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Injunctions and Stays - Introduction


Injunctions are a less-common civil remedy, after monetary damages. They are non-damage court orders that govern the behaviour of parties. Most legal activity with injunctions is with respect to interlocutory (preliminary) injunctions, which attempt to govern the parties' behaviour pending the outcome of a full civil case (ie. trial or hearing) - although there can be interim (temporary until the matter is next spoken to), permanent injunctions and specific performance orders as well.


The simplest way to think of a stay is as a 'suspension', though it can be both temporary or permanent (and if so the analogy is to a 'cancellation'). There is a general stay authority (jurisdiction) in the Courts of Justice Act:
CJA 106
A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
As well, there are several stay authorities scattered throughout the Rules of Civil Procedure (RCP) in minor roles, in statutes other than the Courts of Justice Act (eg. the Family Law Act) - and even in the Statutory Powers Procedure Act where 'stays' exist in administrative law.

Most stays are court orders that suspend either:
1. Parallel Legal Proceedings

Most interesting stay litigation involves stays as devices to suspend one proceeding while another is resolved.

2. Proceedings that are Faulty or Frivolous

3. Stays of Existing Orders

Most stays of already-existing orders are 'stays pending appeals', which are what they sound like, stays while an appeal is being resolved. These are addressed in the Appeals section, linked here: Appeals - Stays Pending Appeals. 'Stays pending appeals' are normally decided under the same legal test as used for interlocutory injunctions [the RJR-MacDonald test].

Because of the dominance in practice of 'interlocutory injunctions' over permanent injunctions, we sometimes lose track of the variety of this more basic permanent procedure. These varieties (which can have interlocutory forms as well) come in two primary (and several additional, eg. Mareva, Anton Pillar) forms: prohibitive and mandatory. A prohibitive injunction is simply an order that a party not do something, while a mandatory injunction is an order that a party must do something - usually something specific.

Courts are very hesitant to issue mandatory injunctions due to the strong civil liberties instincts of our society. This goes at least part of the way to explain why we have a very heavy dependence on monetary damages as a legal remedy. The reality is that - due to the richness of our economies - we can 'buy the equivalent of what we have lost', elsewhere - and the courts have been quite happy to accept this as the overwhemingly-dominant remedial form.

This - for better or worse - strips individuals of society of the satisfaction of seeing what some would consider to be a more instinctual 'justice' grounded in the more natural social consequence of shame, since obviously rich people can afford to engage in more civil 'illegality' (eg. sharp business practice, fraud, market abuse) than poor ones. They can simply 'buy their way out' of the consequences of their misbehaviour.

The near-exclusivity on damages remedies also first arose with the historical rise of capitalism, and it's suitability to an economic dominance of society is apparent. And it arose with the rise of the scale of economic activity, shifting gradually from a community-based scale successively to a regional, national and even global scale. The net result is - largely - that we live in an economic world that is literally 'without shame' since the original social form that shame arose - and operated within - the community, is essentially economically gone.


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