Most lawsuits are about the past. Somebody broke a contract or caused a loss, and a court later decides what they owe. Occasionally, money later will not solve the problem. A former business partner is emailing your customer list to a competitor. A neighbour’s contractor is about to cut down a boundary tree. A company is selling off the one asset that could satisfy a judgment. If you wait for trial, there may be nothing left to protect.
That is the situation an interlocutory injunction is meant to address. It is a temporary court order, made before the final decision, telling someone to stop doing something or, less often, to take a positive step. It is powerful, and it is correspondingly difficult to obtain. Courts are careful about restricting a person’s conduct before anyone has proved anything at trial.
This article describes how these motions work in the Superior Court of Justice in Ontario. It is general information, not legal advice, and because these matters move quickly, anyone facing real harm should get advice about their own facts without delay.
Which Court, and Which Kind of Order
The power comes from section 101 of the Courts of Justice Act, which lets a judge of the Superior Court grant an interlocutory injunction or mandatory order where it appears just or convenient. Procedure is in Rule 40 of the Rules of Civil Procedure. In Brampton, this means a motion in the Superior Court at 7755 Hurontario Street, or another location or method the court directs.
Small Claims Court is not an option. Under section 96 of the same Act, equitable relief is reserved to the Court of Appeal and the Superior Court, exclusive of Small Claims Court. A dispute worth a modest sum can therefore end up needing Superior Court steps if the real objective is to stop conduct.
You will also hear these words:
- Interim usually describes a short order that holds things in place until a fuller motion can be argued.
- Interlocutory generally describes an order lasting until trial or some other final disposition.
- Permanent is the final remedy a court may grant after the case has been decided.
- Prohibitive orders tell someone not to act. Mandatory orders require them to act.
An injunction motion is normally attached to a lawsuit. You must have, or be starting, a proceeding that claims rights the court can protect. The injunction preserves the position while that case runs.
The Three Questions a Judge Asks
The framework comes from the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311. Judges usually ask three questions.
Is there a serious issue to be tried? This is a fairly low threshold in most cases. The court is not deciding who wins, only that the claim is not frivolous or vexatious.
Will the moving party suffer irreparable harm if the order is refused? This is frequently where motions succeed or fail. “Irreparable” refers to the nature of the harm, not how large it is. It describes harm that cannot be adequately compensated in money or cannot realistically be repaired. Destruction of a unique item or a permanent loss of a business might qualify, if the evidence supports it. Lost revenue that an accountant could calculate later often does not. Bare assertions are rarely enough. The court expects evidence, not simply fear.
Where does the balance of convenience lie? The judge compares the harm to each side from granting or refusing the order. Who will be hurt more in the months before trial? Does the order merely preserve the way things were, or does it change them? Would it put someone out of work or shut down a business? Public interest can also matter in the right case.
These factors are not a checklist. A very strong showing on one may help where another is less clear, although irreparable harm is generally hard to do without.
Asking a court to make someone act is generally harder than asking it to stop them. In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court said that a person seeking a mandatory interlocutory injunction must show a strong prima facie case, meaning a strong likelihood of success at trial, not just a serious issue.
The distinction is about substance rather than wording. A request to “stop preventing access” to a commercial unit might, in effect, be a demand that a landlord take positive steps. Judges look at what the order would really require.
When the Other Side Is Not Told
Most motions require notice to the other party. Rule 40.02 permits an injunction on a motion without notice, called ex parte, but only for a period of up to ten days. To extend it, you generally must return to court on notice to everyone affected. A further extension without notice is possible for up to ten more days only if the judge is satisfied that a party has been evading service or that other exceptional circumstances exist.
Asking for relief behind someone’s back comes with a heavy duty. A person moving without notice must make full and fair disclosure of all material facts, including the facts that hurt. Being selective with the evidence can lead to the order being set aside, and possibly to costs consequences, even if the underlying claim is sound. This is one reason why urgent motions should be built carefully, even when the clock is running.
Sometimes giving very short notice is the better path. A judge can hear an urgent motion on a compressed timeline, which also makes the eventual order harder to attack.
The Price of Admission: The Undertaking in Damages
People are often surprised by this one. Under Rule 40.03, unless the court orders otherwise, the person seeking the injunction must undertake to abide by any order concerning damages if it later turns out that the injunction caused compensable harm to the other party.
