Stop that! Seeking and obtaining injunctive relief

This blog post discusses injunctions. An injunction is an equitable remedy. An injunction typically prevents or restrains a person from doing something (i.e. a prohibitive injunction), but can also compel a person to perform a particular act (i.e. a mandatory injunction). Injunctions can be permanent or temporary in nature.

Permanent and interlocutory injunctions

A temporary injunction, referred to as an interlocutory or interim injunction, is “available where it is alleged a legal wrong causing harm is occurring and causing harm but the allegations are disputed and a trial or further proceeding will be required for a final determination to be made” (Thompson v Gerow-Scissons, 2019 SKQB 164 at para 6 [Thompson]). The purpose of an interlocutory injunction is “to ensure that the subject matter of the litigation will be ‘preserved’ so that effective relief will be available when the case is ultimately heard on the merits” (Google Inc. v Equustek Solutions Inc., 2017 SCC 34 at para 24, [2017] 1 SCR 824 [Equustek Solutions]). As the Supreme Court of Canada noted in Equustek Solutions at para 24, “[a]n interlocutory injunction is normally enforceable until trial or some other determination of the action”. A permanent injunction, on the other hand, “is only granted after the court has made a final determination that a legal wrong has occurred” (Thompson at para 8).

Interlocutory injunctions

The test for determining whether a prohibitive interlocutory injunction should be granted was set out by the Court of Appeal for Saskatchewan in Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120, 341 DLR (4th) 407 [Mosaic Potash]. Drawing from Supreme Court of Canada jurisprudence, the Court in Mosaic Potash noted that a Court is required to consider the following criteria in determining whether a prohibitive interlocutory injunction should be granted:

• Whether there is a serious issue to be tried;
• Whether the applicant has demonstrated a material risk of irreparable harm if the injunction is not granted; and
• Whether the balance of convenience favours granting the injunction.

Each stage of the framework set out above is briefly discussed in the paragraphs that follow.

The “serious issue to be tried” threshold is relatively low. It requires an applicant to demonstrate that they “have a claim which is not frivolous or vexatious” (Mosaic Potash at para 113). However, this standard is only applicable to an application for a prohibitive interlocutory injunction.

Where an applicant seeks a mandatory interlocutory injunction, as opposed to a prohibitive interlocutory injunction, the Court does not consider whether there is a serious issue to be tried. Instead, the Court must be satisfied that the applicant has shown a strong prima facie case: R v Canadian Broadcasting Corp., 2018 SCC 5 at para 15, [2018] 1 SCR 196 [CBC]. To demonstrate a strong prima facie case, an applicant must “show a case of such merit that it is very likely to succeed at trial” (CBC at para 17). The Court “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” (CBC at para 17, emphasis in original).

If the Court is satisfied that an applicant has raised either a “serious issue to be tried” or a “strong prima facie case” (depending on the type of relief sought), the Court will consider whether the applicant has demonstrated a material risk of irreparable harm. Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other” (RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 at 341). As the Court noted in 102021880 Saskatchewan Ltd. (Canadiana Foods) v Baiton, 2024 SKCA 118 at para 63, quoting Mosaic Potash at para 61, “a plaintiff seeking an interlocutory injunction is required to establish ‘a meaningful doubt as to the adequacy of damages if the injunction is not granted’”.

The final stage of the interlocutory injunction framework requires the Court to assess the balance of convenience. As the Court noted in Mosaic Potash at para 113, this assessment “is usually the core of the analysis”. The Court “must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is not granted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is granted and he or she prevails at trial” (Mosaic Potash at para 113). However, an assessment of the balance of convenience “can accommodate a range of equitable and other considerations” (Mosaic Potash at para 113).

An additional requirement associated with an application for an interlocutory injunction is the requirement that the applicant provide an undertaking as to damages. As the Court noted in Mosaic Potash at para 114, “generally a plaintiff must give to the defendant an undertaking to pay the defendant any damages that the defendant sustains by reason of the injunction, should the plaintiff fail to prevail at trial”. An undertaking as to damages serves “to provide financial protection to a defendant who becomes subject to an injunction” (Turtle v Valvoline Canadian Franchising Corp., 2021 SKCA 46 at para 42).

Permanent injunctions

The Court must apply a different legal framework when determining whether to grant a permanent injunction. In order to grant a permanent injunction, the Court must be satisfied that the applicant has established its legal rights and that injunctive relief is appropriate: Cambie Surgeries Corp. v British Columbia (Medical Services Commission), 2010 BCCA 396 at para 28, 323 DLR (4th) 680. In Equustek Solutions at para 66 the Court noted that a party seeking a permanent injunction must establish: “(1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court’s discretion to grant an injunction”.

In Mcguire Equity Corp. v Wheatland Developments Ltd., 2020 SKQB 114 at para 162, the Court outlined the following considerations for determining whether a permanent injunction is an appropriate remedy:

[162]    The general rules applicable are readily discerned from the case law. Injunctive relief is discretionary and courts must be satisfied that it is appropriate and necessary to impose an injunction (Willow Beach Developments Ltd. v Silverstone, 2017 BCSC 2562). As an injunction is a prospective remedy, it should only be granted where the court is satisfied that the “enjoined conduct is likely to occur”. Also see Aquila Networks Canada (B.C.) Ltd. v Borgnetta, 2004 BCCA 188. Additionally, in Bruderheim Community Church v Board of Elders, 2018 ABQB 90, [2018] 5 WWR 332, it was held that to obtain a permanent injunction the applicants must “establish their legal rights, that damages are an inadequate remedy, and that there is no impediment to the Court’s discretion to grant an injunction” (para. 58).

While irreparable harm and the balance of convenience are important aspects of the interlocutory injunction framework, these considerations “are not specifically relevant to a permanent injunction” (Katelnikoff v Irricana (Town), 2024 ABCA 205 at para 34 [Katelnikoff], citing 1711811 Ontario Ltd. (AdLine) v Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 DLR (4th) 643). However, these considerations could bear on the Court’s “determination of whether it should exercise its discretion in granting final injunctive relief” (Katelnikoff at para 34).

Conclusion

Injunctions, whether permanent or interlocutory in nature, are serious legal remedies that are complex in nature. In addition to the high-level information set out in this blog post, other important considerations will bear on whether an injunction is an available and appropriate remedy in a particular set of circumstances.

McDougall Gauley LLP has extensive experience acting in civil litigation matters. To learn more, please contact a member of our Litigation, Dispute Resolution & Appeals team.