DO MANDATORY INJUNCTIONS EXIST IN QUEBEC LAW?
Claude-Armand Sheppard*
I –
Introduction
Mandatory injunctions exist in many jurisdictions to enforce the performance
of positive acts. They are to be contrasted with the more common negative
injunctions which, instead of ordering performance, prohibit the commission
of particular acts. Mandatory injunctions command; negative injunctions
forbid. Mandatory injunctions can be framed affirmatively, as orders to do,
or even negatively, as orders to refrain from not doing a certain thing. A sur-
prising amount of confusion still exists in Quebec as to whether or not our law
admits of mandatory injunctions. The better opinion is that it does not; but,
as we shall see, the jurisprudence has always been divided. Many judges do
not hesitate to grant mandatory injunctions despite the absence of any legal
foundation for such orders. However, a persuasive argument can be made for
the addition in the future of this type of injunction to our Code of Procedure.
II –
Injunctions Are Based on Anglo-American Law
Injunctions were introduced in Quebec in 1878.1 Despite some borrowings
from California, our rules are based essentially on English law.2 It has hence
been suggested3 that “the interpretation that has been put upon (them) under
English decisions is a good guide to us”. The law reports abundantly evidence
this reliance upon English authorities. Indeed, English precedents enunciating
general principles or illustrating particular applications are often valuable aids
in filling in the gaps of our own jurisprudence and in guiding our courts. But
uncritical dependance on English cases is dangerous since, as will be seen anon,
the English law of injunctions is considerably broader than ours.
*Of the Bar of Montreal.
141 Vict. c. 14.
‘See, as to the history of injunctions in our law, Wills et al. v. The Central Railway Co. (1915) 24
K.B. 102 (Privy Council), more particularly Lord Moulton’s judgment at 107; and (1914) 23 K.B.
126 (Court of Appeal), especially Mr. Justice Gervais’ judgment.
‘Treoholme, J. (diss.) in La Societ Anonyme des Thedtres v. Lombard (1906) 15 K.B. 267 and 7 P.R.
262. See also Anglin, J., Davies, C. J. and Idington, J. in Canada Paper Company r,. Brouwn (1922) 63
S.C.R. 243.
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III – Anglo-American Law Allows Mandatory Injunctions
Quebec judges who uphold the existence of mandatory injunctions in our
law inevitably refer to Kerr on Injunctions, 4 the leading English authority on
the subject. The passage of Kerr usually cited is the following:’
Although the Court of Chancery would not direct the performance of a positive act tending
to alter the existing state of things (such as the removal of a work already executed), never-
theless, by framing its order in an indirect form, it would compel a defendant to restore things
to their former condition, and so effectuate the same result as would be obtained by ordering
a positive act to be done. The order when framed in such a form is called a mandatory injunction.
The jurisdiction was formerly questioned, but its existence is now beyond all doubt; and ac-
cordingly the Court now frames the injunction in a positive form.
This relief is frequently given in England today.6 However, except in very
special circumstances, 7 it will not be granted to order the performance of
personal services, of repairs, or of an act which requires the continuous employ-
ment of people or to compel anyone to carry on a business.
Mandatory injunctions also exist in American law, although American
courts of equity appear to be more reluctant to grant them than their English
counterparts.8
IV – No Mandatory Injunctions in Our Code of Procedure
Article 964 of the Code of Procedure defines an injunction as
.. an order enjoining the opposite party, his servants, agents and employees, to refrain
from a specified act, or to suspend all acts and operations respecting the matters in controversy,
under pain of all legal penalties.
Reading this article together with art. 957 C.P., which is cited below, it
would appear that in Quebec an injunction is a negative order of the court,
forbidding, either for a limited period of time or perpetually, the commission
or continuance of specified acts or operations. In effect, the respondent is or-
dered not to do a certain thing. An injunction in Quebec is a restraining order.
It forbids. If the respondent disobeys, he is in contempt of court and becomes
liable, under art. 971. C.P., to fines of up to two thousand dollars, with or
without imprisonment for maximum periods of sixty days. These penalties
can be inflicted repeatedly.
The definition of art. 964 C.P. evidently does not encompass affirmative or
mandatory orders. An injunction, it states, is “. . . an order .
. to refrain”.
In fact, none of the articles dealing with injunctions in the Code of Procedure
contemplate the possibility of mandatory injunctions. Article 957 C.P.
