Scheduling an Injunction Motion in Ontario – A Step by Step Guide [video]

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This is the second lecture regarding an injunction motion in Ontario civil courts. This lecture explains the procedural steps in scheduling an injunction motion in Ontario.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone this is Amer Mushtaq from You Counsel.

In yesterdays lecture, we had talked about an injunction... we had provided you with an overview of what an injunction is, what are some of the types of injunctions, and what is the concept of getting an injunctive relief in a civil proceeding in Ontario. Today, we’ll talk about some of the procedural steps in the event that you wish to seek an injunctive relief, how do you actually go about scheduling that motion in a court and then go and argue that motion?

We begin, as always, with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or paralegal or contact the law side of Upper Canada.

We will explain the process of scheduling a motion for injunction in five steps. First step is that you must review the applicable legislation and the rules to determine what is the appropriate process for you to bring about your motion for injunction. In the second step, you must review the applicable practice directions which further modify the rules and so, you need to understand what are the specific requirements in the court that you are going to bring your motion for injunction and understand the process in that specific court. Then, you must determine what kind of relief, what kind of injunctive relief are you seeking... because depending upon the kind of relief you will be seeking, the process of scheduling and arguing the motion may vary, so, you need to understand that and then you attend or contact the court office to actually schedule your injunction motion and then finally, you prepare the materials that are necessary for you to schedule the injunction motion and argue it and then get the relief that you are seeking.

So, step number one, you must review the legislation, and the rules the first legislation that you want to review is called the course of justice act and specifically, sections 101-107... you can Google this, I have provided a link here and then you will also find the links in my lecture underneath the description in the youtube. I’ve opened the course of justice act, you can Google it, and if you scroll down... over here, interlocutory orders, which an injunction and an order for injunction, is an interlocutory order... so interlocutory orders are covered in section 101 to 107 and you must review the sections and understand that in your specific circumstances what are the rules that apply and then, so that you are clear about the about the legislation. An example of this is 101 sub 1, “in this fair court of justice, an interlocutory injunction or a mandatory order, may be granted or a receiver and a manager may be appointed by an interlocutory order where the peers do judge of the court to be just or convenient to do so”. So this section, 101 sub 1, is in fact, providing a judge the authority to issue the interlocutory order or the mandatory order that you are seeking... and then the nature of that relief that you’re seeking is really in the discretion of the judge as subsection 2 explains, “an order in subsection one may include such terms as are considered just” so it’s a very broad discretion for the judge to award you the injunctive relief that you are seeking... and if you scroll down, Section 102 deals with injunction and labour disputes and if your injunction is relating to a labor dispute that you can review this section... Section 103 is about certificate of a pending litigation. There’s another section that is about interim recovery, yes here it is... section 104 interim order for recovery of personal property and so on and so forth. So, review Courts of Justice Act, it’s important for you to review the clickable sections 101-107 being the most important ones.

Rules of civil procedure, as you may know, from previous lectures that I have given on Rules of Civil Procedure... these are the rules that provide how a specific action proceeding is handled in the courts of Ontario and so, you must review rules of civil procedure and specifically rules 37 and then rules 40-45. Rule 37 is the one that deals with all kinds of motions... an injunction motion being one of those. So, it covers all kinds of motions, so, you must review those and then 40 to 45 deal with motion with respect to an interlocutory order. So, you can also find the rules of civil procedure online and if you look at rules 40, 40.1 to 45.03 the heading is preservation of Rights and pending litigation... and injunctive relief is really an order in a pending litigation, so that specific motion or the order that you’re seeking comes under these rules... and again, if you briefly look at the rules here, 40.01, an interlocketery injunction or mandatory order under section 101 or 102 of the Courts of Justice Act, may be obtained on a motion to a judge by a party to a pending or intended proceeding”... it’s very important to understand that, that you can actually commence a motion, you can bring a motion, for an injunctive relief even when you have not commenced the court action. So intended proceeding, you have not commenced the proceeding yet, but you are seeking the order even before then or pending which is already ongoing. So, this this rule deals with what you need to do, how do you need to understand what is the court process in granting an injunction.

Another one that you want to keep in mind is 40.02 sub 1 an interlocutory injunction or a mandatory order may be granted on motion without notice, for a period not exceeding ten days, and if you have reviewed my lecture on injunction, you will understand that what is a concept of an interlocutory injunction and I had mentioned that you can actually bring it on with or without notice... but if you bring on on it without notice basis the time period for which it is granted is really short. So, the rule specifies that it cannot be for more than ten days so you’ve got to review these rules to make sure that you understand them and then you want to review any other legislation that may apply to your specific case, so that if there’s anything else that that legislation specifies, you’re following that with respect to the scheduling and attendance of your motion.

Step number two review practice directions. I have a separate lecture on practice directions it will be a good idea for you to review it, if you haven’t already but practice directions are essentially further modifications or fine tuning of the rules that we just talked about, the rules of civil procedure, and those practice directions may vary from court to court. So, what you must do is, you should review practice directions province wide, so that the practice directions that apply across the province of Ontario... you understand those and once you Google this, you will get practice directions for Ontario, province wide... they’re available online... and then you must review practice directions that are regional because what may be the court’s process in Newmarket court may not be at the same process in Toronto court. So, you must review the specific Practice Direction for the reason in which you’re bringing your motion. I’ve given the link here for Toronto practice directions, but other practice directions are also available, I think in my previous lectures, I’ve shown you what these practice directions look like but this is essentially the practice direction for Toronto region. It deals with civil actions, applications, motions and procedural matters and you can review... it’s not a very lengthy document but it is important for you because if you don’t follow those practice directions then you may have a difficulty in getting your motion heard.

