Any litigator who is likely to become involved in injunctions would benefit from reading a recent Queen’s Bench decision. For one thing, injunction issues are often emergencies with limited time for research.
The decision discusses a number of categories and how to distinguish them:
meeting the necessary requirements for an injunction vs. judicial discretion to refuse an injunction,
final or permanent vs. interlocutory injunctions,
whether distinction #2 refers to the test, or refers to the evidence heard or whether there has been a trial (or full determination of the issues),
mandatory vs. prohibitive injunctions, and how elusive this distinction can be at times,
how # 2 and # 4 interact.
The decision seems to criticize the need for stronger evidence to get a mandatory injunction. That may be academic, as the Supreme Court of Canada supports that need.
If some of these 5 distinctions are forgotten or not understood, things can seem very confusing. Or lawyers or judges may misstate basic rules.
The case also shows how one can become confused where the injunction sought is not about the substantive rights of either party, but about procedure along the way in a dispute. To take an imaginary example, the basic ongoing dispute is whether the ditch which you have started to dig is on my land, or is protected by an easement. But the fight at the moment is whether to give an injunction against keeping or destroying surveyors’ pins and written records.
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.