Basic Process for Assessing Damages: 97 Select  interest that deserves vindication 97 a. Restitution 97

Basics 166

At CL, no civil claim for fatal accidents. 166

Deceased’s cause of action dies with them, and family members rarely have loss. 166

Employers had actions for loss of employees, and husbands had actions for loss of wives, but that has all been overcome by legislation. 166

Now, establishing a cause of action: you as a family member are not suing for the deceased’s loss on their behalf, but for your own loss as a survivor. 166

What can be recovered? Compare different Acts. 166

Theory of Compensation 166

Loss of economic benefit. 166

Family members in particular have an expectation of support from other family members 167

It’s possible to place quantifiable value on that: the economic value that you would have expected. 167

Who Can Recover? 167

See Family Compensation Act: 167

S. 1 – Definitions: 167

"child" includes 167

(a) a person to whom the deceased stood in the role of a parent, and 167

(b) a person whose stepparent was the deceased; 167

"parent" includes a grandparent and a stepparent; 167

"person" means a natural person; 167

"spouse" means a person who 167

(a) was married to the deceased at the time of death, or 167

(b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death; 167

"stepparent" includes a person who lives with the parent of a child as the spouse of the parent for a period of not less than 2 years and who contributes to the support of the child for not less than one year. 167

S. 2 – Action for death by wrongful act, neglect or default 167

2 If the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages for it, any person, partnership or corporation which would have been liable if death had not resulted is liable in an action for damages, despite the death of the person injured, and although the death has been caused under circumstances that amount in law to an indictable offence. 167

Procedures for bringing action 167

3 (1) The action must be for the benefit of the spouse, parent or child of the person whose death has been caused, and must be brought by and in the name of the personal representative of the deceased. 167

(2) The court or jury may give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought. 167

(3) The amount recovered, after deducting any costs not recovered from the defendant, must be divided among the parties in shares as the court or jury by their judgment or verdict directs. 167

(4) If there is no personal representative of the deceased, or, there is a personal representative but no action has been brought within 6 months after the death of the deceased person by the personal representative, the action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been if it had been brought by the personal representative. 168

…. 168

(8) In assessing damages any money paid or payable on the death of the deceased under any contract of assurance or insurance must not be taken into account. 168

(9) In an action brought under this Act, damages may also be awarded for any of the following expenses if the expenses have been incurred by any of the parties for whom and for whose benefit the action is brought: 168

(a) any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued; 168

(b) reasonable expenses of the funeral and the disposal of the remains of the deceased person. 168

Child, spouse, cohabiting/marriage-like parties 168

S. 2 overrules the common law. 168

S. 3 allows for bringing an action in the name of a deceased for the benefit of family members 168

The award is global, but damages are actually divided among survivors and calculated differently depending on who they are (children, spouses, etc.) 168

The remedies side of this issue is valuing the dependency 168

Valuing the Dependency 168

See Keizer. 168

Factors: 168

Deceased’s likely income 168

Deceased’s other monetizable contributions (e.g. housekeeping) 168

Less tax on deceased’s income 168

Less personal expenditure 168

Contingencies affecting deceased 168

Contingencies affecting survivors and period of dependency 168

Discounted and tax gross-up 168

Non-Pecuniary Losses 168

Judicial interpretation: unless the Acts specifically state otherwise, damages are for pecuniary loss only 168

Grief, pain & suffering: not recoverable. Sort of. 168

Courts have been broadening the meaning of pecuniary loss in these cases. 168

No longer limited to ‘the loss of money’  now includes things that can be valued in money. 169

Unpaid work in the home, etc., can now be recovered 169

Loss of care, guidance, support 169

Children’s claims 169

These are considered pecuniary loss [McDonnel Estate (1997, BC)] 169

Generally, awards are reduced as age of child increases [McDonnel] 169

But not always – it depends on evidence [Bjornsen] 169

May even be available for adult children where there is a special dependency of children on the parents, etc. 169

Parents and siblings 169

Children typically diminish the wealth of a household, not increase it. 169

Nevertheless, where a proven special relationship exists between a child and parent, courts may make awards to parents for loss of care, guidance, family support from a child. [See e.g. Mason v. Peters] 169

The argument can be made in any case, but it will require evidence to convince the court. 169

