A

PRIMER ON INTERLOCUTORY INJUNCTIONS

PROFESSOR JEFF BERRYMAN*

[A] INTRODUCTION
In an ideal world justice would be dispensed instantaneously and the incursion of any form
of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need
to learn to live with law’s complexity, human frailty, evidential uncertainty, limited
resources, and the inevitable passage of time that passes when these are engaged. Law, like
any other human construct that takes thought to digital page, simply takes time. Just as an
infinite number of monkeys placed before typewriters takes time to recreate the works of
Shakespeare, 1 time also passes between an applicant’s assertion of a wrong, and
establishing the legal framework upon which those claimed rights are to be determined.
Uncertainty and delay can arise in the need to establish a claimed right, as in where the
right is novel2 or only in nascent form. Delay can emerge from the gathering of evidence
particularly where the action is going to be determined largely on an affidavit record.
Similarly, because the evidence is written and not subject to cross examination, it is open to
divergent interpretations. Even if the best counsel can over come the aforementioned
difficulties, they face resource constraints in terms of judicial and court time. Unlike health
care where there are now standards for wait times3 there are no similar standards for court
hearings.4


* Distinguished University Professor, and Professor of Law, Faculty of Law, University of Windsor,
Ontario. Parts of these materials have been taken from my article, “The Centrality of Irreparable Harm in
Interlocutory Injunctions”, (2015) 27 Intellectual Property Journal 299, and my book Equitable Remedies 2nd
ed. (Toronto: Irwin Law, 2013). I acknowledge the assistance of my research assistant, Harrison Nemirov, for
the work he performed in updating material for this paper.
1 Nick Collins, “Monkey’s at typewriters ‘close to reproducing Shakespeare”, The Telegraph newspaper,
26 September, 2011, http://www.telegraph.co.uk/technology/news/8789894/Monkeys-at-typewriters-
close-to-reproducing-Shakespeare.html
2 As in Tremblay v. Daigle [1989] 2 SCR 530, man seeking an injunction to prevent his girlfriend from
obtaining an abortion.
3 See the Canadian Institute for Health Information: http://www.cihi.ca/cihi-ext-
portal/internet/en/subtheme/health+system+performance/access+and+wait+times/cihi010647
4 See the series of articles by Meagan O’Toole, “Courting disaster? The long wait for justice in Ontario”
National Post, 9 June, 2012, describing the backlog in criminal trials. http://www.cihi.ca/cihi-ext-
portal/internet/en/subtheme/health+system+performance/access+and+wait+times/cihi010647
1
Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It
is not perfect justice because it is decided under less than ideal trial circumstances, yet it
purports to do justice by minimizing a loss for which the applicant will never be able to
recover. While an applicant has a right to a civil judgment following proof of a legal cause
of action and meeting the requisite level of evidence, there is no equivalent right, outside
one conferred by statute5 to jump the queue or to obtain an interlocutory injunction.

The real world is also a dynamic one in which a variety of contextual issues frame the need
and desire for interlocutory relief. Even at inception of the American Cyanamid test,
Hammond6 identified how the difference in dealing with affidavit evidence on both sides of
the Atlantic, i.e. allowing for limited cross examination in Canada,7 would impact upon the
potential credibility of the evidence and thus the veracity courts would give to it. Post 1975,
transformations in civil procedure, particularly simplified proceeding,8 case management,9
and status reviews,10 have all increased the control exercised by courts to hasten litigation
through the adjudicative process and indirectly lessen the need for interlocutory relief.
Buttressed by these procedural changes, some courts are now more willing to deny or
suspend granting interlocutory relief in return for an undertaking from the parties to
expedite the trial process, or to keep records that will make it easier to quantify damages.11
The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.

[B] A DEFAULT TEST FOR INTERLOCUTORY INJUNCTIONS
In what follows, I describe the default standard for all forms of interlocutory injunction
applications; default, because in some particular types of substantive claims, courts have

5 See for example, Canadian Environmental Protection Act SC 1999, c.33, s.22.
6 Grant Hammond, “Interlocutory Injunctions: Time for a new model?” (1980) 30 UTLJ 240.
7 For example now see Ontario Rules of Civil Procedure RRO 1990, Reg. 194, r.39.02; Federal Court,
Federal Court Rules SOR 98-106, r. 83.
8 For example, see Ontario, r.76.
9 For example, Ontario r. 77, Federal Court r. 380. And see A Kealy, “Wither American Cyanamid?:
Interim Injunctions in the 21st Century”, (2004) 23 CJQ 132 at 147 who also makes the suggestion that the
introduction of case management in the UK has weakened the need for interlocutory injunctions.
10 Federal Court r. 382.
11 The cases are discussed in Jeffrey Berryman, The Law of Equitable Remedies 2nd ed. (Toronto: Irwin
Law, 2013) [Equitable Remedies] at 41.
2
sometimes resorted to variations on the default standard. These changes normally engage
the same elements described here, but they change the emphasis, particularly in what I
describe as the threshold test, in that they require a higher standard than good arguable
case.

Any discussion of the default test must make passing reference to the House of Lords
decision in American Cyanamid.12 The appellant, American Cyanamid, was the registered
proprietor of a patent for absorbable sutures that disintegrated once they had served their
purpose and were then absorbed into the body. The respondent, Ethicon, also marketed
sutures made from animal tissue called catgut. At the time the appellant introduced its
patented product in 1970, the respondent was the dominant supplier of catgut sutures in
the United Kingdom. By 1973, the appellant had succeeded in capturing 15 percent of the
suture market. Concerned at this inroad into the suture market, the respondent launched
its own absorbable suture. The appellant immediately alleged that the respondent’s suture
infringed its patent and launched an interlocutory injunction action to restrain the
respondent from marketing absorbable sutures in the United Kingdom. In the trial court,
after a three-day hearing, an interlocutory injunction was granted. This was subsequently
reversed in the Court of Appeal after an eight-day hearing. Both lower courts felt
constrained by authority to apply a prima facie test as the appropriate threshold model.

The House of Lords reversed the Court of Appeal and restored the trial judge’s decision. In
coming to that decision, the court effectively lowered the threshold to requiring the court to
be “satisfied that the claim is not frivolous or vexatious,” that “there is a serious question to
be tried,” and that the plaintiff has a “real prospect of succeeding.”13 The rationale for doing
this was based on the unreliability of making determinations on conflicting affidavit
evidence of substantive claims without benefit of detailed argument and in a climate of
judicial haste. The threshold articulated was to be applied generally across all spheres of
law (although this has not been the outcome in the United Kingdom) and applied to both

12 [1975] AC 396 (HL).
13 Ibid. at 406–8.

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the factual issues of infringement as well as the legal claim that such a right existed. In
addition to lowering the accessibility threshold test, the House of Lords stressed the
essential aspect of irreparable harm as key to the determination of whether to award an
interlocutory injunction.

The Supreme Court of Canada essentially endorsed the American Cyanamid approach in
RJR-MacDonald v. Canada (A.G.).14 In RJR-MacDonald, the applicant sought an interlocutory
stay against the enforcement of the Tobacco Products Control Regulations,15 which had
placed controls on tobacco advertising. The applicant had successfully challenged the
constitutionality of the legislation in the Quebec Superior Court, which had held the
legislation ultra vires. In the Court of Appeal the legislation was upheld as being valid. The
applicant intended to appeal the constitutional issue to the Supreme Court, and in the
interim sought a stay against any attempt to enforce the regulations. The applicant failed to
win the stay, although on the substantive merits of the constitutional issue, the applicant
was ultimately successful in having the regulations struck down.16

In RJR-MacDonald the Supreme Court accepted the “serious issue to be tried threshold”
describing it as a ‘low one’.17 This threshold responds to two distinct concerns; one,
whether the applicant’s alleged infringement of a legal right is problematic from a
substantive law point of view, and two, whether there is sufficient evidence of infringement
to meet the level of serious issue to be tried. RJR-MacDonald was a case of the former type,
the substantive legal issue being whether the applicant’s Charter rights were being
infringed. There was no doubt that the applicant was manufacturing cigarettes and did not
wish to carry the anti-smoking message required by the government’s legislation. In
contrast, American Cyanamid was a case of the latter type, there being no doubt on the

14 [1994] 1 SCR 311.
15 S.O.R./89-21.
16 See RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
17 Above note 14 at 337. For the Court Sopinka and Cory JJ. stated:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should
proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to
succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
At 337-8.
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substantive law as to patents, only whether the respondent’s absorbable suture actually
violated the applicant’s own patented absorbable suture.

The low accessibility threshold test has been universally adopted across common law
Canada and the Federal Court.18 Rarely, will an application be declined solely on the basis
of not crossing this threshold.19 Nevertheless, the low threshold gives way to a higher
standard, first, in the recognized exceptions outlined in RJR-MacDonald,20 and second, in a
number of specialized interlocutory injunction applications.21

[1] Irreparable harm
The second requirement under American Cyanamid is the applicant’s proof of irreparable
harm if the interlocutory injunction is declined. This aspect of the test for interlocutory
relief remains controversial in at least three respects. One, whether the requirement is
itself a pre-requisite, a condition precedent, before passing onto the balance of
inconvenience (i.e. is the test for interlocutory injunctions truly sequential creating a
threshold?), or is it merely an explicitly identified aspect of a unitary test centered on the
balance of (in)convenience? Two, what forms of harm constitute irreparable harm? Three,
what evidential proof of irreparable harm does a court require to satisfy this aspect of
either a sequential or unitary test?

[i] Unitary or sequential test
At issue here is whether the requirement on the applicant to demonstrate irreparable harm
operates either as a second threshold test or independent component, or, whether it is
simply a constituent aspect that is evaluated on some form of sliding scale as part of the

18 See for example in Ontario, Coco Paving (1990) Inc. v. Ontario (Minister of Transportation) [2009] OJ
No. 5794 (CA), British Columbia Hemmerich v. British Columbia (Superintendent of Motor Vehicles) 2014 BCCA
488, Alberta Modry v. Alberta Health Services [2015] ABCA 31, Federal Court Canada (Attorney-General) v.
Simon 2012 FCA 312.
19 But see for example Corporate Health LP. 2014 ONSC 2632, Warren Woods Land Corp v. 1636891
Ontario Ltd. 2012 ONCA 12, and Fournier Pharma Inc. v. Apotex Inc. [1999] FCJ No. 504 (TD).
20 Two exceptions were explicitly recognized; where the interlocutory injunction application will be
determinative of the parties’ rights, and where the issue in contention is a simple issue of law alone.
21 Discussed in Equitable Remedies above note 11 at 43.
5
balance of convenience test. For Siebrasse22 and Crerar23 the dominant focal point of the
grant of interlocutory injunctions should be the balance of convenience. Even if irreparable
harm does constitute a separate threshold, then it must be a low threshold. For Sharpe,
irreparable harm, balance of convenience, and the relative merits are inter-related concepts
and should not be construed as discrete components.24

Despite what can be said about Lord Diplock’s language in American Cyanamid,25 I suggest
that it is difficult not to read the Supreme Court of Canada’s decision in RJR-MacDonald in
any other light than imposing irreparable harm as a discrete element. This is how the Court
introduced the concept of irreparable harm:
Beetz J determined in Metropolitan Stores, at p. 128, that "(t) he second test consists in deciding
whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted,
suffer irreparable harm". The harm which might be suffered by the respondent, should the relief
sought be granted, has been considered by some courts at this stage. We are of the opinion that this is
more appropriately dealt with in the third part of the analysis. Any alleged harm to the public interest
should also be considered at that stage.
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect
the applicant's 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.

Irreparable harm is clearly identified as a ‘second test’. A ‘test’ is something that must be
met. It describes a standard of evaluation or examination. Each of the three American
Cyanamid components are individually described by the Court as individual ‘tests’. In the
above passage the Court clearly identifies that it is the applicant’s, and not the respondent’s,
irreparable harm that must be demonstrated, and that the respondent’s irreparable harm
only has bearing at the third test stage.26

22 Norman Siebrasse, “Interlocutory Injunctions and Irreparable Harm in the Federal Courts” (2009) 88
Can. Bar Rev. 515.
23 David Crerar, ““The Death of the Irreparable Injury Rule” in Canada”(1998) Alta L. Rev. 957.
24 Robert Sharpe, Injunctions and Specific Performance looseleaf ed. (Toronto: Canada Law Book) 2.600.
25 Siebrasse above note 22 makes the argument that Lord Diplock did not intend to create a discrete
threshold test from irreparable harm. In contrast, I am of the opinion that Lord Diplock’s language is most
consistent with a sequential analysis, and one accepted by subsequent judgments wherein the American
Cyanamid case has been reduced to a tripartite test.
26 The distinctive nature of the three tests is consistent with the Supreme Court’s later jurisprudence
particularly Canada (Human Rights Commission) v. Canada Liberty Net [1998] 1 SCR 626 at [46] wherein the
court is explaining why the American Cyanamid approach is ill suited to a case dealing with free speech and
prior restraint. One of the principle grounds for reject the American Cyanamid approach is how inconclusive
irreparable harm could operate in such a context.
6

One gauge of whether the irreparable harm criteria forms part of a sequential rather than
unitary test is to find cases where the applicant has been denied an injunction simply on a
failure to meet the test, howsoever defined. This is to argue that the test for irreparable
harm does in fact operate as a threshold. And, indeed we find such cases across a diverse
range of substantive areas. 27 Even where it is not explicitly stated that a sequential
approach is adopted, an overwhelming number of cases post RJR-MacDonald apply a tri-
partite test in which all three tests must be satisfied before an interlocutory injunction is
granted.28 Many cases in fact group the arguments under three explicit headings as was
done in RJR-MacDonald. In these cases, proof of the applicant’s irreparable harm is a
necessary condition and in that sense can only be described as a threshold requirement.
Recently the Federal Court of Appeal specifically ruled on the argument that an

