Attachment orders

(freezing injunctions)
Q&A: Canada
By Daniel S. Murdoch

Co-written by Vlad Calina. Reproduced from Practical Law,

with the permission of the publishers.
All contents copyright. Reprinted with permission.

Stikeman Elliott LLP / stikeman.com

 Attachment orders (freezing injunctions) Q&A: Canada
by Daniel S Murdoch and Vlad A Calina, Stikeman Elliott LLP

This document is published by Practical Law and can be found at: uk.practicallaw.com/W-019-4113
To learn more about legal solutions from Thomson Reuters, go to legal-solutions.co.uk

Canada-specific information on the law relating to attachment orders including the grounds on RESOURCE INFORMATION
which such orders are passed, the type of assets which can be attached, the procedure for applying
for an attachment order and their enforcement. RESOURCE ID
This Q&A also covers the scope of attachment orders in relation to overseas assets and in support W-019-4113
of foreign proceedings.
RESOURCE TYPE
Note that all interim injunctions that restrain a party from disposing of or dealing with their assets
Country Q&A
until judgment can be obtained or enforced (also known as freezing orders/injunctions in some
jurisdictions) will be referred to as “attachment orders” in this Q&A. STATUS

This Q&A is part of Cross border dispute resolution. Law stated as at 28-Feb-2019

JURISDICTION
Canada
Part 1: Attachment orders in However, a high bar must typically be met to
obtain these remedies, and they are only granted
aid of domestic proceedings in exceptional cases.

1. Under what circumstances can Mareva injunctions

local courts grant an attachment The Mareva injunction is an equitable injunction
order to preserve assets pending that restrains a defendant from dealing with
judgment or final order? Are there specific assets pending the determination of a legal
claim. The name originates from the first case in
any alternative remedies? which an equitable injunction of this nature was
granted: Mareva Campania Naviera SA v International
Availability Bulk Carriers SA ([1975] Lloyd’s Rep 509). It is
generally available to any litigant in a civil dispute
Depending on the local jurisdiction, potential judgment in any Canadian jurisdiction. A court’s power to
creditors usually have two primary options to preserve issue a Mareva injunction derives from its equitable
an adversary’s assets pending judgment or final order:  jurisdiction, supplemented by statutory provisions
• The equitable asset freezing injunction (that is, as to injunctive relief and local civil rules governing
the Mareva injunction). interim/interlocutory relief (Mareva at paragraph
510; see also, among other enabling statutes, the
• Pre-judgment orders available under statute Courts of Justice Act, R.S.O. 1990; chapter 43, section
(“statutory orders”). 101, (Ontario), Law and Equity Act, R.S.B.C. 1996;
chapter 253, sections 39(1)-(2) (British Columbia),
In Canada, the Mareva injunction is the ordinary
Judicature Act, R.S.A. 2000). 
remedy for preserving assets pending judgment or
final order. Indeed, some jurisdictions (such as Ontario) The Mareva injunction is an extraordinary remedy,
do not offer equivalent statutory remedies. and will only be granted in rare and appropriate
cases, where the circumstances warrant it. The Mareva
Depending on the nature of the asset at issue and the
injunction may be obtained against third parties. 
jurisdiction, lesser-used remedies may be available,
such as: Each common law Canadian jurisdiction has its
own line of common law authority, and while there
• A possession order.
is a substantial degree of convergence, there are
• A preservation order. differences at the margins in terms of ease of obtaining
a Mareva injunction. For example, some jurisdictions,
• A garnishment order.
such as British Columbia, take a more flexible
• A certificate of pending litigation.  approach as to its availability (see, for example, 

Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2019. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
Tracy v Instaloans Financial Solutions Centres (BC),  There are five traditional criteria that must be
2007 BCCA 481, paragraphs 28 to 47; andClark et al v
Nucare PLC, 2006 MBCA 101, paragraphs 36 and 38,
which discusses the differences, on the one hand,
between Ontario and most other Canadian provinces
and, on the other hand, British Columbia).
Statutory order
The availability of pre-judgment statutory attachment
orders depends on the jurisdiction in which the
litigation is brought. The following jurisdictions have
statutory regimes empowering courts to make orders,
among other things, prohibiting judgment debtors
from dealing with their exigible property (that is, real
and personal property of the potential judgment debtor
that may be seized in order to satisfy a judgment) in
whole or in part:  circumstances) (see Question 12). While the plaintiff
• Alberta.
• British Columbia.
• Manitoba.
• Newfoundland.
• Labrador.
• Prince Edward Island.
• Saskatchewan.
• Northwest Territories.
• Nunavut.
• Yukon.
The grounds that must be met to obtain these orders
varies by jurisdiction.
The terminology used to refer to these orders also
varies by jurisdiction (for example, Alberta and the
Northwest Territories refer to attachment before
judgment; British Columbia and Prince Edward Island
refer to garnishment before judgment; Saskatchewan
refers to preservation orders).  merit” (SFC Litigation Trust at paragraph 29). The
Enabling statutes may require that assets be located
within the jurisdiction. These orders are ordinarily
available against third parties (such as banks). 
Grounds
Mareva injunctions
To obtain a Mareva injunction, a potential judgment
creditor must provide evidence that both:  as much precision as possible so that, if a Mareva
• It has a strong prima facie case.
• There is a risk of imminent removal or dissipation
of assets.
(Chitel v Rothbart [1982] O.J. No. 3520 (Ont. C.A.);
Aetna Financial Services Ltd v Feigelman et al [1985]
1 S.C.R. 2.)
2 Practical Law
established to make out a case for a Mareva injunction.
These are that the potential judgment creditor must:
• Make full and frank disclosure of all material
matters (particularly if the relief is sought on an
ex parte basis).
• Give particulars of their claim against the defendant,
stating the grounds on which the claim is founded,
the amount claimed, and the points made against
the claim by the defendant (particularly if the motion
is brought on an ex parte basis).
• Give “some ground” to demonstrate that the
defendants have assets within the jurisdiction
of the court (but this is not definitive, given the
availability of “worldwide” injunctions in certain
must provide supporting grounds for its belief that
the defendant has some assets within the jurisdiction
to obtain the injunction in the first place, the Mareva
injunction is not limited to those named assets (see,
for example, Cretanor Marine Co Ltd v Irish Marine
Management Ltd [1978] 1 WLR 966 at 973 (CA)).
• Give some grounds to demonstrate that there is a
risk of the assets being removed before the judgment
or award is satisfied.
• Provide an undertaking as to damages (Cosimo
Borrelli, in his capacity as trustee of the SFC Litigation
Trust v Allen Tak Yuen Chan, 2017 ONSC 1815 (Div Ct)
at paragraph 17).
Although a potential judgment creditor typically
must meet all five criteria to succeed, in rare cases it
is still possible to obtain a Mareva injunction while
being unable to establish one or more items (SFC
Litigation Trust, paragraphs 22-26). Depending on the
jurisdiction, this is a more recent development. 
As a Mareva injunction is an equitable remedy, its
availability may evolve “as facts and circumstances
ultimate question for courts is whether it is just and
equitable in all the circumstances of a case (R v
Consolidated Fast Frate Transport Inc (1995) 24 O.R.
(3d) 564 (CA) at paragraph 140). 
Typically, this requires demonstrating that the potential
judgment debtor is attempting to arrange its assets
in such manner as to defeat a potential judgment.
However, a potential judgment creditor must establish
the assets to be subject to the Mareva injunction with
injunction is warranted, it is directed towards specific
assets (Aetna at paragraph 57).
Statutory orders
In the jurisdictions where statutory orders are available,
the grounds for obtaining the orders vary, although
there is considerable similarity among the jurisdictions.
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
Generally speaking, to secure a pre-judgment statutory
order, a potential judgment creditor must satisfy the
court, on sworn evidence, that there are reasonable
grounds to believe that the judgment debtor is dealing
with its exigible property in a manner that is likely to
seriously hinder the claimant in the enforcement of an
eventual judgment. 
Certain jurisdictions impose additional requirements
for statutory orders (for example, that the damages
being claimed in the proceedings must be liquidated)
(see, for example, Court Order Enforcement Act, R.S.B.C.
1996, chapter 78, section 3 (British Columbia)). These
additional requirements can restrict the circumstances
in which the statutory order is available in comparison
to the Mareva injunction. On the other hand, these
jurisdictions may also relax other requirements for
statutory orders (for example, that an undertaking as
to damages must be given).
Stage of the proceedings
Potential judgment creditors can apply for a Mareva
injunction in any jurisdiction where legal proceedings
have been commenced or are imminent, with or
without notice to the other side. A Mareva injunction
may be sought at any stage of the proceedings,
including after trial in aid of execution, although this
is more atypical. The rule is similar with respect to
statutory orders, which can be sought at any stage
of proceedings.
Alternative remedies
In addition to Mareva injunctions and pre-judgment
statutory orders, other remedies used to preserve
assets pending judgment include:  (www.courts.gov.bc.ca/supreme_court/practice_and_
• Possession orders (or proprietary injunctions),
permitting interim possession to be taken subject
to adjudication of title.
• Certificates of pending litigation, a form of notice
registered on title to real property warning that
litigation is ongoing to resolve disputed title issues
(which makes it difficult to dispose of the property). 
The procedure for obtaining these alternative remedies
varies depending on the jurisdiction. Other remedies
(such as pre-judgment garnishment orders) may also
be available, depending on the jurisdiction.  • Saskatchewan Rules, Form 6-5, Notice of
2. What is the procedure for
applying for an attachment order?
Procedure for applying for an
attachment order
3 Practical Law
Civil procedure rules
Procedural rules vary by jurisdiction and depending on
the nature of the attachment order, as such applications
are governed by the local rules of procedure. Regardless
of the order being sought, the potential judgment debtor
will have to file case-initiating documents to start legal
