Welcome to Injunction Junction

Joyce Blond Frank B.A., B.C.L., LL.M.

July 2012

There has been a lot in the news about injunctions recently and I have been asked to explain what they are and how they work.

An injunction is an order given by a Superior Court judge upon application by an individual who feels he needs one in order to safeguard or prevent the violation of his rights.

It orders a person or an institution:

* to do something.

* to not do something.

* to stop doing something.

It will be granted when the person asking for it appears to be entitled to it and it seems to be necessary to avoid serious or irreparable damage.

Once a person has been made aware of an injunction against him, he must obey it. If he fails to do so, he is guilty of contempt of court and can be fined up to $50,000. He may also be ordered to pay damages and can be imprisoned for a period of up to one year.

If an injunction is violated, the injured party can commence contempt proceedings. Under the Quebec Civil Code, no one can be condemned for contempt of court unless he is served personally by bailiff with a “special rule.” This is a document issued by the judge ordering the person to appear at court on at a fixed time to hear proof of the charges against him. It is obtained by filing a petition with the court asking that such a “rule” be issued.

At court, the person complaining of the violation must demonstrate without any reasonable doubt that the injunction has been violated.

The alleged violator may present a defense and explain why he violated the court order. The complainant must then refute the explanation.

The proof submitted to the court must leave no room for reasonable doubt. The judge must be convinced that the person was aware of the order, understood it and violated it deliberately.

Contempt of court is considered quasi-penal in nature and therefore, as in the case of a criminal offense, the person charged cannot be forced to testify.

Injunctions can be issued in a variety of situations, such as when a vulnerable person is exploited, or in cases of defamation or harassment, violation of a trademark or copyright, refusal by employees to provide essential services, refusal by a municipality to provide necessary services, or refusal by a school to provide classes, such as occurred during the recent tuition-hike protests in Montreal and Quebec City.

Violation of an injunction is considered contempt and contempt leads to punishment.

The underlying principle is the priority and respect to be given to the rule of law.

As responsible citizens, we know that without the rule of law our society would slip down the slippery slope into anarchy and mob rule.

The injunction is a legal tool that attempts to maintain a balance between those individual rights we are entitled to exercise in a free and democratic society and the collective rights that ensure the common well-being of members of that society.