The Death of the Irreparable Injury Rule in Canada

Abstract

RJR-MacDonald establishes the current tripartite Canadian test for injunctions. The applicant must establish first, a serious question to be tried, second, that irreparable harm will result if the injunction is not granted, and third, that the balance of convenience favours an injunction. The author argues that the entrenchment in the test of irreparable harm, with its multiplicity of meanings, has caused confusion in the jurisprudence. The author starts by tracing the genealogy and substance of the doctrine of irreparable harm in the English case of American Cyanamid and the Canadian cases of Metropolitan Stores and RJR. The author argues that despite judicial protestations to the contrary, irreparable harm survives as a condition precedent which will sometime unfairly deny an injunction. The author explores alternative Canadian tests for injunctions, with an explicit or implicit two-stage process better promoting the overall balancing necessary for the injunctive enquiry. The author points to doctrinal confusion surrounding the tripartite test as evidenced by lower court decisions. The author cites the works of Denning, Fiss, Hammond and particularly Laycock in arguing that the current tripartite test, with its elevation of irreparable harm, imposes an artificial rigidity in judicial reasoning. The author further applies the thesis of Laycock, evoked in the title of this article, to suggest that Canadian judges, like their American counterparts, do not usually employ the phrase irreparable harm in its traditional sense of inadequacy of damages. The article concludes by endorsing the two-stage balancing approach as a more coherent and flexible test, forwarding the ends of equity while avoiding the multifaceted confusion of irreparable harm.