Cultural evidence has been convincing in some cases [see e.g. To and Lian] 169

General damages for grief – vary across the country 169

Not available in BC – pecuniary only 169

Available in AB at a set rate 169

Problems of individualization 169

Inefficient dispute resolution; 169

Incommensurable injuries 169

Arbitrary conventional sums in some provinces [see commentary in To] 169

IV. Injunctions 169

Introduction 169

Injunctions are equitable remedies that are now available in general law 169

Issues: 169

Entitlement  definition of parties’ legal rights 169

Remedy  quantification of those rights 169

Framework: Categories of the Law of Remedies 169

Liability Rules 169

Damages 170

Most familiar causes: negligence and breach of contract 170

We confine people to damages when we want to let people violate the right when necessary in exchange for an objectively-determined amount of money. 170

E.g. where there is a social purpose or otherwise greater value 170

We can see the social choice in negligence law  we aren’t going to make it illegal to drive cars, for example, so we have to allow for some risk. 170

Property Rules 170

These apply in situations where we feel owners should have the power to veto any use of the right  except if they choose to trade that right. 170

We use property rules in situations where we want to establish markets 170

Available remedies: 170

Equitable remedies 170

Criminal sanctions 170

Courts fluctuate between using property rules and liability rules  this course is about what factors play into the determination of how to categorize a remedy. 170

Inalienability Rules 170

A much smaller category of rights 170

These cover situations where a social choice is made to vest people with a right, but for some reason we don’t want those rights to be tradeable, either through a market or by consent 170

Examples: 170

Voting 170

Reproductive material/organs (you can give it away, but you can’t sell it) 170

Assisted suicide? 170

Can people enter into private arrangements to have someone help them die? 170

Prostitution? 170

Assault can be sold, in some circumstances  hockey, UFC, etc. 170

Timing of Injunctions – Three Options: 170

Permanent 170

Final resolution of a dispute between the parties 170

Last forever (or until overturned on appeal) 170

Interim 170

Temporary  an order with a specific start and end date. 170

Interlocutory 170

A pre-trial injunction 170

As court wait times have increased, these have become more common. 170

Things may change/trouble may arise while you’re waiting to get to court on something, 170

To address this problem, interlocutory injunctions are available to freeze the status quo while waiting for trial. 171

Scope of Injunctions: Three Options 171

Negative/prohibitive 171

An order to stop doing or not to do a particular thing 171

Mandatory 171

A positive order  rebuild something, e.g. 171

Often goes hand-in-hand with negative/prohibitive (e.g. stop destroying and rebuild) 171

Courts are more hesitant in their usage of mandatory orders 171

Quia Timet 171

Means “because it is feared” or “that which is feared” 171

For situations where no damage has occurred but it is feared. 171

Seeking an order to prevent anticipated damage – from something that hasn’t yet happened. 171

Quia Timet 171

Issue: how do judges decide whether or not to award an injunction where the harm complained of may not yet have happened? 171

Starting principle: courts will sometimes grant injunctions where the damage has not yet occurred, but the damage has to be “imminent”. [Fletcher v. Bealey] 171

Policy rationale: have to weigh rights of both properties 171

Consider ∆ right to carry out their legal business on their property 171

Granting injunctions too readily would impede ∆’s right to use their property and engage in their lawful activities. 171

The “imminence” requirement has later been characterized not as a concept about time, but as a question of inevitability. [Hooper v. Rogers] 171

Imminence is a function of probability, severity and burden on ∆. 171

Factors to be considered by the court [Per Fletcher v. Bealey]: 171

1. Risk/probability that harm will occur 172

There must be a high risk that something bad will happen. 172

2. Severity of the harm 172

The harm must be severe – irreparable; something that damages wouldn’t resolve. 172

3. Chance of avoiding harm 172

Could something be done in the meantime to avoid the harm? 172

4. Consequences to ∆ of granting an injunction 172

The first three factors are balanced against this last consideration 172

Risk is a function of probability and severity, and these are balanced against the burden on ∆ 172

Courts are very careful with quia timet injunctions, in part for fear that the progress of society will be stifled [See Palmer v. Nova Scotia Forest Industry] 172

Where the relationship between the parties has turned toxic, for example, a court may choose to grant damages in lieu of an injunction [Hooper v. Rogers] 172

Note: Hooper v. Rogers would have been a mandatory injunction, if the court hadn’t given damages instead. 172

Four Factors [per Redland Bricks v. Morris]: 172

(1)  must show very strong probability on the facts that grave damage will occur to him in the future 172