proceedings (or to indicate that they are imminent),
and provide evidence by way of affidavit satisfying the
grounds that are required to obtain the specific order
in question. Generally, case-initiating documents are
filed but not served (or served on short notice), and the
first matter is heard ex parte (or effectively ex parte with
limited notice). 
Standard form application or draft order
There is no standard form application for a
Mareva injunction or pre-judgment statutory orders.
However, Canadian courts do have standard form
notices to the adversary in litigation of an intention to
seek interlocutory (or interim) relief: the notice of motion
or notice of application (the name varies by jurisdiction). 
The Commercial List of the Ontario Superior Court of
Justice (a specialised court list for complex commercial
litigation in Toronto) provides on its website a draft
model order for Mareva injunctions, which is widely
used by commercial litigants (www.ontariocourts.ca/scj/
files/forms/com/mareva-order-EN.doc). The theory and
approach behind this model order is to give the courts
and practitioners a guide for the use of these orders,
while recognising that the model order must be tailored
to suit the particular circumstances of each case before
the court. Other jurisdictions, such as British Columbia,
also have model draft orders for Mareva injunctions
procedure/practice_directions/civil/Model_Order_for_
Preservation_of_Assets.docx, for British Columbia).
In the other jurisdictions, there are standard form
notices of motion (or application) but no draft model
order (or equivalent). These standard form notices are
included as part of local rules of procedure, found an
as an appendix to the specific rules in issue:
• Alberta Rules Form 27, Application – Civil.
• British Columbia Rules, Form 32 – Notice of
Application.
Application.
• Manitoba Rules, Form 37A – Notice of Motion.
• Ontario Rules, Form 37A – Notice of Motion. 
• New Brunswick Rules, Form 37A – Notice of Motion.
• Nova Scotia Rules Forms 23.03 (Notice of Motion)
and 23.14 (Ex Parte Motion).
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
• Prince Edward Island Rules, Form 37A –
Notice of Motion.
• Newfoundland Rules, Interlocutory Application
(Inter Partes and Ex Parte).
• Yukon Rules, Form 52, Notice of Application.
• Northwest Territories Rules, Form 25 – Notice of
Motion (the Nunavut Rules adopt this wholesale).
Disclosure of value and location
The party seeking a Mareva injunction must establish
the assets to be frozen with as much precision as
possible so that, if a Mareva injunction is warranted,
it is directed towards specific assets or bank accounts
(Aetna at paragraph 57). Even so, there is no express
requirement that the applicant provide the exact
value of those assets or their precise location.
Ordinarily, the party must provide evidence that the
assets it seeks to freeze are in the jurisdiction; but,
as discussed in Question 12 regarding “worldwide”
Marevainjunctions, this is not always a condition
precedent. The disclosure requirements for statutory
orders vary by jurisdiction but, as a general rule,
the statutory disclosure requirements track the
common law disclosure requirements from the
Mareva injunction cases.  an undertaking as to damages (that is, to indemnify the
Court with jurisdiction to grand
attachment orders
The proper forum for an attachment order is the local
court of general jurisdiction; respectively: 
• The Alberta, New Brunswick, Nova Scotia, Manitoba
and Saskatchewan Courts of Queen’s Bench.
• The British Columbia, Newfoundland and Labrador,
and Prince Edward Island, Yukon and Northwest
Territories Supreme Courts.
• The Ontario and Quebec Superior Courts of Justice.
• The Nunavut Court of Justice.
Supporting evidence
For a Mareva injunction, the supporting evidence
that should be presented to the court is based on
the grounds required to obtain it, and depends on
whether the motion or application is made on notice
to the other party. Specifically, the party seeking a
Marevainjunction should provide affidavit evidence:  As a consequence, courts are not required to hear
• Demonstrating a strong prima facie case on
the merits.
• Providing “some ground” to demonstrate that
the responding party has assets in the jurisdiction
(subject to the comments on a “worldwide”
Mareva injunction at Question 12).
4 Practical Law
• Providing “some ground” to demonstrate that
there is risk of the assets being removed before the
judgment or award is satisfied. 
For the statutory remedy, the precise evidence required
varies by jurisdiction, but generally overlaps with the
evidence required on a Mareva injunction. 
Duties of disclosure
The duties of disclosure are based on whether the relief
is sought without notice. If so, there are enhanced
duties of disclosure requiring applicants to: 
• Make full and frank disclosure of all material matters.
• State fairly the points made against the underlying
claim by the defendant. 
Generally, and while each jurisdiction may phrase
it differently, these duties apply to obtaining
pre-judgment statutory orders, and mirror the
Mareva injunction requirements. 
Must the applicant provide
undertakings to the court
Parties seeking a Mareva injunction are required to give
party being enjoined from the effect of such an order
if the claim underlying it fails on the merits) (Chitel v
Rothbart, (1982) O.R. (2d) 513 (CA) at paragraph 44). 
Most, but not all, statutory remedies require that an
undertaking as to damages be given. British Columbia
is a notable exception: undertakings as to damages
are not required as a condition for the issuance of a
garnishment order, and a potential judgment creditor
is not generally responsible for any harm that may
be caused to a defendant as a result of an improperly
issued garnishment order (see, for example, Politeknik
Metal San ve Tic A.Ş. v AAE Holdings Ltd, 2015 BCCA 318
at paragraph 22).
Notice requirements
Notice requirements vary by jurisdiction, and are
prescribed by the local rules of civil procedure. As a
general rule, however, a party seeking an attachment
order is entitled to seek the relief on with or without
notice basis, irrespective of whether legal process has
been commenced. 
the responding party before issuing the attachment
order. However, local rules of civil procedure provide
that an order made without notice to the counterparty
will expire after a short period of time (allowing for
proper notice to be provided while preserving assets
if the court is satisfied there is a risk that assets may
be dissipated). In other words, an order can be passed
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
without notice to the defendant in urgent cases,
even on the same day (but this would require an
extraordinary case).
Court fee
There is no specific court fee for a Mareva injunction
or statutory order. Parties must pay the ordinary filing
fee for a motion (or application, as the terms may vary)
in the jurisdiction in which the injunction is sought.
The fees are not substantial in the grand scheme of
commercial litigation (considering the types of entity
that ordinarily seek asset freezing orders). For example,
this fixed fee is CAD80 in British Columbia, CAD50 in
