
By ERIC R. FINN , Civil
Litigation Department
A. Introduction
Oftentimes an individual or corporation may be harmed by
the continuing activities of a wrongdoer. Consider the following
cases. A former employee breaches a non-competition clause
of his employment contract by opening a business in direct
competition to his former employer. In another case, a party
may be using the same product name as a competitor in order
to enter the sales market with a different and perhaps inferior
product. Finally, a neighbour may be constructing a garage
which encroaches on a mutual driveway.
In all of these cases, the injured party wants the offending
activity stopped immediately. It is not enough that there
is a right to sue for damages or a permanent injunction,
preventing the continuation of the activity after a lengthy
court proceeding. Such relief cannot remedy the harm that
is being suffered immediately.
In Ontario, the rules of court provide that in certain
circumstances, the injured party can obtain an order from
the court that will prohibit the continuation of the offending
activity until a full hearing takes place into the merits
of the claim and a decision can be made as to whether damages
and/or a permanent injunction is required. This preliminary
order is known as an interlocutory injunction.
B. What is an Injunction?
Generally, there are two types of injunctions – mandatory
and prohibitive. A mandatory injunction is a court order
requiring a defendant to do some positive act. It requires
the defendant to carry out some act which should have been
carried out in the past. It is restorative in nature in
that it is intended to repair the situation. Because a mandatory
injunction requires a positive act by the defendant, it
is somewhat difficult to obtain on an interlocutory basis.
The prohibitive injunction is much more common in that
it is an order of the court that restrains the defendant
from the continuation of the offending act. In the examples
referred to above, the employee may be restrained from competing,
the party using the company’s original product name
may be prevented from doing so and the neighbour may be
prohibited from trespassing.
C. Procedure to Obtain and Interlocutory Injunction
Generally, to obtain an interlocutory injunction, a proceeding
is commenced either by way of an action or an application
wherein a permanent and an interlocutory injunction is claimed,
in addition to any other relief to which the party may be
entitled. A court motion is then commenced immediately for
an interlocutory injunction. If there is an urgent need
to obtain the injunction, one may be obtained on an interim
basis without notifying the offending party. If the injunction
is granted on this basis it is only valid for ten days,
during which time, the defendant is notified and has an
opportunity to object to the granting of a further interlocutory
order.
If the motion is made with notice to the defendant or at
the second hearing following the granting of an interim
order without notice, the interlocutory order granted will
be valid until the trial of the action, hearing of the application
or further order of the court.
In order to obtain the order, an affidavit of the injured
party is filed with the court. The affidavit must prove
three things:
a. there is a serious question to be tried;
b. irreparable harm will result if the relief is not granted;
and
c. the balance of convenience between the parties favours
the granting of the relief.
Thus, one must be able to show that the claim is a serious
one and that if the activity of the defendant is not stopped
immediately, the injured party will suffer such harm that
compensation at the end of the court proceeding would not
be sufficient to satisfy the injury. For example, if the
activity is allowed to continue until a trial can be held,
the injured party may be out of business or may suffer such
a loss of customers that no amount of compensation would
permit the market to be reestablished. Lastly, the court
will balance the harm caused to the injured party in allowing
the offending activity to continue with the harm caused
to the defendant in ordering the prohibition.
D. Frivoulous Requests for Interlocutory Injunctions
A motion to the court requesting an interlocutory injunction
is something that should not be taken lightly and should
not be taken as a means to force a competitor out of business
where such a result would not be justified after all the
facts are examined at a trial. The court rules require that
in order to obtain an interlocutory injunction, the plaintiff
or injured party must, if ordered by the court, undertake
to pay any damages that the defendant my suffer as a result
of the granting of an interlocutory injunction where it
is ultimately proven that an injunction should not have
been granted. Thus, for example, if as a result of the granting
an interlocutory injunction, the defendant loses business
that it would have continued to carry on were it not for
the granting of the interlocutory injunction, the plaintiff
may be required to compensate the defendant for the loss
of revenue during the period that the interlocutory injunction
was in place.
E. Conclusion
An interlocutory injunction is a valuable tool for a party
to obtain quick relief from activities that, if allowed
to continue, will create irreparable harm. The injured party
does not have to wait for a court proceeding to run its
full course before obtaining such relief but, if required,
it can be obtained at the outset of the proceeding. As long
as there is a serious issue to be dealt with by the court
and that, on balance, the harm to the defendant would not
be as great as the irreparable harm caused to the plaintiff,
the interlocutory injunction should be granted.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