In plain words, if you obtain an order, lose at trial, and the order cost the other party money, you may have to pay. If the order stopped a Brampton trucking company from using certain routes or customers for a year, that exposure could be significant. The undertaking is usually sworn personally in an affidavit, and the court may want to see that it is backed by something.
Before you start, take a hard look at what the other side could claim if you are wrong. Exemptions exist but are the exception. The undertaking should be part of the decision to proceed and not an afterthought in the paperwork.
An injunction is a request for urgent protection. If you discovered the problem in March and appear in court in September with no explanation, the respondent will ask an obvious question: if this was so urgent, why did you wait?
Delay is not automatically fatal, and time spent reasonably investigating or trying to negotiate may be explained. But unexplained delay undermines claims of irreparable harm and can tip the balance of convenience. It may also allow the respondent to build up a position that is harder to disturb. Keep a record of what you learned, when, and what you did in response, because that chronology may need to go into your affidavit.
What the Motion Actually Involves
The judge decides on written evidence, usually affidavits, along with cross-examinations on those affidavits where there is time. Your lawyer will typically prepare a notice of motion, one or more affidavits, and a factum, which is a written legal argument. Under Rule 40.04, each party must serve a factum, and the moving party’s must generally be served and filed at least seven days before the hearing, although urgent timelines can be addressed by the court.
Useful evidence tends to be specific and contemporaneous:
- Emails, contracts, non-compete or confidentiality clauses, and corporate records.
- Photographs, drone images or surveys for land disputes, with dates.
- Customer complaints or lost orders, if they point to a harm that is not measurable in money alone.
- Expert or accounting evidence explaining why the loss cannot be calculated afterward.
If an order is granted, read it carefully and give a copy to those affected. Terms must be precise, because the respondent needs to know exactly what is prohibited. Breaching an injunction can lead to a contempt motion, with consequences that may include fines or imprisonment, so anyone served with an order should take it extremely seriously. A person who thinks it is wrong should seek to vary or appeal it, not ignore it.
Specialized Orders for Assets and Evidence
Two types of order are worth knowing about, partly because they are often misunderstood.
A Mareva injunction freezes a defendant’s assets to stop them from being moved or dissipated before judgment. Because Canadian courts do not ordinarily let plaintiffs tie up a defendant’s property just because they might win, the test is tougher. It generally calls for a strong prima facie case and evidence of a real risk that assets will be removed or dissipated to avoid judgment. The Supreme Court considered this type of order in Aetna Financial Services v. Feigelman, [1985] 1 SCR 2. Fear that a defendant may not be able to pay is not enough.
An Anton Piller order permits the search for and preservation of evidence, usually without notice, where there is a real risk it will be destroyed. In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, the Supreme Court described the strict safeguards involved. These orders are rare, expensive and closely supervised, and they are not for use in ordinary disputes.
Is an Injunction Actually the Right Tool?
Often it is not, and considering alternatives can save a great deal of money.
- A focused lawyer’s letter can end the conduct, especially where the other side has simply not thought about the legal risk.
- An agreed standstill can hold matters in place by consent, perhaps with a timetable for an orderly hearing.
- A certificate of pending litigation may be available where an interest in land is at stake, by way of a separate motion.
- Specific statutory procedures may fit better. Construction liens, landlord and tenant rules, and family law restraining orders each have their own routes.
- Police involvement may be appropriate where there is a threat to safety or a crime. A civil injunction is no replacement for calling Peel Regional Police in an emergency.
Family disputes have their own orders and their own court process, and they are outside the scope of this article.
If You Have Been Served With One
The other side of these motions gets less attention, yet it is common to be served with a thick stack of paper giving you only days to respond. Call a lawyer the same day. Comply with any existing order while you consider your options. Preserve all your records, and do not delete messages or move assets in a manner that looks like an attempt to frustrate the case. You usually have the right to file your own evidence, cross-examine on the affidavits, and argue why the order is unnecessary. If an order was granted without notice, the return date is your first opportunity to answer it.
Decide Quickly, With the Evidence in Hand
Injunctions reward speed and candour. If you believe you need one, gather your key documents, write a dated chronology, and get advice before the situation changes further. A lawyer can tell you whether your facts realistically meet the test or whether a different step is more proportionate. No lawyer can tell you for certain what a judge will do on an urgent motion, but you can make the decision with clear eyes about the costs and the undertaking. For information on this type of court step, see our page on civil motions and applications. If your concern involves a business relationship, business litigation may also be relevant, or you can contact our Brampton office directly.