27 Plaza Consulting Inc. v. Grieve 2013 ONSC 5338 restrictive covenant, confidentiality and fiduciary
relationship; Millennium Charitable Foundation v. Minister of National Revenue 2008 FCA 414 income tax and
charitable registration; Canada (Public Works and Government Services) v. Musqueam First Nation 2008 FCA
214 duty to consult Indian Band before sale of land; Victoria’s Secret Stores Brand Management Inc. v. La Senza
Inc. [2006] OJ No. 1649 passing off and marketing deception; Aventis Pharma SA v. Novopharm Ltd. 2005 FCA
390 patent infringement; Vista Sudbury Hotel Inc. v. Oshawa Group Ltd. 2004 CanLII 14260 (ONSC)
enforcement of a commercial lease; Newfoundland and Labrador Association of Public and Private Employees v.
Western Regional Integrated Health Authority 2008 NLTD 20 (CanLII) stay of proceedings before a Labour
Relations Board; and Dr Alan Cockeram v. College of Physicians and Surgeons (NB) 2013 NBQB 197 at [52]
disciplinary complaint process. Incidentally, the last decision specifically distinguished the approach earlier
adopted by the New Brunswick Court of Appeal in Imperial Sheet Metal Ltd. v. Landry 2007 NBCA 51 at [28]
which held that irreparable harm is not a condition precedent to the granting of an interlocutory injunction.
My argument here is at odds with Sharpe above note 24 at 2.450 who asserts, “that attempts to make
irreparable harm a condition precedent, and hence a threshold have been rejected.” The Nova Scotia Court of
Appeal has accepted that in ‘exceptional circumstance’ a court can step outside the tripartite tests and can
award an interlocutory injunction in the absence of a finding of irreparable harm, T.G. v. Nova Scotia
(Community Services) 2012 NSCA 71 at [57-60].
28 For example see Target Brands Inc. v. Fairweather Ltd. 2011 FC 758 trademark infringement, where
the test is described as ‘conjunctive’ and the applicant must succeed on all three questions. A similar term to
describe the test was recently made by the Federal Court of Appeal in Jamieson Laboratories Ltd. v. Reckitt
Benckiser LLC 2015 FCA 104. The cases which provide explicit headings of the three tests are too numerous
to detail, but here are a smattering; Urbacon Building Groups Corp v. Guelph (City) 2014 ONSC 3840, Dang
Variety Store v. Pioneer Energy LLP 2012 ONSC 5743, Telewizja Polsat SA v. Radiopol Inc. 2005 FC 1179,
Laboratoires Servier v. Apotex Inc. 2006 FC 1443, and Catalyst Canada Services LP v. Catalyst Changers Inc.
2013 ABQB 73. British Columbian courts are outliers on this issue, favouring a simple two-part test; a
threshold in which the applicant must demonstrate a fair question to be tried and then, that the balance of
convenience favours the granting of the injunction. Within the latter, irreparable harm and adequacy of
damages are two considerations to be considered. See Onkea Interactive Ltd. v. Smith 2006 BCCA 521 at [9],
Bell Mobility Inc. v. Telus Communications Co. 2006 BCCA 578 at [10], following the earlier decision of the same
court in British Columbia (A.G.) v. Wale (1987) 9 BCLR (2d) 333 (CA), and Telus Communications Co. v. Rogers
Communications Inc. 2009 BCCA 581 at [27].
7
interlocutory injunction could be granted ‘in the interests of justice’ where irreparable
harm was not identified. It emphatically rejected the submission stating; “Each branch of
the test adds something important. For that reason, none of the branches can be seen as an
optional extra. If it were otherwise, the purpose underlying the test would be subverted.”29

In contrast, the strongest appellate court endorsement of Sharpe and Siebrasse’s approach
has come from the Saskatchewan Court of Appeal.30 While the court describes strength of
case, irreparable harm and balance of convenience as ‘prescribed and necessary parts of an
analysis’ they are not ‘usefully seen as an inflexible straightjacket’, but provide a
‘framework’ where the ultimate focus of the court must, ‘always be on the justice and equity
of the situation’. 31 Having established this principle the court then immediately analyzed
the case under the orthodox three headings. In essence, the Saskatchewan Court of
Appeal’s approach is to accord a low standard (threshold) to irreparable harm and a rush
to balance of convenience.32

Apart from the fact that I believe courts have applied the tri-partite test making
identification and proof of irreparable harm a threshold requirement, there are good policy
and practical reasons to insist upon the same.33
[1] The raison d’etre of interlocutory injunctions is the avoidance of irreparable harm
experienced prior to trial. Lord Diplock in American Cyanamid expressed it thus: “The
object of the interlocutory injunction is to protect the plaintiff against injury by violation of

29 Janssen Inc. v. AbbVie Corp 2014 FCA 112 at [19].
30 Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy LP 2011 SKCA 120, specifically
referencing both Sharpe and Siebrasse.
31 Ibid at [26].
32 Ibid at [61].
33 The position advocated here is also applied by the United States Supreme Court with respect to
irreparable harm, although the initial threshold test, ‘likely to succeed on the merits’, is higher than ‘serious
issue to be tried’. In Winter v. Natural Resources Defense Council Inc. 129 S. Ct. 365 (2008) at 375, Roberts CJ,
for the majority held:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.
Specifically challenged in the case was whether the plaintiff had to prove only a ‘possibility’ of irreparable
harm as against ‘likelihood’. The more stringent latter standard was applied.
8
his rights for which he could not be adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at trial.”34 Proof of the applicant’s
irreparable harm is the justification for conferral of an equitable and discretionary remedy
by a court.35
[2] Our common law has progressively curtailed a plaintiff’s right to self-help remedies.
A cardinal principle of our civil law is that a plaintiff has no right to relief before judgment,
and then only upon meeting the requisite elements of proof, unless statutorily conferred or
by consent. Because the initial threshold under the first test is drawn so low that few
applications fail to pass the test, there needs to be some effective threshold that an
applicant should meet before imposing a burden on a defendant to have to respond.
Jumping precipitously to a balance of convenience test immediately imposes on a defendant
a requirement to respond by demonstrating his or her own threat of irreparable harm. This
is a burden that is particularly difficult to reconcile in the case of ex parte interlocutory
injunctions.36 And, in any case, a balance of convenience requires an applicant to establish
irreparable harm as a constituent part to enable the balancing process. Why then, is it
improper to require some level of evidential proof, a threshold, on the part of the applicant
before putting the defendant to task to identify the risk of irreparable harm. Such a
requirement on an applicant is perfectly consistent with how our normal civil trial process
operates.
[3] The reason for lowering the first test was to avoid premature adjudication, a ruling
on the merits under less than ideal procedural circumstances. As will be discussed below, a
balance of convenience ultimately takes a court back into some form of merit adjudication.
The rationale that justified caution over precipitous adjudication does not change because
it is considered under the balance of convenience. Requiring an applicant to initially
demonstrate irreparable harm sharpens the mind on what can be done to alleviate the risk

34 Above note 12 at 406.
35 Letourneau JA, in Lassonde Inc. v. Island Oasis Canada Inc. [2001] 2 FC 568 (CA) at [11] clear identifies
the rationale for irreparable harm:
The appellant applied for an interlocutory injunction, that is an injunction that would prevent it
suffering irreparable harm while it is awaiting a final ruling on its rights. That is the very essence of
the action taken and the remedy desired.
36 In such a case, it is left to the applicant to make full and frank disclosure of all material facts to the
court. Equitable Remedies above note 11 at 55.
9
of its incursion, and also how the injunction order should be minimally framed to deal only
with the risk at hand. Thus, some courts have fashioned appropriate orders that meet the
applicant’s need to protect against the risk of irreparable harm without fully constraining
the defendant’s actions by an injunction. In Cemasco Management Ltd. v. Analysis Films
Releasing Corp.37 the defendant gave an undertaking to keep proper records of account so
that the applicant could assess damages if it won at trial of a breach of a film distribution
agreement. Similarly, in Bell Canada v. Rogers Communication Inc.38 the defendant agreed
to keep market research data that would enable the applicant to determine loss of
customers as a result of an alleged misleading marketing campaign. In Corp. of Canadian
Civil Liberties Association v. Toronto (City) Police Services39 an interlocutory injunction to
restrain the use of long range acoustical devises by police for crowd control was modified
when the police gave an undertaking to use the devices only within a specific decibel range
that would avoid the risk of hearing damage.

[ii] The meaning of irreparable harm
In American Cyanamid the concept of irreparable harm was not discussed, and in fact the
terminology was whether damages would be an adequate remedy.40 In RJR-MacDonald the
Supreme Court of Canada undertook to define irreparable harm.
It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually
because one party cannot collect damages from the other.

Pointedly, the Court then gave examples:

Examples of the former include instances where one party will be put out of business by the court’s
decision (R.L. Crain Inc. v Henley (1988), 48 DLR (4th) 228 (Sask. Q.B.); where one party will suffer
permanent market loss or irremovable damage to its business reputation (American Cyanamid); or
where a permanent loss of natural resources will be the result when a challenged activity is not
enjoyed (MacMillan Bloedel Ltd. v. Mullen [1985] 3 W.W.R. 577 (BCCA)).41

37 (1979) 24 OR (2d) 389 (HCJ). See also Target Brands Inc. v. Fairweather Ltd above note 28 at [67].
38 (2009) 76 CPR (4th) 61 (Ont. SCJ) at [41].
39 2010 ONSC 3525, and supplemental reasons modifying the injunction 2010 ONSC 3698.
40 Above note 12 at 408. This also conforms to the convention to treat inadequacy of damages and
irreparable harm as being synonymous.
41 Above note 14 at 341.
10
The examples are all drawn from private law, whereas the case before the court was one of
public law. This can only lend weight to the argument that the court’s test for interlocutory
injunctions was to be treated as universal. In the public law realm, the court readily found
that irreparable harm was established because there was, at the time, little prospect of an
applicant receiving damages as a primary remedy for Charter violation.42

A number of commentators, 43 including this author, 44 have noted the flexibility and
amorphous quality of irreparable harm leading to the conclusion that it is a difficult concept
with which to work. However, on my reading of the recent cases this does not appear to be
a shared view of the judiciary and the simple definition provided in RJR-MacDonald appears
workable. Thus, the cases predominantly fall within three types of irreparable harms; one,
difficulty over the ability of the defendant to meet any damages judgment should the
applicant be successful on the merits; two, forms of business losses that are inherently
difficult to quantify with precision; and three, subjective harms to private individuals,
groups or the public. At least in respect of the types of irreparable harms, courts have
taken the Supreme Court of Canada’s instruction that under the second test it is the type of
harm and not its magnitude that is important. As noted above in the quote from RJR-
MacDonald the first type of harm was specifically recognized.45 The third type of harm, and
the one at issue in RJR-MacDonald often occurs in the public law arena. It covers the types
of harm that a person or organization experiences when some statutory provision,
constitutional principle, rule of civil procedure is violated, or where the public interest is
engaged.46 The second type of harm captures most of the cases where the litigation is
between two private litigants, and includes, loss of reputation, business goodwill, market
share, and confidentiality.

42 It will be interesting to observe whether the decision in Vancouver (City) v. Ward [2010] 2 SCR 28 will
change this approach. The strongest argument against any change is that courts will, and should, resist the
commensurability of fundamental rights through awards of damages.
43 Sharpe above note 24 at 2.440, and Crerar above note 23 at [49].
44 Equitable Remedies above note 11 at 36.
45 See for example, David Hunt Farms Ltd. v. Canada (Minister of Agriculture) [1994] 2 FC 625 (CA),
damages quantifiable, but right to recover against the Crown limited by statute.
46 It has been suggested by some courts that the irreparable harm criteria is preemptively satisfied
when it is the enforcement of a statutory provision that is being sought, but which does not raise
constitutional objections. Discussed in Equitable Remedies above note 11 at 96.
11

[iii] Evidential proof of irreparable harm
A preliminary point to note is the symmetry in both threshold tests; that an applicant must
prove both the substantive entitlement (substantive claim for which there is a serious issue
to be determined, and a type of harm that is irreparable), and evidence of its incursion. It is
with respect to the question of the level of evidential proof of irreparable harm, where it is
argued that the Federal Court has lost its way.47 In particular, the Federal Court of Appeal,
in a number of decisions, some prior to RJR-MacDonald, has insisted that an applicant prove
its claim of irreparable harm with ‘clear and non-speculative’, or ‘clear and not speculative
evidence’.48

The Federal Court is not alone in using the ‘clear and non-speculative’ standard. It is
applied in Ontario,49 British Columbia,50 Alberta,51 and Manitoba.52 Nor is ‘clear and non-
speculative’ the only standard to be articulated.53 Thus, in Potash Corp. of Saskatchewan
Inc. v. Mosaic Potash Esterhazy LP54 the Saskatchewan Court of Appeal spoke of a wide

