CANADA Trends and Developments Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
convenience favours granting the injunction. To dem - onstrate a strong prima facie case, the moving party must establish that it is “clearly right” and “almost certain”, or there is a strong likelihood that it will be successful at trial in proving the allegations set out in its statement of claim. NorthStar argued, among other things, that the strong prima facie case standard should not apply because of the arbitral context and that under Article 17 of the Model Law, the party requesting the interim measures need only satisfy the tribunal that there is a reason- able possibility that it will succeed on the merits of the claim. Further, Article 17J provides: “A court shall have the same power of issuing an interim measure in rela - tion to arbitration proceedings,... [and] shall exercise such power in accordance with its own procedures in consideration of the specific features of international arbitration”.
The Ontario Superior Court of Justice was satisfied that the Model Law standard ought to apply because the tribunal would be figuring out the application if not for the urgent circumstances. In the court’s view, the “reasonable possibility” stand - ard fell somewhere between the “serious issue to be tried” standard and strong prima facie case, although it was closer to “serious issue to be tried” standard. NorthStar met this standard as well as the irreparable harm and balance of convenience requirements. Thus, interim measures were granted.
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