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Injunctions

An injunction is a court order requiring a person to do or cease doing a specific action.

Temporary restraining orders and preliminary injunctions are temporary injunctions. They are issued early in a lawsuit to maintain the status quo by preventing a defendant from becoming insolvent or to stop the defendant from continuing his or her allegedly harmful actions.

Choosing whether to grant temporary injunctive relief is a discretionary power of the court. Permanent injunctions are issued as a final judgment in a case.

Failure to comply with an injunction may result in being held in contempt of court.

In some disputes or claims, clients may require immediate assistance from the courts.

Commonly sought injunctions and other urgent relief, named after the cases in which they were first ordered are the Mareva injunction, the Norwich Order and the Anton Piller order.

The need for an urgent judicial remedy often arises in the following circumstances:

  • to search and to find and preserve evidence and / or property
  • to prevent the breach of contract or to require performance of a contract
  • a partnership dispute or a shareholders’ dispute, where there has been oppression by, or exclusion of, one group against another
  • the sale or lease of real or personal property which has “gone wrong”
  • claims against a defendant with little or no physical presence in Ontario
  • where there is a risk of the dissipation of assets before the court or arbitration tribunal has pronounced judgment or final award
  • to freeze bank accounts and other assets pending trial
  • where evidence may be spoiled, lost or destroyed
  • where evidence has been hidden
  • where real property may be sold when pending claims and disputes have not yet been determined by the court
  • to restrain the sale of land or other property
  • to prevent or restrain copyright and trade-mark infringement
  • to restrain defamation and publication of private matters
  • to restrain breach of confidentiality
  • to restrain the disclosure of trade secrets; and
  • to restrain the solicitation of clients or employees or other intangible assets which are recognized by the courts as protected interests.
  • to enforce restrictive covenants (non-compete clauses)
  • to evict a commercial tenant for breach of lease
  • to stay repossession of real property pending resolution of dispute by the courts
  • to prevent the continuation of nuisance and / or trespass

Failing to obtain an urgent remedy of the court may often threaten the viability of the business which has been, or may otherwise be harmed.

In such circumstances, the survival of a business, company or partnership may be at risk.

At other times the injunction or other urgent remedy is to ensure that sufficient funds or assets, which might otherwise be dissipated, are available to satisfy an existing or future judgment of the court or arbitration award.

Sometimes a stay of proceedings is sought because other legal proceedings or arbitration proceedings have been properly brought.

Types of Injunctions and Stay Orders

These are generally categorized as:

(i)    Injunctions to preserve and safeguard assets, evidence or the means to satisfy an existing or future judgment or arbitration award;

(ii)   Injunctions restraining impending or continuing acts, conduct or behavior;

(iii)  Mandatory orders requiring the performance of certain acts, including the return of or permitted use of property;

(iv)  Stay orders to halt legal or arbitral proceedings; and

(v)   Other time sensitive equitable remedies such as rescission of a contract (unmaking of a contract), and specific performance of a contract (enforced performance of a contract).

Other disputes and claims may require assistance from the courts to arrest certain types of property such as ships and aircraft, which are the subject of the claim, or otherwise recognized by law to be subject to arrest.

Injunctions have been classified by the courts as being interim injunctions, interlocutory injunctions, permanent injunctions and mandatory injunctions.

Specific Injunctions, Stay and Other Orders

Here is a list of some of the urgent remedies that have been granted by the courts:

  • Anton Piller orders (court order to search and seize evidence, without prior warning)
  • Anti-suit injunctions (sometimes called a stay order)
  • Arbitration – urgent remedies
  • Arrest of ships
  • Arrest of aircraft
  • Attachment of assets
  • Asset freezing orders
  • Certificate of Pending Litigation
  • Copyright infringement injunctions
  • Defamation injunctions
  • Enforcement of contractual rights
  • Evidence preservation orders
  • Freezing orders
  • Interim injunctions
  • Interim preservation orders
  • Interim recovery of personal property orders
  • Interlocutory injunctions
  • Internet and e-commerce litigation
  • Jurisdictional challenges
  • Mandatory orders
  • Mareva injunctions (otherwise known as a freezing order)
  • Norwich orders (ordered disclosure of documents and information from a third party)
  • Oppression remedies
  • Passing-off injunctions
  • Preservation of property
  • Quia Timet injunctions (for threatened or imminent acts)
  • Recovery of property
  • Specific performance of contracts
  • Stay orders pending appeal
  • Trade-mark infringement injunctions
  • Urgent arbitrator (injunctions before arbitration tribunal appointed)

Enforcing US Injunctions and Non-Monetary Judgments in Ontario, Canada

The Courts in Ontario may in the required circumstances recognize and enforce foreign equitable orders such as foreign injunctions (not just foreign money judgments).

The following factors are considered in determining recognition and enforceability of a foreign injunction:

(a) are the terms of the order clear and specific enough to ensure that the defendant will know what is expected;

(b) is the order limited in its scope and did the originating court retain the power to issue further orders;

(c) is the enforcement the least burdensome remedy for the Canadian justice system;

(d) is the Canadian litigant exposed to unforeseen obligations; (e) are any third parties affected by the order; and

(f) will the use of judicial resources be consistent with what would be allowed for domestic litigants.

Such factors are in addition to the usual considerations of the courts in Ontario when asked to recognize a foreign judgment.

Aswani K. Datt can help you devise a litigation strategy to ensure you receive a real and cost effective result.

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