47 Siebrasse above note 22. Ruth Corbin, “The Proof of Irreparable Harm in Canadian Practice” (2004)
94 TMR 1294 at 1310, forcefully argues that the Federal Court has adopted a high standard which is impacting
upon lawyers’ advice to clients on whether to seek interlocutory relief.
48 The original source of this phraseology is Imperial Chemicals Industries PLC v. Apotex, Inc. (1990] 1 FC
221 (CA) at [6], although recognition is given to Baxter Travenol Laboratories of Canada Ltd v. Cutter Ltd.
(1980) 47 CPR (2d) 53 (FCA), however, the phrase was not used in that case, the court simple asserting that
the evidence may have been speculative at best. Centre Ice Ltd. v. National Hockey League [1994] 53 CPR (3d)
34 (FCA) at [7]; Canada (Attorney General) v. United States Steel Corp. 2010 FCA 200 at [7].
49 Kanda Tsushin Koygo Co. v. Covely [1997] OJ No. 56 at [14] (Div. Ct.) and endorsed in Ontario v.
Shehrazad Non-Profit Housing Inc. 2007 ONCA 267 at [26], and most recently in Optilinx Systems Inc. v. Fiberco
Solutions Inc. (2014) 123 OR (3d) 602 at [11].
50 RBC Dominion Securities v. MacDonald 2013 BCSC 992.
51 Khadr v. Bowden Institution (Warden) 2015 ABCA 159 at [25]. But note Stier Financial Group Inc. v.
Stier 2012 ABQB 1231 at [35] applying ‘high degree of probability’ or a ‘reasonable amount of apprehended
harm’.
52 Ramanand v. De Paula 2012 MBQB 335 at [41] specifically adopting the Federal Court of Appeal
approach, and Oberg v. Canada 2012 MBQB 64 at [36].
53 Even within the aforementioned jurisdictions, other standards have been applied. Thus in Schluter-
Systems KG v. Dollar Tile Distributors Ltd 2013 BCSC 2508 at [13] there must be a ‘real prospect’ of irreparable
harm. In Welltec APS v. Precision Drilling Corp. 2004 ABQB 139 at [52] a “serious doubt that damages would
be an adequate remedy”. Spiderplow Canada Ltd. v. Lyons 2004 ABQB 921 at [50],“irreparable harm in
trademark law means serious financial harm”.
54 Above note 30.
12
spectrum, starting with B.C. (A.G.) v. Wale, 55 ‘clear proof of irreparable harm is not
required’, to Wang v. Luo,56 “whether or not it is probable that irreparable harm will be
suffered’, through to the ‘far end of the range’, the decisions of the Federal Court of Appeal.
Arguably, there may be even a further point beyond the clear and non-speculative standard,
one applied in the Federal Court of Appeal decision of Janssen Inc. v. AbbVie Corp.,57 namely:
On the irreparable harm branch of the test, the moving party must demonstrate in a detailed and
concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative
harm – that cannot be repaired later. …. [i]t would be strange if vague assumptions and bald
assertions, rather than detailed and specific evidence, could support the granting of such relief.”

I am not aware of any empirical research that has determined whether the Federal Court’s
application of their standard has or has not resulted in fewer interlocutory injunctions. The
standard guides the exercise of individual trial judges’ discretion and is thus subject to
idiosyncratic approaches to the evidentiary process.58

There is a degree of elasticity in the application of any standard of proof, particularly over
the framing of the question that must be met by evidence. For example, in the Alberta
Court of Appeal decision in Khadr v. Bowden Institution (Warden),59 in which the Crown
asked for a stay in the release of the respondent, Omar Khadr, pending the appeal of his
conviction in the United States, the court held that the Crown was required to meet the RJR-
MacDonald test. On proof of irreparable harm, the Crown argued that Khadr’s release on
bail would jeopardize Canada’s international reputation with respect to prisoner transfer
arrangements with other countries. In demonstrating this irreparable harm, the court

55 Above note 28, but decided before RJR-MacDonald. In actual fact, this case does not provide a scale;
rather, it treats the issue of irreparable harm as dispensable. Now see RBC Securities v. Macdonald above note
58.
56 2002 ABCA 227 at [17], but now see Khadr above note 51.
57 Above note 51 at [24].
58 Although Corbin above note 47 makes this assertion that fewer applicants seek interlocutory
injunctions because the Federal Court has imposed a high threshold on irreparable harm. It is only an
impressionistic opinion, but recent decisions of the Federal Court of Appeal do not evident a particularly strict
approach to the standard of proof concerning irreparable harm. See Jamieson Laboratories Ltd. v. Reckitt
Benckiser LLC above note 28, trade-mark infringement, and Allard v. Canada 2014 FCA 298 repeal of the
Marihuana for Medical Purposes Regulations. In this case the Federal Court recognized the imposition of
financial hardship as constituting irreparable harm. A similar point was accepted in Cheung v. Target Event
Production Ltd. 2010 FCA 149, although in both cases the harm could have been quantified in damages.
59 Above note 51.
13
indicated that what the Crown was required to prove was not that there will be a loss of
reputation but that there is a risk of loss of reputation; a standard the court held the Crown
met.

As identified by the Saskatchewan Court of Appeal, there is scant guidance in RJR-
MacDonald on the appropriate standard of proof.60 Nevertheless, we do know that the
Supreme Court of Canada has taken a very firm view on the standard of proof generally in
civil proceedings, i.e. balance of probabilities, and, in particular, eschewing any argument
for varying that standard.61 Rothstein J. for the Court, further discussed this standard,
stating:
If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently
clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.62

The balance of probabilities standard applies to proof of irreparable harm.63 Care must
therefore be taken that the ‘clear and non-speculative’ test does not displace this uniform
test. Rather, what ‘clear and non-speculative’ addresses are; (i), the existence of actual
evidence, (ii), its sufficiency, and (iii), its probative value or credibility.

More often than not, it is the lack of sufficiency of the evidence that leads to a finding that
the applicant has failed to provide proof of irreparable harm. For example, in Target
Brands Inc. v. Fairweather Ltd.64 the applicant’s claim that there was evidence of confusion
in a passing off action over its ‘brand promise’, was founded on an affidavit, itself subject to
cross examination, provided by its expert on branding and the erosion of a ‘sincere brand’
(the applicant’s alleged brand) by a transgressor. In rejecting this evidence as being
sufficient, the court noted that the expert had not undertaken his own brand personality
research but had based his conclusions on another’s work that had involved a rather small
sample size (69 subjects), in a fictitious market, and for which the author had provided

60 Above note 30 at [52].
61 H. (F.) v. McDougall [2008] 3 SCR 41.
62 Ibid at [46].
63 See Haché v. Canada (Minister of Fisheries and Oceans) 2006 FCA 424 at [11] and Choson Kallah Fund
of Toronto v. Canada (National Revenue) 2008 FCA 311 at [5].
64 Above note 28.
14
considerable caveats on interpreting the results. In Victoria’s Secret Stores Brand
Management Inc. v. La Senza Inc.65 the applicant failed to provide evidence of sales decline,
or that its actual reputation would be harmed in a passing off or marketing deception
action by the respondent who was selling a similar, but equally well made quality product.
The respondent also provided evidence that it would be possible to quantify any impact on
sales if the applicant won at trial.

In many of the case reports, too often the applicant provides evidence of the type of
irreparable harm without demonstrating that it has either suffered, or will suffer, that
violation. This is particularly apparent concerning claims of loss of goodwill, trade
reputation, brand confusion where the Federal Court has insisted upon some ‘clear’, and
‘specific and persuasive’ evidence that consumers are, or will be, confused, or think less of
the applicant’s brand.66 A similar requirement has been made in areas beyond intellectual
property disputes. In Universal Aide Society v. Canada (Minister of National Remedy)67 the
applicant failed to secure an interlocutory injunction to postpone publication by the
revenue of a notice of intent to revoke the applicant’s charitable registration. The applicant
failed to provide any actual evidence of a loss of reputation that would allegedly accompany
this action. In a similar action, a charity could not provide any evidence that it actually had
a reputation with any donor group or community to lose.68

An issue that can cause some confusion when applying the standard of proof concerning
irreparable harm is where the effect of the injunction is largely prospective and thus is
confused with a quia timet injunction. The criteria used to evaluate a quia timet injunction
are recognized as being more stringent than for a prohibitive or mandatory injunction. The
key difference is that the applicant’s case is based upon an imminent fear of a prospective
legal claim, one that has not yet arisen at the time the order is sought, and for which the

65 Above note 27.
66 Lassonde Inc. v. Island Oasis Canada Inc. above note 43 at [17].
67 2009 FCA 107
68 Millennium Charitable Foundation v Canada (Minister of National Revenue) above note 27 at [20].
15
applicant will experience substantial losses should the injunction not be granted.69 A quia
timet injunction can be sought as an interlocutory order where the final judgment will then
make the order permanent.70 This is to be distinguished from an interlocutory injunction
that will have prospective effect down to the date of trial, but which is based upon a present
violation of an applicant’s legal rights, and for which they must establish a serious issue to
be tried. The more stringent tests applied to the former are not to be applied to the latter.
In effect, the applicant is able to extrapolate its claim to irreparable harm from the present
alleged violation. However, in some cases, the applicant’s claim is based upon a present
violation but for which the alleged harm will be completely prospective. For example, the
applicant is alleging a present violation of its trademark or passing off, but it is yet to
establish itself in the defendant’s market.71 In these cases, the same standard applies to
proof of irreparable harm as in other interlocutory injunction applications, but the
applicant will be able to prove irreparable harm by inference from evidence that is clear
and not speculative.72

‘Clear’ and ‘not speculative’ are adjectives that describe a type of evidence. They do not
actually create an evaluative scale or threshold. In fact, there is only one scale, on the
balance of probabilities, of which there must be evidence that is sufficient and credible to
demonstrate the applicant’s claim to actually incurring, or a risk of incurring, irreparable
harm without the interlocutory injunction. What should be avoided are claims that this
evaluation is a ‘high’, or ‘very high threshold’.73

[iii] Balance of convenience
As articulated by Lord Diplock in American Cyanamid the balance of convenience placed on
a scale the respective claims regarding irreparable harm that would be experienced by the

69 Equitable Remedies above note 11 at 195.
70 Merck & Co. v. Apotex Inc. [2001] 1 FC 30 (FCA).
71 See Jamieson Laboratories Ltd. v. Reckitt Benckiser LLC above note 28.
72 Bayer Healthcare AG v. Sandoz Canada Incorp. 2007 FC 352 at [30]-[34], Sports Authority Inc. v.
Vineberg et al (1995) 61 CPR (3d) 155 (FCTD) at 157, and Pango Pizza v. 957822 Alberta Ltd. 2003 ABQB 546
at [24].
73 As was stated in Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997) 74 CPR (3d) 242
(FCTD) at 13, and Pharma Inc. v. Apotex Inc. above note 19 at [6].
16
litigants, with, and without the interlocutory injunction. To that evaluation a variety of
other factors could be taken into consideration in determining where the balance lay. In
American Cyanamid one particular factor was identified, and that was the fact that to grant
the injunction against the respondent would not result in any closing of a factory or
displacement of workers, it not yet having placed on the market its own absorbable suture.
In contrast, the applicant would lose its chance to increase market share for its own new
pharmaceutical product. The fact that the plight of workers played a consideration at the
interlocutory stage is interesting because clearly their plight would have no legal or
persuasive value in determining whether the respondent had in fact infringed the
applicant’s patent. In a similar vein, in RJR-MacDonald the element of ‘public interest’ was
determinative in whether to grant a stay of enforcement or not.74 However, in the final
determination it was a different public interest element that won the day.75

Of course a harm that is irreparable is only unjustly incurred to the extent that a party has a
right to be saved from its incursion. A person may well suffer irreparable harm, and that is
unfortunate, but if they have no claim over the other party, it is not unjustly incurred. This
is where the element of risk of harm is introduced. Under the American Cyanamid
approach, the court is to assume a complete error in judgment on the merits, and then ask
where the balance of convenience lies. If it is evenly balanced, the court is advised to
preserve the status quo. Where the risk of “uncompensatable disadvantage to each party
would not differ widely”, then it is legitimate to consider the relative strengths of each
party’s legal merits. 76 But here again, Lord Diplock advised caution, stating that the
evidence had to disclose, “no credible dispute that the strength of one party’s case, is
disproportionate to that of the other,” and noting that a court is, “not justified in embarking

74 Of particular importance was the public interest raised by the fact that the tobacco regulations were
imposed to protect public health where the tobacco company had conceded that health warnings on tobacco
products did have an effect on public awareness of the health concerns of smoking.
75 RJR-MacDonald v. Canada (Attorney General) [1995] 3 SCR 199, the court saw the public interest in
enforcing the Charter right of freedom of expression as paramount.
76 Above note 12 at 409.
17
upon anything resembling a trial of the action upon conflicting affidavits in order to
evaluate the strength of either party’s case.”77

Here again, the language of RJR-MacDonald is illuminating. Sopinka and Cory JJ. said:
The third test to be applied in an application for interlocutory relief was described by Beetz J. in
Metropolitan Stores at p.129 as “a determination of which of the two parties will suffer the greater
harm from granting or refusal of an interlocutory injunction, pending a decision on the merits.” In
light of the relatively low threshold of the first test and the difficulties in applying the test of
irreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage.78

Note the implicit endorsement of the role of irreparable harm as being determinative
where it is not difficult to apply, but that where difficulty is experienced, as in Charter cases,
one is justified in using balance of convenience as the determinative test. This is quite
consistent with Lord Diplock’s cautious approach in American Cyanamid.

