Generally speaking, an injunction is a court order that requires a natural or legal person (i.e., a company) to do, refrain from doing, or stop doing something. This definition seems simple at first but actually covers a complex legal concept that plays an essential role in protecting a person’s rights. In concrete terms, an injunction is a tool that the law makes available to a person who wishes to prevent harm or to compel another person to act.
But what does this really mean, and in what situations can an injunction be obtained? To answer this question, it is necessary to understand its definition, its different types, the criteria applied by the court, and its limitations.
What is an injunction?
An injunction is an order issued by the Superior Court of Québec. It is addressed to a person, company, or organization and compels its representative(s) to:
- refrain from doing something,
- cease an activity, or
- perform one or more specific acts.
In other words, it is a binding legal order issued by a judge, and failure to comply with it can lead to severe penalties. An injunction is therefore a powerful remedy that protects rights, prevents harm, and enforces the law in situations where other means may prove insufficient or ineffective.
Different Types of Injunctions
There are several types of injunctions. They vary depending on when they are requested, their duration, and their purpose.
Provisional injunction:
- A provisional injunction is an immediate measure of very short duration (a maximum of 10 days without the consent of the parties), which can be ordered against someone even in their absence.
- It is used in urgent cases, sometimes even before the opposing party is informed.
- Its role is to protect rights quickly.
- Example: temporarily prohibiting the dissemination of confidential documents or ordering the demolition of a heritage building to be halted.
Interlocutory injunction:
- Interlocutory injunctions are temporary and granted during the course of legal proceedings.
- Its purpose is to protect the rights of a party until the final judgment, by preventing serious and irreparable harm from occurring.
- For example, preventing the demolition of a building while the court decides on the legality of the work.
Permanent injunction:
- Permanent injunctions are issued at the end of the trial and have a lasting and definitive effect.
- It orders a person or entity to act or refrain from acting on an ongoing basis.
- Example: permanently prohibiting a company from polluting a watercourse.
Prohibitive or restrictive injunction:
- Prohibitive or restrictive injunctions prevent a person from taking a specific action.
- Example: prohibiting a former employee from soliciting the clientele of their former employer.
Mandatory injunction:
- Mandatory injunctions, on the other hand, require specific action to be taken.
- For example, ordering a person to vacate rented premises, return property, or comply with a contractual obligation.
Interlocutory injunctions and their criteria
Interlocutory injunctions are undoubtedly the most common type of injunction. They are intended to temporarily protect the rights of a party pending a final decision. The court does not grant them automatically; the plaintiff must convince the judge by satisfying four well-established criteria.
The four criteria that must be met to obtain an interlocutory injunction:
Sufficient appearance of right:
- The plaintiff must demonstrate that they have a right that appears to be legitimate.
- This does not mean proving their right definitively (that is a matter for the trial on the merits), but rather showing that the case raises a serious issue that deserves to be decided.
Serious or irreparable harm:
- The plaintiff must convince the court that serious and irreparable harm is likely to occur if the desired order is not issued, which would render the final judgment useless, and that no other remedy would prevent such harm.
- For example, the destruction of a heritage building or the loss of a trade secret.
Urgency:
- The injunction must be necessary immediately.
- If the court finds that the plaintiff could wait for the final decision without suffering irreparable harm, it will refuse the injunction.
Balance of disadvantages:
- The judge assesses the advantages and disadvantages of the injunction for each of the parties.
- If it causes more harm than it prevents, it will not be granted.
- Sometimes, the judge may attach a security deposit to the injunction to cover any costs or damages that may arise.
When can an injunction be requested?
An interlocutory injunction may be requested at any time during proceedings, or even before the official filing of the introductory application if it cannot be filed in time. In this case, the application must be served on the other party with a notice of presentation.
In urgent situations, a temporary injunction may be granted immediately, even before the opposing party has been invited to appear, i.e., in their absence. However, it is valid for a maximum of 10 days. This rule ensures a balance between the rapid protection of rights and respect for the rights of the opposing party.
Often, the temporary injunction serves as a temporary measure pending a more permanent interlocutory injunction. After the judgment, the court may decide to make it permanent.
In short, a temporary injunction is not always necessary; it is used only when the urgency of the situation prevents waiting for the normal interlocutory injunction process, which requires a notice of presentation and service on the other party before it can take effect. A temporary injunction, on the other hand, can be enforced immediately.
Finally, if the court concludes that the rights deserve lasting protection, it may issue a permanent injunction in its final judgment.
Some specific rules
The power of the court
The judge may suspend or renew an injunction depending on how the case progresses.
The limits of an injunction
It is prohibited to use an injunction to block another legal proceeding or prevent a person from performing their duties within a company, public institution, or organization, except in cases provided for by law.
What happens in the event of an appeal?
The injunction remains in effect even after a final judgment has been rendered if the case is appealed. However, the Court of Appeal judge may temporarily suspend the injunction.
Consequences of non-compliance With an Injunction
Failure to comply with an injunction may constitute contempt of court. In this case, the judge may also order the cancellation or withdrawal of any act performed in violation of the order. Contempt of court may result in imprisonment, community service, or fines.
In Summary
An injunction is a powerful and flexible legal remedy provided for in the Quebec Code of Civil Procedure. It aims to effectively protect rights when a simple claim for damages would be insufficient.
Whether provisional, interlocutory, or permanent, it allows for swift action and prevents situations that could cause irreversible harm. However, obtaining an injunction is subject to strict criteria: a serious infringement of rights, the existence of serious harm, urgency, and a favourable balance of inconveniences.
An injunction remains an uncommon tool, used when no other measure can safeguard rights. The judge always has the final say, and failure to comply with an injunction can result in severe penalties for contempt of court.
If you need help to obtain an injunction, contact us now.
NOTE: This article does not constitute legal advice. It is provided for informational purposes only to help readers better understand certain aspects of injunctions in Quebec. As each situation is unique, we recommend that you consult a lawyer or legal professional for a personalized assessment of your case.