Alberta, and CAD160 in Ontario.  Jointly owned assets
3. What type of assets may be
subject to an attachment order?
Are there any kinds of assets that
are considered exempt from the
purview of an attachment order?
Type of assets
As a general rule, any exigible property of the
potential judgment debtor may be subject to a
Mareva injunction. There is no type of asset that is
automatically exempt from its purview. The order
may apply to various types of assets, including bank
accounts and real property.  4. What types of attachments
Some cases have, however, found that the liquidity of
an asset is a factor to be considered when granting
such an injunction (see, for example, Massa v
Sualim, 2013 ONSC 7926 at paragraph 29 (as regards
the quantum to be made subject to it)). Further, while
no assets are exempt from the application of a Mareva
injunction, courts will build safeguards into the terms
of the order to preserve an individual’s ability to pay
“reasonable living expenses, debts and legal costs”
(Canadian Imperial Bank of Commerce v Credit Valley
Institute of Business and Technology, (2003) 119 A.CW.S.
(3d.) 826 (Ont. S.C.J.) at paragraph 26, cited with
approval in Metalworks Canada Ltd v Warrack, 2014
ABCA 389 at paragraph 10). 
The assets that may be subject to statutory orders
vary by jurisdiction, although there is substantial
convergence. Generally, as with Mareva injunctions,
any exigible property may be made subject to the pre-
judgment statutory orders. Typically, such orders are
sought with respect to tangible rather than intangible
assets, as the mechanism by which the latter order
could be given effect is more difficult to implement.  5. What actions can a party take to
Trustee or nominee interest
The Mareva injunction includes within its scope all of
the defendant’s assets, whether or not they are held
in its name or solely owned. For the purpose of this
5 Practical Law
order, this includes any asset which the defendant
has the power, directly or indirectly, to dispose of
or deal with as if it were its own. Defendants are
regarded as having such a power if a third party holds
or controls the assets in accordance with its direct or
indirect instructions (Federal Bank of the Middle East
Ltd v Hadkinson [2000] 1 WLR 1695 (English Court of
Appeal)), cited with approval by Donald J A of the British
Columbia Court of Appeal in Peel Financial Holdings Ltd
v Western Delta Lands Partnership, 2003 BCCA 551 (in
Chambers)). Although it varies by jurisdiction, there is a
similar convergence with respect to statutory orders. 
The Mareva injunction applies, as indicated above, to
any assets of the defendant, whether they are solely or
jointly owned.
Exempt assets
While there are no specific asset types that are
automatically exempt from a Mareva injunction (or
statutory order), the weight of authority is such that
assets should not be frozen to the extent that they
prevent the party subject to the injunction (or order)
from paying reasonable living expenses, debts and
legal costs (Metalworks at paragraph 10, citing CIBC v
Credit Valley at paragraph 26). 
order are issued by the courts in
your jurisdiction?
Types of attachment order
The Mareva injunction is limited to the value of
the potential judgment creditor’s prima facie claim,
leaving the potential judgment debtor free to deal with
the balance of its assets (which may include interest).
As indicated at Question 12, the Mareva injunction can
apply to overseas assets. There is no restriction as to
the location of the assets in relation to the availability
of the injunction. 
There are specific attachment orders dealing with
specific property, that is, possession orders and
certificates of pending litigation). Depending on the
jurisdiction at issue, there are other forms of order
available, such as garnishment orders dealing with
wages (see Question 1).
ascertain the location of the property
or assets of the defendant for the
purpose of an attachment order?
Are there any supplementary orders
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
that can be sought by the applicant
in support of an attachment order
(for example, an order requiring the
respondent to disclose details of
their asset)?
Location of assets
While the precise wording varies by jurisdiction, it is
common practice to include in the court order granting
the Mareva injunction provisions dealing with the
disclosure of information to the potential judgment
creditor. This is a provision typically included in orders
obtained without notice, with the scope being addressed
more fully on the return of the with-notice legal process.
Common relief includes orders stating that:  The form of undertaking (to the extent that it is required)
• The defendant must prepare and provide to the
potential judgment creditor, within a set period of
time from the date of the order, a sworn statement
describing the nature, value and location of its assets
worldwide, whether in its own name and whether
solely or jointly owned.
• The defendant must submit to examinations under
oath, within a set period of time from the date of
delivery of the sworn statement.  paying reasonable living expenses, debts and legal
• Refusal to provide the information referred to above
constitutes contempt of court, and may render the
defendant liable to be imprisoned, fined or to have
its assets seized (Pharma Investment Ltd v Clark, at
paragraph 16; but see CBS United Kingdom Ltd v
Lambert [1983] Ch 37, [1982] 3 All ER 237 (CA)).
Supplementary orders
The court has the inherent power to make such
ancillary orders as appear to be just and convenient to
ensure that a Mareva injunction is effective to achieve
its purpose. To that end, courts may make an order
of “discovery in aid”, which is an injunction where the
potential judgment creditor has grounds for believing
that the defendant has assets within the jurisdiction,
but has insufficient particulars of the whereabouts of
such assets to make the injunction effective.
6. Are there any measures which
can protect the defendant from the
risk of oppression and injustice which
may be caused by the enforcement
of an attachment order?
Undertaking/security
Parties seeking a Mareva injunction must give the
defendant an undertaking as to damages to indemnify
the party being enjoined from the effect of the order
if the claim underlying it fails on the merits. It is
6 Practical Law
uncommon for orders to include express protection for
third parties (such as banks). The preferred form of the
undertaking as to damages varies by jurisdiction, but
its substance is the same. 
The same rules apply, with the notable exception of
British Columbia, to the various statutory orders. 
An undertaking is not required if the particular
nature of the order does not entail it (as is the case
with statutory orders in British Columbia), but this is
uncommon. Typically, statutory orders require either
that an undertaking as to damages be given or that an
amount be paid into court as security. 
Form or amount of undertaking/security
is not prescribed. It is left to the parties (under the
court’s supervision) to devise an acceptable form.
Exceptions to the attachment order
