A party to a pending or intended proceeding may apply to a judge for an interlocutory injunction or mandatory order.
An injunction would serve to stop certain behaviour or activity from happening. A mandatory order would require that certain steps be taken.
Section 101 of the Courts of Justice Act gives the court the authority to make such orders. The section is simple: “In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted … where it appears to a judge of the court to be just or convenient to do so.”
Caselaw has developed the test to be applied when considering whether to grant an injunction or mandatory order.
In addition to the legal test to be applied, there is a requirement under Rule 40.03 of the Rules of Civil Procedure that the moving party shall, unless the court orders otherwise, undertake 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 for which the moving party ought to compensate the responding party.
Failure to give such an undertaking can be fatal to the injunction motion.
In a recent decision of Horan v. Marlwood Golf and Country Club, 2022 ONSC 1806 (CanLII), the court dismissed a motion for an injunction on the sole basis that the required undertaking was not given. (The court went on to discuss the other aspects of the test for granting an injunction, and would have dismissed the motion in any event.1)
In Catalyst Group Inc. v. Moyse, 2015 ONSC 4388 (CanLII), the court discussed the importance and necessity of the undertaking. There, as the undertaking was not given, the injunction could not be granted. The court stated “The failure to provide an undertaking (or request to be relieved) is fatal to an injunction. Such an undertaking in damages ‘is almost invariably required in commercial cases’ (Sharpe J.A., Injunctions and Specific Performance, Looseleaf Edition,(Toronto: Canada Law Book, 2014) at paras. 2.470 and 2.500)”. To gild the lily, the court went on to state “the court will dismiss a motion for an injunction of the moving party fails to provide an undertaking under Rule 40.03”, citing three cases.
Although usually required, an undertaking is not always required, and as set out in the Rule, the court may order that an undertaking is not required. In the recent decision of Li v. Barber, 2022 ONSC 1176 (CanLII), the Ottawa Convoy matter, the court dispensed with the need to file an undertaking. The court referred to authority indicating that it is appropriate to waive the undertaking in cases which have broad public interest significance, or which are cases involving human rights. Further, an undertaking may not be required from a representative plaintiff acting for the benefit of a class.
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