The Evolution of the Extra-Territorial Mareva Injunction in Canada: Three Issues

Abstract

This article addresses three issues related to the expansion of the jurisdiction to grant Mareva injunctions in Canada. The first issue is the approach taken to Mareva injunctions sought in the absence of substantive proceedings. We argue that Canadian courts have adopted a position that unduly limits their ability to grant stand-alone Mareva relief, subjecting themselves to an illogical limitation. The second issue is the court’s jurisdiction to restrain the conduct of third parties holding a defendant’s assets. We argue that, contrary to recent developments in England, a better balance can be struck between binding third parties and respecting jurisdictional boundaries. The third issue is the territorial scope of freezing orders. We argue that for courts to issue Mareva orders restraining asset removal from Canada but otherwise permitting the free movement of assets within the country would better accord with the jurisprudence and the realities of Canadian federalism.