Whether in regards to a Mareva injunction or statutory
order, the weight of authority is such that assets
should not be frozen to the extent that they prevent
the party subject to the injunction (or order) from
costs (see Question 3). These are ordinarily not seen
as exceptions but rather as (reasonable) limits on the
order being made. 
7. How long are attachment orders,
including those obtained without
notice to the defendant, typically
valid for?
Duration of the attachment order
The duration of an attachment order varies by
jurisdiction. The duration of a Mareva injunction is
prescribed under the local rules of procedure and,
typically, an injunction that is granted without notice
has a maximum duration of ten days, but may be
extended: 
• Indefinitely, on a motion with notice to every party
affected by the order.
• For one to ten days more, on a further without
notice motion.
(See, for example, Rule 40, Ontario Rules, New
Brunswick Rules, and Prince Edward Island Rules.)
Similarly, the duration of the statutory order varies
by reference according to its enabling legislation
(not all of which expressly specifies the duration for
these orders, particularly where the jurisdiction for
making the orders is derived from the local rules of
civil procedure). In Alberta and Saskatchewan:
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
• A remedy that is granted without notice has a
maximum duration of 21 days, although it can
be renewed or extended.
• A remedy that is granted with notice has a
maximum duration of 60 days, although it can
be renewed or extended.  institutions that hold monies or other assets of the
(Civil Enforcement Act, R.S.A. 2000, chapter C-15,
sections 17-18 (Alberta); Enforcement of Money
Judgments Act, S.S. 2010, chapter E-9.22, sections
7-8 (Saskatchewan).)
8. Does the attachment order create
any rights (such as proprietary right
or lien) over the attached asset(s) in
favour of the applicant against the
other creditors?
Proprietary right/lien
Unsecured creditors holding a Mareva injunction
cannot hold a preferred position over other claimants
(Aetna at paragraph 25). Although the injunction
prevents a defendant from arranging its assets in such
a fashion as to defeat judgment, it does not create any
proprietary rights (or lien) over the defendant’s assets
that would be enforceable in insolvency proceedings
(they are not even security for the anticipated judgment
debt) (Aetna).
The purpose of the Mareva injunction is limited. It is
meant to restrain a defendant from taking unusual
steps to put its assets beyond the reach of the
potential judgment creditor in an attempt to thwart
any judgment the potential judgment creditor might
eventually obtain. It is not meant to give the potential
judgment creditor any priority over other creditors
of the defendant, nor is it designed to prevent the
defendant from carrying on business in the usual
course and paying other arm’s length creditors
(CIBC v Credit Valley at paragraph 17). 
The same analysis applies with respect to statutory
orders (that is to say, they do not create any rights such
as a proprietary right or lien that would grant priority
as against other creditors in insolvency). 
9. Can an attachment order be
issued against a third party in
possession of assets that are subject
to an attachment order? What are
the legal obligations of a third
party that has been served with an
attachment order (and/or any other
supplementary/ancillary order)?
7 Practical Law
Obligations of a third party
The Mareva injunction can be issued against a third
party in possession of assets that are subject to the
injunction. Typically, the order granting the injunction
targets the (known) bank(s) or other financial
defendant. Provided there is sufficient evidentiary
foundation, other third parties holding assets on
behalf of the defendant may also be targeted by the
Mareva injunction.
While it varies by jurisdiction, third parties targeted by
the Mareva injunction are ordinarily required to disclose
and deliver up to the potential judgment creditor
any and all records held concerning the defendant’s
assets and accounts, including the existence, nature,
value and location of any monies or assets or credit,
wherever situated, that are held by that third party on
behalf of the defendant. The plaintiff must ordinarily
bear any costs associated with a search of bank records
to determine the whereabouts and amounts of the
defendant’s assets on deposit (Searose Ltd v Seatrain
UK Ltd [1981] 1 WLR (QB)).
10. What avenues of appeal and
discharge are available to parties
against an attachment order?
Can third parties (such as banks)
approach the courts to appeal, vary
or discharge an attachment order?
Appeal
Parties subject to a Mareva injunction have a right
of appeal to the level of appellate court that is
responsible for appeals from interlocutory/interim
orders. This is:
• In Ontario, the Divisional Court (a special sitting of
the Superior Court) rather than the Court of Appeal. 
• In all other jurisdictions, the Court of Appeal. 
The party subject to the order may appeal on the
basis of an alleged error of fact, an alleged error of
law, or both. 
Vary/discharge
The procedure to vary or discharge a Mareva injunction
varies by jurisdiction, being subject to local civil
rules of procedure, and is typically written into the
terms of the order itself. The applicable test varies
depending on the basis on which variation or discharge
is sought. The commonly applied test for variation to
permit payments out of accounts or assets frozen by
interlocutory Mareva injunctions is as follows:
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
• The defendant has established on the evidence
that they have no other assets available to pay their
expenses other than those frozen by the injunction.
• The defendant has shown on the evidence that
there are assets caught by the injunction that are
from a source other than the potential judgment
creditor (that is, assets that are subject to a Mareva
injunction, but not a proprietary claim).
• The defendant has exhausted all non-proprietary
assets frozen by the Mareva injunction in paying
their reasonable living expenses, debts and legal
costs and is therefore now entitled to look to the
assets subject to the proprietary claim.
If the defendant has met these three criteria and still
requires funds for legitimate living expenses and
to fund their defence, the court must balance the
competing interests of:
The potential judgment creditor, in not permitting the
defendant to use the potential judgment creditor’s
money for the defendant’s own purposes.
The defendant, in ensuring that they have a proper
opportunity to present their defence before assets in
their name are removed from them without a trial.  There is no strict requirement that the assets that are
In weighing the interests of the parties, it is relevant
for the court to consider the strength of the potential
judgment creditor’s case, as well as the extent to which
the defendant has put forward an arguable case to
rebut the potential judgment creditor’s claim (CIBC v
Credit Valley at paragraph 26).
Third parties
The ability of a third party to apply to vary (or