.
4William Williamson Kerr, A Treatise on the Law and Practice of Injunctions (1914), 5th ed.
5Ibid., (1927) 6th ed., at page 40.
6Halsbury, The Laws of England, (1957), 3rd ed., by Viscount Simonds, vol. 21, p. 362.
7Ibid., at 363.
‘Corpus Juris Secundum (1945), vol. XLIII, p. 409.
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MANDATORY INJUNCTIONS IN QUEBEC LAW
enumerates the categories of situations in which injunctions can be granted
and the remedy in each case is obviously negative:
Any judge of the Superior Court may grant an interlocutory order of injunction in any
of the following cases:
1. At the time of issuing the writ of summons:
(a) Whenever it appears by the petition that the plaintiff is entitled to the relief demanded,
and that such relief consists, in whole or in part, in restraining the commission or
continuance of any act or operation, either for a limited period or perpetually;
(b) Whenever the commission or continuance of any act or operation would produce waste,
or would produce great or irreparable injury.
2. During the pendency of a suit:
(a) Whenever the commission or continuance of any act or operation during the suit would
produce waste, or would produce great or irreparable injury;
(b) Whenever the opposite party is doing or is about to do some act in violation of the
plaintiff’s rights or in contravention of law, respecting the subject of the action, which
is of a nature to render the final judgment ineffectual.
3. Without the issue of a writ of summons in the case of sub-paragraphs (a) and (b) of paragraph
1, if at the time the plaintiff has no other recourse to exercise than an injunction. The
application for injunction shall then itself constitute a suit.
The issue of an interlocutory order of injunction in such circumstances shall not deprive
the petitioner of the right to obtain later the issue of a writ of summons, to exercise any other
recourse on the same subject, but based on a ground of action subsequent to his petition for
an interlocutory injunction.
Admittedly, art. 970 C.P. stipulates that:
The judge may order the destruction, demolition, or removal of anything done in contra-
vention of the injunction, if it is practicable.
Clearly this article does not provide for the issue of mandatory injunctions but
rather it deals with violations of an already existing negative injunction. The
court is authorized, to order the elimination of works erected in contravention
of a previous prohibition. In the event of such contravention, art. 970 C.P.
makes it possible to obtain, through a procedure subsequent to the injunction
itself, an order for the destruction, demolition or removal of the illegal works.
This would presumably become part of the contempt proceedings to enforce
the penalties of art. 971 C.P. But it must be noted that the wording of art.
970 C.P. does not allow the judge to order such destruction, demolition or
removal in the original order of injunction itself.
Moreover, the consequences of disobedience to such a subsequent order of
demolition are not clear. Would respondent be held in contempt a second
time, or repeatedly, until compliance? Or would disobedience merely entail,
by analogy to art. 1066 C.C.,9 execution of the order by officers of the court at
respondent’s expense? The writer has been unable to find a single reported
decision on this point.
There is thus nothing in the Code of Procedure to support the granting of
mandatory orders of injunction. On the contrary, the wording of the relevant
OArt. 1066: The creditor, without prejudice to his claim for damages, may require also, that any
thing which has been done in breach of the obligation shall be undone, if the nature of the case will
permit: and the court may order this to be effected by its officers, or authorize the injured party to
do it, at the expense of the other.
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articles clearly indicates that the legislator only contemplated negative or
restraining orders.
V – Mandatory Injunctions Are Contrary toOur Civil Law
But it is not only the language of the Code of Procedure which militates
against mandatory injunctions. There is also the fundamental principle of our
civil law that the Court will not enforce specific performance of an obligation
to do, but will resolve it into a condemnation in damages. 10 Positive obliga-
tions are held not “to admit of” specific performance under art. 1065 C.C.”
Both in France and in Quebec, the jurisprudence and the doctrine consider it
repugnant to human dignity to enforce civil obligations physically or by
imprisonment. Specific performance will not be granted where it would entail
compelling the defendant to perform personally a given act, since such judg-
ment either would not “be susceptible of execution” (and would hence con-
travene art. 541 C.P.) or would require physical constraint. This well-known
principle is often summed up with the Latin maxim nemo praecise cogi potest ad
factum. Obviously, mandatory injunctions would violate this important rule.
Moreover, it has been held repeatedly 12 that despite its English origin, the
procedural remedy of injunction remains subject to substantive civil law rules
and that in case of conflict between the civil law and the common law in this
realm of procedure, the former has precedence.