(2) damages have to be an inadequate remedy 172

There is often a presumption with land that damages aren’t adequate, but recall that courts are changing their attitudes toward land. 172

(3) Benefit and burden have to weigh in favour of the injunction 172

So, the benefit of the injunction has to outweigh the burden. 172

Where ∆ is innocent (in the sense in Redland – ∆s weren’t acting in bad faith or doing something they weren’t entitled to do), courts will take cost of compliance into account and will weigh that cost against the benefit to be achieved. 172

Where ∆ is not innocent (e.g. in Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd.), this can weigh against the ∆ and in favour of the injunction. 173

(4) if the court decides a mandatory injunction is appropriate, then the court must give clear definition of the order 173

Permanent Injunctions  Injunctions to Protect Property Interests 173

The law on permanent injunctions favours property owners. [see Lewvest; John Trenberth v. National Westminster Bank] 173

Injunctions are generally the preferred remedy in real estate cases. 173

Rationale: 173

It’s a similar idea to specific performance in land contracts. 173

Consumer surplus concerns, straight damages often inadequate, no substitute available, etc. 173

The best way to protect a property right is through the use of an injunction. That way, no one can interfere with your right without striking a bargain. 173

We want to create a market around these rights, and injunctions are the best way to do this. 173

Where there has been a trespass, the harm to  is the loss of their veto power  the ability to exclude other people except with their consent. [Goodson v. Richardson] 173

Note: this is a bit circular, since the only reason people have this veto power is because the courts grant injunctions. 173

Note: we can also look at what the  lost in terms of the bargain they might have been able to strike [recall Wrotham Park] 173

There is a 173

Sometimes, despite ’s strong claim to an injunction, courts will use their discretion to suspend/delay an injunction, to mitigate the impact on ∆ [see e.g. Woolerton v. Costain] 174

Possible Alternatives to Permanent Injunctions in Real Estate Cases: 174

Where the conduct of the ∆ is innocent, the burden of an injunction is oppressive, and other discretionary factors weigh against granting an injunction in relation to property, courts have four alternative routes: 174

1. Live and Let Live 174

In cases of minor trespass, e.g., courts may adopt a de minimis approach: yes, there has been a trespass, but it’s so minor that the right it infringes won’t be enforced [see e.g. Bertram v. Builders Association of North Winnipeg; but see also Trenberth where the court chose to enforce anyway.] 174

Where there is an established use of property by non-owners, an injunction may not be granted. [see Behrens v. Richards] 174

2. Modify the Property Rights 174

In an age of air travel, it’s no longer realistic to treat overhead air travel as trespass. It’s nuisance, and it’s measured by whether it interferes with reasonable use – no presumptive injunction. [Bernstein v. SkyViews] 174

An overswinging crane will at most be considered a nuisance, not a trespass. [Kingsbridge Developments v. Hanson Corp. (1990, ONHC)] 174

It’s part of a new understanding of property rights, under which your rights are circumscribed as you leave the ground. 174

While you may have veto power/right of exclusive dominion in relation to the physical/grounded portion of the property, rights fade as you go higher in the air. 174

Up in the air, it becomes a right to reasonable use, but not exclusivity. 174

3. Remedial Alteration 174

Courts may grant damages instead of an injunction  where the defendant is innocent (i.e. hasn’t deliberately interfered) [see e.g. Clark v. McKenzie], and to grant an injunction would be unduly burdensome on ∆. 175

This option is becoming more appealing to judges, because (as noted above) courts can now craft damages for loss of the bargain they should have had, and can compensate landowners accordingly for interference w/ their property. 175

Courts can substitute damages for an injunction where [per Shelfer v. City of London Electric Lighting]: 175

1. The injury to ’s legal rights is small; 175

2. The injury can be estimated in money; 175

3. The injury can be adequately compensated in money; and 175

4. The case is one in which it would be oppressive to the ∆ to grant an injunction 175

Canadian courts have consistently applied Shelfer – in a trespass context as well as nuisance. [see e.g. Vaz v. Jong] 175

4. Statutory Intervention  BC Property Law Act 175

S. 34: the BC Supreme Court can make an order allowing modest trespass on neighbours’ property if necessary to conduct repairs 175

In practice: if owner objects, trespasser has to go to court and get an order giving them that authority. 175

So, this takes care of cases like Trenberth. 175

S. 36: where you build something on neighbour’s property and you are innocent, the court can modify the property lines on payment of an appropriate amount of money. 175

