3 Commercial List No   ONTARIO

- 3 - commercial list no.:   ontario superior court of justice commercial list1 b e t w e e n: plaintiff - and – d

- 3 -
Commercial List No.:  
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST1
B E T W E E N:
PLAINTIFF
- and –
DEFENDANT
ORDER2
NOTICE
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. You are entitled to apply on at least twenty-four (24) hours
notice to the Plaintiff, for an order granting you sufficient funds
for ordinary living expenses and legal advice and representation.
Any other person who knows of this order and does anything which helps
or permits the Defendant to breach the terms of this Order may also be
held to be in contempt of court and may be imprisoned, fined or have
their assets seized.
THIS MOTION, made without notice by the Plaintiff, [ ], for an interim
Order in the form of a Mareva injunction restraining the Defendant, [
], from dissipating its assets and other relief, was heard this day at
[ ].
ON READING the Affidavit of [ ] sworn [ ], on hearing the submissions
of counsel for the Plaintiff, and on noting the undertaking of the
Plaintiff to abide by any Order this Court may make concerning damages
arising from the granting and enforcement of this Order,
Mareva Injunction
1.
THIS COURT ORDERS that the Defendant, and its servants, employees,
agents, assigns, officers, directors and anyone else acting on
their behalf or in conjunction with any of them, and any and all
persons with notice of this injunction, are restrained from
directly or indirectly, by any means whatsoever:
a.
selling, removing, dissipating, alienating, transferring,
assigning, encumbering, or similarly dealing with any assets
of the Defendant, wherever situate [that are located in
Ontario],3 including but not limited to the assets and
accounts listed in Schedule “A” hereto;4
b.
instructing, requesting, counselling, demanding , or
encouraging any other person to do so; and
c.
facilitating, assisting in, aiding, abetting, or participating
in any acts the effect of which is to do so.
2.
THIS COURT ORDERS that paragraph 1 applies to all of the
Defendant’s assets whether or not they are in his own name and
whether they are solely or jointly owned. For the purpose of this
order, the Defendant’s assets include any asset which he has the
power, directly or indirectly, to dispose of or deal with as if it
were his own. The Defendant is to be regarded as having such power
if a third party holds or controls the assets in accordance with
his direct or indirect instructions.5
3.
[THIS COURT ORDERS that if the total value free of charges or
other securities of the Defendant’ assets [in Ontario] exceeds $[
], the Defendant may sell, remove, dissipate, alienate, transfer,
assign, encumber, or similarly deal with them so long as the total
unencumbered value of the Defendant’s assets [in Ontario] remains
above $[ ]].6
Ordinary Living Expenses
4.
THIS COURT ORDERS that the Defendant may apply for an order, on at
least twenty-four (24) hours notice to the Plaintiff, specifying
the amount of funds which the Defendant is entitled to spend on
ordinary living expenses and legal advice and representation. 7
Disclosure of Information
5.
THIS COURT ORDERS that the Defendant prepare and provide to the
Plaintiff within [ ] days of the date of service of this Order, a
sworn statement describing the nature, value, and location of his
assets worldwide [in Ontario], whether in his own name or not and
whether solely or jointly owned. 8
6.
THIS COURT ORDERS that the Defendant submit to examinations under
oath within [ ] days of the delivery by the Defendant of the
aforementioned sworn statements.
7.
THIS COURT ORDERS that if the provision of any of this information
is likely to incriminate the Defendant, he may be entitled to
refuse to provide it, but is recommended to take legal advice
before refusing to provide the information. Wrongful refusal to
provide the information referred to in paragraph 5 herein is
contempt of court and may render the Defendant liable to be
imprisoned, fined, or have his assets seized.9
Third Parties
8.
THIS COURT ORDERS [ ] (the “Banks”) to forthwith freeze and
prevent any removal or transfer of monies or assets of the
Defendant held in any account or on credit on behalf of the
Defendant, with the Banks, until further Order of the Court,
including but not limited to the accounts listed in Schedule “A”
hereto.10
9.
THIS COURT ORDERS that the Banks forthwith disclose and deliver up
to the Plaintiff any and all records held by the Banks concerning
the Defendant’s assets and accounts, including the existence,
nature, value and location of any monies or assets or credit,
wherever situate [in Ontario], held on behalf of the Defendant by
the Banks. 11
Alternative Payment of Security into Court
10.
