Explosion of investments and increased complexity of residential projects
The three types of injunctions in Quebec law
The Quebec Code of Civil Procedure distinguishes between three types of injunctions. The interim injunction is granted in cases of extreme urgency, sometimes even without the opposing party having been notified. Its duration is limited to ten days. The interlocutory injunction is issued after an adversarial hearing and remains in effect until the final judgment. Finally, the permanent injunction is ordered at the end of the trial and is the final remedy.
Each type meets specific conditions. The interim injunction requires a demonstration of urgency such that the ordinary remedy would be insufficient. An interlocutory injunction requires proof of colour of right, serious or irreparable harm and a balance of convenience in favour of the plaintiff.
Conditions for obtaining an interlocutory injunction
The interlocutory injunction is the most frequently used remedy in practice. Quebec courts apply a three-part test to determine whether it should be granted. The plaintiff must first establish colour of right — that is, show that he or she has a prima facie right to the relief sought, without having to prove that right definitively.
The second part concerns serious or irreparable harm. The plaintiff must satisfy the court that he or she will suffer harm that damages will not be able to adequately compensate if the injunction is not granted. Purely financial damage, which is easily quantifiable, will generally not meet this criterion.
The third part is the balance of convenience : the court assesses whether the inconvenience suffered by the plaintiff in the absence of an injunction outweighs the inconvenience that the defendant would suffer if the injunction were granted. This test involves a detailed contextual analysis, taking into account the interests of both parties and the public interest.
Risk factors specific to the Montréal context
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The injunction in commercial and contractual matters
In the commercial context, injunctions are frequently sought to enforce non-competition clauses, prevent the disclosure of trade secrets, block a harmful shareholder transaction or compel the performance of specific contractual obligations. The courts then analyse whether the commercial situation justifies immediate judicial intervention.
A commercial dispute involving a flagrant breach of an exclusive distribution agreement or confidentiality agreement is a typical case where the interlocutory injunction can be obtained. The speed of action is decisive: an excessive delay between the knowledge of the violation and the filing of the application for an injunction can be interpreted by the court as a lack of urgency.
The crucial role of the lawyer in injunction proceedings
The preparation of an application for an injunction requires considerable technical expertise. Deadlines are tight, affidavits must be precise, and the evidence must be rigorously organized. An experienced civil and commercial litigation lawyer will be able to identify the essential elements to be put into evidence, anticipate opposing arguments and present the application in a way that maximizes the chances of success.
In a critical situation, the ability to quickly mobilize a legal team to prepare and file an application for an interim injunction can mean the difference between protecting a right and losing it irretrievably.
