The irreparable-harm component of the tripartite test for interlocutory injunctions can defeat many injunction applications, as illustrated by a December 7, 2018, Federal Court judgment following on the heels of the related judgment noted in our November 21 post.

This time round, in a mirror of the first case, the Plaintiffs were the Chinese shipper and its forwarder, alleging at least a beneficial ownership interest in another Mercedes SUV, sought an interlocutory injunction directing that the vehicle be discharged into its custody and control or that the vehicle be returned to the South Korean disport for onwards delivery to China. The vehicle in this instance had already been returned to Canada by the ocean carrier, allegedly by order of Canada Border Services Agency (CBSA), an order argued to be unlawful as made in relation to property outside Canadian territory and jurisdiction.

Mercedes this time stepped in as intervener after becoming aware of the injunction application.

The Court held on the same principle as per the earlier case that the Plaintiffs failed on the first branch of the test; they had not shown a strong prima facie case (this also being an application for a mandatory interlocutory injunction) on the merits. The Court noted, without deciding it, the disputed-ownership issue. Nor was it clear whether CBSA had issued a directive as such, or merely a request which the carrier had voluntarily complied with.

The Court spent relatively more ink in this judgment discussing the irreparable-harm prong of the test, noting that once the vehicle would arrive in Toronto (from the return disport Vanvouver), CBSA would move it to a secure warehouse pending resolution of the title issue and ongoing police investigation. The injunction motion itself would not resolve those issues, but if it were eventually decided that the Plaintiffs had a valid ownership interest that defeated Mercedes’, then the vehicle would be returned to them and there would be no irreparable harm. Conversely, if the Plaintiffs failed to establish a defeating interest in the vehicle, it would be unlikely that their underlying claim against the carrier and CBSA would succeed, and again there would be no irreparable harm.

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