Equitable Relief
Equitable Relief
•	“Performative’ relief
•	Do / don’t do something
•	Specific Performance 
•	Contract
•	Injunctions 
•	Typically non-contract
•	Monetary relief in equity
•	Equitable compensation 
•	Restitution / Unjust enrichment

General Principles
•	Historical view is that equity steps in where the common law fails
•	Common law remedies (damages) are standard
•	Equitable remedies are exceptional
General Principles
•	Historical view is that equity steps in where the common law fails
•	Common law remedies (damages) are standard
•	Equitable remedies are exceptional
•	E.g. injunction is issued only if damages are an inadequate remedy
•	Specific performance order only for ‘unique’ items
General Principles
•	In practice equitable relief is routinely granted for certain types of wrong
•	Restitution for breach of fiduciary obligation
•	Injunction for trespass
•	Specific performance for sale of land
•	Note that equitable relief is always discretionary in principle
•	Equitable relief may be ‘as of course’ in such cases, but never ‘as of right’
Enforcement
•	Enforcement of performative remedies is through contempt
•	Party who fails to comply is in contempt of court
Contempt
•	Civil Contempt
•	Court protects private interests of parties 
•	Intended to encourage compliance (deterrence)
•	Criminal contempt 
•	Court protects its own authority
•	“Contempt” for the court
Contempt
•	Civil Contempt
•	Requires intentional breach of order
•	Must know of the order and intend the act which is a breach
•	Consequently, an injunction will not issue to prohibit an unintentional act.
Contempt
•	Criminal contempt
•	the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge, or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). 
•	UNA v Alta. SCC 1992
Enforcement
•	Imprisonment, fines or sequestration of property are available for both types of contempt
•	E.g. NB Rule 76(1); Ont Rule 60.11(5)
•	Court retains broad discretionary power to fashion such penalty as is necessary and appropriate
•	E.g NB Rule 76.10 This rule shall not be construed to limit the inherent powers of the court to punish for contempt.

Enforcement
•	Imprisonment
•	May be until compliance;  or more commonly, for a fixed term, renewable on failure to comply
•	Fines
•	Broad discretion in quantum
•	Sufficient to ensure compliance
•	May be repeated fines for continuing contempt
•	Enforced as a debt owing to the Crown
•	Money goes to the state, not the plaintiff
Enforcement
•	Solicitor and client costs normally awarded in favour of party seeking enforcement of order
Enforcement
•	Civil contempt may often be ‘purged’ by compliance
•	As main goal is compliance
•	Criminal contempt is not so readily purged 
Injunctions
Types of Injunction
•	Mandatory
•	Do something
•	Prohibitive
•	Don’t do something
•	Interlocutory
•	Prior to trial on the merits
•	Quia timet
•	Prior to (in anticipation of) harm occurring 
Right & Remedy
•	Injunctive relief normal remedy for
•	Proprietary interests in land
•	Trespass
•	Nuisance (to a more limited extent)
•	Infringement of IP rights
•	Why are injunctions the normal remedy for property rights?
Trespass to Land
•	Recall principle that injunction issues only when damages are “inadequate”
•	In what sense are damages inadequate in respect of invasion of proprietary rights?
Goodson v Richardson
•	But with respect to the suggested absence of value of the land in its present situation, it is enough to say that the very fact that no interference of this kind can lawfully take place without his consent, and without a bargain with him, gives his interest in this land, even in a pecuniary point of view, precisely the value which that power of veto upon its use creates, when such use is to any other person desirable and an object sought to be obtained. 
Goodson v Richardson
•	Besides which, I am not prepared to accede to the proposition that it is an unneighborly proceeding in a man, whose motive for desiring to prevent a particular act may be collateral to the interest in his land - such, for instance, as his being a proprietor of waterworks which may be injured by the proposed use of it; - to say to his neighbour who wishes to compete with him in that business, "You are perfectly at liberty to enter into competition with me as a seller of water to the public of Ramsgate in any lawful manner; but you are not at liberty to take my land without my consent for the purpose of competing with me, and I shall object to your doing so." 
•	Is it relevant that Goodson is trying to enforce a monopoly?
Woollerton v Costain
•	Much has been made in this case of the importance of work being done by the defendants; but if I had thought that the defendants in this case had deliberately proceeded on the footing that the importance of the work would prevent the court from granting an injunction, I would have made an order different from that which I will presently make.
•	Why would intent be relevant? 
Woollerton v Costain
•	I conclude that I ought in the exercise of my discretion to grant the injunction which the plaintiffs seek until trial of the action, but to postpone its operation until the end of November 1970.  I am conscious that by so doing I am giving with one hand and taking away with the other. 
•	What is the point?
•	Note that Woollerton has been judicially criticized
Bargaining
•	The effect of an injunction is not to stop the activity
•	The effect is to require P to bargain with D for the right
•	With an injunction P puts a price on the right
•	In damages, the court puts a price on the right
Bargaining
•	P owns land-locked cottage property.
•	Four neighbouring properties have water access
•	How much will P pay for access?
•	What is a fair price for P to pay for access?
Timing
•	Injunctions provide purely prospective relief
•	Prevent future harm
•	Yet they are normally granted only after wrong has been done
•	Quia timet injunctions are difficult to obtain
Bargaining
•	P owns land-locked cottage property.
•	Four neighbouring properties have water access
•	P builds a road across one of the properties at a cost of $10,000
•	The owner of the property, O, obtains an injunction
•	How much will P pay O for access?
Bargaining
•	Can we say that injunctions ensure a fair price, given that they are imposed ex post?
•	What does the ex post nature of injunctions imply about the availability of relief?
Property & Injunctions
•	Property rights are typically protected by injunction
•	Which way does the inference run?
•	Are property rights prior?
•	Property is historically sacrosanct because represented the primary wealth of the ruling class
•	Injunctive relief is the big stick
Trespass by Cattle
•	Which is more ‘sacrosanct’?
•	Real property rights?
•	Cattle grazing rights?
•	Historically, in the US west much land was open range” in which ranchers were not liable for trespass by their cattle.
•	Why?
•	Cf. Jarnouin v Parvais (damages but no injunction)
Factors Favouring Injunctions
•	Damages difficult to assess
•	Rights capable of clear ex ante definition
•	Effective bargaining possible?
Effective Bargaining
•	Courts will sometimes decline to grant an injunction where there is a great disparity between the benefit to the plaintiff and the burden on the defendant
Effective Bargaining
•	D builds a $500,000 building that encroaches by 0.5m on the back corner of P’s large rural lot
•	Damages to P = $100
•	Should the injunction be granted?
•	Is it relevant whether the D took reasonable steps to ensure it did not encroach?
•	Is it relevant whether D is insured against this loss?
Types of Interlocutory Injunction
•	With / without notice
•	For fixed time / until trial
•	Interlocutory
•	On notice, until trial
•	Interim
•	Without notice, fixed time 
•	Usually to allow party affected to prepare response)
•	Ex parte
•	Without notice, fixed (short) time
•	All ex parte orders are interim