You have a strong claim and a defendant who is quietly moving money. A Mareva injunction in Ontario freezes those assets before judgment, and it is one of the few orders a court will grant without telling the other side first. However, the threshold is high and the duties on the moving party are heavier than most people expect. This guide explains the test, the traps and what to do in the first week.
What a Mareva Injunction in Ontario Actually Does
A Mareva injunction restrains a defendant from dealing with assets until the claim goes to judgment. It preserves the pool of money you would eventually collect from.
What it does not do matters just as much. The order gives no charge over the assets, no proprietary interest and no priority over other creditors. You remain an unsecured plaintiff who has stopped the assets moving.
That distinction explains the courts’ caution. Ontario judges refuse to use a Mareva injunction as a way of giving an unsecured claimant security it never bargained for.
It is also why the order is exceptional rather than routine. Ontario grants a Mareva injunction where the alternative is a judgment that collects nothing.
The power comes from section 101 of the Courts of Justice Act, which lets the Superior Court grant an interlocutory injunction where it appears just or convenient. Rule 40 of the Rules of Civil Procedure supplies the procedure. (The term “Mareva” comes from the name of the 1975 court case from England which enunciated the principle of freezing assets.)
Only the Superior Court can grant one. The Courts of Justice Act reserves equitable relief such as an injunction to that court, so a Mareva injunction in Ontario is a reason to commence in the Superior Court even where the amount would otherwise suit Small Claims.
The Test the Court Applies
The Ontario framework comes from Chitel v. Rothbart, 1982 CanLII 1956 (ON CA), which adopted the early English guidelines. The Supreme Court then set the outer limits in Aetna Financial Services Ltd. v. Feigelman, [1985] 1 SCR 2.
Ontario courts today work through five requirements drawn from that lineage.
A strong prima facie case
This is the first and biggest difference from an ordinary injunction. Most interlocutory injunctions require only a serious issue for trial. A Mareva injunction in Ontario demands a strong prima facie case, meaning a strong likelihood of success on the law and the evidence.
Bring contracts, transfers, banking records and admissions. An allegation of fraud, however serious, is not a substitute for proof.
This is where most refused motions fail first. A Mareva injunction in Ontario is not available on suspicion, however reasonable the suspicion looks.
Assets, and a real risk of dissipation
Next you must show grounds for believing the defendant holds assets, and a real risk of their leaving the jurisdiction, disappearing, or otherwise ending up beyond the court’s reach.
This second element defeats more Mareva injunction motions in Ontario than any other. Chitel frames the question as whether the defendant is dealing with assets “in a manner clearly distinct from his usual or ordinary course of business or living.”
Ordinary commercial activity does not qualify. A business that pays its suppliers, refinances a property or moves stock in the normal course is not dissipating anything, and Aetna is the case that stopped the remedy becoming attachment before judgment.
Proving dishonesty is not the same as proving dissipation. Ontario decisions have refused a Mareva injunction even where the defendant admitted unauthorized transfers, because substantial assets remained available to satisfy any judgment.
Ontario courts are genuinely split on how readily the inference runs. Some decisions treat deceit as itself suggesting a risk of dissipation, while the recent trend asks for something more, so assume a Mareva injunction will need independent evidence on the point.
What does work is evidence of transfers to family members or numbered companies for nothing, sudden liquidation of property, funds moved offshore or into crypto, false statements about what the defendant owns, destroyed records, or a defendant with no roots here and a history of evading judgments.
Crypto has changed the practical picture considerably. Ontario courts now grant a Mareva injunction naming specific wallet addresses, and exchanges operating here comply with them.
Irreparable harm and the balance of convenience
The final two elements come from ordinary injunction law. You must show harm that damages cannot repair, and that the balance of convenience favours the freeze.
In practice, these merge with the dissipation question. If the money disappears, a judgment is worthless, and that is the irreparable harm.
The balance of convenience is where a defendant’s legitimate business interests get weighed. Freezing an operating company’s accounts can destroy it, and Ontario courts know a Mareva injunction can do more damage than the alleged fraud.
Full and Frank Disclosure: Where These Orders Die
A Mareva injunction is almost always sought without notice, so the judge hears only one side. Ontario law compensates with an exacting duty of candour, set out in rule 39.01(6). The rule calls it full and fair disclosure, while the case law usually says full and frank, and the duty is the same:
Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.
Read that last clause carefully. Non-disclosure is a free-standing ground to set the order aside, whether or not a complete record would have justified it.
You must therefore put the defendant’s best answer into your own materials. Disclose the limitation problem, the prior dealings, the settlement discussions, the weaknesses in your evidence and the less intrusive remedies you did not pursue.
Getting this wrong costs more than the injunction. Ontario courts frequently award full indemnity costs against a moving party that failed to disclose, and the failure colours everything that follows.
Material facts are anything that might reasonably affect the outcome, judged by the court rather than by you. The safe working rule is to disclose whatever you would rather the judge did not see.