Step number three determine the type of relief and in my previous lecture, as I indicated, that there are generally four kinds of injunctive relief that you are seeking interim, interlocutory, permanent and mandatory and I’m not going to discuss that here today but what’s important for you to understand is that depending upon the kind of relief that you are seeking, your process may be different. So for an interim, interim injunctive relief, on a without notice basis as I just read you the rule, it can’t be granted for more than ten days. An interlocutory is not much different than interim, except that the time period for grounding the relief may be longer... so, review the other lecture if you’re not clear, but once you determine the kind of relief that you are seeking, your process may be different. So, it’s important for you to figure that out. Then you contact or attend the court office. To schedule a date and time for the motion, how do you do that is varies from court to court. So, I’ll give an example of Toronto... in Toronto the process is, you contact the court office, ideally, you actually show up at 396 University on the tenth floor, where the staff is available, get your ticket, line up, go to the motion scheduling clerk, and then request that you need to bring an urgent motion a motion for injunction and then the process in Toronto, if you have read the practice directions by now, you will know that you can only get your injunction motion heard if you attend a C.P.C. session. Civil Practice Court Session and I have a supper lecture on C.P.C. if you’re not clear what that is and kindly review that. So you attend C.P.C.... so, what are the steps? You actually line up, you go to the motion scheduling clerk, and you say, “I have an urgent motion to bring and I need to see a judge today, tomorrow, you know what time?. So, depending upon the urgency of your case, the clerk will directly accordingly. So, if you need to see a judge that very day it may be possible, there may be a judge on duty that day... if you need to see the judge, if your matter is so urgent that you need to see the judge within a few hours then the motion scheduling clerk or the manager of the court may be able to arrange that.

Otherwise, the court will direct you to attend a C.P.C. civil practice court and there’s a process for you to schedule your attendance in C.P.C. but because of the urgency of your situation, the court staff may squeeze you in on the next C.P.C. which may be happening, it happens I believe twice a week in Toronto, so you can come and attend on C.P.C. So, when you attend C.P.C., then you are basically telling, explaining to a judge why do you need an urgent motion, what is the nature of your issue... you’re not arguing anything, you’re basically explaining why do you want an urgent motion for injunction to be heard and then that judge will then provide you with a date when your motion will be heard. So, it all comes down to your urgency of this motion and this is the process in Toronto... whereas in Newmarket the process may be different, I believe I had dealt with Newmarket Court recently too, and they have every Thursday, they have a judge available who can who can hear urgent motions or injunctive injunction motions. So, you can show up basically, with your material Thursday morning and then ask for the staff to introduce you to one of the judges who will be there to deal with your matters. So, every court office has a different mechanism and I believe the Toronto has sort of the most availability in terms of dealing with these because of just the sheer volume of disputes that come, so, if you have read the rules, you know that you can commence a proceeding anywhere in Ontario. So, if your matter is really urgent and you can’t get ahold of a judge in any other jurisdiction, you may want to come to Toronto and see if you can meet with a judge and duty and then have your injunction motion heard.

And, in terms of the procedures, when you are, let’s say in Toronto court, you cannot attend before a judge for an injunction motion even on an urgent basis without actually having a court file number because that Clark has to put you in the system of the court and they have to issue your court file number... because you have not commenced your court action, you have not issued a statement of claim, if that’s your situation. you don’t have a court file number, so, what you have to do is you have to provide an undertaking to the court staff that you will commence your proceeding whether it’s an application or an action forthwith usually within ten days... and that’s pursuant to rule 37.17 of the rules of civil procedure and only then the court staff will issue you a court file number stating in their computer that it’s an intended proceeding and charge you the fee for the motion and schedule it. So, the process may vary from court to court... so you must understand what the process is in your specific court.

Once you have the date scheduled then you go on and prepare your material. You obviously need a notice of motion if you’ve read Rule 37 and that’s essential whether you need to serve that motion or simply file with the court will depend upon whether your motion is on notice or without notice. Then, you have to decide how you are presenting your evidence to the judge when you are going to argue your motion. Is it by an affidavit, is it a viva voce, which means oral evidence? Are you bringing in witnesses to provide evidence and you need to figure that out.

You have to decide or determine whether a factum is required, if it’s a very urgent motion that needs to be dealt with the same day or something you may not need to bring in a factum for the judge but in other motions which which are on notice and may require some time for you to prepare. a factum may be necessary. When you attend before the judge, it’s a smart idea to have your draft order ready... what you are asking the judge, what kind of order you want the judge to give... and it’s a good idea to have that ready and you can present it to the judge, if the judge believes that you have a valid argument and your request must be granted.

You must also check whether you need to confirm your motion, if your motion has been scheduled. For the days down the line. then the Practice Direction and the rules may require that you confirm the motion two or three days. usually three days before the date that it is being heard and if you don’t confirm it, your motion is not heard. So it’s an important step and you want to make sure that in your specific case, do you need to confirm the motion or not. So, the bottom line is that no matter how strong your case for injunction is, if you are not clear about the process of how do you go about scheduling that injunction motion and present your case before a judge... you will have huge problems... and oftentimes these rules are a bit complex, they vary from court to court and so you must put in time and effort before you actually show up in the court and say that, “I want my motion to be heard”... understand the rules, understand the processes before hand.

I hope that gives you a practical understanding of the steps that you need to take in order for you to bring a motion for injunction... please provide us with your feedback or any questions you may have and will be happy to address those. Thank you for watching.

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