Indeed, short of an express
legislative enactment to that effect, it would be difficult to admit that a rule
of procedure imported from the common law could be used to defeat the sub-
stantive civil law principle of art. 1065 C.C. 1
VI – Mandatory Injunctions and Public Law
The problem of mandatory orders does not arise as acutely outside the civil
law since in public or administrative law resort can be had to mandamus to
obtain performance of a positive action or duty. On the other hand, our labour
law now provides for certain limited mandatory orders akin to, but not iden-
10Lajoie v. Canup [1954] C.S. 341; In re Diamond Truck Co. Ltd. and Bell Telphone Co. of Canada v.
Duclos [1942] K.B. 83, (1941) 79 S.C. 87; Queblc County Railway Company v. Montcalm Land Company
(1929) 46 K.B. 262, obiter of Rivard, J. at 270; Lombard et al. . Varennes et Tb/dtre National (1922)
32 K.B. 164; Pitre v. Association Athltique (1911) 20 K.B. 41; Sociftl Anonyme des Thidtres v. Lombard
et Gauvreau (1906) 15 K.B. 267; Wills et al. v. The Central Railway Co. of Canada (1914) 23 K.B. 126
maintained by the Privy Council whose judgment is reported at (1915) 24 K.B. 102.
“Art. 1065: Every obligation renders the debtor liable in damages in case of a breach of it on his
part. The creditor may, in cases which admit of it, demand also a specific performance of the obliga-
tion, and that he be authorized to execute it at the debtor’s expense, or that the contract from which
the obligation arises be set aside; subject to the special provisions contained in this code, and without
prejudice, in either case, to his claim for damages.
12Pitre v. L’Association Athlitique d’Amateurs Nationale (1911) 20 K.B. 41; Robinson v. Robinson
(1922) 33 K.B. 180; Claude v. Weir [1888) M.L.R. (K.B.) 197; Lombard et al. v. Varennes t Thidire
National (1922) 32 K.B. 164, at 176; and Richstone Bakeries v. Margolis [1953] R.P. 56.
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MANDATORY INJUNCTIONS IN QUEBEC LAW
tical with, mandatory injunctions. Indeed, the Quebec Labour Relations Act 13
was amended in 195914 to give the Labour Relations Board the power to order
the reinstatement of employees dismissed illegally. Section 21a of the Act
states:
When an employee is dismissed, suspended or transferred by the employer or his agent,
because of the exercise by such employee of a right granted to him by this act, or because of
trade union activities, permitted by it, the Board may order the employer to reinstate, within
eight days of the service of the Board’s ordinance to that effect, such employee in his employ,
with all his rights and privileges, and pay him, as an indemnity, the equivalent of the salary
and other advantages of which he was deprived by such dismissal, suspension or transfer, and
the employer shall be bound to comply with the Board’s ordinance to that effect.
These provisions have been held to be constitutional by Mr. Justice Ignace-J.
Deslauriers. 5 Disobedience to a reinstatement ordinance renders the employer
liable to the relatively heavy fines provided for in the Act. It can be argued
that the very fact that such special legislation was necessary proves the lack
of mandatory injunctions in our procedure.
VII – Leading Appeal Decisions Refuse Mandatory Injunctions
While, as will be seen, the Court of Appeal has occasionally contradicted
itself, its leading jurisprudence is that mandatory injunctions are contrary to
both the letter of our Code of Procedure and to the spirit of our civil law.
Its first authoritative pronouncement was in The Central Railway Company
of Canada v. Wills;16 here the Court reversed a judgment of the Superior Court
enjoining a railway company from granting a contract to a contractor other
than the petitioner and held that such order would constitute a disguised
mandatory injunction since in effect respondent would be compelled to deal
with the petitioner only if it wanted to continue construction. Mr. Justice
Gervais, after reviewing the English and Californian antecedents of -our law
of injunction, concluded 17 that, contrary to English law,
… there is no mandatory injunction in our law whereby “specific performance” of a
contract may be assured, for the very good reason that any such redress would be futile under
articles 1063 c.c. and 610 c.p., which provide very effectively for specific performance of an
obligation to give, and for which art. 1058 and 1063 legislate. Secondly, it is necessary to come
to the conclusion that in the case of an obligation to do or not to do, there can never be even
a suggestion of “specific performance”, spoken of in the common law of England, and this
because, under the law, there is no provision similar to our articles 1063 and 1065 c.c., whereby,
failure to execute such obligations only resolves itself into the payment of damages, the recovery
whereof is secured under those articles as well as under article 612 c.p., by means of the seizure
of moveable or immoveable property, or again, by attachments be ore or after judgment, or,
13R.S.Q. 1941, c. 162a.
