In dismissing a motion for an interlocutory injunction, the Ontario Superior Court in Homestead House Paint Co. Inc. v Jamieson, 2019 ONSC 2660 (“Homestead”), recently reiterated that a clause deeming a breach to cause irreparable harm does not displace the courts’ exclusive role to determine whether injunctive relief is appropriate and whether or not irreparable harm has been established.
The RJR MacDonald Test
In RJR-MacDonald v Canada (AG), 1994 SCC 117, the Supreme Court of Canada established the well-known test for an interlocutory injunction. The moving party is required to prove that:
- There is a serious issue to be tried;
- That the moving party will suffer irreparable harm if the relief is not granted; and
- The balance of convenience favours granting the injunction.
Irreparable Harm
Irreparable harm is defined as harm that “cannot be quantified in monetary terms or which cannot be cured” [RJR-Macdonald].
In Homestead, the moving party argued that irreparable harm was established by an alleged clause whereby the parties agreed that:
“Actual or threatened disclosure or use of the Confidential Information by the Contractor in breach of this Agreement shall be deemed to cause The Company irreparable harm for which monetary damages are not an adequate remedy. The Company shall be entitled to seek injunctive relief to prevent any actual or threatened disclosure, and the Contractor consents to the granting of such relief without proof of actual damages.”
The Court held that a clause deeming a breach to constitute irreparable harm “cannot usurp the exclusive jurisdiction of this court to determine whether injunctive relief is appropriate and whether or not irreparable harm has been established” [para 34; Brown v First Contact Software Consultants Inc., 2009 ONSC 48504 at para 61].
If you require legal advice and representation in respect to an injunction, please contact us for an initial consultation.
Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).
Comments & Opinions by Gilbertson Davis LLP lawyers and staff on its Blog, or in media interviews, appearances or publications, or in professional publications, are personal to them, and do not necessarily represent the opinions of the Firm or anyone at the Firm other than the individual expressing those comments or opinions.
About the Author
