October 31, 2024
We have written before about the test for an “interlocutory injunction”, or an injunction pending trial or other final determination of a dispute.
But what if you are seeking a “permanent injunction”, one which continues after the dispute is finally ended, indefinitely into the future?
At that point, the court has considered the rights of the parties and made a decision. This differs from an interlocutory injunction. In an interlocutory situation, because there is no way to accurately weigh the comparative rights of the parties, the applicant seeking the injunction merely has to show a triable issue (sometimes a strong triable issue). This caution is no longer appropriate for a permanent injunction.
So, instead of a triable issue, the applicant must show that they have a cause of action which gives them legal rights against the respondent(the target of the injunction).
The “irreparable harm” requirement of the interlocutory injunction is reframed as a requirement to show that damages would be an inadequate remedy, which is very similar to how a court looks at irreparable harm. This may take the form of:
- Damage that is impossible to repair
- Damage that is not easily capable of being measured in economic terms
- A legal wrong that causes no financial or economic harm
- Where damages can be measured but are unlikely to be collectible
- A threat to an interest that is so important that money is not adequate
- A future or continuing harm.
The third step in the test is to decide if there are any equitable or discretionary reasons that an injunction is unfair or inappropriate, such as:
- Delay in seeking the injunction
- “Unclean hands”
- Hardship
- Impossibility of compliance.
Equity, you may recall, deals with what is fair or reasonable on the particular facts of the case.
If all three steps are satisfied, a permanent injunction may be granted. As with all injunctions, the final decision is always discretionary- the judge must do what they think is fair and just.
TAKEAWAYS
- Permanent injunctions may be harder to obtain than interlocutory injunctions.
- The test differs.
- The ability to obtain an injunction depends upon claiming the moral high ground.
WHAT WEILERS LLP CAN DO TO HELP YOU
Our litigation team knows equity and the law of injunctions, but more importantly we:
- Know the importance of facts;
- Know WHICH facts are important to your case;
- Know how to search out evidence to prove those facts;
- Know how to present that evidence in court;
- Know when to tell you that we just, despite best efforts, cannot prove that you occupy the moral high ground, and how that should influence your strategy; and
- Know the judges and most lawyers in Thunder Bay and Northwestern Ontario, so we can better advise you on the human element of strategy.
If you need lawyers who can help you capture the moral high ground (and who doesn’t?) Weilers LLP might be the right lawyers for you. Give us a call.
(This article relies upon information found in the third edition of The Law of Equitable Remedies by Jeffery Berryman, published by Irwin Law. We have adapted the information for this article.)