Basically a codification of Clark v. McKenzie  the court can order payment of damages and then transfer the property to ∆ who has built the trespassing structure. 175

Injunctions to Address Nuisance 175

In nuisance injunctions, the interest being protected is still an interest in land, but not the veto power: it’s the right to reasonable use and enjoyment of property. 175

Nuisance is generally an indirect interference with owner’s reasonable use and enjoyment, arising out of the use of a neighbouring property. 176

The key: balancing competing property rights. 176

Nuisance gives flexibility in two ways: 176

1. It’s much easier to balance interests and find a lack of nuisance  as opposed to trespass, which is pretty much yes/no. 176

There is very little room for interest-balancing in trespass, but the definition of nuisance is predicated on this idea: it must be unreasonable  this leaves courts with the discretion. 176

2. Even where nuisance IS found, the remedy can be tailored to the situation. 176

Most dramatically by giving damages instead of an injunction 176

There’s really no bright-line test for nuisance – it’s highly fact-specific and judge-specific [see e.g. Miller v. Jackson] 176

“First in time” is not an excuse for nuisance [despite Denning MR in Miller v. Jackson; see Spur v. Del Webb] 176

Something can become a nuisance due to changing nature of a neighbourhood. 176

If an established use was always a defence to a nuisance claim, it would freeze the status quo  different areas couldn’t evolve to new uses over time. 176

Geoffrey-Land and Cumming-Bruce hit this policy concern in Miller v. Jackson, even though Lord Denning doesn’t. 176

BUT, ‘first in time’ status might factor into the selection of a remedy. 176

“Character of the neighbourhood rule” [per Miller v. Jackson] 176

What is reasonable depends on the character of the neighbourhood. 176

Farming communities vs. industrial vs. residential areas  different standards of acceptable use/behaviour. 176

What constitutes a nuisance will vary depending on the normal/existing practice in the neighbourhood, up to a point. 176

Public interest will factor in 176

But beware of competing public interests [Miller v. Jackson; Palmer v. Burnaby] 176

Note: while allowing free use of a public park may be in the public interest [Miller v. Jackson], this will not apply on private property, such as a golf course [Sammut v. Islington Golf] 177

Injunctions cannot be overly broad - usually won’t prohibit an activity entirely, just put limits on it [see e.g. Cattel v. Great Plains] 177

Courts may choose to award Compensatory Injunctions   gets their order, but have to pay ∆ damages for it. [see e.g. Spur v. Del Webb] 177

A court may award damages in lieu of an injunction, which may include both past and future damages. [see Boomer v. Atlantic Cement Co. Ltd.] 177

Canada Paper v. Brown 177

Canadian equivalent of Boomer, except they went the other way – company couldn’t continue b/c it would be appropriating property rights of π. 177

Follow CP but consider both. 177

Where there is a significant disparity between the harm to ∆ and the gain to , courts are reluctant to grant an injunction [see Bottom v. Ontario Lead Tobacco] 177

Courts may suspend or delay a nuisance injunction, rather than imposing an immediate requirement on the ∆. [see e.g. 340909 Ontario v. Huron Steel] 177

Sometimes, the civil process is used to enforce criminal or quasi-criminal statutes, or to enjoin a public nuisance. 178

So, this doesn’t apply in situations where it’s a clearly established private right associated with land  rather, it’s about generalized public rights, usually emanating from a statute. 178

Two issues with regard to injunctions protecting public rights: 178

1. Who Can Seek an Injunction to Enforce Public Rights? 178

Generally the AG – chief law officer, charged with enforcement of criminal law and general protection of public rights/duties. 178

Individuals generally cannot, except: 178

Where statute confers a private cause of action 178

This is somewhat common – trading statutes. 178

Where an individual can prove that they are specially and directly affected 178

Goes beyond generalized offense at the criminal act; they must be uniquely affected by the wrong. 178

2. How Will Courts Exercise Their Discretion re Whether to Grant Injunctions in This Context? 178

Concerns 178

[per Gourier] 178

Double Penalty 178

Criminal sentence and also injunctions = overlap. 178

It’s rare to get both criminal and tort damages in a sexual assault case, e.g. 178

Judicial Legislation 178

Issues of process and proof 178

There is a lower burden of proof in civil court 178

Single judge, no jury 178

No access to some defences – e.g. constitutional arguments about statutes 178

Basically, it’s much easier to get an injunction than a criminal conviction. So, you could be innocent of the criminal offence but then guilty of contempt of court re the injunction. 178