14by 8-9 Eliz. It, S.Q. 1959-60, c. 8, sanctioned on December 18th, 1959 and in force since January
5th 1960.
15La Grenade Shoe Manufacturing Limited v. Commission dte Relations Ourrieres de la province de Quibec
et al. [1961] S.C. 305, discussed by Marie-Louis Beaulieu in (1961) 21 R. ,ht B. 485.
1(914) 23 K.B. 126; maintained by the Privy Council whose judgment is reported at (1915) 24
K.B. 102; cf. for a similar situation, decided on different grounds, Mlaurice Moiriat Inc. v. Desourdy
Constructions Limite est la Corporation de la Ville dte St-Hubert [1962) R.P. 34 (Superior Court).
17(1914) 23 K.B. 126, at 150.
46
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finally, by abandonment of property, or by imprisonment. The indirect means, under our law,
whereby judgments, that is to say, contracts, may be enforced, are numerous. Proceedings by
way of inunction therefore, are, in our law, never otherwise than restrictive, to prevent, by
the defendant, or even by the plaintiff during suit, the doing of an act – not the omission
of one – which would render illusory the direct or indirect modes of executing judgments.
The learned judge added:1
specific performance”
of theallant’s obligation that its railway should be built by them, when the sanction for
respondents, by the injunction, would succeed in obtaining
rThe
the breach of such an obligation, without referring to article 1691 c.c., would only authorize
condemnation in damages, recoverable, according to circumstances, by the seizure of moveable
or immoveable property. To sustain the injunction, therefore, in the present proceedings,
would constitute a positive act of coercion towards the appellant to force it to make, in the
hands of the trustee in London, the deposits required by the contracts; it would mean the
introduction into our law, where it is no where recognized, of a mandatory injunction.
Cross, J. dissented on the ground that the injunction was not mandatory,
thus implicitly agreeing that mandatory injunctions do not exist in our law.
A few years later, in the leading case of Lombard et al. v. Varenner et Thldtre
National,9 the Court of King’s Bench reiterated its stand forcefully. Lamothe,
C. J. wroe:2
Une Cour de justice ne pent, par injonction forcer un difendeur i faire un acte quelconque.
Sons le droit actuel, encore plus que sous l’ancien droit, le cogere adfactum ripugnc. L’excution
d’une ordonnanco de ce genre ne pent se faire qu’au moyen de violence physique sur 1a prsonne.
He added:21
Un tribunal pent ordonner i un difendeur dc donner tous ses services A un demandeur et
de ne pas les donner a d’anres; mais si cet ordre n’est pas exut6,
il ne peut y avoir contrainte
pour m~pris de Cour, car cc serait un emprisonnement en matiare civile. La seule punition cst
lepaiement de dommages. Pr~tendrc le contraire, srait reconnatre aux tribunaux Ic droit
d’emprisonnement de presque toutes les personnes condamn&s en matiare civilo soit A faire
un acte quelconque, soit A n’en pas faire, que cette obligation soit r&lig&e en termes aflirmatifs
on en termes n~gatifs, et ces cas sont nombreux.
Mr. Justice Dorion analyzed at length22 the remedy of injunction and con-
cluded that2 3 it could not be used to order performance:
Ce n’cst pas, et cela ne pet pas Etro un ordre d’excutr personnollement une obligation
uelle qu’ele soit… un tribunal ne pourrait par jugement final ordonner efficacement a un
dfendeur dc livrer un objet revendiqu6; et un jugo ne pourrait pas non plus par injonction
ordonner an d6fendeur de le livrer…
II n’y a pas do douto que le droit anglais fournit A ]a procedure d’injonction un champ
d’action beaucoup plus itendu. Ainsi, Ic recours en 6quit6, pour specific performance pent etre
exerc6 par voio d’injonction, mais l’introduction de cette procedurc dans notro Code n’a pas
changi los principes du droit civil; lle a senlement introduit un nouveau mode de sanctionner
provisoirement los modes existants d’exicution.
