General nature of Injunctive relief, by Eugene Duhovnikoff BA/LLB

An injunction is a judicial remedy that forbids the commission, repetition, or continuance of a particular act or thing, or orders that a particular act or thing be done or restored. The power to grant injunctive relief is restricted to the protection of a recognized legal or equitable right. An injunction is an equitable remedy and is discretionary. There are also some statutory powers to grant injunctions. Injunctions are not available against the Crown, but the Court may make declarations setting out the rights of the parties which the Crown is expected to obey. Injunctions may be classified as follows:

  1. Prohibitory or restrictive injunctions, which order a person not to do or continue a specified act or thing. For example quia timet injunctions, which restrain the commission of a threatened wrongful act that has not yet occurred;
  2. Mandatory injunctions, which require a person to perform some positive act;
  3. Perpetual injunctions, which may be granted after final determination of a party’s right; and
  4. Interlocutory or interim injunctions, which are designed to give a plaintiff temporary relief or to preserve the situation pending a substantive hearing.


Legal Nature of injunctions

The distinction between equitable and legal injunctions is no longer of significant practical importance, reflects the difference between the exclusive jurisdiction of Courts of Chancery and the auxiliary jurisdiction of other Courts to grant injunctions. A plaintiff whose vested equitable right is threatened may obtain an equitable injunction as of right in the exclusive jurisdiction. Injunctions before proceedings Properly described, interlocutory injunctions are granted until the hearing of the proceeding, while interim injunctions are granted until a specified date or the further order of the Court.

However, in practice, the terms are interchangeable and there is no distinction between them. Freezing orders (previously known as Mareva injunctions), which are a form of interlocutory injunction restraining the defendant from dealing with assets within the jurisdiction or removing them. Search orders (previously known as Anton Piller orders), which are in effect interlocutory mandatory injunctions compelling the defendant to allow the plaintiff to inspect his or her property and premises and to secure and preserve evidence before the hearing.


Effect of injunctions

A person restrained by an injunction is bound on receiving proper notice of it, and breach constitutes contempt for which he or she may be committed or fined, or his or her property sequestered. An erroneous belief that the injunction is not effective until served is not a valid excuse. A person will have proper notice if, when acting in breach of the injunction, he or she either believed that an injunction had been granted or had received such notice as in the circumstances would have led a reasonable person in his or her position to refrain from action in breach of the injunction. If the defendant is a company, that notice must reach an employee or agent of the company who had authority to prevent the breach or to initiate steps to prevent it. To commit a defendant for contempt, the order or undertaking must be clear and unambiguous.


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Reeves/Duhovnikoff & Associates Ltd. 2017