What is the test for determining whether a party can obtain damages from a party who infringes the same law?
Manitoba, Canada
The following excerpt is from J-Sons Inc. v. N. M. Paterson & Sons Limited, 1999 CanLII 14127 (MB QB):
In Lewicki et al v. Dixie Electric Ltd. (1995), 61 C.P.R. (3d) 75, at p. 78, the court set out a three part test: (1) there is a serious issue to be tried, or there is a prima facie case; (2) the harm to the applicant, caused by the defendant's infringement, is irreparable and non-compensable in damages; and (3) the balance of convenience lies with the applicant; where the factors appear to be evenly balanced, it is preferable to maintain the status quo.
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