A variation on the assumption of error approach applied in American Cyanamid is for the
trial judge to make a determination of the likely probability of error on the merits and to
apply that as a multiplier to the irreparable harm. This approach was advocated by John
Leubsdorf,79 has been refined and adopted by Posner J.,80 and criticized by Hammond81 and
the author.82 It also may find some tacit support in now Lord Hoffmann’s judgment in Films
Rover International Ltd. v. Cannon Film Sales Ltd,83 although I would suggest that the most
recent applications of American Cyanamid in the United Kingdom accord to the structure
outlined in this paper in placing prominence on the claims to irreparable harm (although
note that the analysis is commonly done with reference to the ‘inadequacy of damages’).84

77 Ibid.
78 Above note 14 at 342.
79 “The Standard for Preliminary Injunctions” (1978) 91 Harv. L. Rev. 525.
80 R.A. Posner, Economic Analysis of Law 8th ed. (New York: Aspen Law & Business, 2011) §2134.
American Hospital Supply Corp. v. Hospital Products Ltd 780 F. 2d. 589 (7th Cir. 1985).
81 Above note 6.
82 Equitable Remedies above note 11 at 49.
83 [1987] 1 WLR 670 (Ch.).
84 For example see the extensive discussion devoted to inadequacy of damages as fulfilling the second
part of American Cyanamid in Covanta Energy Ltd. v. Merseyside Waste Disposal Authority [2013] EWHC 2922
(Ch.); Leo Pharma A/S v. Sandoz [2008] EWCA Civ. 850 (CA), and DWF LLP. v. Secretary of State for Business
Innovation and Skills [2014] EWCA Civ. 900 (CA).
18
The major criticism of the probability of error approach is that it asks a lot of a judge to
exercise self-reflection and to determine his or her individual probability of error. In fact,
new research about cognitive bias and decision-making suggests that there is a tendency
towards a lock-in effect,85 wherein the decision-maker having made an initial decision on
the merits will exhibit a cognitive bias toward confirming the correctness of the decision
whenever asked to review it.86 In fact, the cognitive bias crosses between individuals who
are similarly situated. This research suggests that the capacity toward self-reflection is
compromised. In addition, it suggests that any assessing of the balancing of convenience
that incorporates the likelihood of winning on the merits will be influenced by the decision
taken at the initial threshold. Again, this seems reason enough to be cautious of merit
adjudication under less than ideal procedural circumstances and to increase the focus on
claims of irreparable harm as an important determinative feature.

Because the balance in the balance of convenience test implies a quantitative rather than
qualitative assessment it requires competing claims of irreparable harm to be transmuted
into some metric.87 In the probability of error approach, the multiplier must have a
multiplicand. For some types of irreparable harm this is an impossibility, as evident in
Harper v. Canada (Attorney General)88 where it was assumed. In some cases the irreparable
harm is not from difficulty in quantification but from collection. In some of the common
cases of irreparable harm that raise loss of market share, goodwill, or depreciation of brand
value, the issue is not so much the difficulty in quantification, these types of values can be
readily identified on company balance sheets or when the business is sold, but it is the
problematic nature of proving cause and effect that creates the characterization as

85 See Kevin Lynch, “The Lock-in Effect of Preliminary Injunctions” (2014) 66 Fla. L. Rev. 779,
addressing the impact of lock-in on varying standards of initial threshold in the United States.
86 Dan Simon, “A Third View of the Black Box: Cognitive Coherence in Legal Decision Making” (2004) 71
Chicago L. Rev. 511, introduces what cognitive psychology has to offer judicial decision-making.
87 That the balance in balance of convenience is an allusion to a weight or balance scale, rather than
simply comparing interests can be seen in Lord Diplock’s language in American Cyanamid above 12 at 408
wherein he spoke of the need to consider the relative weight to be attached to the various factors considered
under balance of convenience.
88 [2000] 2 SCR 764 at [4].
19
irreparable. Simply put, the claimant is unable to show that the alleged infringement by
this particular defendant will lead to a commensurate and quantifiable loss.

The argument made above is that the second test from RJR-MacDonald, proof of irreparable
harm, performs an important and necessary function on controlling access to the
exceptional equitable remedy of an interlocutory injunction. It is either part of a sequential
test, or is a necessary component requiring proof to obtain an interlocutory injunction. I
resist the race to the balance of convenience stage because, ultimately, comparative claims
of irreparable harm simply result in reintroducing premature merit adjudication under less
than ideal procedural conditions. However, I accept that in many cases it may be an
inevitable, but a final step, where a preliminary review of the merits will tip the balance.
Nevertheless, asking an applicant to focus upon its claim to irreparable harm requires the
applicant to identify what in its particular suit justifies leapfrogging other litigants on civil
trial lists, or to be granted a pre-emptive strike against a defendant. Further, it sharpens
the mind on what alternatives approaches may be suggested to manage the risk of
irreparable harm between the litigants.

Courts that have adopted the sequential/necessary component approach, of which I would
claim, are the majority, and certainly the dominant approach in the Federal Court, should
not be faulted in that adoption. Because the Supreme Court of Canada was dealing with a
public law Charter case it was circumspect in its analysis of irreparable harm. What is now
necessary is further elucidation on how that standard is met. Contrary to academic
opinion, courts have not experienced difficulty in recognizing particular types of
irreparable harm. What has been lacking is knowing what that standard is, and what form
of evidence and its sufficiency will meet the standard. The standard is the same applied to
any civil proceeding, i.e. balance of probabilities. It is unfortunate that the phrase ‘clear and
not speculative’ has been applied to describe the level of sufficiency of evidence. Nothing in
RJR-MacDonald required those descriptors, nor that courts conclude that the terms impose
a high threshold as to irreparable harm. Unfortunately, without delving into the evidential
record behind the reported decisions there is little in the judgments that give further
20
elucidation. The judgments tend to be more conclusory, telling us when an applicant has
failed to attain the standard of clear and not speculative, rather than expository, and
explaining what a court hoped to find to satisfy the evidential requirements to establish
irreparable harm. What can be gleaned from the reports is that counsel must be careful not
only to provide evidence of type of irreparable harm, but some evidence that can
substantiate its actual, or risk of, occurrence; think facts not simply bold assertion or
opinion.89 If an applicant cannot provide some real evidence, to the level of balance of
probabilities, that actual irreparable harm has, or will be occasioned without the
interlocutory injunction, then one wonders what is the reason for the application in the
first place other than to secure some pyrrhic victory or bargaining advantage.

[C] A NOTE FOR TRIAL JUDGES - APPELLATE REVIEW
Confronted with the nuances described above about the default test for interlocutory
injunctions, a trial judge may have trepidations about how to decide such an application,
and be wary of appellate review. Let me offer the following observation on appellate
review upon which to take comfort.

Because the granting of an interlocutory injunction is a discretionary matter, appellate
courts have limited the role of review. It is not sufficient to overrule the trial judge simply
because the appellate court would have exercised the judge’s discretion differently. The
trial judge’s assessment can only be set aside if one of the following circumstances exists:

(i) It demonstrates a misunderstanding of the law or of the evidence before the court,
(ii) a wrong inference has been drawn, which later evidence has shown to be in error,
(iii) there has been a change of circumstances after the order that would have justified
the trial judge varying the initial order, and
(iv) the trial judge’s order is so aberrant that no reasonable judge could have reached
the decision.

89 Corbin above note 47 at 1311 makes a novel suggestion that there should be assembled by a credible
expert, evidence of ‘inability to measure’ to a degree that may be implicitly required by courts in the way
evidential sufficiency is applied.
21
These criteria were laid out by the House of Lords in Hadmor Productions Ltd. v. Hamilton90
and confirmed by the Privy Council in Sharma v. Registrar to the Integrity Commissioner. 91
Similar criteria have been adopted by courts in Canada including the Supreme Court of
Canada, 92 and in appellate courts in Alberta, 93 British Columbia, 94 Saskatchewan, 95
Ontario,96 Nova Scotia,97 and the Federal Court of Appeal.98

[D] MAREVA OR ASSET PRESERVATION ORDERS
[1] Jurisdiction
The traditional common law position has been built on the position that a person’s assets
are sacrosanct until they are declared a judgment debtor. This position made historical
sense in a time when it was difficult to transfer assets away from the physical jurisdiction of
the court. It doesn’t make the same sense when assets can be shifted instantaneously with
the touch of a button. The development in all Commonwealth jurisdictions of the Mareva or
asset preservation order is a natural development of equity with its concern over the
effective exercise of the court’s jurisdiction to facilitate the administration of justice.99

Asset preservation orders raise a number of jurisdictional issues:
[1] The court’s jurisdiction to grant this type of order.
[2] Whether the applicant’s substantive claim must arise from activity within the court’s
jurisdiction.
[3] Whether the defendant and/or assets of the defendant must be within the court’s
jurisdiction.
[4] What does dissipation of assets away from the court’s jurisdiction mean?

90 (1982), [1983] 1 A.C. 191 (H.L.).
91 [2007] 1 W.L.R. 2849 at para. 31 (P.C.).
92 Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at 155–56; and R.B. v.
Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 145.
93 Stonewater Group of Restaurants Inc. v. Mikes Restaurants Inc., 2006 ABCA 193.
94 TELUS Communications Co. v. Rogers Communications Inc., 2009 BCCA 581 at para. 105 (C.A.).
95 Culligan Canada Ltd. v. Fettes, 2009 SKCA 144 at para. 13.
96 Wong v. Lee (2002), 58 O.R. (3d) 398 at para. 29 (C.A.).
97 Smith v. Nova Scotia (Attorney General), 2004 NSCA 106 at para. 18.
98 Searle Canada Inc. v. Novopharm Ltd., [1994] 3 F.C. 603 at para. 17 (C.A.).
99 The language comes from the High Court of Australia’s decision in Cardile v. LED Builders Pty Ltd
(1998) 162 ALR 294.
22

Jurisdictional issues could readily be solved by specific enactment of provisions governing
asset preservation orders. While most other Commonwealth jurisdictions have followed
this course, Canada remains a patchwork quilt of approaches. Alberta, Saskatchewan and
New Brunswick 100 all have specific provisions while the remaining provinces rely on
established common law principles.

Space does not permit a full discussion of all the ramifications and intricacies of
jurisdictional issues and what follows is a quick summary.

[1] There is no doubt that even without a specific statutory basis for asset preservation
orders, that courts have the jurisdiction to grant such orders, either pursuant to an inherent
jurisdiction to govern a court’s own procedure, or pursuant to the general statutory power
contained within the respective provincial Courts of Justice Acts to do what is “just and
convenient.”101

[2 & 3] The test of the second and third jurisdictional issues, is whether the presence of
assets alone within the court’s jurisdiction will support an asset preservation order, even
where the defendant is not within the jurisdiction of the court, and nor is the applicant’s
substantive claim within the court’s jurisdiction.

100 See Alberta, Civil Enforcement Act RSA 2000 c. C.15 s. 17 & s.18 discussed in Interclaim Holdings Ltd. v.
Down (1999) 250 AR 94 (CA); Saskatchewan, Part II Enforcement of Money Judgments Act SS. 2010, c. E.9.22,
discussed in Triple A Farms v. State Agriculture Development Inc. 2014 SKQB 369; and New Brunswick, rule 40
Rules of Court of New Brunswick. See also in British Columbia the model order for preservation of assets at
http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/model_orders.aspx
101 See Alberta, Judicature Act, R.S.A. 2000, c. J-2, s. 13(2); British Columbia, Law and Equity Act, R.S.B.C.
1996, c. 253, ss. 4, 5, and 39; Manitoba, The Court of Queen’s Bench Act, C.C.S.M. c. C280, ss. 32, 33(3), and
55(1); New Brunswick, Judicature Act, R.S.N.B. 1973, c. J-2, s. 33; Newfoundland and Labrador, Judicature Act,
R.S.N.L. 1990, c. J-4, s. 105(1); Nova Scotia, Judicature Act, R.S.N.S. 1989, c. 240, s. 41; Ontario, Courts of Justice
Act, R.S.O. 1990, c. C.43, s. 101; Prince Edward Island, Judicature Act, R.S.P.E.I. 1988, c. J-2.1, s. 44(1);
Saskatchewan, Queen’s Bench Act, S.S. 1998, c. Q-1.01, s. 65(1); and Federal Courts Act, R.S.C. 1985, c. F-7, s.44.
23
At common law, English courts established that the substantive claim had to be within the
court’s jurisdiction to support a Mareva order.102 This approach was subsequent repeal by
statute giving the English courts a very generous jurisdictional basis.103

Canadian courts, encouraged by the Supreme Court of Canada’s decision in Brotherhood of
Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific
Ltd.,104 have accepted that a court has the power to grant an injunction where there is a
justiciable right, wherever that right may fall to be determined. In that case, the
substantive issue was going to be heard by the Canada Labour Relations Board. However,
because the board had no jurisdiction to grant preliminary relief, the applicant brought an
action in the British Columbia court for interlocutory relief, even though the substantive
claim would never be litigated in that court. The interlocutory injunction was granted.
Obviously, in the Brotherhood case the defendant was physically within the court’s
jurisdiction.

Where the defendant has assets and the substantive claim is within the court’s jurisdiction,
then the court can grant an asset freezing order, even if the defendant is not within the
court’s jurisdiction. Such an action will be subject to the rules regarding service ex juris.

Where the defendant is within the court’s jurisdiction but the assets are outside the court’s
jurisdiction, an asset preservation order can be made on the basis that the court can act in
personam on the defendant to ensure compliance. This is called a Worldwide Freezing
Order. Dadourian Group International Inc. v. Simms,105 and Mooney v. Orr106provide criteria
on which such an order should be evaluated and granted.

