CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
5.6 Rules Disallowing Disclosure of a Document A document may be withheld on other grounds of class privilege such as settlement privilege or parliamentary privilege. The common law also recognises a case-by-case privilege may arise in particular circumstances. The claiming party must establish the existence of this privilege. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief A variety of injunctive relief is available. Injunc- tions may be prohibitive (ie, restrain a party from doing something) or mandatory (ie, require a party to do something). Injunctions are grounded in the equitable juris- diction of the courts and are highly discretionary. Even if the test for granting an injunction is met, the court may deny relief if there are equitable bars to relief (such as laches) or the moving party fails to comply with equitable maxims (such as clean hands). Injunctions are typically awarded where damages are not adequate alternative relief. The types of injunctions include the following. • Quia timet injunctions: these are granted before any harm is actually suffered, although the probability of irreparable harm is great. • Interim or interlocutory injunctions: these are granted to maintain the status quo or prevent irreparable harm on a short-term basis pend- ing a final determination of the issue on its merits. • Permanent injunctions: these are granted after a final determination of the parties’ rights.
• Mareva injunctions: these are granted if there is a real risk that the responding party will dis- sipate or move assets from the jurisdiction in order to avoid enforcement of any judgment. A Mareva injunction may also be available if there is a strong case that the responding party has committed fraud. • Anti-suit injunctions: these are granted to restrain a person within the court’s jurisdiction from commencing or continuing an action in a foreign court where the claim is justiciable in the local court. Most non-permanent injunctions will require the moving party to establish: • the presence of a serious question to be tried; • irreparable harm should the injunction not be granted; and • that the balance of convenience favours the moving party. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The process for obtaining an urgent injunction will depend on the province and court. The appli- cable rules of court, practice direction or notice to the profession will identify the individual to contact to make arrangements. Most courts have duty judges assigned to hear these types of applications on an expedited basis during normal court hours. Applications must be supported with affidavit evidence and a written argument and filed on the court record. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Where exceptional circumstances exist, the court may grant an injunction without notice to the responding party. However, these injunc- tions may be for a limited duration or the court
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