A statutory bar is arguably already an injunction. 178

When Can a Public Rights Injunction be Obtained? 178

1. Where there are health and safety issues 178

2. Where the penalty in the statute is inadequate, and 178

3. Where ∆ is a habitual ∆  repeated flouter of the statute; keeps getting fines and not stopping. 178

These three factors probably apply to 90% of injunctions granted to enforce public rights 179

AGAB v. Plantation Indoor Plants 179

∆ company was enjoined from violating the Lord’s Day Act, and disobeyed a court order by continuing to operate on Sundays. 179

The SCC had struck down the Act, but the order still applied and thus ∆ was in contempt 179

Note: in another similar case, where the ∆ violated an injunction while appealing it, the CA struck down the injunction but found them in contempt for violating it. 179

Robinson v. Adams [1924, ON] 179

The equitable jurisdiction of a civil court cannot be invoked against a crime. 179

There may also be a civil wrong done to an individual, but where parliament has forbidden acts, then unless a private property right is also affected, civil courts shouldn’t interfere and forbid by injunction something already forbidden by parliament. 179

Also, try not to touch the criminal law with civil. 179

AGBC v. Couillard 179

Facts 179

Note: you can have a private nuisance that is also a public nuisance. 179

Some nuisance came from common law into criminal offences – e.g. CC s. 180: criminal nuisance. 179

AGs and Courts have set a residual jurisdiction where the AG can bring actions regarding public nuisances. 179

Issue: this case was about a prostitution issue 179

Street solicitation is the (a) part that’s illegal. It’s kind of a nuisance based offence – keeping sidewalks clear, etc. 179

In 1978, Hutt v. the Queen added a requirement that conviction was only available on these provisions where the behaviour was “pressing and persistent” 179

The policy was to avoid public annoyance, so the SCC in Hutt said that you had to establish a certain level of public annoyance to pursue a penalty. 179

The police felt that with this high bar they could never get convictions, so they felt they couldn’t enforce anymore. 179

So, the province brought an action for an injunction, on the basis that street solicitation is a common nuisance. 179

Held: McEachern J granted the injunction, even though the behaviours required in the criminal code probably couldn’t be established. 179

Common law grows with the times. 179

Note: the actual effect of this was to shut down street solicitation in the West End of Vancouver, and move it all to the other side of Granville. 179

AGNS v. Beaver 180

Same issue as Couillard. NS AG basically brought the same application. 180

The NSSC and CA refused the injunction. 180

Reasons: 180

You have the whole criminal code – use that. And if you can’t use it, it’s not the courts’ job to change it. 180

It was the SCC who interpreted the law to make it difficult to charge street prostitutes, so why should other courts provide a way around that? 180

Reconciling Couillard and Beaver? 180

How can the BCSC step in to ‘solve’ a problem where the SCC has made the ruling that caused the difficulty? 180

Where the SCC says we won’t interfere with street solicitation unless the behaviour is ‘pressing and persistent’, why can another court step in and create an inconsistent enforcement scheme? 180

Note: a bunch of municipalities tried to ban street solicitation, but the SCC struck down those laws as unconstitutional, since cities aren’t allowed to make criminal law. 180

Interlocutory Injunctions 180

General 180

Introduction & Context 180

These are injunctions given before trial 180

They are designed primarily to deal with the risk of harm that litigants are exposed to as a result of delays associated with trial. 180

Interlocutory injunctions have been available for hundreds of years, but have dramatically increased in usage recently 180

People used to be able to get into court faster, so it wasn’t as necessary to get a pre-trial injunction. 180

Also, the traditional approach and threshold made it difficult: 180

The old rule was that you needed a strong prima facie case  so, you had to show that you were likely going to win at trial. 180

Challenges in civil procedure: 180

Social, economic, and technical developments have created problems 180

In the 1970s, a crisis in civil litigation began. 180

There was a lengthy time period before court, time spent in court, then a delay while waiting for judgment 180

Delays of 1-3 years are not at all unusual. 180

Plus, things outside of court have sped up considerably: 180

Due to globalization, computing, and worldwide banking, ∆s can get out of jurisdiction 180

With the click of a button, ∆s can move assets outside the national legal regime. 180

1975-1980: American Cyanamid, Mareva, Anton Piller  three important cases decided by UK courts, basically creating three new remedies. 181

