Documentation:Torts/Injunctions

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Injunctions

Whereas damages look backwards to redress a past wrong, injunctions are forward-looking orders that either prohibit an individual or entity from performing certain acts, or conversely require them to do something. Anyone who infringes an injunction could potentially be found in contempt of court. Courts have discretion over whether or not to order an injunction. It is considered an extraordinary remedy that should not "go beyond what is reasonably necessary to effect compliance."

Interim and interlocutory injunctions

In the news
Freedom Convoy injunction in Ottawa
In response to disruptive protests in 2022 against COVID-19 restrictions, an Ottawa judge granted a temporary 10-day injunction preventing the honking of horns in a specified area.

An interlocutory injunction is a temporary measure that can be granted after legal proceedings have commenced, but prior to an actual trial. The party that seeks such an injunction (e.g., plaintiff) must bring a motion forward seeking it. There is a three-part test for seeking an interlocutory injunction. The applicant must demonstrate that:

1. There is "a serious question to be tried";
2. They may suffer "irreparable harm" if the relief is not granted; and,
3. The court must determine "whether the balance of convenience favours the applicant or the respondent".

An interim injunction is the "shortest type of injunction ordered by the courts", granted in situations that are urgent due to the likelihood of immediate harm to the plaintiff. Unlike an interlocutory injunction, the defendant does not need to be given notice of such action.

Logging activities in some areas of British Columbia have attracted significant controversy

Contentious cases

Injunctions against logging protests

In British Columbia, injunctions have been granted to private companies who wish to stop protests which are impeding natural resource projects, such as pipeline construction and logging. In April 2021, the BC Supreme Court granted an injunction preventing protestors from blocking logging routes or interfering with operations. However, in September of that year the court refused to extend this six-month interlocutory injunction, as the "methods of enforcement of the court's order have led to serious and substantial infringement of civil liberties" due to the conduct of the RCMP. For example, in a series of images shown in court, police officers were seen pulling masks off protestors faces "while pepper spray was about to be employed". The court did take note of some of the "extreme" and dangerous actions taken by some protestors, but noted that even in absence of an injunction police could still arrest those found committing crimes.

Freedom Convoy injunctions

Court Orders Honking Halted in Ottawa
Discover more about the Ottawa injunctions on The Decibel, a podcast by The Globe and Mail.

In 2022, a series of protests emerged across Canada against COVID-19 restrictions, known as the Freedom Convoy. In response to the disruptive and "at times highly offensive" gathering near Parliament in Ottawa, a group of affected residents successfully applied to the Ontario Superior Court for injunctive relief. The claimants in this case focused on the tort of private nuisance, in which an owner of land must demonstrate interference that is "both substantial and unreasonable". In Li v. Barber, despite the protestors arguing that their Charter rights were engaged, the court granted a 10-day interlocutory injunction banning the unauthorized use of "air horns or train horns", while still permitting the protestors to "engage in a peaceful, lawful and safe protest". A class-action lawsuit, stemming from this injunction, is still seeking certification and would include approximately 15,000 people within the affected area.

Parliament Hill wasn't the only place where protestors appeared. At the Ambassador Bridge, which straddles the border between Canada and the United States, protestors blocked traffic from crossing the bridge, which had negative economic impacts for many businesses. A group of organizations sought an injunction, seeking to prevent the protestors from preventing passage over the bridge.

As set out above, there are three elements from RJR MacDonald Inc. v. Canada (Attorney General) that must be established by a party seeking an injunction. In court, an interim injunction was granted, as the claimants were able to satisfy all three elements. The "serious issue" in this case was the public nuisance and tortious interference arising from the protestor's actions. The irreparable harm was the economic harm and the balance of convenience favoured the claimants, since the protestors "had no legal right to block or impede access to the Bridge".

Mareva injunctions and Anton Piller orders

In the news
Interrogation, search and seizure by Bell and Rogers
Several cable companies were granted an Anton Piller order and entered the home of a Montreal man who was suspected of violating the Copyright Act. The man was interrogated "for more than nine hours" by lawyers and had personal items like his phone and computer seized.

