INJONCTION PROVISOIRE, URGENCE ET NÉGOCIATION
DE LA POSSIBILITÉ, LORSQU’APPROPRIÉ, DE PRENDRE LE TEMPS DE NÉGOCIER AVEC L’AUTRE PARTIE
Keywords:Provisional injunction, Safeguard order, Urgency criterion, Act diligently to preserve one’s rights, Imminence of a serious or irreparable injury, Negotiations, Justification of the lapse of a deadline, Alternative dispute resolution (ADR)
In order to obtain a provisional interlocutory injunction, a party must prove to the court that the events that occurred meet the rigorous criterion of urgency. The party therefore has to demonstrate, inter alia, how they were diligent in reacting promptly, so as to satisfy the court that the urgency is not attributable to that party’s own actions.
When faced with an urgent situation, however, it can be quite logical for one party to attempt to negotiate with the other in order to preserve their rights rather than rushing to the courthouse to seek an injunction.
While at first glance there is a contradiction between taking the time to negotiate and reach a settlement with the other party and submitting the matter to the court without delay for the purpose of the evaluation of the urgency required in provisional injunction proceedings, a review of Quebec case law on the topic illustrates how these two possibilities may coexist: in recent years, courts have repeatedly shown their approval of a party’s decision to first seek a negotiated settlement to a dispute, when appropriate.
This article is divided into three parts: Part 1 will outline the principles that govern the criterion of urgency in provisional injunctions. Part 2 will mainly focus on the subtleties and exceptions that inform this trend in case law to view the decision to negotiate as an appropriate way for one party to show diligence in the preservation of their rights. Lastly, Part 3 is devoted to analyzing a highly relevant recent (2018) decision by the Court of Appeal in Raymond Chabot Grant Thornton v Bourgeois, a case centred on the fact that dedicating time and energy to negotiations may result in the rejection of an eventual provisional injunction.