October 31, 2023 – Mareva Injunctions

“The court’s jurisdiction to grant the injunction sought is found in s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This section is formulated as follows:

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

The purpose of the Mareva injunction is to tie up the assets of the defendant, pending any judgment adverse to the defendant, so that they would then be available to for execution in satisfaction of that judgment. It is ordering security before judgment: Chitel v. Rothbart, 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540, (Ont. C.A.) at para. 30.

A Mareva injunction can be granted post-judgment: Lamont v. Kent, [1999] O.J. No. 277 (Gen. Div.), at para. 8. When granted post-judgment, the relief is described as a Mareva injunction in aid of execution: Coast to Coast Against Cancer v. Sokolowski, 2016 ONSC 170, at para 5.

The purpose of the Mareva injunction post- judgment but before execution is to prohibit the dissipation of assets: Michael Wilson and Partners Ltd v Emmott, [2019] EWCA Civ 219 (Eng. C.A.), at para 40.

A Mareva injunction can be granted to protect against avoidance of a costs order: Jet West Ltd. v. Haddican, [1992] 1 All E.R. 545, [1992] 1 W.L.R. 487 (Eng. C.A.), considered in Hilltop Group Ltd. v. Katana, [2002] O.J. No. 4136, (Ont. SCJ), at para 19.

In Lamont, supra, Sachs J. set out the requirements for granting a Mareva injunction in aid of execution, as follows, at para.10:

        1. Full and frank disclosure by theplaintiff.
        2. Full and fair particulars of the plaintiff’sclaim.
        3. Assets of the defendant within thejurisdiction.
        4. A risk of removal of those assets by the defendant beforejudgment.
        5. An undertaking by the plaintiff as todamages.”

Da Silva Edgerly v. Edgerly, 2022 ONSC 6170 (CanLII) at 8-13