discharge) a Mareva injunction varies based on the
jurisdiction and the terms of the order itself. Typically,
the order granting the Mareva injunction will permit
anyone served with or notified of the order to apply to
the court to vary or discharge it, subject to a reasonable
notice period.  The jurisdictional basis for granting such an order is
11. Are there any circumstances in
which an attachment order cannot
be granted by the court?
Circumstances in which an attachment
order is unavailable
There is no expressly enumerated circumstance in
which an attachment order, broadly defined, cannot be
granted by a Canadian court. However, these orders,
whether it is a Mareva injunction or other order, are at
their core discretionary and extraordinary remedies.
Canadian courts, in general, are reluctant to interfere
8 Practical Law
with the parties’ normal business arrangements
and affect the rights of other creditors merely on the
speculation that the potential judgment creditor will
ultimately succeed in its claim and have difficulty
collecting on its judgment. The result is that these
remedies are rarely granted, and their availability
is policed by the onus that courts require the party
seeking them to meet. 
Part 2: Attachment orders with
respect to overseas assets
12. What happens if the defendant
has insufficient assets within the
jurisdiction to meet the claim?
Do courts in your jurisdiction issue
attachment orders with respect
to overseas assets? 
Mareva injunctions
to be subject to the Mareva injunction be located in
the jurisdiction in which the injunction is being sought.
Canadian courts will, if the circumstances warrant
it, issue a “worldwide” Mareva injunction applying
to the assets of any person, located anywhere in the
world, so long as the person that is subject to it is
properly made a party to proceedings in Canadian
courts (see Mooney v Orr, [1994] B.C.J. No. 2652
(B.C.S.C.) and Pharma-Investment Ltd. v. Clark, [1997]
O.J. No. 1334 (Gen. Div.) for a discussion of the scope of
a Mareva injunction). The applicable test is the same as
for a standard Mareva injunction. 
The courts grant Mareva injunctions on a worldwide
basis with increasing frequency, in response to an
increasingly globalised and international economy.
the same as for granting a Mareva injunction in the
ordinary course; to ensure that a judgment can be
enforced in the exceptional circumstances where the
potential judgment creditor, after making the required
full and frank disclosure, establishes a strong prima
facie case on the merits. On occasion, this means
restricting a potential judgment debtor from dealing
with property located outside the jurisdiction. 
Statutory orders
For statutory orders, whether the order has
extraterritorial effect turns on the express language of
the statute creating the attachment order. Generally
speaking, these orders are not restricted based on the
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada
location of assets but rather based on whether the
party to be made subject to the order is a proper party
to the Canadian proceedings. 
Part 3: Attachment orders in aid
of foreign court proceedings
13. Do courts in your jurisdiction
grant attachment orders in support
of legal proceedings in another
jurisdiction?  additional foreign procedures (or formalities) that
Provided that a party can otherwise establish
jurisdiction over the person in respect of whom a
Mareva injunction is sought (for example, having
assets in the issuing jurisdiction), Canadian courts
will exercise their discretion to grant such relief in
the same way as when considering an ordinary
Mareva injunction.  for assets outside the jurisdiction, as opposed to assets
Depending on the jurisdiction, statutory orders are
specifically designed to support legal proceedings in
foreign jurisdictions (for example, this is the case in
Alberta (Civil Enforcement Act, R.S.A. 2000, chapter
C-15, section 17(b) (Alberta)). The requirements are more
specific; for example, in Alberta the judgment to be
obtained must be one that would be enforceable in
Alberta as a foreign judgment if it were final, and there
must be assets in Alberta.  in Canada is limited only to final money judgments, to
The procedure for applying for a pre-judgment
attachment order, broadly defined, in support of
foreign proceedings is the same as the procedure to
obtain relief in domestic proceedings. 
Part 4: Enforcement of
attachment orders
14. How are attachment orders,
foreign and domestic, enforced
in your jurisdiction? What are the
penalties for breaching the order?
Domestic attachment orders
The procedure for enforcing an attachment order,
broadly defined, varies by the nature of the order
and by jurisdiction. As regards a Mareva injunction,
the process is typically to serve the order on the
financial or other institution in which the assets to
be frozen are located. 
9 Practical Law
Penalties for breach
Breach of the terms of a Mareva injunction or a
statutory order constitutes contempt of court, and may
render the defendant liable to be imprisoned, fined
or to have its assets seized (Pharma Investment Ltd v
Clark, at paragraph 16, but see CBS United Kingdom
Ltd v Lambert [1983] Ch 37 [1982] 3 All ER 237 (CA)).
Depending on the jurisdiction, there may be additional
prescribed penalties for breach of a statutory order. 
Overseas assets
With respect to a Mareva injunction, there are no
must be satisfied to seek recognition of the injunction
in a foreign jurisdiction. These matters are issues of
law in the jurisdiction in which the injunction is being
enforced. There is a convergence in the rules across
the different Canadian jurisdictions. 
With respect to the statutory orders, the relevant
statutes are ordinarily silent as to additional procedures
within the jurisdiction. The approach is similar to that
for a Mareva injunction (provided that these orders can
apply extraterritorially in the first place). 
Foreign attachment orders
Canada has expanded the traditional common law rule
that the recognition and enforcement of foreign orders
include final non-monetary orders, provided that both: 
• The foreign court is entitled to take jurisdiction. 
• The judgment is final.
(Pro Swing Inc v Elta Golf Inc, 2006 SCC 52 at
paragraphs 26-31.)
The courts will consider whether the foreign order is
clear and specific and whether the defendant would be
subject to unforeseen obligations by the recognition
of the foreign order. A foreign attachment order (an
interlocutory non-money order) would be difficult to
enforce in Canada on the basis of this authority. 
Penalties for breach
If a foreign order is enforceable in Canada, then the
ordinary mechanism for doing so is to make a local
Canadian order mirroring its terms (as if it were an
order made in the local jurisdiction). The order can then
be enforced as would an equivalent order made in the
jurisdiction, with the attendant penalties for breach
(namely, contempt).
Reproduced from Practical Law, with the permission of the publishers. For further information visit practicallaw.com
or call +44 20 7542 6664. Copyright ©Thomson Reuters 2018. All Rights Reserved.
 Attachment orders (freezing injunctions) Q&A: Canada

