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When assets are about to move, a transaction is about to close or confidential information is about to be used, the remedy that matters is the one you can obtain this week. Injunction practice is about speed, evidence and undertakings.
Book My 15-Minute Assessment →Section 101 of the Courts of Justice Act empowers the Superior Court to grant an interlocutory injunction or appoint a receiver where it appears just or convenient to do so, on the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General).
The court applies the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General): whether there is a serious issue to be tried, whether the moving party will suffer irreparable harm if the injunction is refused, and whether the balance of convenience favours granting it. The power comes from section 101 of the Courts of Justice Act, with procedure under Rule 40.
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Section 101(1) of the Courts of Justice Act provides that in the Superior Court of Justice an interlocutory injunction or mandatory order may be granted, or a receiver appointed, by an interlocutory order where it appears to a judge of the court to be just or convenient to do so. Section 101(2) permits the order to be made on such terms as are considered just. Rule 40 of the Rules of Civil Procedure supplies the procedure, and Rule 40.03 requires the moving party, unless the court orders otherwise, to give an undertaking to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party.
The undertaking as to damages is not a formality. It is a real financial exposure: if the injunction is later found to have been wrongly granted, the moving party can be ordered to compensate the party it restrained. Before seeking urgent relief, a client should understand that they are accepting that risk, and should be satisfied that they could meet it.
An interim injunction may be obtained without notice, but Rule 40.02(1) limits such an order to a maximum of ten days unless the court orders otherwise. A party moving without notice owes a duty of full and frank disclosure, including of facts and arguments that assist the absent party. Breach of that duty is itself a ground to set the order aside, regardless of the underlying merits, and it is one of the most common reasons without-notice orders are discharged.
The governing framework comes from the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General). First, is there a serious issue to be tried? This is a low threshold on a preliminary assessment of the merits, requiring only that the claim not be frivolous or vexatious. Second, will the moving party suffer irreparable harm if the injunction is refused? Irreparable refers to the nature of the harm rather than its magnitude: harm that cannot be quantified in money or that cannot be cured, typically because one party cannot collect damages from the other. Third, which party will suffer the greater harm from the granting or refusal of the remedy pending a decision on the merits? That is the balance of convenience.
The three parts are not applied mechanically. A strong case on the merits can compensate for a weaker showing on the balance of convenience and the reverse is also true. Where the injunction sought is mandatory, requiring a party to do something rather than to refrain from doing it, the threshold on the first branch rises: the moving party must generally demonstrate a strong prima facie case, because a mandatory order alters the status quo rather than preserving it.
Delay is treated as evidence on the balance of convenience. A party that knew of the conduct for months and only then claimed an emergency will find the court asking why the status quo it now seeks to preserve was tolerable until the motion was brought. Clean hands also matter: injunctive relief is equitable and discretionary, and a moving party whose own conduct in relation to the subject matter has been improper may be refused relief it would otherwise have obtained.
Irreparable harm is where most injunction motions are lost. A commercial party that has suffered a purely financial loss recoverable from a solvent defendant has, by definition, an adequate remedy in damages. That is why the strongest cases for injunctive relief involve loss of goodwill or client relationships, misuse of confidential information, dissipation of assets by a defendant who could not later satisfy a judgment, or the imminent sale of unique property.
| Order | What it does | Typical use |
|---|---|---|
| Prohibitive injunction | Restrains conduct pending trial | Breach of confidence, restrictive covenants, threatened breach of contract |
| Mandatory injunction | Compels a positive act | Return of property or records; requires a strong prima facie case |
| Mareva injunction | Freezes assets to prevent dissipation | Fraud claims where assets are being moved beyond reach |
| Anton Piller order | Permits civil search and preservation of evidence | Exceptional cases with a real risk evidence will be destroyed |
| Certificate of pending litigation | Registers a claim against title to land | Actions in which an interest in land is claimed; s.103 CJA and Rule 42 |
| Norwich order | Compels a third party to disclose information | Identifying an unknown wrongdoer or tracing funds |
| Receivership | Appoints a receiver to manage or preserve assets | Deadlocked or mismanaged businesses; secured lending enforcement |
Mareva and Anton Piller orders are extraordinary and are described by courts as among the most intrusive remedies in civil litigation. Both are usually sought without notice, both attract the full and frank disclosure obligation in its most demanding form, and both require the moving party to demonstrate a genuine risk that assets will be dissipated or evidence destroyed. They are powerful, they are expensive, and they carry real personal exposure for the party who obtains one improperly.