What the Order Contains and How Long It Lasts
The Superior Court publishes a model Mareva order for its Commercial List. Reading it is the fastest way to understand what you are asking for, or what just landed on your desk.
Ten days, then a return date
An order made without notice expires after ten days under rule 40.02, extendable for a further period. The return date is short and real, and both sides should treat it as the main event rather than a formality.
That compressed timetable shapes everything. A Mareva injunction in Ontario is won or lost on the comeback motion, not on the day it was granted.
Asset disclosure and carve-outs
These are conventions of the model order rather than fixed rules, so read the order you actually have. It will usually require the defendant to swear a statement of the nature, value and location of assets worldwide within about seven to ten days, and to submit to examination under oath. Modern orders expressly capture digital assets and name specific cryptocurrency wallets.
Against that, the defendant may apply on very short notice, sometimes as little as twenty-four hours, for release of funds covering ordinary living expenses, ordinary course business expenses and legal representation. Orders commonly include a ceiling clause too, letting the defendant deal freely with the value of its assets that exceed the value of the plaintiff’s claim.
Those carve-outs matter more than they look. A Mareva injunction that leaves a defendant unable to pay counsel invites a successful attack on the order itself.
Banks, third parties and contempt
You then serve the order on banks, brokerages, payment platforms and exchanges, which must freeze the accounts on notice and disclose what they hold. The moving party usually has to cover their compliance costs.
Enforcement runs through contempt. The order carries a penal notice in these terms:
If you, the Defendant, disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.
Third parties who know of the order and help a defendant breach it face the same exposure. Refusing to provide the asset disclosure is itself contempt.
Courts also have remedies short of contempt. Where a party breaches a Mareva injunction in Ontario, the usual route is a non-compliance motion seeking orders designed to compel compliance rather than to punish.
Worldwide Orders and the Alternatives
Ontario courts will grant a Mareva injunction over assets held outside the province. The order operates against the person rather than the property, so jurisdiction over the defendant matters more than where the assets sit.
Ontario’s largest recent example is the litigation in Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, where the Court of Appeal declined to disturb a freezing order pending a jurisdiction appeal and held that defending it was not attornment. The jurisdiction question returned to the court in 2022 ONCA 496.
Courts will still ask whether the foreign assets exist, whether the defendant has a real connection here, and whether the order will actually assist enforcement abroad. A worldwide Mareva injunction that no foreign court will respect helps nobody.
Consider the cheaper orders first
Judges ask why you did not take the least intrusive route, so have an answer.
A Norwich order compels a third party such as a bank to disclose information, often to identify where the money went before you decide what to freeze. The leading Ontario authority is GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619.
Sequencing the two orders well is a real skill. A Norwich order first often produces the evidence that makes a Mareva injunction in Ontario winnable.
An Anton Piller order authorises entry, seizure and preservation of evidence, and it is governed by Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36. It is even more intrusive than a Mareva injunction and carries its own safeguards.
Where the dispute concerns specific land, a certificate of pending litigation under the Courts of Justice Act and rule 42 does the job without freezing anything else. It is the right tool where the claim asserts an interest in property rather than a debt.
Choosing well matters to your credibility. A judge asked for a Mareva injunction where a narrower order would plainly have worked starts from a position of scepticism.
What to Do Next: When to Call a Lawyer
Speed matters, but a thin record is worse than a slow one. A discharged order leaves you paying costs and facing a forewarned defendant, which is the worst possible position in a Mareva injunction fight.
If you are the plaintiff
Anyone considering a Mareva injunction in Ontario should work through the following before drafting anything.
Build two separate cases. One proves the claim to the strong prima facie standard. The other proves the dissipation risk, and it needs its own evidence rather than an inference from the alleged wrongdoing.
Identify the assets and the institutions holding them, because an order naming the wrong bank freezes nothing. Then decide what the order should carve out, since a judge is more likely to grant relief that looks proportionate.
Then prepare the undertaking as to damages required by rule 40.03, and budget for third-party compliance costs. Courts can dispense with the undertaking in the right case, although a plaintiff who cannot meaningfully back it should expect that to weigh against the order.
If you have been served with one
Do not touch the assets. Breaching a Mareva injunction in Ontario is contempt, and it also destroys your credibility on the return date.
Instead, retain counsel the same day, comply with the asset disclosure inside the stated window, and use the carve-out mechanism to fund living expenses and your defence.
Then order the moving party’s motion record and audit it for non-disclosure, because that is the single most effective ground for setting the order aside. Build the counter-record on dissipation as well, showing normal-course transactions, roots in Ontario and assets that remain available.
Finally, keep track of what the freeze is costing you. If the order should never have been sought by the plaintiff, the undertaking as to damages is how you recover it.
Asset freezing rewards preparation and punishes improvisation on both sides. If you are considering a Mareva injunction in Ontario, or one has just landed on your business, contact Cowan for a straight assessment of the evidence and the deadlines you are working against.