102 Mercedes-Benz A.G. v. Leiduck [1995] 3 W.L.R. 718 (P.C.).
103 Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (S.I. 1997/302) which confers
upon the High Court the power to grant an interim protection measure in aid of an action commenced, or
about to be commenced, in a foreign country. The effect of the order is to reverse the position taken in
Mercedes-Benz.
104 [1996] 2 SCR 495 at 505.
105 [2006] 3 All ER 48 (CA). Recently, in Talisman Energy Inc. v. Flo-Dynamics Systems Inc 2015 ABQB
340, the court granted the applicant a Mareva order restraining the defendant from moving assets located in
Austria to another location. In fact the order required the funds in Austria to be placed in a solicitor’s trust
24

Lastly, is the case where the only connection to the jurisdiction is the fact that assets of the
defendant are within the court’s jurisdiction but neither the defendant or the plaintiff’s
cause of action will be brought within the court’s jurisdiction. I have argued elsewhere that
courts have jurisdiction to grant such an asset preservation order.107 Certainly in Obégi
Chemicals LLC v. Kilani108 the court granted such an order. In that case the respondents
wished to set aside a worldwide Mareva injunction that had been obtained by the claimant,
Obégi Chemicals. The claimant was a company incorporated in the United Arab Emirates
that had commenced proceedings against the Kilani family alleging fraud and
embezzlement. At the time of commencing these proceedings the Kilanis had moved to
Canada where they had applied to become landed immigrants. They maintained a bank
account in Ontario with the Bank of Montreal, although they lived in Nova Scotia. The
claimant was also able to provide evidence that the Kilanis were attempting to move
residence and citizenship to St. Kitts and Nevis. They were described as being “citizens of
the world.” Thus, for the purposes of this dispute, the only connection to Ontario was the
existence of a bank account in which funds had been deposited from various Swiss accounts
held by the respondents. The court determined that the Mareva injunction was requested in
aid of foreign proceedings and not in support of a foreign judgment, and that there was no
presence-based jurisdiction over the Kilanis. Justice Ratushny upheld the Mareva order,
concluding that there was both a real and substantial connection and, alternatively, that the
facts brought the case within the forum of necessity doctrine.109 The latter doctrine seems

account. However, the applicant’s request for an order requiring the defendant to repatriate the funds to
Alberta was declined. In the face of the existing order and undertaking, the applicant had provided
insufficient evidence to justify the more extreme order.
106 (1994) 100 BCLR (2d) 335 (SC), and recently endorsed in Equustek Solutions Inc. v. Jack 2015 BCCA
265 at [86], leave to appeal granted [2015] SCCA No. 355.
107 Jeff Berryman, “Cross Border Enforcement of Mareva Injunctions in Canada” (2005) 30 Adv. Q. 413.
See also V. Black and E. Babin, “Mareva Injunctions in Aid of Foreign Proceedings” (1996) 34 OHLJ 741.
Robert Sharpe, takes a more circumspect position, Sharpe above note 24 at 2.1090.
108 2011 ONSC 1636 [Kilani].
109 This decision was given prior to the Supreme Court of Canada’s decision in Club Resorts Ltd. v. Van
Breda [2012] 1 SCR 572. Justice Ratushny relied heavily on the aspect of “order and fairness” in the extension
of “real and substantial connection.” The Supreme Court has indicated that “order and fairness” is not a
substitute for a rules-based approach, which may undermine the approach taken by Ratushny J. However, it
does not weaken the argument on forum of necessity. Justice Ratushny saw the necessary connection between
the Kilanis and Ontario being in the fact that the Kilanis were heavily reliant upon the account; that they had
25
most apt because the relief being sought by way of Mareva injunction is simply either
unavailable, impracticable, or futile where it is assets within the court’s jurisdiction that is
the subject of the order. In this sense, the domestic court is the only one that will eventually
be able to give justice to a claimant’s legitimate claim.110 Similarly, in the recent decision of
the British Columbia Court of Appeal in Sociedade-de-fomento Industrial Private Ltd. v.
Pakistan Steel Mill Corp.111 the court has endorsed the granting of an asset preservation
order in circumstances where neither party had any connection to the jurisdiction, nor had
the suit being brought in British Columbia. The claimant, an Indian company, had
successfully obtained an international arbitral award, which it sought to enforce against the
defendant, a Pakistani company. The only connection to British Columbia was the fact that
the defendant had purchased coal loaded on a ship in British Columbia and was about to
ship it to Pakistan. The Court of Appeal granted the asset preservation order on the basis
that the claimant was entitled to seek enforcement of its international arbitral award under
the Foreign Arbitral Awards Act and the International Commercial Arbitration Act, R.S.B.C.
1996, c. 233, and that an asset preservation order was appropriately granted to support
that process.

[4] In Canada, assets can be moved from one province to another (unless the sum
claimed is small, and the cost of pursuing the defendant to another province would be
great); and from a common law province to civil law Quebec as well as outside national
boundaries. Jurisdiction in a federal state takes on a number of dimensions. In Aetna
Financial Services Ltd. v. Feigelman112 the Supreme Court noted that all provinces, including
Quebec, provided for the reciprocal enforcement of judgments obtained in another
province. In addition, the court noted that corporations could be incorporated both

previously applied for drivers licences and OHIP cards in Ontario; and that under r. 17.02(i) dealing with
injunctions, the connection to Ontario did not have to be the underlying claim in the foreign proceedings, but
the connection with respect to the Kilanis, Ontario, and the need for a Mareva order in aid of foreign
proceedings.
110 See also Hollinger Inc. v. Radler, 2006 BCCA 539, the court not doubting that it had jurisdiction to
grant a Mareva order, but declining to do so, in an action brought to freeze assets in British Columbia where
the defendant resided, but in support of an action properly commenced in Ontario, and where the defendant
had attorned to the Ontario court’s jurisdiction.
111 2014 BCCA 205.
112 [1985] 1 SCR 2.
26
provincially and federally and that in the latter case the business can be considered as
“residing” throughout Canada. Against this backdrop, the Court considered “removal from
the jurisdiction” to mean outside Canada — transfers within Canada did not constitute
“removal.” The plaintiff was left to rely upon reciprocal enforcement legislation after
judgment was obtained in Manitoba. The Supreme Court did not state this as an absolute
rule and indicated, without further elucidation that for other purposes jurisdiction could be
defined to within provincial boundaries.

Subsequent Canadian cases have interpreted Aetna as elevating the federal jurisdictional
question as being an important but not definitive factor. In one case113 Southin J. held that a
Mareva injunction should be granted preventing the defendant from transferring assets
from British Columbia to Alberta. As she indicated, to expect the plaintiff to incur the cost of
chasing a corporate defendant across Canada for judgment of a claim for $100,000, of
which $65,000 was in British Columbia, would be “if not prohibitory, certainly
inhibitory.”114 The enforcement difficulties justified the injunction.

[2] Criteria used to grant Asset Preservation Orders
In what follows, I examine how the default criteria for interlocutory injunctions discussed
above are applied in the special circumstance of an asset preservation order.

[i] Threshold test
Contrary to the position practised in the United Kingdom,115 where courts have accepted
the American Cyanamid serious issue to be tried threshold, Canadian courts have generally
expressed a preference for either a prima facie or strong prime facie threshold. However,
there is evidence to suggest that British Columbian courts have endorsed both prima facie
and the American Cyanamid position,116 and that they take a much more relaxed approach

113 See Gateway Village Investments Ltd. v. Sybra Food Services Ltd. (1987), 12 B.C.L.R. (2d) 234 (S.C.).
114 Ibid. at 242.
115 For example, see Madoff Securities International v. Raven, [2012] 2 All E.R. (Comm.) 634 at para. 145
(Q.B.).
116 See Insurance Corporation of British Columbia v. Patko, 2008 BCCA 65 at para. 25; and Tracy v.
Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481 at para. 54, both citing Mooney v. Orr above
27
to this issue.117 The Supreme Court in Aetna did not express a definitive position in this
regard, although it cited with approval the position of the Ontario Court of Appeal in Chitel
v. Rothbart,118 which adopted the prima facie standard. However, the Ontario Court of
Appeal has also insisted upon a strong prima facie standard.119 There is a distinction
between good arguable case and prima facie case. In the former, the court must simply be
satisfied that the plaintiff has a cause of action that is neither frivolous nor vexatious. In the
latter, the plaintiff must show through affidavit evidence that all the elements of the case
have been established to justify final judgment, and the probative value of the evidence
must be upheld at trial. How a difference between prima facie and strong prima facie
translates into operational effect or in the way counsel prepares the motion is unclear. To
the cynic the difference may be nothing more than the level to which counsel can shout and
remonstrate on the evils of the defendant, particularly on an ex parte motion. The weight of
recent Canadian authority is toward the higher threshold standard of strong prima facie
case120 although I personally thing this is a regrettable development.

Some courts have suggested that the appropriate accessibility threshold will be influenced
by the strength of the applicant’s case with respect to the other matters which have to be
proved and, in particular, the likelihood that the defendant is attempting to evade
judgment.121

[ii] Proof of Irreparable Harm
In the context of asset preservation orders proof of irreparable harm takes on a special if
not different characterization. The applicant is not experiencing difficulty in quantifying

note 106 at paras. 25 and 32 (S.C.). See also Ontario (Securities Commission) v. Sextant Capital Management,
2010 ONCA 228, suggesting both tests are applicable for Mareva orders when commenting upon the
appropriate threshold test to be met by the Securities Commission when seeking directions of assets pursuant
to its statutory powers.
117 Sociedade-de-fomento Industrial Private Ltd. v. Pakistan Steel Mill Corp. above note 111.
118 (1982), 39 O.R. (2d) 513 (C.A.).
119 See R. v. Consolidated Fastfrate Transport Inc. (1995), 24 O.R. (3d) 564 (C.A.) [Consolidated Fastfrate].
120 Cho v. Twin Cities Power-Canada, 2012 ABCA 47 at para. 5; Clark v. Nucare PLC, 2006 MBCA 101 at
para. 26; and Eli Lilly Canada Inc. v. Novopharm Ltd., 2010 FC 241 at para. 19.
121 Mooney, above note 106, calling for a flexible approach.
28
their claim, what they fear is that the defendant will make him or herself judgment proof.
Under these circumstances, irreparable harm is replaced with proof of dissipation of assets.

There are two distinct issues in the inquiry:
[1] Must the applicant show an ‘intent or purpose’ to evade judgment or merely the
potential for ‘effect’ of doing so?
[2] What type of evidence will a court require to demonstrate a risk of dissipation?

A starting point for most Canadian courts has been the judgment of McKinnon J. in Chitel v.
Rothbart,122 and endorsed in Aetna. The primary focus of the test is to determine whether
the defendant has been dealing with his assets in a “manner clearly distinct from his usual
or ordinary course of business or living.”123 This test tends to eschew differences between
intent and effect, although other commentators have suggested that it requires some
evidence of improper motive or intention on the part of the defendant.124 Certainly the
Federal Court of Appeal adopted this position. 125 The “effect only” position gathered
momentum after the decision in Mooney v. Orr.126 The plaintiff brought an action against the
defendant to discharge a Mareva injunction. The plaintiff was known as an international
deal maker who structured his deals to “minimize income tax, to protect wealth from
various forms of attack (creditors, spouses and other family members), and to ensure
income.”127 The defendant brought an action against the plaintiff on a counterclaim. The
defendant was aware of how the plaintiff structured his affairs before entering into a
business relationship that soured. The defendant, during the course of the original
proceedings, sought a Mareva injunction and an order to disclose the whereabouts of the

122 Above note 118.
123 Ibid. at 532–33.
124 See M.A. Springman, G.R. Stewart, & M.J. MacNaughton, Fraudulent Conveyances and Preferences,
looseleaf (Scarborough, ON: Carswell, 2009) at s. 26(b); and D.M. McAllister, Mareva Injunctions, 2d ed.
(Scarborough, ON: Carswell, 1987) at 97.
125 See Marine Atlantic Inc. v. Blyth (1993), 113 D.L.R. (4th) 501 (C.A.). The court indicated that evidence
about financial difficulties was insufficient to justify an order — there had to be a genuine risk of removal and
a threat to arrange assets so as to defeat adversaries.
126 Mooney, above note 106. After the defendant filed a satisfactory affidavit disclosing his assets, the
injunction was dissolved: (1994), 1 B.C.L.R. (3d) 150 (S.C.). See also Gudaitis v. Abacus Systems Inc. (1995), 35
C.P.C. (3d) 266 (B.C.S.C.).
127 Mooney, ibid. at 133.
29
plaintiff’s assets offshore. The defendant could not show that the plaintiff had removed
assets from Canada or that the plaintiff had done anything to make his assets less exigible
since entering into the business deal with the defendant. The lack of evidence
demonstrating that the plaintiff was doing anything to render the court process impotent
was not seen as a barrier to the granting of the injunction. Justice Huddart allowed the
injunction to continue; at least until full disclosure was given by the plaintiff, at which stage
the plaintiff could again seek its discharge. For Huddart J. the guiding principle was to
fashion an order that showed to the world that the court was not impotent “in the face of
those who choose to order their affairs so as to keep all their options for themselves.”128

The Ontario Court of Appeal was divided on this issue in Consolidated Fastfrate. Justices
Galligan and Houlden adopted the position that if the defendant’s purpose in removing
assets was to avoid judgment, then the injunction should be granted. However, if the
purpose was legitimate, albeit that it had the effect of avoiding judgment, the injunction
should not be granted. Clearly, motive and purpose are important. Justice Weiler was
equally emphatic in stating that an improper motive requirement was not required. In her
opinion, the key issue was the extent to which the defendant’s dealings were outside the
ordinary course of business. When considering this issue it was appropriate to look at the
following:

the size of the judgment which would be obtained against the defendant,
the effect it would have on the defendant’s financial position,
the timing of the asset removal,
whether the payment was of a business debt or not,
the ability to trace assets through any business reorganization, and
the possibility of reciprocal enforcement of judgment in the jurisdiction the assets are
being transferred to.129

Decisions subsequent to Mooney and Consolidated Fastfrate have not drawn any definitive

