Summary

A Mareva injunction freezes the assets of the respondent pending determination of the claim. It is also known as a freeze order. The Mareva injunction prevents a respondent from secreting assets out of the Court's jurisdiction to frustrate enforcement. The name comes from Mareva Compania Naviera SA v International Bulkcarriers SA (1975), 2 Lloyd's Rep. 509.

A Mareva injunction directs the respondent to not dispose of assets. Breaching the order amounts to contempt of court. But the injunction itself does not otherwise prevent the respondent from disposing of the assets. A Mareva injunction does not give assets to the moving party, nor does it give the moving party a lien on the respondent’s assets. It gives no priority to the moving party over other creditors, and it does not affect the laws relating to insolvency. 

Legal Requirements

In Chitel et al. v. Rothbart et al., 1982 CanLII 1956 (ON CA), the Ontario Court of Appeal set out the following guidelines for granting a Mareva injunction:

1. The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know.
2. The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant.
3. *The plaintiff should give some grounds for believing that the defendants have assets in the jurisdiction.
4. The plaintiff should give some grounds for believing that there is risk of the assets being removed before the judgment or award is satisfied.
5. The plaintiff must give an undertaking as to damages.

*More recently, in SFC Litigation Trust (Trustee of) v. Chan, 2017 ONSC 1815, the court took a more flexible approach. The court found that a Mareva injunction can be granted even if the defendant does not have assets in the jurisdiction.

A Mareva injunction operates in personam, meaning the injunction is directed toward the respondent in person and not to the respondent’s assets.

Leading Cases:

• Mareva Compania Naviera SA v International Bulkcarriers SA (1975), 2 Lloyd's Rep. 509
• Aetna Financial Services Ltd. v. Feigelman, 1985 1 SCR 2
• R v Consolidated Fastfrate Transport Inc., 1995 CanLII 1527 (ON CA)
• SFC Litigation Trust (Trustee of) v. Chan, 2017 ONSC 1815

Model Orders

AB_Model Mareva injunction

BC_Model Mareva injunction

ON_Model Mareva injunction

Summary

An Anton Piller order is sometimes called a “civil search warrant”. The order gives the moving party the right to attend at the respondent’s location unannounced to search for and seize evidence. It is granted where, contrary to the general obligation of all parties to disclose all relevant evidence, there is a real risk that evidence will not be provided or will be destroyed by the respondent. 

An Anton Piller order is meant to preserve evidence, not to enable a “fishing expedition”. 

Anton Piller orders are increasingly being sought due to the relative ease of destroying or moving data in an electronic world. 

As with all ex parte orders, the usual ethical obligations of full and frank disclosure apply. 

The name comes from a decision of the English Court of Appeal in Anton Piller K.G. v. Manufacturing Processes Ltd., [1976] Ch. 55 (C.A.). 

Legal Requirements

The criteria for granting an Anton Piller order are:

1. The plaintiff demonstrates a strong prima facie case,
2. The defendant’s alleged misconduct is very serious,
3. There is clear and convincing evidence that the defendant possesses incriminating documents, 
4. There is a real possibility that the defendant may destroy the incriminating documents

The plaintiff should provide an undertaking to pay damages in the event the order is unwarranted or wrongfully executed.

In Celanese Canada v. Murray Demolition Corp., 2006 SCC 36, at para 40, the Supreme Court of Canada provided additional guidance about the preparation of the order. The order should do the following:

• Appoint an independent supervising solicitor (ISS) as a neutral officer of the court to explain the order to the defendant, supervise the search, and provide an objective report to the court.
• Be no wider than necessary, and clear about technical or financial evidence, including the form (electronic, physical) of the expected evidence. 
• Set out the procedure for dealing with solicitor-client privilege or other confidential materials.
• Limit the use of the seized items to use in the pending litigation.
• State that materials seized should be returned as soon as practicable.
• Require the search to occur during normal business hours when counsel for the defendant is available for consultation.
• Name the persons to conduct the search.
• State that the responsibilities of the supervising solicitor continue beyond the search itself

Leading Cases:

• Anton Piller KG v. Manufacturing Process Ltd. [1976] Ch 55 1 ALL E.R. 779.
• Celanese Canada v. Murray Demolition Corp., 2006 SCC 36.
• Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201.

Model Orders

• AB_Model Anton Piller order
• BC_Model Anton Piller order
• ON_Model Anton Piller order

Summary

A Norwich order allows a potential plaintiff to obtain evidence from a third party for the purposes of deciding whether to start a lawsuit. It is a pre-action mechanism, occurring even before a statement of claim is issued. The order compels the third party to preserve and provide evidence to the potential plaintiff. This discretionary remedy is used when critical information is unknown to the potential plaintiff, and the information is necessary to determine whether to commence litigation.

Legal Requirements

The test for obtaining a Norwich order was established in Alberta (Treasury Branches) v Leahy, 2000 ABQB 575, at para 106, and affirmed in 2002 ABCA 101. To obtain a Norwich order, the person seeking the order must demonstrate:

1. a bona fide claim, 
2. the third party is in some way involved in the disputed matter,
3. the third party is the only practical source of information, 
4. *the third party will be reasonably compensated for their legal costs and the expense of complying with the order, and
5. the public interests favouring disclosure outweigh the legitimate privacy concerns. 

As with all ex parte orders, the usual ethical obligations of full and frank disclosure apply. 

*Copyright holders often seek Norwich orders against internet service providers. In complying with the Norwich order, the provider’s tasks often overlap with the provider’s obligations under the Copyright Act’s “notice and notice” regime. Under the copyright regime, the provider bears the cost, but under the Norwich order the copyright holder bears the cost. In Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38 the Supreme Court of Canada clarified that the following implied obligations fall under the copyright regime and the associated costs are not recoverable under the Norwich order: 

1. determining, for the purposes of forwarding notice electronically, who was assigned the impugned IP address at the time of the alleged infringement. 
2. taking all steps necessary to verify the internet service provider has done so accurately; and
3. taking all steps necessary to verify the accuracy of records that would permit the internet service provider to identify the name and physical address of the person to whom notice was forwarded.

Leading Cases:

• Alberta (Treasury Branches) v Leahy, 2000 ABQB 575, at para 106, aff’d in 2002 ABCA 101
• Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38