THIS COURT ORDERS that this Order will cease to have effect if the
Defendant provides security by paying the sum of $[ ] into Court,
and the Accountant of the Superior Court of Justice is hereby
directed to accept such payment.12
Variation, Discharge or Extension of Order
11.
THIS COURT ORDERS that anyone served with or notified of this
Order may apply to the Court at any time to vary or discharge this
order, on four (4) days notice to the Plaintiff.
12.
THIS COURT ORDERS that the Plaintiff shall apply for an extension
of this Order within ten (10) days hereof, failing which this
Order will terminate.13
_______________________________
SCHEDULE “A”
BANK
ADDRESS
ACCOUNT NAME
ACCOUNT NO.
Commercial List No.:
Plaintiff
- and -
Defendant
O NTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
ORDER
/var/www/doc4pdf.com/temp/110685.doc
1 Prepared by the Commercial List Users’ Committee of the Ontario
Superior Court of Justice. The theory and approach behind this model
order is to give the Courts and practitioners a guide for the use of
such orders, while recognizing that the model order must be tailored
to suit the particular circumstances of each case before the Court.
2 See generally UK Practice Direction form for “Freezing Injunctions”
http://www.dca.gov.uk/civil/procedure/procrules_fin/contents/practice_directions/pd_part25.htm.
3 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.
4 Ordinarily, the plaintiff must show grounds for the belief that the
defendant has some assets within the jurisdiction to obtain the
injunction in the first place, but in its standard form, the Mareva
injunction is not limited to those named assets: Cretanor Marine Co.
Ltd. v. Irish Marine Management Ltd. [1978] 1 W.L.R. 966 at 973
(C.A.).
5 Federal Bank of the Middle East Ltd. v. Hadkinson, [2000] 1 W.L.R.
1695 (Eng. C.A.)
6 Z Ltd. v. A., [1982] 1 All ER 556 (C.A.). As a practical point,
specifying the maximum amount to be frozen will be simple where the
claim relates to a specific amount of money, however this task will be
more challenging where the claim is for general damages to be
particularized and quantified at a later stage of the litigation. It
will also be difficult for the affected financial institutions to
determine which assets may be released under this provision. It may
therefore be more appropriate to deal with the quantification of the
maximum amount to be frozen at the return of the motion.
7 Z Ltd. v. A., supra; Pharma-Investments Ltd. v. Clark, supra at
para. 13. This provision may not be appropriate in the case of a
specific fraud claim where the misappropriated amount is frozen, since
the Defendant cannot be allowed to use funds that are identifiable as
obtained wrongfully for living expenses. Further it will be difficult
to specify an amount, without evidence from the Defendant regarding
his or her needs and assets. See also the practical concerns raised
above in footnote 5. Lord Denning has suggested that a separate
account be opened so that the financial institutions affected by the
order need not determine which sums are required for ordinary living
expenses. Depending on the Plaintiff’s knowledge of the specific
accounts of the Defendant, it might be possible to specify from which
account the funds for living expenses may be withdrawn. Given these
practical difficulties, it is more appropriate to address the issue of
living expenses on the expeditious return of the motion.
8The Court has the inherent power to make ancillary orders as appear
to be just and convenient to ensure that the exercise of the Mareva
jurisdiction is effective to achieve its purpose and may make an order
of “discovery in aid”, an injunction where the plaintiff has “grounds
for believing that the defendant does have assets within the
jurisdiction, but has insufficient particulars of the whereabouts of
such assets to make the injunction effective”: Sharpe, at 2.1070,
2.1080.
9 Pharma Investment Ltd. v. Clark, supra at para. 16, but see CBS
United Kingdom Ltd. v. Lambert [1983] Ch. 37, [1982] 3 All E.R. 237
(C.A.).
10 Z Ltd. v. A, supra at 563.
11 The Plaintiff ordinarily must 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 U.K. Ltd.
[1981] 1 W.L.R. (Q.B.).
12 Specifying the amount of security attracts the same practical
problems identified in footnote 5.
13 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 40.02.