Basic Process for Assessing Damages: 97 Select  interest that deserves vindication 97 a. Restitution 97

The Reception in Canada: Aetna

These orders are prone to exploitation, dangerous for ∆s  threshold is high.

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  Emphasis on the draconian nature of the remedy and the concern for risk-balancing.
  
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  Cyanamid rule does not apply in the case of Mareva injunctions.
  

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  Strength of case
  
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  Risk of asset removal/dissipation – mere movement of assets insufficient – must be evidence of effort to defeat claim/judgment (sort of – sometimes courts are flexible on this)
  
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  Risk of insolvency not sufficient – not about simple security and does not alter priorities
  
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    Just because you may not be able to collect on your judgment, you don’t get to jump the creditor queue.
    
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  Balance of convenience
  
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    e.g. chattels, cont’d business dealings [see Rasu]⁶⁶
    
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    It’s always open to ∆ to tell their sad story and convince a court they’d be subjected to undue hardship [Rasu].
    
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    Note: orders are granted ex parte, but order generally allows ∆ to return to court w/in a few days to present arguments.
    

Jurisdiction

The concept means national jurisdiction – typically won’t cover interprovincial transactions.

You don’t need to have another trial in Ontario to get assets ∆ has moved there. You just register your judgment there, it’s not that difficult.

So, SCC in Aetna says we typically won’t grant Mareva injunctions for inter-provincial asset transfers [But see Southin J in Gateway Village]⁶⁷

Extraterritorial effect:

Court needs jurisdiction over ∆.

Issue: once they have that, can they make orders about ∆’s property outside of Canada?

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  Conceptually, they don’t have jurisdiction over the property outside country, but they can order the person.
  
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  It’s possible to get worldwide injunctions, but only in extreme cases [see Mooney v. Orr]⁶⁸
  

Protections for ∆

These injunctions are super intrusive/burdensome.

Courts try to even the playing field.

Undertakings – if  freezes ∆ assets for 2 years and ∆ bus goes bankrupt and then ∆ prevails at trial,  will be liable for the loss.

Full disclosure

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  Because it’s ex parte, lawyer applying must ensure judge is fully apprised of what the other side’s case may be  if you know facts that court would want to know, but your client hasn’t put into their affidavit, you have to find a way to tell the court why your case might not be as strong as your client says it is. Full disclosure of the facts are necessary.
  
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  Just try to ensure that if your client has those facts, they disclose them.
  

Early return  as described above. Can go back to court w/in a few days to argue.

Third parties

Third parties are bound if given notice of the order [see Z Ltd. v. A-Z]

Distinction: technically not bound as parties to the order, but anyone w/ knowledge of a court order ≠ breach or in contempt

3^rd parties are usually banks.

They have to do searches, but no disclosure to 

So, they have to go into the accounts and find out what kind of assets of ∆ are in their control  but don’t have to tell  that.

’s undertaking covers the cost to 3^rd parties of complying w/ the Mareva injunction.

Notice to third parties will typically carve out things that the bank is allowed to do

May meet its own obligations (e.g. pay charges on letter of credit, bank guarantee, credit card)

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