Ex Parte Injunctions Protect Clients in Urgent Legal Disputes
What is an ex parte injunction?
An injunction is a court order that either prohibits a party in a lawsuit from doing a specific thing or orders them to do a specific thing. To convince a judge that they should grant an injunction, the party must prove that the requested relief is both necessary and urgent. The seminal case in Canada is RJR-MacDonald Inc. v. Canada (attorney General), 1993 CanLII 117 (SCC). The test established in that case requires the court to consider:
- Is there a serious question to be tried?
- Would the moving party seeking the injunction suffer irreparable harm if the relief is not granted?
- Which party would suffer the greater harm from the granting or refusal of the relief? (this is known as the “balance of convenience”)
If all three of those elements are satisfied, then a judge will use their discretion to issue an order either restraining the defendant from acting, or compelling them to take a specific action. Injunctions are “extraordinary remedies” and are granted only in cases where a simple payment of money from the defendant to the plaintiff would not be enough to address the harm done to the plaintiff, and courts need to intervene in order to prevent injustice.
An “ex parte” motion for an injunction is argued without providing notice to the other party. The latin term ex parte translates to “from one party” or “on behalf of one side”. Because the defendant is not given an opportunity to respond, an ex parte injunction is an even more extraordinary remedy than a standard injunction.
Given their exceptional nature, ex parte injunctions are limited in both scope and duration. Under Rule 40.02 of the Rules of Civil Procedure, an ex parte order can be granted by a judge for a period not exceeding ten days.
Under what Circumstances do Courts Grant ex parte Injunctions?
Ex parte injunctions are granted only in situations of extraordinary urgency, where either:
- There is no time and/or means to provide service; or
- Where there is good reason to believe that the responding parties, if given notice, will act to frustrate the process of justice before the motion can be decided.
Below are three examples of Walker Law securing ex parte injunctions on behalf of our clients, which was to prevent the:
- a) spread of defamatory content;
- b) disposal of assets; and
- c) owner of a property from continuing to breach the by-laws of a neighbourhood association.
1. Preventing the Spread of Defamatory Content and the Destruction of Evidence
A few months ago, Walker Law successfully obtained an ex parte injunction for our clients in a defamation case where the defendants were making insulting and offensive posts on Instagram about our clients. The ex parte injunction was granted because the court was convinced that our clients had made a compelling case not only that the posts, if they remained active, were going to cause irreparable harm, but that an order to compel the defendants to delete the posts would be most effective if the defendants were not put on notice about the lawsuit until after a court order was in place.
A main concern was that advance notice of the motion could have allowed the defendants to possibly carry on an even more aggressive campaign against our clients and/or share the posts on a different social media platform. Because of the extreme reputational harm that would have resulted from further spreading of the posts, or if the attacks became more aggressive after defendants caught wind of the lawsuit, the court granted the ex parte relief.
Another concern was that the defendants may have used notice of the motion for the injunction to delete or destroy important evidence. This is a common risk during defamation cases, especially when the content is online and could be easily removed or changed.
By granting the ex parte injunction, the court preserved the interests of justice. The first the defendants heard about the lawsuit was the court order requiring them to refrain from further publication of the defamatory content, to delete the existing posts, and to preserve any other documentation that may be relevant to the law suit.
2. Mareva Injunction Granted Due to Defendant’s Conduct
Conduct of the Defendant
Walker Law also represented our client in the infamous “Crypto King” matter, where we successfully secured an ex parte injunction against the Crypto King. This motion was for a Mareva injunction, which is granted in order to “freeze” the assets of a defendant. The purpose of such an order is to guarantee the defendants’ assets will remain available to pay off any monies necessary toward the plaintiff if there is an order against them in the future.
The plaintiffs sought a Mareva injunction because they were induced into making substantial investments with the “Crypto King”, who ran off with their money and had shown a pattern of fraudulent behaviour.
The court granted the injunction in this case primarily because of the defendant’s conduct. There was the serious risk that if notice was provided, the defendant was likely to purposefully remove his assets from Ontario to a place that would prevent the plaintiffs from ever recovering their money. The court was satisfied that this posed a serious enough risk to warrant the extreme remedy of an ex parte Mareva injunction.
CBC Toronto, which is a national television station, interviewed Tanya Walker, our Managing Director and lawyer who obtained this order, about the case. Please click here if you would like to watch the interview.
3. Extraordinary Urgency Because There is No Time to Provide Notice
A few weeks ago, Walker Law secured an ex parte injunction for our clients in a property dispute. Our client, a neighbourhood association near the historic Casa Loma in Toronto (the “Association”), have “restrictive covenants” registered on the properties in the neighbourhood. A restrictive covenant is essentially a rule that limits what someone can do with their property.
In this case, the homeowner was attempting to install windows that the Association believed would have violated the existing restrictive covenants. When the Association found out about the planned construction, it requested that the homeowner to submit a formal request for approval. The Association ultimately voted to deny its consent.However, the homeowner refused to follow the Association’s ruling and stated he would proceed with the work regardless.
Walker Law brought an urgent motion for an injunction to receive a court order to pause the unauthorized renovations. At the crux of the Association’s argument was that if the homeowner was allowed to openly defy the Association, it would incentivize other property owners to not comply with the Association’s principles and directives in the future.
The court was satisfied that an ex parte injunction was warranted in this case because Walker Law established that proceeding with the construction would have breached the restrictive covenants and caused irreparable harm to our clients. The homeowner was knowingly challenging the Association’s refusal and was acting contrary to the rules that he agreed to when purchasing the property.
Because an ex parte injunction only lasts for 10 days, the court found that the balance of convenience favoured the Association. The court further noted that any inconvenience the homeowner suffered was of his own making. To read this decision, click here.
If you require assistance with an ex parte injunction, or any other litigation-related matters, please contact one of our experienced injunction lawyers.
Tags: Injunction Lawyers, Civil Litigation Lawyers, Defamation Lawyers