COMMENTARY: Around the Arctic March 26, 2018 - 11:30 am

Legal Ease, March 26

Urgent orders

JAMES MORTON

Civil law cases are painfully slow.

Even the simplest case in small claims court takes months to complete and more complex cases can go on for years.

Unfortunately, lawsuits take time and no fair legal system can make them run much faster.

Facts have to be gathered, witnesses interviewed, questioning prepared, the case presented and, finally, the judge has to consider and decide.

And this ignores possible appeals!

Yes, it is true with more judges and courts, things could go a little faster, but even with all the resources possible civil cases would still take a long time.

But what about situations where the matter is truly urgent? Say someone is in hospital and there is a dispute over treatment?

Or there is a building near collapse and no one is repairing it? Or someone is moving away from Canada and plans to take the kids with them, and Dad says if that happens, he won’t see the kids anymore?

Cases like this cannot wait forever to be decided. A decision is needed right away.

In cases of great urgency, the court will make an immediate order. The order is made on limited evidence, and is usually only intended to decide things on an interim basis.

But the order will deal with what is truly urgent.

While the details of the law on urgent orders are quite complex, the basic principles are fairly straightforward.

First, the person seeking the urgent order has to show they have a decent claim. No matter how urgent, if the claim is bogus, there is no reason for the court to intervene.

The claim does not have to be proven perfectly—it is enough that there is a serious issue to be tried.

Second, the person seeking the urgent order must show there would be irreparable harm caused if the order is not granted.

So if the harm could be fixed by money, it probably is not good enough—but if the harm cannot be repaired, then it’s likely irreparable harm.

For example, if the issue is life-saving medical treatment, you have irreparable harm involved. But if the issue is a loss of $1,000 on the sale of a snowmobile, you do not have irreparable harm. 

Finally, the person seeking the urgent order must show that the “balance of convenience” favours granting the order.

Basically, this asks how much good will the order do compared to the harm it may cause.

So if, for example, medical treatment is ordered, what harm will it cause? Someone may have said they don’t want to be kept alive by heroic means and maybe there is a real harm keeping them alive.

If Mom can’t move to Florida with the kids maybe she will lose a really good job. The court has to balance everyone’s interests.

If all three criteria are met, the urgent order may be granted.

But as you can see, such orders will be granted only in very special cases.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.