Injunctions are obtained through a lawsuit and they are of two kinds: injunctions to prohibit someone from doing something and injunctions to require someone to do something. Normally, the lawsuit will seek an interlocutory injunction so that the injunction is in place immediately, until the trial occurs. At the trial, the plaintiff will then seek a permanent injunction.
In granting or refusing an interlocutory injunction, the court applies three tests. The first test is that the plaintiff must demonstrate that the lawsuit has a serious question to be tried. An example of a serious question is someone blockading a right of way to property. The first test will be determined by the judge on the basis of common sense and an extremely limited review of the lawsuit on its merits. Unless the lawsuit is frivolous or vexatious, a judge must consider the second and third tests.
In the second test, the plaintiff is required to demonstrate that “irreparable” harm will result if the interlocutory injunction is not granted. “Irreparable” refers to the nature of the harm rather than its magnitude. If the nature of the harm is financial losses, rather than access to property, the harm may or may not be irreparable depending on the circumstances.
In the third test, the court must assess the balance of inconvenience to the parties until the trial occurs. There is a clear inconvenience to the user of a right of way if the user is blockaded from his or her property. Indeed, where an interlocutory injunction is sought to prohibit interference with property rights, the injunction is so strongly favoured by the courts that it is more accurate to state that the injunction is the presumed remedy.
A plaintiff seeking an interlocutory injunction must make an undertaking (“a promise”) to the court to pay for any financial losses if it ultimately appears at trial that the granting of the interlocutory injunction has caused damage to the defendant.