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The Test for an Injunction

The Test For An Injunction
Grieg v Kritikopoulou 2017 ONSC 4594 sets out the Supreme Court of Canada test for the granting of an interlocutory  injunction to restrain certain activity
11 The moving party must meet the following three-part test to success on a motion seeking an interlocutory injunction:

a) Is there a serious question to be tried?;
b) If the injunction is not granted will the moving party suffer irreparable harm which cannot be adequately compensated by damages?; and
c) Which party will suffer the greater harm if the injunction is granted or refused pending a decision on the merits?
12  The three-pronged test for granting an injunction was affirmed by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General)  ( 1995) 3 SCR 199 as follows:
a. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.
b. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.
c. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
13  The final analysis, however, must be driven by what is just and equitable in all the circumstances of the case.
14  The defence agrees that the first step has been met by the plaintiffs.
15  With respect to the second step the court is normally justified in granting an injunction where the plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief. In order to qualify as “irreparable”, the nature of the harm must be such that damages will not suffice.

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