The same opinion was expressed in an obiter dictum of Rivard, J. in Quebec
County Railway Company v. Montcalm Land Company.24 In re Diamond Truck Co.
18lbid., at 152.
‘9(1922) 32 K.B. 164.
201bid., at 166.
21lbid., at 169.
-Ibid., at 174 e seq.
231bid., at 177.
2(1929) 46 K.B. 263, at 270.
MANDATORY INJUNCTIONS IN QUEBEC LAW
No. 1]
Ltd. and Bell Telephone Co. of Canada v. Duclos,2 5 the Court of Queen’s Bench
reversed a judgment of the Superior Court ordering the Bell Telephone Company
to continue furnishing telephone services to a bankrupt estate. The Wills case
was cited. Mr. Justice Surveyer described 26 the remedy of mandatory injunctions
as “inconnu chez-nous jusqu’ici”.
The Court has very recently reaffirmed its position in Citl de Trois-Rivires
v. Syndicat National Catholique des Employe’s Afunicipaux de Trois-RiviresV7 where
it unanimously reversed the unreported judgment of Laroche, J. enjoining the
municipality from dismissing superfluous employees. Mr. Justice Choquette,
sitting ad hoc, ruled that the lower court’s order was mandatory and hence
contrary to our law. Citing the Supreme Court decision of Dupre Quarries Ltd.
v. Dupri,28 he wrote:29
La r~gle est que ‘on peut recourir a l’injoncton pour emphcr un partie de faire une
chose qu’elle s’ctalt engagee I ne pas faire; mais on ne pent (sauf dispositions sp~ciales) recourir
Scette mesure pour obliger une partie A faire une chose qu’elle s’6tait engagi A faire. Dans ce
dernier cas, le remade est celui de ‘article 1065 c.c.
Tremblay, C. J. and Badeaux, J. agreed that the injunction had been im-
properly granted but based their opinion on the somewhat novel argument
that the employee’s right, if any, consisted in the payment of a sum of money:
to enforce it by injunction would resurrect imprisonment for debts which is
repugnant to our law.
VIII – Three Contrary Decisions of the Court of Appeal
But the Court of Appeal has not been altogether consistent. On at least
three occasions it seems to have reversed itself or at least it seems to have
ignored its own jurisprudence. In Vincent v. Ayotte,30 it overruled a judgment
of the Superior Court which had dismissed a petition to enjoin the owner of
an aqueduct from ceasing to furnish water to the petitioner. In effect, the Court
issued a mandatory injunction ordering the owner to continue supplying water.
No authorities were cited and the principle of mandatory injunction was not
discussed in the four-paragraph judgment of the Court of Appeal. On the
other hand, in order to continue to supply water in this case, the respondent
did not really have to perform a positive act, since both aqueduct and pipes
already existed. At best this case is hardly authoritative.
25[19 42] K.B. 83 and (1941) 79 S.C. 87.
2[1942) K.B. at 98.
27[1962] Q.B. 510.
2[1934] S.C.R. 528.
20[1962] Q.B. 510, at 513.
3(1923) 35 K.B. 17. For a similar ruling of the Superior Court on similar facts, see: Garand v.
Lacroix (1916) 50 S.C. 456.
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[LVo.L
Equally puzzling however, is the short obiter of Mr. Justice Bond in City
of Verdun v. Legault:31
There is such a thing known to the law as a mandatory injunction, designed to restore
things to their former condition, and so effectuate the same result as would be obtained by
ordering a positive act to be done.
The petition in this case prayed that the City of Verdun be ordered to revoke
a permit it had granted for boxing exhibitions.
The third and most recent of these doubtful decisions of the Court of Appeal
was rendered in the case of Rochford v. Philie.12 Philie, the owner of the dominant
land, by excavating near a spring, had caused an overflow of water on Rochford’s
servient land. Rochford sued in damages and prayed for an injunction to
restrain respondent from allowing the waters to flow. In effect petitioner
demanded a mandatory injunction ordering Philie to stop the flow. It was
properly refused in the Superior Court. This decision was reversed in appeal
where Mr. Justice Bissonnette, speaking both for himself and Rinfret, J.,
ordered the issue of the injunction on the surprising ground that it was the
only “recours efficace”. Owen, J. rightly dissented, stating,3 inter alia:
It would be twisting and distorting the meaning of words to say that defendant’s failure
to do something on his higher land which would divert the water in question and prevent it
from coming to the surface constituted an act or operation the commission or continuance
of which could be restrained by an order of injunction. Defendant cannot be enjoined from
not doing anything to prevent the water from flowing under his land and emerging at the
surface of plaintiff’s land. In effect plaintiff is asking the Court to order defendant to do a
positive act such as to dig a hole to collect the subterranean water on defendant’s higher land
and pump it into the sewers or in any event to do something to stop the flow of water at the
surf.ce of plaintiff’s property.
