Photo of Mohamed AmeryBy Mohamed AmeryMarch 05 2018
Litigation

Forcing an Opposing Party to Take Urgent Action before Trial

There are essentially two types of interlocutory (pre-trial) injunctions: 1) a prohibitive injunction and 2) a mandatory injunction. 

The former is an order for a party to refrain from doing a certain act.  For example, a corporation may seek a prohibitive injunction against a departed executive who is improperly taking corporate opportunities that rightfully belong to the corporation. The corporation would need to establish that there is a serious issue to be tried, that irreparable (non-monetarily-compensable) harm would be suffered absent issuance of the injunction and that the harm of granting the injunction would be less than the harm in not doing so (the “balance of convenience”). 

A mandatory injunction, on the other hand, is an order by a court for a party to do a certain act. To obtain a mandatory injunction, a party needs to prove the irreparable harm and balance of convenience aspects, as is the case with a prohibitive injunction. The difference, though, is that a “strong prima facie case” (not just a “serious issue”) needs to be made out. The Supreme Court of Canada in the recent R v CBC  case emphasized that a court must do an “extensive review of the merits” of a case to determine whether there is indeed a strong prima facie case. The court must be convinced that the applicant (plaintiff) would be “very likely to succeed at trial”. This is very strong language with good reason. An order forcing a party to, say, take material off a website—the subject matter of the CBC case—is in effect a final resolution of a matter.  Courts are very hesitant to make such an order before a trial occurs.

A point of conceptual clarification is in order. Parties often seek summary judgment, which is a form of interlocutory application where a court decides a matter on the written evidence in lieu of trial.  Such parties accordingly ask the court to order the defendant to take positive action.  The difference between such an application and an injunction application, however, is that a summary judgment application in most cases centres on a written agreement between the parties. The damages that the plaintiff would seek (such as unpaid debt) would be plainly ascertainable from the written record and harm allegedly suffered would not be irreparable. A court, in adjudicating such a matter, would do so having regard to the agreement and the surrounding circumstances. The court would not have any regard for the elements of the mandatory injunction test. The processes are wholly distinct from one another.   

Invitation for Discussion

If you would like to discuss this blog in greater detail, or any other business litigation matter, please do not hesitate to contact Mohamed Amery.

Disclaimer:

Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.

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