| Aug 30, 2007


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Legalese - August 30, 2007

What is an “Injunction”?

by William A. Florence, Barrister and Solicitor

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

Judge_implacableAn injunction is a court order that either commands, or prevents, an action. “In a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process…by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing.” [Howard C. Joyce, A Treatise on the Law Relating to Injunctions Vol. 1, at 2-3 (1909).]

An injunction is a type of “equitable relief”. Equitable relief is one type of remedy that a court can provide. An equitable remedy is non-monetary, and can be ordered when monetary damages are not sufficient to redress some sort of injury. Equity generally refers to fairness principles. If a long standing accepted principle of justice known as a “rule of equity” comes into conflict with the black letter rules of Ontario’s common law, in general, the rule of equity will prevail.

When decisions are made relating to whether the equitable relief of an injunction should be granted, one consideration is the application of the “irreparable-injury rule”. This rule is not strictly or literally followed, but courts still cite it in their judgments. One formulation of this rule is as follows: “If the threatened injury would be substantial and serious one not easily to be estimated, or repaired by money and if the loss or inconvenience to the plaintiff if the injunction should be refused…would be much greater than any which can be suffered by the defendant through the granting of the injunction, …the case is one of such probable great or ‘irreparable’ damage as will justify a preliminary injunction.” [Elias Merwin, Principles of Equity and Equity Pleading 426-27 (H.C. Merwin ed., 1896).]

There are different kinds of injunctions. One type is called “temporary” or “preliminary”. A temporary injunction is issued either before or during a trial. The reason that a temporary injunction would be issued would be to prevent irreparable injury that may occur prior to the court making a final decision on the matter that the injunction is meant to address. A “permanent” injunction is one that is granted after a final hearing on the merits of the application for the injunction. Notwithstanding the terminology “permanent”, this type of injunction does not necessarily last forever.

A good example that illustrates the reasoning behind a successful injunction is the case involving Canadian Celtic singer Ms. Loreena McKennitt. Ms. McKennitt argued in British courts that an injunction should be granted halting the publication of a book written by her former friend and employee. This book had passages that revealed very personal information that Ms. McKennitt had told her ex-friend in confidence. Prior to the final resolve of the case by a high court judge, the lower court granted the injunction. The remedy of the injunction can be understood as equitable, because it would not be fair if publication was allowed to proceed before the dispute was finally resolved; it would be too late to undo the violation to Ms. McKennitt’s privacy. Therefore, the injunction was ordered, as it was equitable.

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