Injunctive relief is a powerful legal remedy used to prevent a party from continuing to engage in an unlawful activity or to enforce a legal right. The Ontario Superior Court recently granted an interim injunction in a contentious case involving the removal of 200-year-old trees at Osgoode Hall. In light of this case, this blog will outline the law on injunctive relief and when they are typically granted in Ontario.
In Ontario, injunctive relief can be sought to stop a person or company from engaging in activities that are harmful to another party. This type of relief is typically granted in cases where there is a risk of irreparable harm, and monetary damages are not sufficient to remedy the harm. It has been developed through a rich body of case law, including RJR MacDonald Inc. v. Canada (AG), a Supreme Court of Canada case which developed the framework for granting injunctive relief. The test requires a demonstration of irreparable harm, a balance of convenience in favour of the party seeking relief, and a serious question to be tried. This test remains the guiding principle for granting injunctive relief in Ontario and has been applied in numerous cases over the years.
Generally speaking, injunctive relief in Ontario can either be temporary or permanent. They can be further divided based on various factors discussed below.
Interlocutory injunctions are temporary and are typically used to prevent a party from performing certain activities until the final judgement is rendered, maintaining the status quo until the dispute is resolved. Section 101 of the Courts of Justice Act allows the Superior Court of Justice to grant this type of relief, and Rule 40 of the Rules of Civil Procedure governs the procedural requirements. In summary, the party requesting this type of relief must bring a motion with notice to the other party. As noted by the Court of Appeal in Rabi v. University of Toronto, the test for granting interlocutory injunctions follows the three-part test of RJR MacDonald Inc. v. Canada (AG).
Interim injunctions are highly related to interlocutory injunctions because they are temporary and are granted for a short period. However, this type of relief is defined as the shortest type of injunction based on its ability to be granted on an ex parte basis i.e., without notice to the other party where the matter is extremely urgent. If this relief is granted, its duration is limited to 10 days, per Rule 40.02(1) of the Rules of Civil Procedure. The party may extend an interim injunction by bringing a motion with notice to the other party unless the party “has been evading service or because there are other exceptional circumstances.” An extension without notice is limited to an additional 10 days. The test for granting this type of relief again flows from RJR MacDonald Inc. v. Canada (AG).
A Mareva injunction is another temporary injunction used to freeze a defendant’s assets to prevent the dissipation of assets before a judgment can be enforced. A Mareva injunction is often sought in cases where the defendant is believed to be at risk of removing or disposing of assets to frustrate the enforcement of a judgment. We have previously written about Mareva injunctions, but to summarize, to be granted this type of relief, the moving party must establish the following:
- The presence of a strong prima facie case;
- The defendant owns assets in Ontario; and
- That there is a real risk that those assets will be removed or sold before judgment is likely done to avoid payment.
Learn more about these types of injunctions here.
An Anton Piller order is a type of injunctive relief that can be granted in Ontario to allow a party to search a defendant’s premises for evidence of wrongdoing. These orders are often sought in cases where there is a risk that evidence will be destroyed or otherwise tampered with, and they are designed to preserve evidence and prevent the dissipation of assets. For example, an Anton Pillar order was granted in Cicada 137 LLC v. Medjedovic, which involved the theft of cryptocurrency assets. As demonstrated in the case, four elements need to be established:
- The presence of a strong prima facie case;
- The alleged conduct causing serious harm;
- The defendant is demonstrated to possess the evidence; and
- The defendant may destroy the evidence prior to discovery.
A permanent injunction is a type of injunctive relief that can be granted by a court in Ontario to permanently restrain a party from engaging in a specific activity. The purpose of a permanent injunction is to prevent further harm to the rights of an individual or business, and it remains in effect until it is modified or lifted by a court. Permanent injunctions are typically granted as a final remedy after the matter has been fully heard and decided by the court.
The Superior Court of Ontario recently granted the Law Society of Ontario (“LSO”) an interim injunction to prevent Metrolinx from culling several 200-year-old trees at Osgoode Hall. The case is an excellent example of an injunctive relief application in Ontario. Justice Chalmers applied the three-part test developed in RJR MacDonald Inc. v. Canada (AG) and found that this is a serious issue, and the removal of the trees would be irreparable harm as it cannot be undone. The relief would also allow the LSO to review necessary documentation relating to the justification to cut down these trees. However, despite granting the injunction, Justice Chalmers expressed concern for overall arguments and noted that “[t]his conclusion is not, of course, binding on the judge who ultimately hears the injunction motion, on a more complete record.” The interim injunction is in force until midnight on February 10, 2023.
The process of obtaining an injunction is often difficult. Due to the nature of the remedy, injunctions are granted in exceptional circumstances. As a result, they require outstanding counsel with demonstrated success in acquiring an injunction.
If you have a question about injunctive relief, the highly skilled Toronto corporate lawyers at Milosevic & Associates can help. Call us at 416-916-1387 or contact us online to learn more about our firm and our experience with this legal remedy.