128 Ibid. Justice Huddart’s expansionist approach in Mooney was endorsed by the British Columbia Court
of Appeal in Silver Standard Resources Inc. v. Joint Stock Co. Geolog, [1997] 7 W.W.R. 289 at 300.
129 Consolidated Fastfrate, above note 119 at 605.
30
picture. British Columbian courts continue with a flexible approach that downplays the
need to find a specific intent or purpose but view that as one element to be considered
when determining whether there is a real risk of dissipation.130 Ontario and other courts
continue to endorse the majority approach in Consolidated Fastfrate.131 However, two recent
decisions from Ontario may have weakened the categorical nature of Consolidated Fastfrate.
In Sibley & Associates LP v. Ross,132 Strathy J. was prepared to make an inference that there
was a real risk of dissipation where the claimant was able to demonstrate that the
evidence of fraud was strong. Drawing an inference was necessary because the plaintiff
could provide no direct evidence of dissipation or that the defendants were proposing to
remove their assets from the jurisdiction. Thus, the element of proof on the threshold issue
– strong prima facie case — has been used to condition the evidential proof requirement
on the second condition, proof of dissipation. This approach seems close to that adopted in
British Columbian courts although it may be restricted in application to cases where the
substantive claim is based on actual fraud.133 In the other Ontario case, Kingston v. G.M.A.
Cover Corp.,134 the claimants were former employees of a company originally located in
Ontario, but which had shifted its business operations to Michigan after a corporate
restructuring, ostensibly to minimize tax liability. This left the claimants seeking a Mareva
injunction over a piece of real property which was for sale, and which was the last remaining
asset in Ontario, to secure severance pay and other damages for wrongful dismissal that the
claimants alleged was owed. Justice Gray discussed the conflicting views in Consolidated
Fastfrate and held that the majority’s requirement for “intent and purpose” should be
confined to the particular facts presented in that case, namely, a claim by the crown for a
Mareva order in aid of the criminal law. On the facts of this case, Gray J. was prepared to
infer an intent to frustrate the claimants pursuit of their claims. However, he also expressed

130 See, for example, L.G.S. v. G.M.S., 2010 BCSC 297; and Insurance Corporation of British Columbia v.
Patko, above note 116.
131 See, for example, Clark v. Nucare PLC, above note 120; and Front Carriers Ltd. v. Atlantic & Orient
Shipping Corp., 2006 FC 18.
132 2011 ONSC 2951.
133 However, in fact most of Strathy J.’s judgment is devoted to excluding the possibility of a separate
fraud exception to the granting of this type of interlocutory order, and indicating that there is a uniform
approach to the granting of this type of interlocutory relief, regardless of the cause of action.
134 2012 ONSC 5019.
31
the following opinion:

 . . . I confess to some difficulty in seeing why that [intent] would be a necessary ingredient in every case.
There may well be situations where assets would be simply untraceable once they have left the
jurisdiction, and the plaintiff would be left with no remedy if a Mareva injunction were not granted.
Provided the other criteria for a Mareva injunction are met, as a matter of principle it is difficult to
understand why an injunction should be refused simply because the defendant’s state of mind cannot be
proven.135

Proof of intent has not been a mandatory requirement in the United Kingdom, where intent,
real risk, and “effect without reasonable excuse” are all accepted.136 Indeed, the language
from Chitel v. Rothbart137 has been endorsed such that the applicable test is said to be:

The underlying purpose of the jurisdiction is not to provide a claimant with security for its claim but to
restrain a defendant from evading justice by disposing of assets otherwise than in the ordinary course of
business so as to make itself judgment proof with the result that any judgment or award in favour of the
claimant goes unsatisfied.138

To require proof of intent would seem unduly restrictive. Proof of intent to evade, like
fraud, entails proof of a defendant’s state of mind. The likelihood that this could be
established at an interlocutory proceeding before discoveries are completed is remote.
Effect focuses on objectively verifiable evidence, which may then justify an inference that
the defendant is attempting to evade judgment. The checklist approach of Weiler J., similar
to that applied in Mooney, is more concrete than attempting to determine individual motive
and intent, and is to be preferred.

With respect to the type of evidence needed to prove risk of dissipation, in addition to the
checklist of factors provided by Weiler J., can be added the suggestions of Mustill J.:

It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He must demonstrate this
by solid evidence. This evidence may take a number of different forms. It may consist of direct evidence that
the defendant has previously acted in a way which shows that his probity is not to be relied on. Or the
plaintiff may show what type of company the defendant is (where it is incorporated, what are its
corporate structures and assets, and so on) so as to raise an inference that the company is not to be relied
on. Or, again, the plaintiff may be able to found his case on the fact that inquiries about the characteristics
of the defendant have led to a blank wall. Precisely what form the evidence may take will depend on the

135 Ibid. at para. 74.
136 See Ghoth v. Ghoth, [1992] 2 All E.R. 920 (C.A.).
137 Above note 118.
138 TTMI Ltd of England v. ASM Shipping Ltd of India, [2005] EWHC 2666 (Comm) at para. 25 (Q.B.).
32
 particular circumstances of the case. But the evidence must always be there.139

When presenting the application for the injunction it is incumbent upon the plaintiff to
make full and frank disclosure of all matters in her knowledge that are material. Failure to
disclose can result in the injunction being set aside.140 An English court has held that a
freezing order can be obtained over future revenues that the defendant may receive from an
overseas asset it held.141 However, for an order over assets within the court’s jurisdiction, a
plaintiff is required to give both particulars of the sum claimed — and thus the amount that
the injunction will cover — and, to the best of their abilities, information of the location of
the defendant’s assets.142

[E] ANTON PILLER ORDERS – SEARCH ORDERS
The Anton Piller injunction has been termed a “civil search warrant,”143 a “private search
warrant,”144 and has been described as the “nuclear weapon of civil procedure.”145 It allows
the plaintiff to take documents or property into custody where she is able to show that
there is a real risk of an unscrupulous defendant destroying them before the plaintiff’s
substantive cause of action comes to trial. The order is available ex parte and surprise is an
important element to ensure the effectiveness of the order. Because the order has the
potential to be a significant intrusion into the defendant’s affairs, courts have created
special procedural safeguards to accommodate the interest of both litigants. The order has
been particularly effective in dealing with intellectual property infringement, although it is
not confined to that area.

139 Ninemia Maritime Corp. v. Trave Schiffahrtsgesellschaft mbH & Co KG, The Niedersachsen, [1984] 1 All
E.R. 398 at 406 (Q.B.), aff’d [1983] 1 W.L.R. 1412 (C.A.).
140 See Third Chandris Shipping Corp. v. Unimarine S.A., [1979] Q.B. 645 (C.A.), which was endorsed in
Aetna, above note 112.
141 Masri v. Consolidated Contractors International Company SAL, [2008] 2 All E.R. (Comm.) 1099 (C.A.).
142 Z Ltd. v. A-Z and AA-LL, [1982] Q.B. 558 at 588, Kerr L.J.: “To the extent to which the assets are known
or suspected to exist, these should be identified even if their value is unknown; and if it is known or suspected
that they are in the hands of third parties, in particular banks, everything should be done to define their
location to the greatest extent possible.”
143 R. (on the application of McCann and others) v. Crown Court at Manchester; Clingham v. Kensington and
Chelsea Royal London Borough Council, [2002] 4 All E.R. 593 at para. 25 (H.L.).
144 Celanese Canada Inc. v. Murray Demolition Corp, 2006 SCC 36 at para. 1 [Celanese].
145 Bank Nellat v. Nikpour, [1985] F.S.R. 87 at 92 (U.K.C.A.).

33

Anton Piller injunctions can be divided into two categories.

(i) Injunction to Dispose of the Issues

In the first category are cases where the injunction will dispose of the issues in dispute
between the parties. The plaintiff is seeking the order to recover property in which she has
a proprietary interest, such as confidential papers, or, to ensure the withdrawal from sale of
commodities that infringe the plaintiff’s trademark, patent or copyright. In this category,
the property, be it a document or infringing article, is the subject matter of the dispute.

Cases can be disposed at this stage either because of the nature of the target subjects or the
type of market in which they operate. With respect to intellectual property, the market is
often highly volatile and the infringing goods will often only have an ephemeral value.
Timing is a decisive factor for the plaintiff and he will want to use an Anton Piller order to rid
the market of infringing articles for as long as the market holds. Once the market has
collapsed the plaintiff will see little value in proceeding to a substantive trial of the merits
of his cause of action.

In respect to target subject, Anton Piller orders have been directed at defendants either
engaged in manufacturing operations illicitly reproducing intellectual property, or at
retailers who form the lower echelons in pyramidal marketing of illicit material. Again,
timing is decisive. Again, the plaintiff will not wish to proceed to trial of the merits; in any
case, the target subject defendants are unlikely to have the resources to contest the
plaintiff’s action.

(ii) Injunction to Preserve Evidence

The second category of Anton Piller injunctions concerns the preservation of evidence
necessary to further a substantive cause of action. Two features distinguish this category
from the first: (1) The plaintiff may have no proprietary interest in the property (usually
documents and increasingly, electronic records) which is not the subject matter of the
34
dispute. (2) The importance of the documents to the plaintiff is their evidentiary value to
prove a substantive cause of action. Mere recovery alone will not compensate for the
plaintiff’s injury.

Beyond these two traditional categories, the Anton Piller order has found new uses,
particularly in its second guise as necessary to preserve evidence. Thus, it has been
resorted to in restraint-of-trade clauses and breach of confidentiality upon termination of
employment, where a fear exists that the defendant has wrongfully removed confidential
client lists or other documents,146 to locate and seize assets for subsequent judgment as a
supplementary feature of a Mareva injunction, 147 as a supplement to the discovery
process,148 and as an extraterritorial order where the plaintiff seeks an injunction to gain
access to the defendant’s premises located in a different jurisdiction to determine the
existence of disputed property.149

In Canada, for all categories the jurisdictional base for Anton Piller injunctions has been
found in three areas. In all the common law provinces as well as the Federal Court rules
there are provisions relating to the interim inspection and preservation of property.150
These rules have primarily been created to give the plaintiff an opportunity to either
inspect premises or ensure property that is the subject of the dispute is retained in safe
custody before judgment is rendered. While these rules encompass many aspects of the
Anton Piller jurisdiction, they do not encompass all. It is difficult to include documents
within the notion of “property” as envisaged in the rules; documents have their own
process of disclosure through the discovery process. Some courts have also insisted that

146 For example, see Ritter v. Hoag, 2003 ABQB 611; and Assante Financial Management Ltd. v. Dixon
(2004), 8 C.P.C. (6th) 57 (Ont. S.C.J.).
147 Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist, [1991] 2 Q.B. 310 (C.A.) [Sociedade
Nacional].
148 See Profekta International Inc. v. Mai, [1997] 1 F.C. 223 (T.D.).
149 See Cook Industries Inc. v. Galliher, [1979] Ch. 439; and Altertext Inc. v. Advanced Data Communications
Ltd., [1985] 1 W.L.R. 457 (Ch. D.).
150 British Columbia, Supreme Court Rules, B.C. Reg. 168/2009, r. 7-6(4); Alberta, Rules of Court, Alta. Reg.
124/2010, r. 6.25(1)(a); Manitoba, Court of Queen’s Bench Rules, Man. Reg. 553/88, r. 45.01; Saskatchewan,
Queen’s Bench Rules, rr. 388 and 390; Ontario, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 45.01; Nova
Scotia, Civil Procedure Rules (2008), r. 42.01; Newfoundland and Labrador, Rules of the Supreme Court 1986,
S.N.L. 1986, c. 42, Sch. D, r. 22; and Canada, Federal Court Rules, S.O.R./98-106, r. 377.
35
pleadings be closed before moving pursuant to these rules, in which case the advantage of
an ex parte interlocutory process would be lost. Finally, it would be difficult to authorize
interrogatories under the rules. These have become an important part of an Anton Piller
injunction to identify the names of suppliers of infringing articles and the location of the
property in dispute. Nevertheless, most annotations of the court rules include Anton Piller
orders as examples in exercise of the jurisdiction under these provisions.

A second jurisdictional base, and the approach formerly followed in the United Kingdom, is
as a function of the court’s inherent jurisdiction to control its own procedures. This was the
jurisdictional base applied by the Supreme Court of Canada in British Columbia (Attorney
General) v. Malik.151 Anton Piller injunctions often appear to mirror pre-trial discovery, a
matter that has always lain within the court’s discretion to control. The United Kingdom
has now created a statutory jurisdictional base for Anton Piller injunctions found in the Civil
Procedure Act 1997.152 The Act renames the injunction a “Search Order.”153

A third jurisdictional base is in the general “just and convenient” power of a court to order
an injunction.154

[1] Accessibility Threshold
The plaintiff must establish a strong prima facie case against the defendant.155 Some courts
have gone further and suggested that the plaintiff must show an “extremely” strong prima
facie case.156 Pitching the accessibility threshold at this level has been justified on the basis

151 [2011] 1 SCR 657 at para. 31; and Dish Network LLC v. Ramkissoon, 2010 ONSC 773 at para. 26.
152 Civil Procedure Act 1997 (UK), 1997, c.12, s. 7.
153 See U.K. Civil Procedure Rules, r. 25.1; and the Practice Direction 25A(7.1) “Search Orders.”
154 See Alberta, Judicature Act, R.S.A. 2000, c. J-2, s. 13(2); British Columbia, Law and Equity Act, R.S.B.C.
1996, c. 253, ss. 4, 5, and 39; Manitoba, The Court of Queen’s Bench Act, C.C.S.M. c. C280, ss. 32, 33(3), and
55(1); New Brunswick, Judicature Act, R.S.N.B. 1973, c. J-2, s. 33; Newfoundland and Labrador, Judicature Act,
R.S.N.L. 1990, c. J-4, s. 105(1); Nova Scotia, Judicature Act, R.S.N.S. 1989, c. 240, s. 41; Ontario, Courts of Justice
Act, R.S.O. 1990, c. C.43, s. 96; Prince Edward Island, Judicature Act, R.S.P.E.I. 1988, c. J-2.1, s. 44(1)
Saskatchewan, Queen’s Bench Act, S.S. 1998, c. Q-1.01, s. 65(1); and Federal Courts Act, R.S.C. 1985, c. F-7, s. 44.
155 See Celanese, above note 144 at paras. 1 and 35; Malik, above note 151 at para. 29; Anton Piller KG v.
Manufacturing Process Ltd. [1976] Ch. 55 (CA); and Nintendo of America Inc. v. Coinex Video Games Inc. (1982),
[1983] 2 F.C. 189 (C.A.) [Nintendo].
156 See Rank Film Distributors Ltd. v. Video Information Centre [1982] AC 380.
36
of the extraordinary and draconian nature of the remedy and the potential for abuse of the
defendant’s rights. The need for a strong prima facie case has also been explained as an
essential way to prevent claimants from using the process as a way to go on a “fishing
expedition” through the putative defendant’s file.157 However, this high threshold level does
create an anomaly with other interlocutory injunctions, inviting the spectre of otherwise
meritorious plaintiffs being thwarted in their effort to get the injunction, or parties using
this form of relief to seek a preliminary trial of the merits. The justification for lowering the
threshold level in American Cyanamid158 — namely, wishing to abstain from expressing
opinions on the merits based on unchallenged evidence — seems equally applicable in the
case of Anton Piller injunctions. The real concern for courts is how to protect the plaintiff’s
and defendant’s legitimate interests from unlawful or unnecessary interference. This can be
achieved by a careful scrutiny of the other grounds necessary to justify the injunction and
the attendant procedural safeguards developed by the courts concerning the order’s
execution. Threshold levels are a particularly blunt and arbitrary way to achieve this goal.

