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Injunctions - Interlocutory Injunctions (2). Dramel Limited v. Multani
In Dramel Limited v. Multani (Ont CA, 2023) the Court of Appeal considers 'irreparable harm' in the RJR-Macdonald test, here for a stay pending appeal:[8] With respect to irreparable harm, where, as here, the affected party has known they have no right to remain in their residence for a long period of time (in this case, since at least the default judgment and forbearance agreement of 2018 and potentially earlier given how long the subject mortgage has been in default), any potential harm is arguably a result of the appellants’ own failure to take reasonable steps to deal with the reality of defaulting on the mortgage. This court dealt with a similar scenario in Starkman v. Home Trust Company, 2015 ONCA 436, where Brown J.A. stated, at paras. 17-18:[17] I do not accept Ms. Starkman’s submission that her eviction from the property would cause her irreparable harm. The issue of irreparable harm must be assessed in the context of the specific facts of this case. Home Trust and ING lent money to Ms. Starkman on the security of the mortgages which she granted on her property. As part of those standard mortgage transactions, Ms. Starkman agreed that if she defaulted on her obligations to repay the mortgages, the mortgagees could take possession of her property, sell it, and then account to her for the net proceeds from the sale.
[18] While it is true that Ms. Starkman now faces the prospect of losing her residential property as a consequence of her serious defaults under the mortgages, the loss of her home simply results from the promise which she made to the mortgagees when she borrowed money from them. Against the background of those promises, I see no irreparable harm to Ms. Starkman in permitting the mortgagee to execute the writ of possession on the security it holds and requiring Ms. Starkman to find a new place to live once the mortgagee takes possession of the property: Granite Mortgage Corp. v. Jurcevic, 2011 MBCA 59, at paras. 9-10; Kal Lady Investment Corp. v. Montgomery (August 7, 2013), Toronto M42745 (C.A.), at para. 9. See also: Morguard Residential v. Mandel, 2017 ONCA 177, at paras. 22-24. . 146 Osgoode Street Holdings v. Unknown
In 146 Osgoode Street Holdings v. Unknown (Div Court, 2023) the Divisional Court considered a motion to stay an eviction order (after a dismissed RTA 210 appeal) under the typical RJR MacDonald stay/interlocutory-injunction test. On the issue of irreparable harm' the court suggested that, on the proper evidence, eviction could constitute such irreparable harm:[27] On the materials before me, I am unable to make a finding that the tenant will suffer irreparable harm if a stay is not granted. The fact that a tenant is required to move does not, in every case, constitute irreparable harm. In this case, I have no information as to the tenant’s efforts to secure alternate accommodation. Indeed, it would appear that the tenant has made no such efforts because her position is that she has a “right” to remain in her unit, notwithstanding her non-payment of rent. The tenant also maintains she cannot secure alternate accommodation because she is a woman fleeing abuse. The LTB Member took into account the tenant’s vulnerable situation in delaying the eviction. The motion judge, too, ordered that the stay of the eviction order be lifted on February 28, 2023, one month after the release of his reasons for decision. I note that the tenant filed her motion for a stay with the court, without first serving it on the landlord, on the last possible day – February 27, 2023. . Lukács v. Canada (Citizenship and Immigration)
In Lukács v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal considered the nature of an interlocutory injunction, here in the context of s.87 ['Application for non-disclosure — judicial review and appeal'] of the IRPA:[36] Ahousaht, cited above, throws some light on this question:An interlocutory injunctive relief is a preservative remedy essentially aimed at maintaining the status quo pending the hearing of an action or application on the merits. No matter whether the interlocutory injunction sought is prohibitive or mandatory, this defining feature of interlocutory injunctive relief remains.
Ahousaht at para. 68 (emphasis added) . Shukla v. Board of Directors, Health Sciences North
In Shukla v. Board of Directors, Health Sciences North (Div Court, 2023) the Divisional Court cited a variation in the RJR-MacDonald interlocutory injunction test, here where a 'mandatory' stay-injunction was sought to reinstate a doctor's hospital privileges:[23] The first branch of the modified RJR-MacDonald test, found in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 at para. 15 [“CBC”] is a strong prima facie case. The burden is on the Applicant to show a case of such merit, on the law and on the evidence, that it is very likely to succeed at trial”: CBC at para. 15. In CBC, the Supreme Court modified the former “serious issue to be tried” standard in cases where a mandatory interlocutory injunction is sought, in part because such an order directs the respondent to undertake a positive course of action, such restoring the status quo, pending the proceeding to obtain the restorative relief sought.
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[31] Irreparable harm seeks to discover “whether a refusal to grant relief could so adversely affect the Applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”: See RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 63. Irreparable harm refers to the nature of the harm, not the magnitude. The nature of the harm must be such that it cannot be quantified in monetary terms or cannot be cured: RJR-MacDonald at para. 64.
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[34] In Watts v. Clinton Public Hospital (2005), 206 A.C.W.S. (3d) 830, a senior physician without any community practice was able to establish irreparable harm to his reputation and ability to practice attendant on the revocation of his hospital privileges, which the court reinstated. In Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914, the Court of Appeal declined to find irreparable harm despite financial consequences and acknowledged psychological impacts of the revocation of privileges. . 2788610 Ontario Inc. v. Bhagwani
In 2788610 Ontario Inc. v. Bhagwani (Div Court, 2022) the Divisional Court allowed an appeal from a Superior Court interlocutory injunction, here to enjoin trademark use:[16] I recognize that the decision to grant an extraordinary remedy such as an interlocutory injunction is a discretionary one. On an appeal of an order granting an interlocutory injunction, a motion judge’s exercise of discretion is entitled to deference, unless the motion judge erred in principle or was clearly wrong: Easyfinancial Services Inc. v. Ezmoney Tario Inc., [2018] O.J. No. 1275 (Div. Ct.). However, where an erroneous finding of fact can be attributed to the application of an incorrect legal standard, a failure to consider a required element of a legal test, or a similar error in principle, the error is one of law that must be reviewed on the standard of correctness: Housen v. Nikolaisen, at paras. 35-36. . Dunn Aggregates Limited v. Coco Paving Inc.
In Dunn Aggregates Limited v. Coco Paving Inc. (Ont CA, 2021) the Court of Appeal considered a R40.03 undertaking given in the course of an interlocutory injunction:[5] The purpose of the customary undertaking as to damages is to protect the party against whom the injunction is granted, in this case Dunn Aggregates, if the injunction were found to have been wrongly granted. The trial judge cited several authorities for this proposition and pointed to the decision in United States of America v. Yemec, 2013 ONSC 50, 35 C.P.C. (7th) 57, aff’d 2014 ONCA 274, 58 C.P.C. (7th) 223 as being especially persuasive. In Yemec, Belobaba J. considered the undertaking to pay damages and noted, at para. 14, that its purpose is “to cover damage caused by a wrongly granted injunction.”
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