Interlocutory Injunctions: The Appearance of Right Criterion and its Nuances

Injunctive relief, which is often described as extraordinary or exceptional, is subject to a specific burden of proof. Case law in this area notes certain nuances with respect to the appearance of right test, one of the key considerations to be weighed with regard to interlocutory injunctions.

General Principles

An injunction is an order by the Superior Court enjoining a person or, in the case of a legal person, company, association or other group without legal personality, its officers or representatives, not to do or to cease to do something or perform a specific act. An injunction may be permanent, meaning that it is granted in a final judgement once all evidence has been presented, or it may be granted temporarily in a case awaiting a final decision. In the latter case, the injunction is referred to as an interlocutory injunction and in the case of an urgent and exceptional situation, it is referred to as a provisional interlocutory injunction.

In interlocutory injunctions, the party seeking an injunctive order must:

• Demonstrate that it has an apparent right to the injunction it seeks;
• Prove that failure to obtain the injunction it seeks will cause it serious or irreparable harm; and
• Demonstrate that the balance of convenience – should it not obtain the order it seeks – argues in its favour.

In the case of a provisional interlocutory injunction, the requesting party must also establish the urgency of its situation.

The legal test of the appearance of right is closely linked to the interlocutory injunction, since at this stage the courts do not really rule on the parties’ submissions and rights. At the interlocutory stage, the injunction is a provisional measure, and the judge’s role is limited to making a preliminary assessment only, on the basis of an incomplete case file. Hence, at this stage, the courts must refrain from conducting an in-depth study of the merits of the claim and of the case itself.

Consequently, while the request must not be frivolous or vexatious, the demonstration of an apparent right to the sought-after injunction is not particularly onerous. Accordingly, the courts have repeatedly held that a right, even a doubtful one, may be deemed sufficient to obtain the issuance of an interlocutory injunction.

It should be noted, however, that the threshold to be met to satisfy the burden of proof relating to the appearance of right may vary depending on the nature of the injunction being sought and of various circumstances. In this regard, case law provides specific examples where it is not easy to establish the existence of an appearance of right.

A Burden that is Sometimes More Onerous?

In 2018, the Supreme Court established that in the presence of a request with injunctive findings of a mandatory nature (that is, ordering a party to do something), the requesting party must demonstrate a strong appearance of right. Such a burden implies that the requesting party “must demonstrate [...] a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice”^[1], which is not always easy at such a preliminary stage of the case. In other words, this increased burden of proof does not apply to an injunction that is prohibitive in nature, that is, one that orders a party not to do or to cease doing something.

The Superior Court of Québec applied this lesson in a decision issued on July 31, 2023 (available in French Only) involving, among others, the Centre d'acquisitions gouvernementales (“CAG”) and certain private agencies that provide nursing-care resources to institutions within the province’s health and social services system. Essentially, these private agencies were seeking an order directing CAG to add their names to its tendering list. Called upon to rule more specifically with respect to a provisional interlocutory injunction, the Court characterized the sought-after order as mandatory, thereby emphasizing that in such circumstances the requirement of a strong appearance of right applies.

Demonstrating an appearance of right may also be more difficult when an interlocutory injunction is sought against a public body, as in the aforementioned decision. Indeed, case law recognizes that obtaining an injunction against such an organization depends, among other things, on demonstrating a serious appearance of right, which equates with the “more demanding standard of a solid appearance of right” (our translation). This is so due to the fact that the acts of a public body benefit from a presumption of validity since public administration is considered to be acting in the public interest. While it is still necessary in such cases to demonstrate an appearance of right, this demonstration will have to be more convincing in light of the applicable presumption of validity.

Accordingly, in the Superior Court decision discussed above, the Court found not only that the conclusions of a mandatory nature sought by the applicants required proof of a strong appearance of right, but also that of a solid appearance of right, since CAG is a public body. Since the Superior Court considered that the plaintiffs had failed to meet this onerous burden, it dismissed their application for a provisional interlocutory injunction.

These cases clearly show that even if an assessment of the appearance of right test does not amount to an exhaustive analysis of the substance of the case, there is no guarantee that the appearance of right will be easy to demonstrate, given that an injunction is an extraordinary remedy that is generally used as a final recourse.

Consequently, as with mandatory injunctions, caution should be exercised before bringing injunctive action against a public body. Case law tends to be stricter in its interpretation of the appearance of right test due to the high burden of proof that applies in such cases.

If you have any questions, please feel free to contact our team of litigation specialists, who will be happy to advise you.

[1] R. v. Canadian Broadcasting Corp., [2018] 1 SCR 196, paragraph 18 (1).