Mandatory Injunctions

Question 1

What is a mandatory injunction?

Answer 1

A mandatory injunction compels the defendant to undertake affirmative/positive action, either by restoring damage caused by their wrongdoing or by fulfilling an obligation owed to P.

Question 2

What are the 2 types of mandatory injunctions?

Answer 2

TYPES: There are two sub-classifications of mandatory orders (1) Restorative and (2) Continuing
* Restorative: require the defendant to repair the consequences of their wrongful act
* Continuing: require the defendant to continue to perform some obligation that might arise from a contract or statutory undertaking.

Question 3

What are the 4 main criteria for mandatory QT injunctions?

Answer 3

Four main criteria for mandatory QT injunction from Redland Bricks: P must show
1. Probability of damage  There is a strong probability that grave damages would happen to P in the future
2. Damages insufficient  Damages will not be sufficient or an adequate remedy
3. Balance  The cost to the defendant is not unreasonable in the circumstances (balancing effect)
a. cost to the defendant of complying with the order?
* In Redland: The cost of compliance far exceeded the benefits obtained. The Court held that while some expenditure is justified, a mandatory injunction in absolute terms would not be reasonable.
o This is because the court must balance the anticipated possible damages of the plaintiff against unreasonably burdening the defendant.
o In assessing: Not looking at catastrophic damages from D to third parties  constrained to relationship between the parties. Scope is limited when balancing.
b. If the Defendant has acted wantonly and without regard for his neighbor’s rights, then the cost won’t be considered Redland Bricks
* Where the conduct of the defendant is careless or otherwise blameworthy, the courts are not so sympathetic.
1. In Gross v Wright, the SCC held that the conduct of the defendant was not only in breach of contract but also constituted trespass because the wall on the plaintiff’s property was constructed under false pretenses. Because it was in bad faith, courts don’t care about price to D.
2. On the other hand, in Redland, the HOL said that cost to D needs to be considered b/c P had not suffered any injuries & always has right to sue in common law. Also, D not morally culpable here.
c. If the Defendant has acted reasonably – the issue of cost is important, and a balancing approach will take place
4. Clarity  If granted, the court must be careful to see that the defendant knows exactly what they have to do in carrying out an order
* In Redlands, trial order of “taking all necessary steps to restore the support to P’s land within 6 months” was not sufficiently clear since it wasn’t known if the work could fully restore they damage. This would have put an unlimited and unfair obligation toward the defendant.