Useful Court Orders to Seek in Commercial Litigation

When a commercial dispute escalates beyond negotiation, the right court order can be the difference between protecting your business and watching a harmful situation compound while litigation runs its course. Ontario courts have a broad range of remedies available in commercial disputes, from urgent injunctions that stop harmful conduct immediately to equitable remedies that address unfairness that money alone cannot fix.

This article explains the main court orders available in Ontario commercial litigation, the legal test each requires, and when to seek them. Understanding your options before a dispute reaches a critical point is essential: some of these remedies are only effective if sought immediately.

Injunctions: stopping harmful conduct in its tracks

An injunction is a court order requiring a party to do something (a mandatory injunction) or to stop doing something (a prohibitive injunction). It is often the most important remedy in commercial litigation because it addresses ongoing or imminent harm in real time, rather than compensating for damage after the fact.

Injunctions can be interim (granted urgently on short notice, sometimes within hours), interlocutory (in place until the matter is finally decided), or permanent (granted as part of the final judgment). In commercial disputes, interim and interlocutory injunctions are most commonly sought where a defendant's conduct is causing continuing harm that cannot be adequately addressed by damages alone.

The three-part test for an interlocutory injunction

Ontario courts apply the test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311. To obtain an interlocutory injunction, the applicant must establish all three of the following:

Common commercial contexts where injunctions are sought include stopping a former employee or partner from breaching a non-competition clause, preventing the use of confidential information or trade secrets, halting defamatory statements being published or distributed, and restraining a party from dealing with assets pending judgment.

Mareva injunctions: freezing assets before they disappear

A Mareva injunction (also called a freezing order) is one of the most powerful remedies in commercial litigation. It freezes a party's assets to prevent them from being hidden, dissipated, transferred to a related party, or moved beyond the court's reach before a judgment can be enforced. It is typically sought urgently and without notice to the defendant, so the assets cannot be moved before the order takes effect.

The requirements for a Mareva injunction are demanding precisely because of their extreme effect on the defendant. The applicant must establish:

• A strong prima facie case on the merits, stronger than the ordinary serious issue threshold for a standard injunction
• Assets within the court's jurisdiction that are at real risk of being removed or dissipated before judgment
• Full and frank disclosure of all material facts, including any facts that might favour the defendant, because the order is initially granted without the defendant present
• An undertaking as to damages, meaning the applicant agrees to compensate the defendant for any loss caused by the injunction if it is later found to have been wrongly granted

A Mareva injunction does not give the applicant priority over the frozen assets or turn them into secured creditors. It simply prevents the defendant from dealing with the assets in a way that would frustrate enforcement of a future judgment. It is a procedural remedy, not a substantive one, but in practice it is often what makes the difference between collecting on a judgment and collecting nothing.

Specific performance: enforcing contracts, not just compensating for breach

Specific performance is an equitable remedy that orders a party to perform their contractual obligations rather than pay damages for their failure to do so. It is the remedy of choice when the subject matter of the contract is unique and monetary compensation would be an inadequate substitute for what the innocent party was promised.

Courts have consistently held that real estate transactions are the paradigm case for specific performance because every parcel of land is unique. Where a vendor refuses to close a firm agreement of purchase and sale, the purchaser can seek specific performance rather than damages, and Ontario courts regularly grant it. The same logic applies to contracts involving other unique assets: shares in a closely held corporation, a one-of-a-kind business asset, or intellectual property with no market equivalent.

Specific performance is not available as of right. Courts exercise discretion and consider whether the remedy is practical, whether the contract is sufficiently certain in its terms to be specifically enforced, whether the applicant has acted promptly, and whether granting the order would require ongoing supervision by the court. A party seeking specific performance must also show they have performed or are ready and willing to perform their own obligations under the contract.

For commercial breach of contract claims where the loss is purely financial, damages rather than specific performance is the usual remedy. But where the breach deprives the innocent party of something that money cannot replace, specific performance should be considered from the outset of the litigation strategy.

Unjust enrichment and restitution

Unjust enrichment is not a court order in itself but a cause of action that gives rise to restitutionary remedies. Where one party has benefited at another's expense without legal justification, courts can order that benefit to be returned or compensated regardless of whether a formal contract existed.

The three-part test requires the claimant to establish that the defendant received a benefit, the claimant suffered a corresponding loss, and there is no juristic reason for the defendant to retain the benefit. Common examples in commercial disputes include services provided under a contract that was later invalidated, payments made under a mistake of fact, and improvements made to property the claimant did not ultimately receive.

Restitutionary remedies can take several forms. A personal remedy requires the defendant to pay money representing the value of the benefit received. A constructive trust gives the claimant a proprietary interest in specific assets, which is particularly valuable where the defendant is insolvent or where the asset has appreciated in value. Quantum meruit awards the fair market value of services provided where no price was agreed. For a detailed treatment of unjust enrichment claims, see our guide to unjust enrichment in Ontario.

Court-ordered corporate investigations

Under section 161 of the Ontario Business Corporations Act (OBCA), the court has power to order an investigation into the affairs of a corporation where there are reasonable grounds to believe that the corporation or any of its directors, officers, or employees have engaged in fraud, oppression of shareholders, or other serious misconduct.

The threshold for obtaining an investigation order is lower than the threshold for proving the underlying misconduct. The applicant does not need to establish fraud beyond a reasonable doubt or even on a balance of probabilities. What is required is a legitimate basis for suspicion, supported by credible evidence, that justifies the cost and disruption of a full investigation.

Investigation orders can include appointment of an inspector with broad powers to examine the corporation's books, records, and communications, compel testimony from directors, officers, and employees, and report findings to the court. They are a powerful tool for minority shareholders who suspect wrongdoing but do not yet have access to the evidence needed to prove it.

Contempt of court

Contempt of court is not a remedy sought against an opposing party in the traditional sense: it is an enforcement mechanism for court orders already granted. Where a party has been ordered by the court to do something or refrain from doing something and has failed to comply, the affected party can bring a contempt motion.

A finding of contempt can result in fines, seizure of assets, and in serious cases imprisonment. It is particularly relevant in injunction enforcement: a defendant who continues to engage in conduct prohibited by an injunction is in contempt, and the consequences can be severe. The contempt mechanism is what gives injunctive relief its practical teeth.

Contempt proceedings require clear proof that the order was made, the party was aware of it, and they deliberately failed to comply. Courts take contempt seriously and will not allow court orders to be ignored without consequence.

Remedies available in British Columbia

BC courts have the same broad equitable jurisdiction as Ontario courts and can grant all of the remedies described in this article. Injunctions, Mareva orders, specific performance, and restitution are all available in BC Supreme Court proceedings. The legal tests applied are substantially the same, drawing from the same Supreme Court of Canada authorities.

Corporate investigation orders in BC are available under the Business Corporations Act (BCBCA) on similar grounds to those under the OBCA. BC's Law and Equity Act governs equitable remedies including specific performance and injunctions. The procedural rules for urgent applications differ from Ontario in their specifics, and parties seeking urgent relief in BC should work with a lawyer familiar with BC Supreme Court practice.

Practical takeaways

Frequently asked questions