Rarotonga, 2010

Simon's Megalomaniacal Legal Resources


ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

home / about / Democracy, Law and Duty / testimonials / Conditions of Use

Civil and Administrative
Litigation Opinions
for Self-Reppers


Stay Current With all
Ontario and Canada
Appeal Court Dicta

Injunctions - Mandatory

. Lukács v. Canada (Citizenship and Immigration)

In Lukács v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal considered the nature of an interlocutory injunction, here in the context of s.87 ['Application for non-disclosure — judicial review and appeal'] of the IRPA:
[36] Ahousaht, cited above, throws some light on this question:
An interlocutory injunctive relief is a preservative remedy essentially aimed at maintaining the status quo pending the hearing of an action or application on the merits. No matter whether the interlocutory injunction sought is prohibitive or mandatory, this defining feature of interlocutory injunctive relief remains.

Ahousaht at para. 68 (emphasis added)
. Shukla v. Board of Directors, Health Sciences North

In Shukla v. Board of Directors, Health Sciences North (Div Court, 2023) the Divisional Court cited a variation in the RJR-MacDonald interlocutory injunction test, here where a 'mandatory' stay-injunction was sought to reinstate a doctor's hospital privileges:
[23] The first branch of the modified RJR-MacDonald test, found in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 at para. 15 [“CBC”] is a strong prima facie case. The burden is on the Applicant to show a case of such merit, on the law and on the evidence, that it is very likely to succeed at trial”: CBC at para. 15. In CBC, the Supreme Court modified the former “serious issue to be tried” standard in cases where a mandatory interlocutory injunction is sought, in part because such an order directs the respondent to undertake a positive course of action, such restoring the status quo, pending the proceeding to obtain the restorative relief sought.


[31] Irreparable harm seeks to discover “whether a refusal to grant relief could so adversely affect the Applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”: See RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 63. Irreparable harm refers to the nature of the harm, not the magnitude. The nature of the harm must be such that it cannot be quantified in monetary terms or cannot be cured: RJR-MacDonald at para. 64.


[34] In Watts v. Clinton Public Hospital (2005), 206 A.C.W.S. (3d) 830, a senior physician without any community practice was able to establish irreparable harm to his reputation and ability to practice attendant on the revocation of his hospital privileges, which the court reinstated. In Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914, the Court of Appeal declined to find irreparable harm despite financial consequences and acknowledged psychological impacts of the revocation of privileges.
. R. v. Canadian Broadcasting Corp

In R. v. Canadian Broadcasting Corp (SCC, 2018) the Supreme Court of Canada modified the accepted RJR McDonald interlocutory injunction test for a mandatory interlocutory injunction. In this case the goal of the mandatory injunction was the enforcement of a statutory criminal publication ban:
A. What Is the Applicable Framework for Granting a Mandatory Interlocutory Injunction?

[12] In Manitoba (Attorney General) v. Metropolitan Stores Ltd.[15] and then again in RJR — MacDonald, this Court has said that applications for an interlocutory injunction must satisfy each of the three elements of a test which finds its origins in the judgment of the House of Lords in American Cyanamid Co. v. Ethicon Ltd.[16] At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.[17] The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused.[18] Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits.[19]

[13] This general framework is, however, just that — general. (Indeed, in RJR — MacDonald, the Court identified two exceptions which may call for “an extensive review of the merits” at the first stage of the analysis.[20]) In this case, the parties have at every level of court agreed that, where a mandatory interlocutory injunction is sought, the appropriate inquiry at the first stage of the RJR — MacDonald test is into whether the applicants have shown a strong prima facie case. I note that this heightened threshold was not applied by this Court in upholding such an injunction in Google Inc. v. Equustek Solutions Inc.[21] In Google, however, the appellant did not argue that the first stage of the RJR — MacDonald test should be modified. Rather, the appellant agreed that only a “serious issue to be tried” needed to be shown and therefore the Court was not asked to consider whether a heightened threshold should apply.[22] By contrast, in this case, the application by the courts below of a heightened threshold raises for the first time the question of just what threshold ought to be applied at the first stage where the applicant seeks a mandatory interlocutory injunction.

[14] Canadian courts have, since RJR — MacDonald, been divided on this question. In Alberta, Nova Scotia and Ontario, for example, the applicant must establish a strong prima facie case.[23] Conversely, other courts have applied the less searching “serious issue to be tried” threshold.[24]

[15] In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR — MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel.[25] Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”.[26] The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR — MacDonald as “extensive review of the merits” at the interlocutory stage.[27]

[16] A final consideration that may arise in some cases is that, because mandatory interlocutory injunctions require a defendant to take positive action, they can be more burdensome or costly for the defendant. It must, however, be borne in mind that complying with prohibitive injunctions can also entail costs that are just as burdensome as mandatory injunctions.[28] While holding that applications for mandatory interlocutory injunctions are to be subjected to a modified RJR — MacDonald test, I acknowledge that distinguishing between mandatory and prohibitive injunctions can be difficult, since an interlocutory injunction which is framed in prohibitive language may “have the effect of forcing the enjoined party to take . . . positive actions”.[29] For example, in this case, ceasing to transmit the victim’s identifying information would require an employee of CBC to take the necessary action to remove that information from its website. Ultimately, the application judge, in characterizing the interlocutory injunction as mandatory or prohibitive, will have to look past the form and the language in which the order sought is framed, in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, “what the practical consequences of the . . . injunction are likely to be”.[30] In short, the application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something.

[17] This brings me to just what is entailed by showing a “strong prima facie case”. Courts have employed various formulations, requiring the applicant to establish a “strong and clear chance of success”;[31] a “strong and clear” or “unusually strong and clear” case;[32] that he or she is “clearly right” or “clearly in the right”;[33] that he or she enjoys a “high probability” or “great likelihood of success”;[34] a “high degree of assurance” of success;[35] a “significant prospect” of success;[36] or “almost certain” success.[37] Common to all these formulations is a burden on the applicant to show a case of such merit that it is very likely to succeed at trial. Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.

[18] In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR — MacDonald test, which proceeds as follows:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.


The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.