Under section 103 of the Courts of Justice Act and Rule 42, a CPL may be obtained only where an interest in land is genuinely in issue in the proceeding. Registering one against title where no such interest is claimed exposes the registering party to a motion to discharge and to a damages claim for slander of title.
Restrictive covenant and departing employee cases are the most common context. Where a former employee or contractor is alleged to be soliciting clients or using confidential information, an injunction can preserve the position pending trial. Ontario courts scrutinise non-competition covenants closely and will decline to enforce a covenant that is broader than reasonably necessary to protect a legitimate proprietary interest in scope, geography or duration. Non-solicitation covenants, being less restrictive, are more readily enforced, and a claim framed around misuse of confidential information rather than around a covenant is often stronger.
Shareholder and partnership disputes generate injunction applications where one side is transferring assets, issuing shares, changing signing authorities or excluding the other from the premises and the records. Here the injunction is usually sought alongside an oppression application, and the relief may take the form of an order preserving the status quo, requiring production of the corporate records, or appointing a receiver or interim manager under section 101 of the Courts of Justice Act.
Real property matters produce certificates of pending litigation and injunctions restraining a sale where a purchaser claims a right to the specific property. Because land is treated as unique, damages are more readily found to be an inadequate remedy in this context than in most commercial disputes. Construction disputes, franchise terminations and disputes over the enforcement of security under the Personal Property Security Act round out the common applications.
A party served with an injunction obtained without notice is not without options. The order lasts only ten days under Rule 40.02(1) unless extended, and the return of the motion is a full hearing at which the responding party puts in its own evidence. The most effective grounds are usually that damages would be an adequate remedy, that the alleged harm is financial and therefore not irreparable, that the balance of convenience favours the responding party, and that the moving party delayed.
Material non-disclosure is the most powerful ground of all where an order was obtained without notice. The moving party's obligation is to place before the court the facts and legal arguments that the absent party would have raised. Where it failed to do so, the court may set the order aside for that reason alone, without deciding the merits, and may award costs on an elevated scale. Reviewing the moving party's affidavits against the actual documentary record is therefore the first task on any discharge motion.
Where an injunction was wrongly granted and caused loss, the Rule 40.03 undertaking as to damages provides the mechanism for recovery. Assessment of damages on the undertaking typically occurs at or after the trial of the underlying action. A responding party that has suffered real commercial harm should preserve evidence of that harm from the moment the order is served, because quantifying it later from an incomplete record is difficult.
Confirm that the harm is genuinely irreparable, that damages would not be an adequate remedy, and that the client understands and can meet the Rule 40.03 undertaking as to damages.
An injunction is a remedy in a proceeding, not a standalone application. A statement of claim or notice of application must be issued, pleading the substantive cause of action and the injunctive relief sought.
Affidavit evidence must establish the facts, the urgency and the risk. Documents should be exhibited rather than described. On a without-notice motion, every material fact adverse to the moving party must be disclosed.
An order obtained without notice lasts a maximum of ten days under Rule 40.02(1) unless extended. The responding party is then served and the motion returns for a contested hearing on notice.
An interlocutory injunction preserves the position until trial or further order. Courts commonly impose an expedited timetable for the underlying proceeding as a condition of continuing the relief.
Injunction motions are front-loaded. The work that would ordinarily be spread across months of a proceeding is compressed into days, which makes the initial cost high relative to the stage reached. That expenditure is justified where the order genuinely changes the outcome, and difficult to justify where it does not, which is why the first conversation should be about whether the relief is realistically obtainable.
We act both for parties seeking urgent relief and for parties resisting or seeking to discharge it. On the moving side our first task is an honest assessment of whether the irreparable harm branch can be satisfied, because that is where most motions fail, and whether the client can carry the undertaking as to damages. On the responding side, the most productive lines of attack are usually the adequacy of damages as a remedy, the balance of convenience, delay by the moving party, and non-disclosure on any without-notice application.
Delay is fatal to urgency. A party that waits weeks after learning of the conduct and then asks the court to treat the matter as an emergency will be asked why. If something is happening that you think requires a court order, contact us immediately rather than after you have exhausted correspondence.
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