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Injunctions - Overview

1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd. (Ont CA, 2014)

In this case the court took the oppourtunity to explain the differences between the different types of injunctions: interim, interlocutory, mandatory and permanent.

[49] Various types of injunctive relief have been sought or ordered in this proceeding: interim, interlocutory, mandatory and permanent. What do each of those terms mean and how do they differ from one another?

[50] Let us first consider interim and interlocutory injunctions. While motions for pre-trial injunctive relief often term the relief that is sought as both interim and interlocutory, some distinctions can be drawn between the two.

[51] A motion for an interim injunction 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, specified period of time: see Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Canada Law Book, 2013), at para. 2.15. If an interim injunction is granted on an ex parte basis, the moving party must normally bring a further motion to have the interim injunction continued

[52] An interlocutory injunction, like an interim injunction, is a pre-trial form of relief. It is an order restraining the defendant for a limited period, such as until trial or other disposition of the action: see Sharpe, at para. 2.15. Interlocutory injunctive relief typically follows much more thorough argument than that for an interim injunction, by both parties, and is generally for a longer duration than an interim injunction.

[53] The present case provides an example of both an interim and an interlocutory injunction.

[54] The Interim Order is an example of an interim injunction. AdLine originally moved for interim injunctive relief on an ex parte basis. However, both parties were present when the motion for interim relief was argued. Justice Stinson opened his endorsement by emphasizing the very limited nature of the question before him: should interim injunctive relief be granted pending the scheduled hearing of the Contempt Motion? The injunctive relief granted in the Interim Order was specified to last for that period of slightly less than two months.

[55] The Consent Order, on the other hand, was the product of both parties’ participation, and the duration of the injunctive relief restraining Buckley’s use of the laneway, while not clear on the face of the Consent Order, appears to have been for the period of the laneway’s renovation in 2009.

[56] The next useful distinction to be drawn is between interlocutory and permanent injunctions. Interlocutory injunctions are imposed in ongoing cases whereas permanent injunctions are granted after a final adjudication of rights: see Sharpe, at para. 1.40, citing Liu v. Matrikon Inc., 2007 ABCA 310 (CanLII), 2007 ABCA 310, 422 A.R. 165, at para. 26. As will be seen, this conceptual distinction features prominently in the present case, where a key issue is whether the court must apply a different test for permanent injunctions than for interlocutory injunctions.

[57] It is also important to distinguish between mandatory and permanent injunctions. A mandatory injunction is one that requires the defendant to act positively. It may require the defendant to take certain steps to repair the situation consistent with the plaintiff’s rights, or it may require the defendant to carry out an unperformed duty to act in the future: see Sharpe, at para. 1.10. Mandatory injunctions are rarely ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts.

[58] Because of their very nature, mandatory injunctions are often permanent. However, permanent injunctions are not necessarily mandatory. An example illustrates this point. If, after trial, a court orders that a defendant can never build on a right of way, it will have made a permanent order enjoining the defendant from building on the right of way. But, the injunction would not be mandatory because it does not require the defendant to perform a positive act.

[59] In short, the words “mandatory” and “permanent” are not synonymous, especially in the context of injunctive relief.
The court also explained the differences in the tests for interlocutory versus permanent injunctions:
Issue 2 – Is the Test for a Permanent Injunction Different than the Test for an Interlocutory Injunction?

[74] The test for interlocutory injunctions is the familiar three-part inquiry set out in RJR-MacDonald: is there a serious issue to be tried; would the moving party otherwise suffer irreparable harm; and, does the balance of convenience favour granting the injunction.

[75] Does that same test apply when the court is deciding whether to grant permanent injunctive relief? AdLine contends that it does and points to cases such as Hanisch v. McKean, 2013 ONSC 2727 (CanLII), 2013 ONSC 2727, at para. 111, and Poersch v. Aetna, 2000 CanLII 22613 (ON SC), 2000 CanLII 22613 (Ont. S.C.), at para. 103, where the courts have expressly applied the test when deciding whether to grant permanent injunctive relief.

[76] I would not accept this submission. In my view, a different test must apply.

[77] The British Columbia Court of Appeal recently considered the test for a permanent injunction and its relationship to the test for an interlocutory injunction. In the decision under review in Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396 (CanLII), 2010 BCCA 396, 323 D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based on the test for an interlocutory injunction. Despite the parties’ agreement that the trial judge correctly set out the test, the British Columbia Court of Appeal held that the wrong test had been applied and reversed the trial decision.

[78] Justice Groberman, writing for the court, explained that the RJR-Macdonald test is for interlocutory – not final or permanent – injunctions. At para. 24 of Cambie Surgeries, he explained that the RJR-Macdonald test is designed to address situations in which the court does not have the ability to finally determine the merits of the case but, nonetheless, must decide whether interim relief is necessary to protect the applicant’s interests.

[79] In paras. 27-28 of Cambie Surgeries, Groberman J.A. explained:
Neither the usual nor the modified test discussed in RJR-MacDonald has application when a court is making a final (as opposed to interlocutory) determination as to whether an injunction should be granted. The issues of irreparable harm and balance of convenience are relevant to interlocutory injunctions precisely because the court does not, on such applications, have the ability to finally determine the matter in issue. A court considering an application for a final injunction, on the other hand, will fully evaluate the legal rights of the parties.

In order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.
[80] I would adopt this reasoning. The RJR-Macdonald test is designed for interlocutory injunctive relief. Permanent relief can be granted only after a final adjudication. Different considerations operate and, therefore, a different test must be applied, pre- and post-trial.

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