Cyanamid establishes a general broad framework for all interlocutory injunctions 181

Sets out new rules about how they’re going to be made available, analyzing the risks 181

Jurisdiction & Procedures 181

Law and Equity Act s. 39 181

Injunction or mandamus may be granted or receiver appointed by interlocutory order 181

BC Supreme Court Civil Rules: 181

R. 8 – Orders other than at trial 181

R. 10-4 – Injunctions 181

New Approach: Balancing the Risks 182

American Cyanamid 182

New approach to interlocutory injunctions  lowers the threshold 182

Facts: Dispute over patent relating to absorbable sutures.  has patent, ∆ invents its own and starts marketing it in same jurisdiction. 182

Issue:  thinks ∆ has violated their patent, so they seek an injunction to stop them from selling in the jurisdiction until a trial can determine whether there is an infringement. 182

Held: Injunction granted; new test set out. 182

Reasons: 182

To demand a strong prima facie case really defeats the purpose of interlocutory injunctions, which is to provide some relief in advance of resolving the issue. 182

Note: there’s now a greater risk that courts will be wrong about injunctions. 182

The court in Cyanamid moves away from the merits of the case and considers instead the balance of convenience/risk 182

No longer trying to guess who will win or lose, but rather who is more vulnerable – who has a higher risk of suffering? 182

If ≠ granted,  vulnerable. If granted, ∆ vulnerable. We call the comparison of vulnerabilities the “balance of convenience” 182

Test for Interlocutory Injunction per American Cyanamid: 182

1. Serious issue to be tried? 182

Can’t decide cases on the merits at this early stage  just establish a threshold of a serious question. 182

Not frivolous or vexatious 182

Court must believe there is a bona fide dispute between the parties. Might even believe  will lose, just has to be a serious question for the courts – a bona fide legal case to make that couldn’t be dismissed at preliminary stage. 182

So, if no serious issue, application fails and no injunction will be granted. 182

If there is a serious issue, move on to step 2. 182

2. Is there a risk of irreparable harm to ? 182

If not, no injunction. 182

If yes, move on to step 3. 182

3. Is there a risk of irreparable harm to ∆? 182

If not, the injunction will be granted. 183

If yes, continue to step 4. 183

4. Balance of Convenience 183

Courts assess who is most at risk: a fluid, discretionary assessment. 183

So, at this point in the analysis, the biggest thing the judge is worrying about it the risk of being wrong  the balance of convenience is a function of the consequences to the parties of getting or not getting the injunction. 183

Note: in RJR MacDonald, the court said you don’t consider irreparable harm to the  until you hit the balance of convenience assessment, but it doesn’t really matter because these are the things that are getting assessed, at one stage or another. 183

Nuanced Analysis of the Situation – Other things to Consider 183

So, the basic principle is that you go through the Cyanamid test and assess whether irreparable harm is evenly balanced. 183

You aren’t supposed to look at the merits as in the past, but there are some situations where the merits become relevant, so you always need to be aware of them. 183

Final Determination 183

Where the injunction is really a final determination of the case, courts do have to look at the merits of the case [NWL v. Woods] 183

Where a judge knows the case will never actually get to trial, and everything depends on whether or not the injunction is granted, they will consider the merits of the case and decide on that basis. 183

Pure Question of Law 183

Where a judge just has to assess based on the law (i.e. no issues of fact) they will make the decision up front. [C-Cure] 183

Mandatory Injunctions [see below] 183

Telling someone to do something in advance of trial may raise a greater chance of irreparable harm to ∆, since positive steps are required. 183

As a result, courts are more cautious about awarding mandatory interlocutory injunctions. 183

Restrictive Covenants [see below] 183

Designed to restrict the ability of employees to compete with employer once they leave employment 183

Can restrict livelihood if too broadly drafted  so courts are careful in awarding injunctions to enforce restrictive covenants 184

Higher threshold, because they are often determinative of the issue. So, strong prima facie indication of a serious issue is required. 184

Free Speech 184

Courts are cautious in granting interlocutory injunctions where the issue is a question of freedom of expression, etc. 184

No Undertaking 184

Where  cannot afford to post the undertaking (see below), a court may still grant an injunction where there is a strong case on the merits. 184

