The Court of Appeal has had to emphasize and enforce two legal rules. Evidently some counsel do not know them or are uncertain about their boundaries.
The first rule is that every party to a lawsuit must get formal notice of every application (motion) made in that lawsuit. Even if the party moving thinks that some of the parties to the suit would not be affected by the application, e.g. because their role or connection is presumed to be narrow. One never knows what indirect effects some future order might have on another party. Those other parties have a right to think about that and comment to the court. To do that, they need formal notice. See the Liu case.
The second rule is that there is a huge difference between an interlocutory injunction (given before trial or any final judgment), and a final injunction (typically given at the end of the trial). In particular, the tests for giving them are very different, indeed radically different. The tests for the two do not even overlap very much. Vagueness about whether the proposed order is final or not, thus can lead to fundamental errors in what law to apply. Not to mention failures of notice and breaches of natural justice. Do not assume that such vagueness is unlikely. It may be less common in commercial litigation, but such vagueness sometimes besets family law chambers applications. See the Liu case.
The Court of Appeal decision also talks about injunctions to enforce restrictive covenants. The citation is Liu v. Hamptons Golf Course 2017 ABCA 303 (Sep 22).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