– Superior Court Usually Grants Mandatory Injunctions
IX
Curiously enough, many Superior Court judges have refused to follow the
leading jurisprudence of the Court of Appeal and maintain against all juridical
logic that mandatory injunctions exist in our law. In fact, they do not even
seem to be aware of such jurisprudence.
In 1903, Mr. Justice Lavergne granted our first reported mandatory in-
junction, 34 ordering respondent to return to the head office of a company certain
objects he had removed therefrom. In Montreal Light, Heat and Power Co. v.
Vipond,35 Davidson, J. ordered the removal of poles and wires interfering with
the electrical works of the petitioner. We took note earlier of the decision
of the Superior Court in The Central Railway Company of Canada v. Wills which
granted a disguised mandatory injunction reversed in appeal. There is an
obiter of Mr. Justice Drouin of the Court of Revision in Garand v. Lacroix”
3i( 19 3 6) 60 K.B. 559, at 566: (1935) 41 R. de f. 514.
12[1959] Q.B. 567.
33Tbid., at 575.
31In Bourdon v. Dintlte (1902-03) 5 P.R. 240.
-(1911) 40 S.C. 196.
3(1916) 50 S.C. 456, at 460.
No. 1]
MANDATORY INJUNCTIONS IN QUEBEC LAW
holding that an injunction would be the proper remedy to force the owner of
an aqueduct to continue supplying water. In Genest v. Fillion,87 although no
injunction was demanded, the Court granted the conclusions of the principal
action and ordered defendant to remove a fox farm which constituted a nuisance.
While there was obviously no question of mandatory injunction, the Court
indicated its willingness to disregard the principle that nemo praccise cogi potest
ad factum. We saw that in re Diamond Truck Co. Ltd. and Bell Telephone Co. of
Canada v. Duclos” the Court of Appeal reversed an injunction ordering a public
utility to continue furnishing certain services.
In Hardy v. Coulombe,3 9 petitioner prayed for an order enjoining respondent
from interfering with his right of passage and ordering him to remove the
obstacles to the exercise of such right. The petition was rejected on the merits,
In Mailloux v.
but the Court would have granted it in other circumstances.
Corporation Municipale de St-Edmond,40 Mr. Justice Grard Lacroix expressed 4′
the unsubstantiated opinion that:
…. il peut y avoir lieu, dans certains cas, d’accorder une injonction mandatoire, cc remide
cxtraordinaire nc dolt atre appliqu6 par la Cour quc lorsqu’aucun autre rcmade ne peut etre
donn6 par un recours en dommages.
The petition prayed for an order enjoining the town from closing off a municipal
road. The Court cited Kerr on the existence of mandatory injunctions, but
ruled that such injunctions could only be granted in exceptional circumstances
which did not obtain in the case. But had the balance of convenience not fa-
voured the respondent, there is no doubt that the mandatory injunction would
have been issued.
Then, we have the recent decision of Miquelon, J. in Le Syndicat des Tra-
vailleurs des Chantiers Maritimes de Lauzon Inc. v. Davie Shipbuilding Limited42
holding that the remedy of mandatory injunction “est bien reconnue et dans
notre droit et dans la jurisprudence” and enjoining a company from ceasing to
deduct union dues and from ceasing to remit them to the union. At approxi-
mately the same time, three similar judgments were rendered in identical cases
by Judges Laroche43 and Morin 44 of the Superior Court. The writer has been
informed, but has not verified, that these last three judgments were appealed
37(1936) 74 S.C. 66.
38[1942] K.B. 83 reversing (1941) 79 S.C. 87.
39[1945) S.C. 380.
40[1952] R.L. 495.
“Tbid., at 498.
42[1961] P.R. 105.
