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How Injunctions Function

Activists are often on the receiving end of injunctions; the recent Canada Goose case being one such example. Guest write and barrister Alan Robertshaw will address, very briefly, a basic overview of what injunctions are. Whilst we hope this helps activists, this should not be taken as legal advice as each case is unique.

At their most basic, injunctions are just orders of the court telling people to do something, or, more often, to not do something.

There are two main types of injunctions; permanent and interim.

Permanent injunctions are imposed after a full trial. Interim injunctions, however, can be imposed at very short notice, without the person on the receiving end necessarily being aware of their application. They are used where there is an urgent need to prevent an activity, either to preserve the status quo pending a full trial on the facts, or to prevent irreparable harm. In practice, an interim injunction can have a permanent effect if it prohibits an action for which there was just one opportunity.

The principles governing the grant of interim injunctive relief were explained in a case called American Cyanamid. The broad principles are:

(i) The Court must satisfy itself that there is a serious question to be tried. (ii) Applications should be decided primarily on the balance of convenience. (iii) An interim injunction should be refused if damages would adequately compensate the claimant (and the defendant will be able to pay). (iv) An interim injunction should be granted if the claimant's cross-undertaking in damages would adequately compensate the defendant (and the claimant would be able to pay). (v) If damages would not fully compensate either party, the balance of convenience decides the issue. (vi) If the balance of convenience favours neither party, the relative strengths of the parties' respective cases on the merits may be taken into account, if one case is disproportionately stronger. (vii) If other factors are finely balanced, the Court should maintain the status quo.

There must be an underlying legal basis for the application. That could be harassment, interference with rights, recovery or preservation of property, etc. Basically, anything that would give you a claim to sue someone.

The ‘balance of convenience’ is a test that considers which party would suffer more if the application went against them.

Applications for injunctions can be made ‘on notice’ or ‘without notice’. That’s just the current legal terms for whether the other side gets a chance to speak at the application. Sometimes the older terms ‘inter parties’ or ‘ex parte’ are used.

Generally, even if someone applies for a ‘without notice’ injunction, they should at least let the other side know that’s what they are doing; unless ‘tipping off’ the other side would defeat the object of the injunction, or there’s no way of knowing how to communicate with them. That’s often the case with protestors, who will then be described in the application as “persons unknown”.

If an application is made without notice, the person seeking the injunction has a duty to bring to the court’s attention any arguments, whether of fact or law, that the other side could make if they were there.

If an interim injunction is granted without the other side being present, then a hearing will be listed at the earliest opportunity for the other side to attend and have their say on whether the injunction should stay in place; either in whole, or with variations.

Breach of an injunction is a contempt of court that can be punished with a fine or by being committed to prison.

One thing to note about injunctions is that they are what is called an equitable remedy. That means unlike the usual legal remedies, which are available to anyone, regardless of their character, a person seeking an injunction must come to the court “with clean hands”. That means a party that has engaged in disreputable conduct might not be granted an injunction, even if the merits of the case otherwise were in their favour.

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