A mandatory injunction is a court order that requires a person or company to take positive action rather than simply stop doing something. It may require a party to restore access, return property, reverse an interim step, or take another defined action. Because mandatory relief can alter the existing situation before the case is finally decided, the applicant generally faces a higher first-stage merits threshold.
How is a mandatory injunction different from an injunction that restrains conduct?
An injunction that restrains conduct prevents a party from taking or continuing a particular action. For example, it may prevent someone from disclosing confidential information, transferring property, soliciting customers, or taking another disputed step while litigation is pending.
A mandatory injunction instead requires the responding party to do something.
The distinction depends on the practical effect of the proposed order rather than simply how the requested relief is worded. The court considers whether compliance would require the responding party to take a positive course of action or merely refrain from acting.
For the broader distinction between different forms of injunctive relief, see What types of injunctions are available in Ontario?.
What must you prove to obtain a mandatory interlocutory injunction?
For an injunction that restrains conduct, the first stage of the conventional RJR—MacDonald framework generally asks whether there is a serious question to be tried.
A mandatory interlocutory injunction is different.
In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court of Canada held that an applicant seeking mandatory interlocutory relief generally must establish a strong prima facie case at the first stage. This requires a stronger assessment of the merits than the ordinary serious-question threshold.
The applicant must also address the remaining elements of the injunction analysis, including irreparable harm and the balance of convenience.
The higher threshold reflects the potential consequences of requiring a party to change the existing situation before the underlying legal rights have been finally determined.
For the complete interlocutory-injunction framework, see What do you have to prove to get an interlocutory injunction in Ontario?.
What are examples of mandatory relief?
Depending on the dispute, a mandatory order may require a party to:
- restore access that has been removed;
- return or deliver property;
- reverse an interim change;
- perform a specific obligation; or
- take another positive step required by the court.
Whether the requested injunction is mandatory must be assessed by examining what the responding party would actually have to do if the order were granted.
What gives an Ontario court authority to make a mandatory order?
Section 101 of Ontario’s Courts of Justice Act gives the Superior Court of Justice authority to grant an interlocutory injunction or mandatory order where it appears just or convenient to do so.
The procedure is addressed by Rule 40 of the Rules of Civil Procedure. Rule 40.01 permits a party to a pending or intended proceeding to seek an interlocutory injunction or mandatory order by motion to a judge.
Rule 40 also addresses procedural issues associated with interim relief, including the moving party’s undertaking concerning damages that may result if an order is later determined to have been improperly granted.
For the broader purpose and operation of injunctions, see What is an injunction in Ontario?.
How does ME Law assess a mandatory injunction request?
ME Law assesses the precise conduct the proposed order would require, the strength of the underlying claim, the available evidence, urgency, potential irreparable harm, and the practical consequences of granting or refusing the requested relief.
An important early question is whether the proposed order is actually mandatory in substance. That classification matters because it can affect the merits threshold the applicant must satisfy before the court considers the remaining elements of the injunction test.
For ME Law’s approach to this form of relief, see Mandatory Injunctions and Status Quo Restoration Orders.
Contact ME Law if you are considering seeking a mandatory injunction or need to respond to a request for mandatory relief in Ontario.