Assessing “Irreparable Harm” 184

Courts ask: why aren’t damages appropriate? 184

Two baskets into which injunction-appropriate situations fall: 184

See e.g. Cyanamid: parties competing over patent. 184

Yule Inc v. Atlantic Pizza Delight Franchise 185

 has exclusive rights to open franchise stores, ∆ repudiating. 185

Court seems to think ∆ is wrongly repudiating the K, and  is being unfairly treated 185

If injunction isn’t granted,  will be put out of business, will lose reputation, goodwill in marketplace will deteriorate  all things that are difficult to measure. 185

Also, court subtly considers interests of third parties: 29 employees of  who will be out of work if he can no longer operate the franchises 185

Held: Injunction granted. Not the same type of irreparable harm to ∆ as to . ∆ can supervise, and  is making them money 185

David Hunt Farms Ltd. v. Canada (Minister of Agriculture) [1994, FCA] 185

Stands for: courts will take into consideration an admission against interest by one of the parties. 185

Facts 185

Held: injunction granted. 185

Analysis: Cyanamid test 185

Mandatory Interlocutory Injunctions 185

May require a higher level of proof 186

There’s no rule of law that says you can’t get a mandatory interlocutory injunction, but courts don’t like to grant them at the interlocutory stage because they tend to go past maintaining the status quo [see Sheperd Homes] 186

It is possible to get a mandatory interlocutory injunction – you just have to watch out for those special concerns, but if the injunction is not especially intrusive and the risk of harm to  is high, courts will grant them [see Prairie Hospitality]. 186

Undertakings 186

 has to compensate ∆ for losses if ∆ wins at trial 186

The point is to indemnify ∆s against wrongfully obtained injunctions. 186

There is a longstanding debate about when ∆ can claim damages pursuant to the undertaking. Two views: 186

 can’t post an undertaking to pay damages if they can’t afford it. 187

Other waived undertakings: environmental disputes, e.g. a FN band who has little money and ∆ stands to lose huge amounts of $ if logging etc. is shut down  courts may, but may not, allow it to move forward anyway. 187

Can often be used as a way for ∆ to obtain a better legal costs order than they would otherwise get 187

Injunctions in Relation to Contract Law 187

Contract Injunctions Generally 187

There’s no doubt that SP is a limited remedy in contract cases and is primarily confined to real estate. 187

Generally, in employment contracts, SP is not available. 187

Damages are adequate. 187

SP forces parties into relationships they don’t want to be in and they’re just going to end up back in court. 187

SP also creates problems of supervision. 187

Injunctions may offer a slightly more robust remedy than damages, without the problems of specific performance. 187

Much easier to enforce – phrase them negatively and it’s easy to assess when someone has broken the requirements. 187

Courts assume that when something is worded in the negative, an injunction is the only way to enforce the parties’ promise. 187

Yule v. Atlantic Pizza 187

Court: we’re going to enjoin the defendant from doing anything to interfere with the plaintiff’s ability under the contract to manage his franchises because damages are not an appropriate remedy. 187

The courts said the plaintiffs stood to suffer a huge loss to reputation, etc, which didn’t seem to be compensable in damages. So the contract had to be kept going until trial. 187

What about at Trial? 187

The potential loss (reputation, good will) is the same, so is it also true at trial that injunctions are more widely available than SP?

 188

The Traditional View: No. [See Fothergill] 188

Injunctions are not more readily available than SP in contract cases, and where SP would not be ordered, an injunction would not be ordered. The injunction is just a roundabout way of ordering SP. 188

The plaintiff can be fully compensated by an award in damages. Not a case for SP. Just a sale of goods. 188

Questions about Fothergill Set the Stage for More Assertive Injunctions: 188

1. Are damages really adequate in this case? 188

The price of coal was fluctuating. 188

The plaintiff had built a railway line for the defendant 188

The contract was for another two or three years into the future. 188

So how do you measure damages?  The safest way is to wait until the three years was up and then sue for damages suffered and show what the damages are. 188

It’s difficult: what are the quantities of coal and what’s the price of coal? 188

Note: the more difficult they are to calculate, the more likely it is that damages will be inadequate            188

2. Is this really equal to SP? Does an injunction raise the same problems as SP? 188

An injunction is much easier to define than SP. (“Don't do X vs. Do “X”) It’s much more black and white 188

Can’t really order SP on this K, because we don’t know what that is: the K said “all the coal” – what does that mean? 188

Really, it’s just a negative K: says you can’t sell to anyone else. 188

An injunction could say the same thing, and would reinforce the K. 188