15. If it turns out that the attachment
order should not have been granted,
are damages or is compensation
payable to the defendant? If so, how
will the court go about calculating
what is due? 
Damages
In the case of a Mareva injunction, the courts expect
that an unsuccessful claim will result in the potential
judgment creditor compensating the defendant
for damages incurred. This is settled by way of
undertakings as to damages. It is worth noting that
courts accept undertakings from non-residents with
foreign assets (SFC Litigation Trust at paragraph 17; see
also SolarBlue LLC v Aus, 2013 ONSC 7638 at paragraph
22; Telesis Technologies Inc v Sure Controls Systems
Inc, 2010 ONSC 5288 at paragraphs 61-67). Courts
do not require that damages be calculated when the
undertaking is given, although it is open to the party
resisting the injunction to lead evidence as to the
magnitude of the potential judgment creditor’s loss
(SFC Litigation Trust).
Statutory orders typically mirror the Mareva injunction
and require that the party seeking such an order
give an undertaking to the court as to damages in an
amount that the court considers appropriate (see, for
example, Civil Enforcement Act, R.S.A. 2000, chapter
C-15, section 17(4) (Alberta); The Court of Queen’s Bench
Act, S.M. 1988-89, chapter 4, section 60 (Manitoba)).
In some jurisdictions, such as Manitoba, the enabling
statute expressly contemplates that subsequent
proceedings would be held to determine the extent of
the unsuccessful party’s liability (The Court of Queen’s
Bench Act, S.M. 1988-89, chapter 4, section 62(1)
(Manitoba)). 
The notable exception to this general rule is British
Columbia, where no undertaking as to damages is
required as a condition for the issuance of the statutory
order (see Question 2) (Politeknik Metal San ve Tic A.Ş. v
AAE Holdings Ltd, 2015 BCCA 318 at paragraph 22).
Contributor details
Daniel S Murdoch, Partner
Stikeman Elliott LLP
Areas of practice: Commercial litigation,
class actions, international arbitration,
securities litigation.
Vlad A Calina, Associate
Stikeman Elliott LLP
Areas of practice: Commercial litigation,
class actions, international arbitration,
securities litigation.

