Court Orders Without Prejudice
What is the meaning of a “temporary without prejudice” Order?
Temporary order
An interim order (“temporary” order in the language of the Family Law Rules) was described by Zuber J.A. in Sypher v. Sypher, 1986 CarswellOnt 282, [1986] O.J. No. 536, 2 R.F.L. (3d) 413, dismissing an appeal from an interim spousal support order:
At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.
At trial, after a full investigation of the facts, a trial judge may well come to the conclusion that a substantially different order should be made. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat the terms after trial. This is not so. The trial judge’s discretion is unfettered and his judgment will be rendered on a full investigation of the facts.
Without prejudice order
“Without prejudice”, endorsing an order, was defined by the Ontario Court of Appeal in Ternoey v. Goulding (1982), 35 O.R. (2d) 29, [1982] O.J. No. 206, 1982 CarswellOnt 246, 132 D.L.R. (3d) 44, 25 R.F.L. (2d), 113 (Ont. C.A.) at paras. 24, 25:
The respondent submits that the words “without prejudice” do not operate to freeze time limitations or suspend any other application of the law, but simply prevent the respondent from raising the defence of res judicata and that the endorsement should be given its plain meaning….
… the respondent’s position is the correct one.
At para. 27, they quoted the decision of the Supreme Court of Alabama in Palmer v. Rucker (1972), 268 So. 2d 773:
The words “without prejudice” in their general adaptation, when used in a decree, mean that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another suit as if no suit had ever been brought … When the words ‘without prejudice’ appear in an order or decree, it shows that the judicial act done is not intended to be res judicata of the merits of the controversy.
Maryelle Symons,
Barrister & Solicitor