There are motions that seek interim relief relating to the substantive remedy being sought in the lawsuit. All forms of interim substantive relief reflect the tension b/w 2 goals:
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The need to protect the rights of a party on an interim basis in circumstances where the time that must elapse before trial could result in serious prejudice to or and loss of those rights
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The desire not to make interim orders that unduly prejudice or affect the final substantive outcome
3 Types:
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Interlocutory Injunctions: An injunction from the court that restricts a party from doing things
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BC Rule 45 gives courts jurisdiction to grant injunctions “where just and convenient”
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Injunctions – order for the court that restrains a party from carrying out specific acts
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Interim Preservation and Recovery of Property: Court has power to make interim orders for the preservation, inspection or seizure of any personal property that is relevant to the subject matter of the litigation
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Where P claims recovery of personal property held by D – court may make an interim order for the recovery of that property on terms that often include posting security for the value of the property covered
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Certificate of Pending Litigation Respecting Real Property:
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Parties claiming an interest in land may apply to the Court for an order issuing a certificate of pending litigation, which may then be registered against the land title
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Provides formal notice of the claim to the interest in the land
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Anyone who attempts to deal with the property after the certificate is registered does so w/ the notice and potentially subject to the prior rights of claim being asserted
Injuctions
Rule 10-4 – p.40
Injunctions - are a Court order requiring person to do/cease doing action.
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P may be in an urgent need for D to stop doing something that the P can’t wait for trial may apply for pre-trial injunction (permanent injunctions are only available as final relief)
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Jurisdiction to grant injunctions flows from inherent jurisdiction of the courts to do what is necessary in the interests of justice.
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Injunctions used to stem from equitable jurisdiction of court of Chancery, now written into law
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Section 36 (Now 39) of Law and Equity Act– Grants injunction or “mandamus” powers
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TEST FOR INJUNCTION (RJR McDonald Inc. v. Canada (AG))
An applicant seeking injunctive relief must establish that:
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there is a serious question to be determined as to the existence of a right which has been alleged to be breached which has been reasonably apprehended;
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the applicant will suffer irreparable harm if the injunction were refused; and
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the balance of convenience favours making the order granting the injunction
DIFFERENT TYPES OF INJUCTIONS
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Interlocutory
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Pre-trial injunction which expires at the conclusion of the trial, subject to continuation by a final order (will either become permanent or will cease at end of trial)
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Interim
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Granted as a short-term measure in response to an ex parte application (temporary orders like restraining order). It expires in short period, unless renewed on application to the Court
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Courts are reluctant to interfere with the rights of a party who has not had an opportunity to be heard THUS the terms of an interim injunction order will
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FIRST – stipulate that it must be promptly served on party who is subject to the order
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SECOND – that it expires in short unless renewed on application to the court
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This allows the party who did not receive notice of initial application an opportunity to contest the injunction at the first available opportunity
Prohibitive vs Mandatory Injunctions
A. Prohibitive Injunction Ordered not to do X
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Underlying purpose is to maintain the status quo pending a determination of the issues in an action (so that if P succeeds, D will be prevented in the meantime dealing with the property in a way to make judgment effectual)
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Mostly commonly arises where property is threatened with damage, destruction or removal OR where the value of other rights of a P may be diminished creates a need for protection
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This order basically stops D from doing anything to property at issue, so that P can have it back in the form they want it, should they win the trial
B. Mandatory Injunction You must do X
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Positive obligation compel D to perform a specified act
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Undo some wrong they committed these orders are restorative in nature, to repair the situation in manner consistent with P’s rights
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Threshold to grant mandatory is higher than prohibitive injunction; our courts are reluctant to order people to do things that they don't want to
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WHY? Because the D would be required on an interlocutory basis to take positive action for the potential for inconvenience and this burden is substantial. It will be rare where the risk of harm to D will be less significant than the risk of harm to P
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This positive act should more likely be ordered from the judgment NOT pre-trial – this restorative effect can be achieved at trial and the P will almost always be able to secure complete restorative relief notwithstanding the delay
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Courts jurisdiction to grant a mandatory injunction will be exercised with great caution and only if a remedy by damages is inadequate
RJR Macdonald v Canada
[Test for interlocutory injunction]
FACTS
RJR challenged the constitutional validity of the Tobacco Products Control Act, which regulated the advertising of cigs and made it law to put health warnings on them. It was found to be legitimate, but before their leave to appeal was granted, they asked for a constitutional stay of compliance in order to avoid having to modify their products to include new warning and packaging requirements.