After establishing a strong prima facie case, the claimant must meet the following three
criteria,159which substitute for the irreparable harm and balance of convenience tests.

[2] Damage, Potential or Actual, Must Be Very Serious to the Plaintiff

Unlike many other injunctions, the issue of proof of irreparable harm plays little, if any, role
in the decision to grant an Anton Piller order. Its minimized role stems from the fact that
when first created, Anton Piller orders were seen primarily as preserving evidence and thus
acted as an extension to the discovery process. However, as the order quickly expanded it
became an important weapon in seizing infringing material to prevent the further incursion
of a wrong where there was a real risk that the material would be destroyed if notice of
proceedings was given. In this category, the Anton Piller order takes on true remedial
aspects. Yet a further outgrowth of the Anton Piller order has been the ability to couple it

157 Factor Gas Liquids Inc. v. Jean, 2010 ONSC 2454 at para. 33 (Div. Ct.).
158 American Cyanamid Co. v. Ethicon Ltd., above note 12.
159 Celanese, above note 144 at para. 35.
37
with a Mareva injunction and thus secure a form of seizure of assets to secure eventual
judgment. As Mullan has stated, under this scenario the order “clearly become[s] a pre-trial
remedy.”160 However, even in the latter two categories the preservation of evidence is still
an important function being served by the order and may by itself justify the courts’
involvement.

In substitution of irreparable harm courts have insisted that, in addition to a strong prima
facie case, a plaintiff must establish that the damage resulting from the defendant’s
infringement, either actual or potential, is very serious to the plaintiff.161 The plaintiff can
establish seriousness either by demonstrating the degree of disruption such activity will
cause to her business (e.g., loss of goodwill if the defendant continues selling inferior-
quality goods which violate her intellectual property rights), 162 or, by a monetary
quantification of damages (e.g., the likely loss of sales should the defendant continue selling
infringing material) which, in the plaintiff’s particular circumstances, is seen as being
“serious.”163 Where all that is at stake is the need to preserve evidence, rather than prevent
further wrong, Mullan has suggested that the court should also ask how the loss of the
evidence will affect the chances of the plaintiff to prove her case. However, even in these
circumstances the Ontario Divisional Court has suggested that it is not sufficient to simply
demonstrate that without the documentary evidence the plaintiff will face “a substantial
risk of an inability to prosecute its case,” but that on the substantive claim itself, the
claimant must demonstrate a sufficiently serious loss in damages resulting from the
defendant’s actions to justify the extraordinary remedy requested.164 A court will take into
account the transient nature of the infringement in determining whether serious damage
will be occasioned.165 In Netbored Inc. v. Avery Holdings Inc.,166 Hughes J. distinguished

160 D.J. Mullan, “Anton Piller Orders: Life at the Extremity of the Courts” in J. Berryman, ed., Remedies:
Issues and Perspectives (Scarborough, ON: Carswell, 1991) 189 at 198.
161 Celanese, above note 144 at para. 35. This element, and the need to provide clear proof that the
defendant will destroy the property if notice is given, were established by Ormrod L.J. in Anton Piller, above
note 155.
162 Nike Canada Ltd. v. Jane Doe, [2000] F.C.J. No. 498 (T.D.).
163 Nintendo, above note 154; Adobe Systems Inc. v. KLJ Computer Solutions Inc., [1999] 3 F.C. 621 (T.D.).
164 Factor Gas Liquids Inc. v. Jean, above note 157 at paras. 37–39.
165 Titan Sports Inc. v. Mansion House (Toronto) Ltd., [1990]1 F.C. 448 (T.D.), copyright infringement
38
between serious damage in the injunction sense, which would be addressed by the
irreparable harm criterion, and serious damage in the Anton Piller sense, which must be
connected to the need to preserve documents and materials. The most comprehensive
review of this issue is that taken by Wittmann A.C.J.Q.B. in CCS Corp v. Secure Energy
Services Inc.167 where the former approach in Netbored was called the ‘adverse financial
impact test’, and the latter the ‘procedural impact test’; which the court determined was the
appropriate test.

The weight accorded the second element has not been definitively determined. In Nintendo
of America Inc. v. Coinex Video Games Inc.168 the Federal Court of Appeal accorded equal
weight to this criterion as to the other criteria. However, in Adobe Systems Inc. v. KLJ
Computer Solutions Inc.169and Top Star Distribution Group Inc. v. Sigma,170 the view was
expressed that more weight was to be accorded the third criterion. Whatever the standard,
it is incumbent upon the claimant to provide evidentiary proof to support the claim of
“serious damage.”171

[3] Convincing Evidence That the Defendant Has in His Possession Incriminating
Documents or Things

There has been little discussion of what is required to meet this criterion and it is normally
rolled into the fourth criterion. In Malik172 the court was willing to accept, from the nature
of the substantive claim and the surrounding facts, that “a good deal of relevant and
incrimination evidence would likely be found at the places sought to be searched.”173
Courts must be careful that the claimant is simply not going on a “fishing expedition” in the

concerning the broadcast of a wrestling match.
166 2005 FC 1405 at para. 56.
167 2009 ABQB 275.
168 Above note 155.
169 Above note 163.
170 [2000] F.C.J. No. 41 (T.D.).
171 Chin-Can Communication Corp. v. Chinese Video Centre Ltd. (1983), 70 C.P.R. (2d) 184 (F.C.T.D.).
172 Above note 151 at para. 57.
173 A similar inference would have been drawn in Velsoft Training Materials Inc. v. Global Courseware Inc.,
2011 NSSC 274, but the court was not offered “convincing evidence” to draw such an inference.
39
hope of finding incriminating documents.174 In Anton Piller orders over the preservation of
infringing intellectual properties, courts have accepted evidence gathered on the sale of
infringing articles by the defendants as sufficient to demonstrate that they possess
incriminating things.175

[4] That There is a Real Possibility That the Defendant May Destroy Material before the
Discovery Process Can Do Its Work

Under the third criterion, the plaintiff must provide clear evidence that there is a real
possibility that the defendant may destroy such material if notice is given of any
proceedings. This criterion has been described as the “crucial element of proof”176 and the
“crux” of the evidence required to obtain an Anton Piller order.177 Nevertheless, courts have
freely admitted that it is difficult to obtain direct evidence of risk of destruction or
disappearance of evidence and that an inference of this behaviour can be relied upon.
Richard A.C.J. expressed the court’s approach in the following terms:

It is difficult to prove tangible evidence that an infringer has a history of destroying evidence or will
dispose of important evidence. Applicants have therefore focused on the dishonest character of the
infringer and the easily disposable nature of the infringing articles to invite the Court to draw an
inference that evidence will disappear if notice is given.178

When considering this element, courts have been persuaded by looking at the character of
the defendant, and the usual practices of pirates of copyright.179 Nevertheless, there is a
considerable burden on the plaintiff to provide concrete evidence that there is a real risk of
destruction of the material subject to the order should notice be given. This evidence may
arise during the course of proceedings already commenced against the defendant, as in
E.M.I. Ltd. v. Pandit,180 or as part of an undercover investigation organized by the plaintiff,

174 Factor Gas Liquids Inc. v. Jean, above note 157 at para. 33.
175 Vinod Chopra Films Private Ltd. v. John Doe, 2010 FC 387 at para. 34.
176 Adobe Systems Inc. v. KLJ Computer Solutions Inc., above note 163.
177 Top Star Distribution Group Inc. v. Sigma, [2000] FCJ No. 41 (TD).
178 Adobe Systems Inc. v. KLJ Computer Solutions Inc., above note 163 at para. 37. See also Malik, above
note 151 at para. 59.
179 See Lock International Plc. v. Beswick, [1989] 1 W.L.R. 1268; and Busby v. Thorn EMI Video
Programmes Ltd., [1984] 1 N.Z.L.R. 461 (C.A.).
180 [1975] 1 WLR 302.
40
as in Nintendo of America Inc. v. Coinex Video Games Inc.181

In E.M.I., incidentally the first reported Anton Piller case, the plaintiff gained an
interlocutory injunction against the defendant for infringement of copyright. Part of the
initial order required the defendant to furnish the plaintiff with an affidavit, detailing the
defendant’s suppliers of infringing material and to whom the defendant had passed on the
infringing material. After receipt of the affidavit the plaintiff commenced the present
proceedings, seeking an Anton Piller order to recover any documents in the defendant’s
possession, which would assist in identifying suppliers and customers of the defendant. In
bringing forward this order the plaintiff was now able to show that the defendant’s original
affidavit contained “a pack of lies,” had been supported by forged letters as exhibits, and
that the defendant engaged in an “expensive, extensive, and quite deliberate course of
dealing in infringement of the plaintiffs’ copyright.”182 Under these circumstances the court
readily granted the plaintiff’s request for a further ex parte order to seize documents from
the defendant’s premises.

In Nintendo, the plaintiff brought an action against the defendant for infringement of
copyright held over two video arcade games, Donkey Kong and Donkey Kong Junior. In
seeking an Anton Piller order, the plaintiff provided affidavit evidence of its private
investigator to the effect that the defendant was willing to sell the investigator a pirated
version of the plaintiff’s games. In addition, the plaintiff established by affidavits that the
defendants operated on a cash basis and had behaved in an “extremely evasive and
secretive manner,” that the corporate defendants were “vehicles of convenience” able to
disband and relocate on a moment’s notice, and that the defendants had changed their
corporate name a number of times. 183 Taken together, these affidavits justified the
conclusion by the court that the plaintiff had demonstrated a real possibility that infringing
material may be destroyed if notice was given without an Anton Piller order. Care must be

181 Above note 155.

182 E.M.I., above note 180 at 304.
183 Nintendo, above note 155 at 195.
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taken in the affidavit evidence provided to support a claim of dishonesty or likelihood of
destroying material. Generalized statements based on prior experience of dealing with
counterfeiters, or statements of belief based on information provided by the plaintiff’s
counsel, or statements of belief based only on hearsay evidence will be either inadmissible
or of little probative value.184 It has been said that the evidence must be sufficient to
demonstrate a “probability” of destruction and not simply a “possibility.”185 Other courts
have suggested that there must be a “grave risk” and a “legitimate fear” of destruction.186
An inference of dishonesty must be based upon “compelling evidence” and not simply
supposition or paranoia.187

Once the above criteria have been established the grant of the order is subject to several
procedural safeguards. Chief amongst those safeguards is the requirement that the order
be executed by an independent supervising solicitor.