43L, Syndicat National des Employjs de l’Aluminium de Shawinigan Falls Inc. v. Aluminum Company
of Canada Ltd., C.S. Trois-Riviarcs, no. 22,939 where the Court relied on the above-mentioned decision
of the Court of Appeal in Rochford v. Philie [1959] Q.B. 567. The judgment of Mr. Justice Laroche
orders the company to continue to deduct union dues and to continue to remit them to the union.
44Ie Syndicat National des Employis de l’Aluminium d’Arvida Inc. v. Aluminum Company of Canada
Limited, C.S. Chicoutimi, no. 29,154; Le Syndicat National des Employls de lAlnminium de St-Joseph
d’Alma Inc. v. Aluminum Company of Canada Ltd., C.S. Roberval, no. 24,927.
McGILL LAW JOURNAL
[Vol. 9
but that the successful petitioners desisted from the injunctions before the
hearing of the appeals.
It is noticeable that none of the judicial pronoucements in favour of man-
datory injunctions are strongly motivated. They do not analyse the relevant
articles of the Code of Procedure and fail to cite or distinguish the leading
precedents of the Court of Appeal. At most, they refer to the above-mentioned
passage from Kerr. Usually, they consist of a mere assertion that mandatory
injunctions are part of our law. But these decisions illustrate the ever-present
pressure to admit a mandatory recourse in our law.
X –
Some Contrary Opinions of the Superior Court
On the other hand, one can find recurrent statements or obiter dicta in which
judges of the Superior Court take it as self-evident that mandatory injunctions
do not exist in Quebec law.
Thus, Pelletier, J. in the case of United Shoe Machinery Company of Canada
v. Brunet et alA5 remarked:
La requ&ante ne pouvait certainement pas les forcer a faire cc qu’ils ne voulaient pas
faire… L’injonction demand&c n’est pas pour forcer les difendeurs A faire cc qu’ils ne veulent
pas faire, mais uniquement pour les emp6cher de faire cc qu’ils se sont engages A ne pis faire.
We noted above the refusal of the Superior Court in the case of Vincent v.
Ayotte to order by injunction the continuation of water services, a decision
reversed in appeal.
In Montreal Dairy Co. Ltd. v. Gagnon,4” Mr. Justice Fabre-Surveyer stated
that a court could not order by injunction the execution of a contract obliging
respondent to purchase all his dairy equipment from the petitioner. It could
only prohibit purchase elsewhere. Edge, J. expressed the same view thirty
years later in Champlain Oil Products Ltd. v. C. E. Imbeault,47 a case dealing with
a contract for the exclusive supply of oil products. In Houle v. Diamond Taxicab
Association Limited,48 Deslauriers, J. refused to enjoin respondent association
from expelling Houle, a recalcitrant member who balked at signing a pledge
not to join a rival organization. The learned judge wrote: 49
La Cour d’appel a refusE une injonction dans des circonstances semblables au cas qui nous
occupe pour forcer un intim6 a continuer ses services. En effet, on ne peut contraindre A faire
quclque chose suivant le principe bien connu; Nemw pot.st praecise cogi adfactum.
In an as yet unreported judgment,50 Mr. Justice Paul E. C6t& dismissed,
albeit without giving reasons, a petition in which it was sought to enjoin the
11(1905) 27 S.C. 200, at 212; Appeal Court decision in this case reported at (1908) 17 K.B. 435;
and Privy Council’s at [1909] A.C. 330 or (1909) 18 K.B. 511.
4′(1932) 38 R.L. n.s. 272, at 280.
17[1960] P.R. 399.
48[1957] S.C. 56.
49Ibid., at 59.
5 Sevrenty-Seven Sunset Strip Inc. v. Citi de Montrial, C.S.M. 551,456.
No. 1]
MANDATORY INJUNCTIONS IN QUEBEC LAW
51
City of Montreal from “continuing to refuse to issue” a restaurant permit.
In effect, petitioner prayed for a mandatory injunction ordering the City to
issue’ the permit. Here, of course, mandamus would have been the proper remedy.
