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The Jumble of Interim, Interlocutory, Mandatory and Permanent Injunctions

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Injunctions are a complex area of the law.  Injunctions can be even more complex when parties (or even judges) starting becoming imprecise about the words used to describe an injunction.  There are many different types of injunctions, with each having a different effect, and each having different (albeit similar) requirements under the law if you want to obtain one. So bear with me, while I step into a more technical legal area, and try to clarify (which great help from a recent Ontario Court of Appeal case) the difference between interim, interlocutory, mandatory and final injunctions.

An injunction is, generally speaking, where one party seeks to stop another party from doing something (or, in the case of mandatory injunctions, wants to force someone to actually do something).  Given the nature of an injunction, it is typically something that is sought early in a case, to make sure that a party's rights are not gone by the time a trial finally rolls around. One of the more common examples is where a key employee leaves and goes to a competitor of the employee, and starts to wrongfully compete with the former employer (i.e. in breach of a non-competition agreement, or using confidential information from the former employer).  By the time a trial happens, the former employer may already be out of business, unless the alleged improper competition is stopped immediately.

The urgency of an injunction is what leads to various types of labels for an injunction.  Unfortunately, these differents labels often get mixed up, which can lead to confusion later on.  In short, the different types of injunctions are:

  • "Interim" injunctions - an interim injunction is a short duration injunction.  It typically arises in an urgent case, where an injunction is sought without time for a judge to really hear from both sides and make a reasoned decision.  So a court can grant an "interim" injunction, protected the plaintiff for a very limited time (usually 10 or fewer days, under Ontario law).  It can be granted on an ex parte basis - meaning that it is done in the absence of the defendants.
  • "Interlocutory" injunctions - The next level of injunctive relief is an interlocutory injunction.  It lasts longer than an "interim" injunction, and will often (but not always) stay in place until a full trial can be heard.  
  • "Permanent" or final injunctions - these are, as the name suggests, permanent in nature.  They can be awarded at the end of the case, and mean that the court has made a final determination that the defendant should not be doing whatever is the subject of the injunction.
  • "Mandatory" - any interim, interlocutory or permanent injunction can also be considered a mandatory injunction.  What it means is that the injunction requires the defendant to take positive action, rather than a typical injunction where a party is simply required to stop doing something.

A good way of understanding how these different types of injunctions relate to each other is the recent Ontario Court of Appeal decision in Adline v. Buckley Insurance Brokers, 2014 ONCA 125.  The case involved two neighbours fighting over the use of a laneway that ran over one of their properties, with a right-of-way in favour of the other property.  It was used by the plaintiff to receive shipments, and an issue arose about access over the right-of-way.  They had an initial lawsuit that was resolved (at least temporarily) on consent, with a consent order requiring certain access to be granted to the plaintiff.  

When the plaintiff later had issues with access, it came back to court to seek a further injunction ensuring that it had access and to require the defendant to modify the laneway to ensure there was proper clearance for delivery trucks.  The judge granted a short (2-month) injunction as requested, although an issue later arose about the meaning of the injunction given the way the parties and the judge had described the injunction.  The judge later amended her order to make the injunction perpetual.

The case involved a number of these different types of injunctions:

  • The earlier consent injunction was an interlocutory injunction - it was time limited (so it is not a permanent injunction), but it was reached with full participation by both parties (so it is not an interim injunction).
  • When the plaintiff initially came back to court, in obtained an interim injunction - it was, again, time limited, but since it was done on little notice to the defendant, it is an interim injunction rather than an interlocutory injunction.
  • After the judge amended her order, it became a permanent injunction - it was no longer time limited, and finally decided the issue.
  • Part of the injunction was a mandatory injunction - to the extent that the defendant had to modify the laneway, this meant it had to take positive steps to comply with the injunction, making it a mandatory injunction.

Why is the terminology important?  Because each of the different types of injunction has a different test that a plaintiff has to meet.  While I don't intend to get into the details of the different tests, they can significantly change the result.  For example, in the Adline case, the Court of Appeal had to step in and vary the order that was granted, because the test that had been applied was the wrong test (among other reasons).

If you need further confirmation of the importance of being careful to distinguish between the various types of injunctive relief, the recent case of Paccar Financial Services Ltd. v. 2026125 Ontario Limited, 2014 ONSC 456.  A secured creditor sought to obtain an order for possession of two trucks, pursuant to a security agreement.  A final order for possession was sought (i.e. a permanent mandatory injunction), despite no notice having been given to the owners of the truck (in which case it should only be an interim order).  Beause of this issue, as well as a number of other concerns the judge had, the secured party was unsuccessful.

The bottom line is that the terminology and rules around injunctions are very specific, and a lack of precision can cause variuos types of problems, as the parties in both the Adline case and Paccar Financial Services case discovered.

 

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