Injunctions

An injunction is a court order directing a defendant to do something, or refrain from doing something. It is an equitable remedy that is available as either temporary or final relief. There are two types of injunctions: mandatory and prohibitory.

A prohibitory injunction restrains conduct while a mandatory injunction requires performance of a legal (statutory or common law principle) or equitable obligation owed to the aggrieved party to be performed.

A final or permanent injunction is one that is granted as relief after a trial or the hearing of an application. A permanent injunction may only be available where damages may be inadequate to the claimant.

A temporary, or interlocutory injunction is granted before the trial of an action, or in some cases, an intended action or before the hearing of an application before the court. This type of injunction will operate for a fixed period of time after which it may expire, unless it is renewed by the court. Ultimately, an interim injunction does not dispose of an action, but it acts to permit the restraining of behavior, or enforcing specific performance of behavior, until such time as the matter has been heard.

Procedure

Rule 40.01 identifies the procedure for bringing forward a motion for injunctive relief in a pending proceeding or intended proceeding. Please note that when a Motion is to be filed with the court there must be a court file number attributed to the proceeding under which the Motion would fall; accordingly, while Rule 40.01 permits a party seeking an injunction to proceed prior to a proceeding being launched, it is intended that the party draft their pleading, file it, and include it with the Motion record, even if it has not been served (or, especially if it has not been served). Why might a party wish to bring forward an injunction in the absence of a pleading? Urgency.

Rule 37 of the Rules of Civil Procedure deals with Motions, and an injunction would be brought to the court by way of a Motion to the court, requesting the particular relief sought.

The Notice of Motion must state the relief sought, the grounds for the relief sought and the law upon which the party relies in seeking the relief. The Notice of Motion must form part of the Motion Record, which would include any additional supporting evidence in support of the relief sought. In particular, the Motion must include a sworn affidavit by an affiant having knowledge of the material subject matter forming the grounds for the relief sought. In addition to the Motion Record, the parties are required to exchange facta pursuant to Rule 40.04. The moving party is required, per Rule 40.03 to make an undertaking as to its damages, unless the court orders otherwise.