The Test for an Injunction: Understanding the Thresholds

The Hon. Justice Robert J. Sharpe, Court of Appeal for Ontario

Most litigators know the RJR-MacDonald  three-pronged test for obtaining an injunction. But courts have continued to refine their approach to each of the three criteria. A well-informed and nuanced understanding of each of the three factors makes it easier to see how the evidence is going to be
assessed. Justice Sharpe will review and update the law on such issues as:

• Interpretations of the test since RJR MacDonald
  
• The merits of the case: when is the first branch of the test “serious issue to be tried”, and when might additional scrutiny be called for?
  
• The effect of a restrictive covenant
  
• Demonstrating irreparable harm
  - what type of harm is contemplated?
  - when will harm be seen as irreparable?
  - the type and quantity of evidence needed to meet the burden:

  Centre Ice and others
- illustrative examples of the court’s approach in different

  contexts

• When and how the balance of convenience comes into play
  
• What factors sway a court on the balance of convenience

Now or...Never? The Practical Mechanics of Urgent Motions

The Hon. Justice Susan Himel, Ontario Superior Court of Justice
Andrew C. Lewis, Paliare Roland Rosenberg Rothstein LLP

When counsel need to bring an injunction immediately, or respond when served, time is precious. You can’t lose time figuring out the mechanics. Moreover, a new motions scheduling and “triage” system will be in place as of January 2010. In this session, a judge of the “triage” court and an
experienced practitioner will bring you up-to-date on how the process should work.

A.“Triage” Court (Motions Scheduling Court)

• Background and past triage practices
  
• The January 2010 reorganization and how the system operates now

B. The “how to” of filing for, or responding to, an injunction

• Who to call, where to go, how to get heard on an urgent basis
  
• Motions on notice, motions on short notice and motions ex parte
  
• Ensuring complete materials: what to file, what to consider leaving out
  
• Applicant’s considerations and options
  
• The respondent’s procedural options
  
• What is truly “urgent” and what is not — and are there motions in between?
  
• Emergency procedures for weekends, holidays and outside of business hours

C. Appearing in triage court

• Tips and strategies — what should you be prepared to argue?
  
• Do’s and don’ts in scheduling court
  
• How the judge will assess the matter; how counsel can best assist the court

Injunctions to Restrain the Departing Employee or Fiduciary

Adrian C. Lang, Stikeman Elliott LLP

For commercial, employment and general civil litigators, disputes involving partnership break-ups, departing key employees, and other company-splintering scenarios are commonplace. Very often, these situations give rise to the possibility of injunctive relief, making this among the most common type of injunction. This session will review the key considerations and strategies in such cases.

• The threshold decision: is an injunction the right way to go?
  
• Managing client expectations and emotions
  
• Confidential and proprietary information
  
• Assessing the irreparable harm factor
  
• What key information will you need?
  
• Supporting affidavits: strategic choices about what should be in them, and who should swear them
  
• Non-solicitation versus non-competition covenants
  
• Is irreparable harm needed if there is breach of an express negative covenant, or if a contract acknowledges that irreparable harm will result from a breach?
  
• Analysis of selected sample cases
  
• Sample draft orders

Injunctions to Stop Commercial Transactions

Seumas M. Woods, Blake Cassels & Graydon LLP
Richard B. Swan, Bennett Jones LLP
Kelley McKinnon, Gowling Lafleur Henderson LLP

Moderator
Berkley D. Sells, Fasken Martineau DuMoulin LLP

In recent years a flurry of commercial cases have attracted significant public attention and the interest of both barristers and corporate lawyers. When should a court intervene to remove a proposed transaction from the hands of shareholders or directors? What strategic and evidentiary decisions must counsel make in moving for, or responding to, an injunction to block a business deal? A panel of top litigators – who have been on both sides of such disputes – will give candid insights from their experience with this type of injunction.

• Injunctions to block takeover bids – lessons from RIM and Gold Reserve
  
• Injunctions to stop private placements and share issuances - Northwest Value Partners and others
  
• Injunctions to stop board meetings
  
• Mandatory orders to compel continued supply or service
  
• Dealing with sensitive commercial evidence – confidential exhibits and transcripts, sealing orders, and “counsel’s eyes only” arrangements
• “Fighting it in the press” – are press releases more than a necessary evil?
  
• Alternatives to a civil court injunction – regulatory options such as OSC proceedings
  
• Key elements for the draft order – samples