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How to protect your rights when trial cannot wait: enter the provisional injunction

29 August 2022 - Canada 2 min read

1. Your rights are in jeopardy and time is of the essence – what now?

When a dispute arises, parties cannot always wait several months for the Court to make a final ruling on the questions at issue. However, for some, waiting can mean that their interest in the litigation will lose all its value.

Here are a few examples to illustrate:

  • an important football game is scheduled to take place at the Olympic Stadium in Montreal, but the supplier who undertook to deliver the playing surface claims that it cannot reach an agreement with its supplier to deliver the surface in time;
  • a clothing retailer desperately awaits delivery of its spring collection from its manufacturer but the latter requires additional unlawful payments before it agrees to deliver;
  • a tenant of restaurant premises cannot operate their restaurant because their landlord keeps the premises locked;

In each example, the parties cannot afford to wait several months for their rights to be vindicated in court. In the case of the football game, with the game due to take place shortly, failure to deliver the playing surface will result in the cancellation of the event. In the case of the clothing retailer, its spring collections will lose considerable value once that season has passed. Finally, each day that the tenant cannot operate its restaurant will entail loss of goodwill since its customers will gradually move to other restaurants.

In each of these examples–all of which were actually litigated before the Superior Court of Quebec–the plaintiffs were able to obtain a provisional injunction from the Court which allowed them, respectively, to receive their playing surface in time for the scheduled football game, obtain their spring collection, and regain access to their restaurant, in each case, within days of filing their application to the Court.

DS Lawyers Canada represented the plaintiffs in the last two cases–how did we succeed?

2. Provisional Injunctions: A Cure for Emergencies

The Quebec Superior Court can issue various orders to force a party to perform a specific act or refrain from doing something. This type of remedy is called an injunction.

Different types of injunctions can be issued at various stages of a court proceeding. In urgent situations, the relevant injunction is called a provisional injunction.

In order to obtain a provisional injunction, a party must show that

  1. their application raises a serious question to be tried;
  • they would suffer serious or irreparable harm if the Court did not issue an injunction;
  • this serious or irreperable harm would be more significant than the harm that the opposing party would suffer if an injunction were granted; and
  • this serious or irreparable harm, moreover, is likely to occur imminently, hence why the court must intervene without delay.

3. Some Difficulties Associated with Provisional Injunctions – Or the Importance of Dealing with Experienced Counsels

A provisional injunction is not easy to obtain. Additional difficulties may further arise if an injunction would have the effect of ruling on the merits of the claim before the court. In other words, a provisional injunction will be more difficult to obtain if, in order to grant the injunction, a court has to render judgment on an issue that would normally be resolved at a more advanced stage of proceedings with the support of a complete evidentiary record and extensive oral arguments from the parties’ lawyers.

This situation was present in all three cases cited above. Indeed, in each case, the court had to determine that the party seeking the injunction was likely to succeed on the merits after a full trial.

In addition, a court may be even more reluctant to grant an injunction if it orders a party to make specific actions as opposed to merely refraining from doing certain things. Indeed, judges are more inclined to grant provisional injunctions when its effect is simply to maintain the status quo between the parties. On the contrary, when the effect of an injunction would be to force a defendant to make specific acts while greater uncertainty remains as to the merits of the plaintiff’s claim, judges will be more reluctant to grant an injunction.

Conclusion

Despite its challenges, securing an order for provisional injunction is far from impossible. Counsels at DS Lawyers Canada have obtained these on numerous occasions for their clients and know how to best present these types of applications in court. The two cases mentioned above–which were both won in the last six months–are good examples of this.

Do not hesitate to reach out to the authors of this post for more information or a consultation.

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