One special type of an interlocutory injunction are Mareva injunctions, which was first used in the 1975 English Court of Appeal case of Mareva v. International Bulkcarriers. Under a Mareva injunction, assets can be frozen to "prevent their dissipation pending the conclusion of a trial or action". As an interim, "pre-judgment" order, a Marveva injunction at the outset of litigation intends to "secure" the assets of the defendant so that a potential judgment can be satisfied in the event the plaintiff is successful. Such an injunction is particularly useful since in many cases due to the length of legal proceedings, by the time the plaintiff obtains a judgment the defendant was able to hide, dissipate or transfer their assets outside of the court's jurisdiction, thereby rendering them effectively judgment-proof. Therefore, Mareva injunctions are typically granted when the court is both satisfied that the plaintiff is likely to recover judgment against the defendant, and there is a high likelihood that the defendant will take steps to prior to this to obfuscate assets which would be used to fulfil the judgment.

Closely related to the Mareva injunction are Anton Piller orders, which also emerged in 1975 from the English Court of Appeal. An Anton Piller order is an "extraordinary" form of injunctive relief that compels the defendant to allow the plaintiffs to enter their property "to search for and seize evidence and records". The purpose of such an order, which is sometimes referred to as a "civil search warrant", is to prevent defendants from destroying relevant evidence, either before or during court proceedings. Anton Piller orders are frequently used to protect evidence in intellectual property cases, such as those concerning patent infringement. Anton Piller orders can be granted ex parte, meaning that a party seeking this order can do so without the court giving the defendant a chance to oppose the grant, or even know that such an order has been issued. Despite the controversial nature of Anton Piller orders due to its effects on individual's rights, courts have mostly found that the Charter "does not apply to it".

Permanent/perpetual injunctions

Permanent injunctions are often delivered in cases where one party is engaging in behaviour which seriously harms the other party. Granting a permanent injunction provides relief by preventing the defendant from engaging in acts which have or could cause harm to the plaintiff. Such injunctions can require that the wrongdoer refrain from certain behaviours, stay away from certain areas (whether physical or virtual), or refrain from communicating with certain individuals. Unlike interim injunctions, permanent injunctions are only granted "after a final adjudication of the parties’ legal rights".

Unlike interlocutory injunctions, there is no "established test" for permanent injunctions. However, when deciding whether to exercise their discretion and grant a permanent injunction as an equitable remedy, the party seeking the injunction must establish:

1. "its legal rights";
2. "that damages are an inadequate remedy"; and
3. that an injunction is an appropriate remedy.

Permanent injunctions in case law

Injunctions are common in cases of defamation, especially when there is a likelihood that the defendant would still continue to publish defamatory statements about the plaintiff despite the findings of the court.

In Tam v. Chan, a case of harassment and assault, the court granted an injunction which prevented the defendant from engaging in certain acts in relation to the plaintiff, such as causing damage to their residence or "shouting or speaking obscenities or foul language" towards them. In Tam, the court also held that it has jurisdiction to grant an injunction even over conduct that is not in itself tortious or unlawful, provided that such an order is necessary to protect a plaintiff’s “legitimate interests”, such as preventing harassment.

Injunctions can also prevent the wrongdoer from being present and performing acts in certain virtual spaces. In Lu v. Shen, the court prohibited both the plaintiff and the defendant (who had mutually engaged in defamatory actions) from posting anything about the other individual "in any public forum or social media". The order also required the parties to remove any existing posts from certain online platforms.

Courts consider permanent injunctions in situations where an award of monetary damages would not be effective since the defendant has little (if any) funds to give to the plaintiff. An injunction would allow the plaintiffs to experience some sort of relief, even when financial damages aren't practically available. In Caplan v. Atas, the defendant had declared bankruptcy and was in an overall destitute state. In response to her online harassment of the plaintiffs, Atas was ordered to "leave the plaintiffs alone".

When should an injunction not be granted?

Injunctions are typically not granted when the claimant hasn't been able to demonstrate that the wrongdoer's conduct is "sufficiently likely to occur or recur in the future", or where damages would be an adequate remedy.

All types of injunctions (both interim and permanent) must be "expressed in terms which are clear and certain", and define "precisely" what acts are prohibited. Orders which are vague, overly broad or ambiguous would not fit this criteria. In Rhodes v. OPO (2015), the court declined to grant an injunction preventing the publication of certain content in a book since, among other reasons, the terms being sought were "insufficiently specific".

Discussion questions

• Why should courts exercise particular caution before making an award of an interlocutory injunction?
• What are the consequences of breaching a court-ordered injunction?
• Why are permanent injunctions an exceptional, rather than the ordinary, remedy for tortious action?
• Why is it important that permanent injunctions are particularly tailored to the specific circumstances of the case in which they are ordered?