CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
6.4 Liability for Damages for the Applicant A party may be held liable in damages for obtaining an injunction that is later discharged. As a condition of granting any non-permanent injunction, the court may require the moving party to provide an undertak- ing as to damages or post security with the court for any damage that may be suffered by the responding party if the injunction is later discharged. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Worldwide Mareva injunctions may be granted to freeze the assets of a party where the court maintains jurisdiction over that party on a pre-trial basis. Mareva injunctions may be provided for in statute or at com- mon law. The common law test in some jurisdictions in Canada may be more flexible than in others, but generally the moving party should establish: • a strong case for trial; • irreparable harm should the injunction not be granted; and • that the balance of convenience favours the mov- ing party. The court will also consider whether there has been full and frank disclosure by the moving party, the par- ticulars of the claim, whether the responding party has assets within the jurisdiction, and the risk of the responding party removing or dissipating these assets to frustrate judgment. A strong case of fraud will also assist the moving party in establishing the risk of removal or dissipation of assets to frustrate judgment. The moving party will also be required to post an undertaking for damages and perhaps even security for the payment of those damages. 6.6 Third Parties and Injunctive Relief Rights of third parties may be impacted by Mareva injunctions. Mareva injunctions typically request the assistance of banks and other third parties who may have property of the responding party in their posses- sion. Third parties with notice of the injunction order will be required to comply with its terms.
on a short-term basis, pending a final determina- tion of the issue on its merits. • Permanent injunctions: granted after a final deter- mination of the parties’ rights. • Mareva injunctions: granted if there is a real risk that the responding party will dissipate or move assets from the jurisdiction to avoid enforcement of any judgment. A Mareva injunction may also be available if there is a strong case that the respond- ing party has committed fraud. • Anti-suit injunctions: granted to restrain a person within the court’s jurisdiction from commencing or continuing an action in a foreign court where the claim is justiciable in the local court. Most non-permanent injunctions will require the mov- ing party to establish: • the presence of a serious question to be tried; • irreparable harm should the injunction not be granted; and • that the balance of convenience favours the mov- ing party. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The process for obtaining an urgent injunction will depend on the province and court. The applicable rules of court, practice direction or notice to the pro- fession will identify the individual to contact to make arrangements. Most courts have duty judges assigned to hear these types of applications on an expedited basis during normal court hours. Applications must be supported with affidavit evidence and a written argument, and filed on the court record. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Where exceptional circumstances exist, the court may grant an injunction without notice to the responding party. However, these injunctions may be for a limited duration, or the court may insert a comeback clause or other provision in the order that allows the affected party to return to court to have the injunction set aside or reheard on a complete record.
152 CHAMBERS.COM
Powered by FlippingBook