Legal solutions from Thomson Reuters

Thomson Reuters is the world’s leading source of news and information
for professional markets. Our customers rely on us to deliver the
intelligence, technology and expertise they need to find trusted answers.
The business has operated in more than 100 countries for more than
100 years. For more information, visit www.thomsonreuters.com
About Stikeman Elliott
Stikeman Elliott is a global leader in Canadian business law and the first
call for businesses working in and with Canada. Our offices are located
in Montréal, Toronto, Ottawa, Calgary, Vancouver, New York, London and
Sydney. We provide clients with the highest quality counsel, strategic
advice, and workable solutions. The firm has an exceptional track record
in major U.S. and international locations on multijurisdictional matters
and ranks as a top firm in our primary practice areas including mergers
and acquisitions, securities, business litigation, banking and finance,
competition and foreign investment, tax, restructuring, energy, mining,
real estate, project development, employment and labour, and pensions.

For more information about Stikeman Elliott, please visit our website at
www.stikeman.com.

Contact us
Daniel S. Murdoch
dmurdoch@stikeman.com

Follow us

Subscribe to updates on a variety of legal topics from

Stikeman Elliott’s Knowledge Hub at stikeman.com/kh

This publication is intended to convey general information about legal issues and developments
as of the indicated date. It does not constitute legal advice and must not be treated or relied
upon as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

Stikeman Elliott LLP

Montréal Toronto Ottawa Calgary Vancouver New York London Sydney