More recently, an interesting obiter was handed down by Brossard, J. in the
case of Lafleur v. Guay and Minister of National Revenue.5′ The Court enjoined
the Minister from conducting an inquiry into petitioner’s affairs in absentia of
petitioner and without permitting his lawyers to attend the hearings. Respond-
ent apparently invoked the argument that such an injunction would be manda-
tory and hence could not be issued. Mr. Justice Brossard, s2 while holding
that the order prayed for did not partake of an imperative character, never-
theless agreed with the proposition that mandatory injunctions are illegal:
The defendant claims that the purpose of the injunction is to require the defendant as
inquisitor to allow the plaintiff and his counsel to be present at the inquiry and, therefore, to
compel him to do something. That is not what the plaintiff claims. He only claims that the
inquiry should be stayed for a certain period. He does not claim that the-defendant be enjoined
to allow him to attend with his counsel. But what he does claim is that the defendant cease
proceeding with the inquiry illegally and irregularly in contempt of his rights and in a manner
which does him an irreparable injury by refusing him the right to attend the sittings of the
inquiry. The relief sought in the motion is therefore not to obtain an order directed to the
defendant to do something, but to prevent him continuing by his refusal, to place an obstacle
in the way of the plaintiff which is capable of doing the plaintiff an irreparable injury. That
is the very object of an injunction under the terms of art. 957 C.C.P.
XI – Conclusion
It is this writer’s belief that in strict law most of the jurisprudence of the
Superior Court and the decisions of the Court of Appeal in Vincent v. Ayotte,
City of Verdun v. Legault and Rochford v. Philie are erroneous. Neither the
articles of the Code of Procedure nor the fundamental principles of our civil
law presently admit of mandatory injunctions. No argument other than the
fact of their existence in English law has been advanced in favour of mandatory
injunctions.
Technically, at the present time, mandatory injunctions do not exist in
Quebec.
But a persuasive argument can be made for their introduction. The Com-
missioners revising the Code of Procedure will no doubt consider it carefully.
For there are cases where mandatory injunctions are the only satisfactory
recourse. No amount of damages will compensate the stockbroker whose
telephone service is unjustly suspended or the manufacturer whose goods the
only public carrier in the area refuses to transport. Only a mandatory injunc-
tion will protect these rights.
Nor should we accept unquestioningly the principle that nemo praecise co’gi
potest adfactum. While our law shies away from physical constraint, it does not
hesitate to enforce, even by imprisonment, the performance of positive obliga-
tions. The above-mentioned sections of the Labour Relations Act are an example.
5′(1962) 31 D.L.R. (2d) 575, also reported at [1962] S.C. 254, presently in appeal.
I(1962) 31 D.L.R. (2d) 575, at 581.
McGILL LAW JOURNAL
[Vol. 9
Mandamus is another. The Criminal Code makes it an offence among others
not to support dependents, 53 to refuse aid to a public officer, 5 not to obtain
assistance in childbirth, 5 not to stop after an accident and offer assistance to
the victims. 6 A laissez-faire approach to law is no longer acceptable.
In an
increasingly socialized society, active duties are at least as important as prohi-
bitions. Respect for the individual’s integrity must not lead to contempt of
the rights of others. The ethical argument against mandatory orders has
become obsolete.
Mandatory injunctions should be introduced in our law. Our injunctions
should be redefined so as to include both restraining and mandatory orders.
However, unlike other injunctions, the issue of mandatory orders ought to be
subject to certain special conditions. First of all, they ought to be confined to
situations where no other effective remedy exists (e.g. to prevent the termina-
tion of the services of a public utility). In such cases, moreover, the balance
of convenience rule would frequently operate in favour of the petitioner.
Secondly, purely personal acts, such as an artistic performance or an individual
contribution, should not be required. Such an order would be fraught with
untold dangers and its enforcement might be well-nigh impossible.
On the other hand, the new Code should provide for the issue not only of
permanent orders but also of interim and interlocutory mandatory injunctions.
Inevitably considerable latitude will have to be left to the courts, but a recourse
such as injunctions is predicated upon a wide exercise of judicial discretion and
cannot fit within too rigid rules. Each petition raises special questions of fact
and equity which the courts must weigh. Almost every injunction is one cause
d’espece. Codification can only provide a framework, and the jurisprudence,
while frequently guiding, is often merely illustrative. There is no less judicial
discretion in negative injunctions than in mandatory orders.
But there is no fundamental reason to reject a recourse which such other
civilized and liberty-loving countries as the United States and the United
Kingdom have long adopted and to which the French astreinte bears consider-
able resemblance. Even in strict civil law, we must not allow the principle of
nemo praecise cogi potest ad factum to obscure the equally authoritative rule that
pacta servanda szunt.
53Ss. 186 et sey.
54S. 110.
-5S. 214.
5rS. 221.
