On Monday, the Cleveland Indians baseball team could have struck out before even taking the field in their game against the Blue Jays, in Toronto.  An Application was brought before the Ontario Superior Court of Justice for an injunction preventing the team from wearing uniforms displaying their trademarked caricature mascot, which is offensive to Native Canadians, while in Toronto. The application also sought an injunction against MLB and Rogers Communications from displaying the same.

An interlocutory, or emergency injunction is an order made by the court without notice, that directs someone to cease or continue a specific action. Rule 40.01 of the Rules of Civil Procedure states that an interlocutory injunction or mandatory order under section 101 or 102 of the Courts of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding. This Rule suggests that where time is of the essence, as it is when opening pitch is less than 24 hours away, a potential applicant may seek an injunction prior to commencing an action or application.

The granting of an injunction is a matter of the courts discretion, but there are three main criteria that will guide a decision:

• The applicant must first establish the case being brought is not frivolous or vexatious, or that there is a serious question to be tried.  The existence of a serious question is a low threshold to be determined on the basis of common sense, and a limited review of the merits.
• Second, the applicant must show that it will suffer irreparable harm if the injunction is refused.
• Third, the applicant must show that on balance it will suffer the greater harm from the refusal of the injunction than the respondent(s) will suffer from the granting of the injunction.

The Ontario Superior Court of Justice ultimately turned down the application, with reasons to follow at a later date. For the time being, Cleveland will continue to be able to wear their current uniform, while playing ball in Toronto.

For more information regarding interlocutory orders, or if you are in need of a lawyer to help you with an injunction or a related matter, please don’t hesitate to contact one of our litigation or civil law experts at Daniel & Partners LLP. 

Blog post by Matteson DeLuca, articling student.