In Celanese the Supreme Court described the functions of the ISS in the following terms:
The order should appoint a supervising solicitor who is independent of the plaintiff or its solicitors and is
to be present at the search to ensure its integrity. The key role of the independent supervising solicitor
was noted by the motions judge in this case “to ensure that the execution of the Anton Piller order, and
everything that flowed from it, was undertaken as carefully as possible and with due consideration for the
rights and interests of all involved” (para. 20). He or she is “an officer of the court charged with a very
important responsibility regarding this extraordinary remedy” (para. 20).188

The role of the ISS is to act as an impartial third party and to bear witness to what happens
during the search; to ensure that the order is complied with and that the plaintiff does not
exceed the boundaries of the order or the rights of the defendant accorded within the terms
of the order; to take into custody material seized under the order; and to file a report with
the court on the return motion reporting on what happened during the search. The ISS is
not a court appointed lawyer to act for the defendant. If the defendant wishes to obtained
legal advice, that request must be respected, but it is not the function of the ISS to furnish

184 Vinod Chopra Films Private Ltd. v. John Doe, above note 175.
185 Profekta International Inc. v. Mai, above note 148; and NAC Air LP v. Wasaya Airways Ltd. Partnership
(2007), 88 O.R. (3d) 194 (S.C.J.).
186 Mai Systems Corp. v. Banwell Computer Services Inc. (1992), 41 C.P.R. (3d) 57 (Ont. Ct. Gen. Div.).
187 Bergmanis v. Diamond, 2012 ONSC 5762 at para. 44.
188 Celanese, above note 144 at para. 40.
42
that legal advice.189

[F] BILL OF DISCOVERY – NORWICH ORDERS
There is another potential way to secure documents in what is called a pre-action discovery
order; itself coming from the equitable bill of discovery. Renewed life was breathed into the
bill of discovery by the House of Lords in Norwich Pharmacal Co. v. Customs and Excise
Commissioners. 190 The plaintiff desired to commence an action against the unlawful
importing of chemical compounds over which the plaintiff held patent rights. The plaintiff
had no knowledge of the actual identity of the importers. However, that information was held
by the respondent pursuant to customs declaration forms that identified both importer and
items imported. The plaintiff commenced an action for a bill of discovery against the
respondent to obtain this information, fully realizing that it had no intention of
commencing any substantive action against the respondent. The House of Lords granted
the order. Lord Reid explained the basis of the order:

They seem to me to point to a very reasonable principle that if through no fault of his own a person gets
mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal
liability but he comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoers. I do not think that it matters whether he
became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may
be that if this causes him expense the person seeking the information ought to reimburse him. But justice
requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.191

The Norwich order has since been enshrined into the English Civil Procedure Rules192 while
at the same time preserving the court’s equitable jurisdiction to make such order. By and
large, similar civil procedure rules in Canada do not allow pre-action discovery. 193
However, jurisdiction to grant a Norwich order has been viewed as part of the courts power

189 I have written critically of the requirement of an ISS. For Anton Piller orders of the second type,
preservation of property it is an expensive option that confers little protection that thwarts the utility of the
order. J. Berryman, “Anton Piller Orders and the Supreme Court of Canada’s New Procedural Guidelines:
Celanese Canada Ltd. v. Murray Demolition Corp.” (2007) 32 Advocates’ Q. 371; and “Challenging Shibboleths:
Evidence Based Policy Making, The Supreme Court of Canada and Anton Piller Orders” (2010) 36 Advocates’
Q. 509.
190 [1974] A.C. 133.
191 Ibid. at 175.
192 Rules 31.16, 31.17, and 31.18, preserving existing equitable jurisdiction to make a bill of discovery.
193 But see Nova Scotia, Civil Procedure Rules, r. 18.05.
43
to “administer concurrently all the rules of equity and common law” conferred under the
Courts of Justice Act (in Ontario).194

The following criteria were established by the Ontario Court of Appeal upon which to
exercise the discretion to make such an order:

1) Has the applicant provided evidence sufficient to raise a valid, bona fide or reasonable
claim?195
2) Does the applicant have a relationship with the third party from whom information is
sought such that it establishes that the third party is somehow involved in the acts
complained of?
3) Is the third party the only practical source of the information available?
4) Can the third party be indemnified for any costs and expenses to which they may be
exposed in complying with the order?
5) Do the interests of justice favour the obtaining of the disclosure?196

The overarching consideration is whether the order is ”necessary,” although this is not a
distinct threshold of the inquiry but informs the discretion whether to grant.197 The pre-
action discovery process is not a substitute for the normal discovery process. Where the
claimant has evidence to launch its action but is dependent upon the normal discovery
process to provide sufficient evidence of wrongdoing, a Norwich order will not be
granted.198 However, it is not necessary for the applicant to prove that the evidence sought
to be discovered is necessary as “crucial,” or the ”last piece of the jigsaw” or the “remedy of

194 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 96. This is the section that confers equitable jurisdiction to
the provincial superior courts of record. A similar power exists in all the provinces. See GEA Group AG v.
Ventra Group Co., 2009 ONCA 619 at para. 71.
195 This is a low threshold and not as strong as prima facie case. The test is to assist victims of
wrongdoing. If there are countervailing issues raised by the defendant, as for instance privacy issues, these
are properly taken into account under the fifth step. See 1654776 Ontario Ltd. v. Stewart 2013 ONCA 184,
leave to appeal dismissed 2013 CanLII 59893 (SCC) at [58-60].
196 Ibid. at para. 51, citing Alberta (Treasury Branches) v. Leahy, 2000 ABQB 575, aff’d 2002 ABCA 101
leave to appeal to S.C.C. refused [2002] SCCA No. 235; and Glaxo Wellcome plc. v. Canada (Minister of National
Revenue), [1998] 4 F.C. 439 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 422.
197 GEA Group AG v. Ventra Group Co., above note 194 at para. 75.
198 Ibid. at para. 104; and A.B. v. C.D., 2008 ABCA 51 at para. 16.
44
last resort.”199

The court in GEA Group AG v. Ventra Group Co.200 did not confine the Norwich order to
situations where the claimant had either commenced proceedings or was about to launch
them. The order is available where the claimant has a “legitimate objective” to pursue it. A
legitimate objective can be found in a claimant seeking the information to identify a
wrongdoer,201 to determine whether a cause of action exists at all,202 to assist in pleading a
known cause of action,203 to trace assets,204 and to preserve evidence or property.205

There is a lively debate about the use and abuse of Norwich orders that have been used to
obtain the names and addresses of alleged copyright infringers from internet service
companies who, because they can link IP addresses to names, have become a target of such
orders.206

[G] MANDATORY INTERLOCUTORY INJUNCTIONS
Most injunctions are normally classified as being “prohibitive” in that they seek to enjoin
the defendant from continuing a particular course of action — in the case of interlocutory
orders, down to the point of judgment. The other type of injunction, the “mandatory”
injunction, can be broken down into two sub-classifications: The first, “restorative
mandatory injunctions,” requires the defendant to repair the consequences of her own

199 GEA Group AG v. Ventra Group Co., above note 194 at paras. 81–84.
200 Ibid.
201 Norwich Pharmacal Co. v. Customs and Excise Commissioners, above note 113; and York University v.
Bell Canada Enterprises (2009), 99 O.R. (3d) 695 (S.C.J.).
202 P. v. T., [1997] 4 All E.R. 200 (Ch. D.). Nor does the cause of action contemplated have to be confined
to a civil suit. Recourse to any form of contemplated legal proceeding is sufficient, as in a disciplinary
proceeding. Rugby Football Union v. Consolidated Information Services Ltd. [2012] UKSC 55.
203 Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503.
204 Isofoton S.A. v. Toronto Dominion Bank (2007), 85 O.R. (3d) 780 (S.C.J.), order granted; and Ontario
(Attorney General) v. Two Financial Institutions, 2010 ONSC 47, order declined.
205 Autopoietic Telemetric Solutions Ltd. v. Loughlin, 2012 ONSC 2305, order granted; and Bergmanis v.
Diamond, 2012 ONSC 5762, order declined.
206 See the discussion in Voltage Picture LLC v. John Doe 2014 FC 161, and Rugby Football Union v.
Consolidated Information Services Ltd above note 202.
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wrongful act. The second type requires the defendant to continue performing some positive
obligation that may be derived from a contractual or statutory undertaking.

In the past, it was commonly said that a prohibitive injunction was more easily obtained
than a mandatory injunction. Furthermore, the latter would not be granted in an
interlocutory application unless there was a “high degree of assurance that at the trial it
will appear that the injunction was rightly granted.”207 This was because an order enjoining
an activity was seen as being less complicated than an order for affirmative action — it
involved less cost to the defendant, fewer problems with court supervision, and was easier
to formulate into an effective order. Of course, an order to enjoin an activity can prove just
as costly as an order to continue performance. Similarly, many affirmative obligations can
be expressed in negative form and thus lead to enforcement through the back door. This
realization has given way to the current position, where the court will look more at the
nature of the dispute, and the particular risks of injustice to the parties, than at the fact that
the requested order has been framed in prohibitive rather than mandatory language.208
This approach also mirrors that which is now adopted when considering the use of
injunctions to enforce negative covenants, which appear to amount to specific performance
in a roundabout fashion. There, courts will look at the substance of the relief being
requested rather than the form. Recently, Lord Hoffmann suggested that the classification
between prohibitive and mandatory injunctions was a “barren” exercise and that what
mattered were the likely “practical consequences of the actual injunction.”209

In addition to the general principles described above with respect to the default position, a
court will consider the following factors before ordering an interlocutory injunction
requiring the defendant to take positive steps in compliance:

1) Will the order cause the defendant a greater waste of resources, either time or money,

207 Shepherd Homes Ltd. v. Sandham (1970), [1971] Ch. 340 at 351, Megarry J.
208 See Films Rover International Ltd. v. Cannon Film Sales Ltd., [1987] 1 W.L.R. 670 (Ch.) [Films Rover];
and Businessworld Computers Pty. Ltd. v. Australian Telecommunications Commission (1988), 82 A.L.R. 499
(F.C.A.).
209 National Commercial Bank Jamaica Ltd. v. Olint Corp. Ltd., [2009] 1 W.L.R. 1405 at para. 20 (P.C.).
46
 than merely being delayed in commencing something he would otherwise be entitled to
do?
2) Will the granting of the relief make it unlikely that the plaintiff will return to bring the
matter on for trial? In other words, is the plaintiff getting complete relief at the
interlocutory stage, making the proceeding determinative of the dispute?210
3) Can the order be expressed with sufficient clarity so that the defendant, and any
subsequent court, knows what was expected of the defendant to be in compliance?
4) Are there any other “due process” concerns about the use of coercive and intrusive
power to achieve the particular end without the protection of a full trial?
5) Has the defendant increased the impugned activities after being informed of the
plaintiff’s request for judicial assistance?211

The appropriate threshold test for interlocutory mandatory injunctions is not settled, and
there is quite a divergence in Canadian jurisprudence. In Ontario the courts appear to
require the plaintiff to prove a strong prima facie case. One court has indicated that under
that test the plaintiff must “satisfy the court that there is a serious issue to be tried, but also
that they are clearly right and almost certain to be successful at trial.”212 Another has
applied the strong prima facie test because the facts of the case brought it within a
recognized exception of American Cyanamid Co. v. Ethicon Ltd. 213 as applied by RJR-
MacDonald Inc. v. Canada (Attorney General),214 namely, that the order would likely be
definitive of the dispute.215 And another has simply applied a strong prima facie test as if it
is the only test applicable to mandatory interlocutory injunctions.216 Courts in Alberta
similarly adopt a high strong prima facie test,217 as do Manitoban courts.218 In Prince

210 See 2261324 Manitoba Ltd. v. Domo Gasoline Corp. (1995), [1996] 3 W.W.R. 708 (Man. Q.B.), aff’d
(1996), 110 Man. R. (2d) 158 (C.A.); and Olynick v. Kelvington Credit Union Ltd. (1991), 91 Sask. R. 156 (C.A.).
211 Criteria taken from Films Rover, above note 208.
212 Barton-Reid Canada Ltd. v. Alfresh Beverages Canada Corp., [2002] O.J. No. 4116 at para. 9 (S.C.J.).
213 Above note 12.
214 Above note 14.
215 Quisno’s Canada Restaurant Corp. v. 1450987 Ontario Corp., [2009] O.J. No. 1743 at paras. 37–46
(S.C.J.).
216 Hennigar v. Target Corp., 2011 ONSC 2271.
217 B-Filer Inc. v. TD Canada Ltd., 2008 ABQB 749.
218 Western Paint & Wallcovering Co. v. Benjamin Moore & Co., 2009 MBQB 1 at para. 22.
47
Edward Island, 219 British Columbia, 220 Newfoundland, 221 Nova Scotia, 222 and
Saskatchewan,223 courts apply a lower threshold and the usual principles applicable to
interlocutory injunctions. Those courts applying the usual principles do not ignore the fact
that the order is mandatory. However, the mandatory nature is considered as part of the
enquiry concerning irreparable harm and balance of convenience. This is as it should be.
Where the order is mandatory in form but, for example, simply requires the return of some
items, the impact on the defendant may well be minimal, and there is no reason to impose a
higher threshold test.224 On the other hand, if the mandatory nature of the order is going to
entail expense, or will be determinative of the action between the parties, it is right for the
court to consider these matters when balancing convenience. Greater expense may also
expose a greater element of irreparable harm to the defendant if required to give up rights
and to make expenditures which leaves the defendant further dependent upon the
plaintiff’s undertaking in damages should the injunction turn out to be wrongly granted.
This is the approach favoured in D.E. & Son Fisheries Ltd. v. Goreham,225 wherein the Nova
Scotia Court of Appeal said:

The plaintiff is not required to “clearly prove” his claim to the exclusion of any defence which may be set
up by the defendant. The applicant is, instead, assessed by the strength of the applicant’s case coupled
with a consideration of the issue of irreparable harm and the balance of convenience.

219 Prince Edward Island (Minister of Fisheries, Aquaculture and Environment) v. Summerside Seafood
Supreme Inc., 2006 PESCAD 11 at para. 64.
220 Peerless (Guardian ad litem of) v. British Columbia School Sports (1998), 157 D.L.R. (4th) 345
(B.C.C.A.); RCG Forex Service Corp. v. HSBC Bank Canada, 2011 BCSC 315; and Mercer Gold Corp (Nevada) v.
Mercer Gold Corp. (B.C.), 2011 BCSC 1664 at para. 132.
221 Hart Leasing and Holdings Ltd. v. St. John’s (City) (1992), 101 Nfld. & P.E.I.R. 131 (Nfld. C.A.).
222 Society for the Prevention of Cruelty v. Cape Breton Humane Society, 2012 NSSC 128, but not uniformly.
See Movie Gallery Canada Inc. v. 9070-7720 Quebec Inc., 2005 NSSC 61 at para. 16.
223 LaPlante v. Saskatchewan Society for the Prevention of Cruelty to Animals, 2011 SKCA 43 at paras. 16–
17; and Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Ltd. Partnership, 2011 SKQB 283 at
paras. 23–24.
224 As in Society for the Prevention of Cruelty v. Cape Breton Humane Society, above note 222.
225 2004 NSCA 53 at para. 11.

48