ISSUE
What is the test for determining whether someone should get interlocutory injunctive relief?
RULE
TEST FOR INJUNCTION
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There is a serious question to be determined
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The applicant will suffer irreparable harm if the injunction were refused; and
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The balance of convenience favours making the order granting the injunction
Breakdown of the Test:
1) Serious question to be tried
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Low threshold. Basically a preliminary and tentative assessment on the merits of the case
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P must show that this is a serious question, not a frivolous or vexatious claim
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And that it’s serious enough to survive a motion to strike
2) involves an assessment of irreparable harm
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Whether refusing the injunction would adversely affect the applicant’s own interests, and harm could not be remedied even if the eventual decision is in their favour
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Refers to the NATURE OF THE HARM, rather than it’s magnitude
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Don’t need clear proof of irreparable harm
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Cannot be quantified in monetary terms or cannot be cured – it it’s something even if P wins they won’t be able to collect damages from the unsuccessful defendant (like mileage on car, can’t get it back)
3) Balance of convenience or balance of inconvenience.
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An assessment on which of the 2 parties would suffer the greatest harm if the injunction is granted/refused pending the case on its merits.
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Where the outcomes for the parties are reasonably balanced a number of factors are considered:
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Would the enforcement change the status quo
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Strength of the applicant’s case
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Special factors (ex – public interest (health) is a special factor in favour of Canada’s case for this case)
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Bottom line where it looks like the parties interests are similarly impacted, then preserving the status quo is how most judges would choose to rule.
ANALYSIS
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Appellate courts will normally not need to consider step 1 due to lack of evidentiary analysis jurisdiction
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If the judge in granting an interlocutory order is in essence making a final determination or only examining a question of law in constitutional proceedings, then they can engage more on the merits of the case. Otherwise, extensive analysis of the merits of the case should not be done
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Irreparable harm refers to the nature of the harm rather than to its magnitude. It must not be able to be quantified in monetary terms of be capable of being cured after final judgment is given. This can include permanent market loss, loss of reputation, loss of environmental resources.
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The public interest is important in a balance of convenience analysis when examining constitutional actions, but both parties can attempt to raise the fact that the public is more interested in them winning than the other party.
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Status Quo: Courts will prefer parties who are seeking to maintain the status quo in injunction proceedings
RJR will suffer huge monetary expenses by following through with the new packaging, but since they are quantifiable, they can be recovered and are thereby not irreparable. Here, it was more in the public interest for their elected officials who passed valid legislation to have that legislation upheld than it was for cigarette companies to save them from implementing packaging that they could mitigate passing the costs along to consumers. This was a public health issue as well, which gives even more credence to having the law upheld considering it is specifically designed to uphold the public good
(McLachlin) Judge should be flexible and use contextual approach in applying the steps as opposed to doing so in a mechanical fashion. The power to grant injunctions stems from the equitable jurisdiction and thus does not make a judge a “prisoner of a formula”.
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Words like “status quo” or “balance of convenience” are used as guides, not legally significant words. Judges keep these in mind when proceeding.
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Public interest is identified as a special factor in the balance of convenience assessment. The interest may apply both generally and to certain identifiable groups
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Where a law is affecting a party to the injunction but has been arrived at through democratic means, courts will be slightly more reticent to find against the balance of convenience trying to escape a validly enacted statute = grant the other sire more balance
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Public interest in health is not offset by irreparable monetary harm
HOLDING - Injunction denied
Attorney General of BC v Wale
APPLICATION OF INJUNCTION TEST - McLachlin said that test for injunction to be applied by asking fundamental question of whether the granting of injunction is just and equitable in all the circumstances of the case – NOT A FORMULA, NOT MECHANICALLY – need to be flexible and contextual
McLachlin said:
“The judge must not allow himself to become the prisoner of a formula, the fundamental question in each case is whether the granting of an injunction is just and equitable in all the circumstances of the case. Professor Sharpe warns against the danger of insisting on slavish adherence to precise formulae in Injunctions and Specific Performance (1983)... “The terms “irreparable harm”, “status quo”, “balance of convenience” do not have a precise meaning. They are guides, which take colour and definition in the circumstances of each case. They should not be seen as separate watertight categories. The factors relate to each other and strength on one part of the test ought to be permitted to compensate for weakness on another... The factors should not be employed as a series of independent hurdles, but in the nature of evidence relative to the central issue of assessing the relative risks of harm to the parties from granting or withholding interlocutory relief... and whether to enforce an injunction is just and equitable in all the circumstances of the case”
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