Introduction

AuthorDavid A. Crerar
Pages1-31
CHAPTER
1
Introduction
A.
OVERVIEW
Fraud
is
fire,
and
law
is
ice.
The
ever-accelerating
rate
of
fraud
de
stroys
businesses
and
families;
the
all-too-frequent
glacial
pace
of
the
law
and
its
inadequacy
to
counteract
fraud
and
compensate
its
victims
renders
the
legal
system
itself
a
further
victim
of
fraud.
In
an
electronic
age,
fraudsters
and
funds
escape
across
fluid
borders,
protected
by
at-times
impermeable
legal
and
banking
systems
that
stymie
tracing
and
enforcement.
Over
the
course
of
the
life
cycle
of
a
legal
claim,
from
demand
to
filing
to
trial
to
judgment
to
execution,
any
fraudster
worth
her
salt
will
be
wholly
judgment-proof,
with
all
exigible
assets
rendered
far
beyond
reach
and
recourse.
An
intrepid
fraudster
or
counterfeiter
or
thief
of
trade
secrets
will
also
cover
her
tracks
by
deleting
or
removing
electronic
or
physical
evidence.
This
modest
book
sets
out
the
Canadian
law
on
the
most
potent,
if
still
often
inadequate,
civil
litigation
tools
for
combatting
fraud.
A
Mareva
injunction
is
a
court
order
that
prevents
or
limits
a
de
fendant
from
dealing
with
or
disposing
of
some
or
all
of
his
assets.
1
It
may
be
granted
either
before
trial
or
after
trial
in
aid
of
execution.
It
may
freeze
the
defendant
s
assets
worldwide,
as
well
as
assets
held
in
another
s
name
or
by
a
related
business
or
person.
This
form
of
i
See
Mareva
Compía
Naviera
v
International
Bulkcarriers
(1975),
[1980]
1
All
ER
213
(CA)
[Mareva
Compañía].
2
Mareva
and
Anton
Piller
Preservation
Orders
in
Canada:
A
Practical
Guide
equitable
relief
has
also
been
called
a
Mareva
order,
a
freezing
or
der,
a
freezing
injunction,
and
an
asset
preservation
order.
The
Anton
Piller
order,
or
search
order
or
evidence
preservation
order,
allows
a
plaintiff
to
search
the
defendant
s
home
or
business
to
seize
and
preserve
documents
and
other
evidence.
The
order
has
been
referred
to
as
a
civil
search
warrant
2
These
two
remedies
have
famously
been
described
as
the
nuclear
weapons
of
civil
litigation.
3
Given
their
extraordinary
powers,
they
are
generally
issued
only
where
there
has
been
a
clear
case
of
fraudu
lent
or
otherwise
dishonest
activity.
But,
as
we
shall
review,
they
have
also
been
granted
in
less
stark
circumstances.
Courts
and
coun
sel
must
be
vigilant
to
ensure
that
these
remedies
are
not
abused.
Asset
and
evidence
preservation
orders
arise
most
frequently
in
fraud
litigation,
but
such
orders
are
potent
tools
wherever
human
corruption
or
frailty
threatens
the
integrity
of
the
judicial
process
through
the
destruction
or
removal
of
evidence
or
assets.
Freezing
orders
are
also
frequently
issued
in
family
law
cases
and
business
dis
putes
of
a
more
innocuous
nature.
Evidence
preservation
orders
are
frequently
granted
in
intellectual
property
disputes,
but
they
have
been
used
in
litigation
as
diverse
as
defamation
and
employment
law.
Although
documents,
both
paper
and
electronic,
are
the
most
frequent
targets
of
Anton
Piller
orders,
the
orders
are
often
used
to
seize
goods,
particularly
in
actions
to
counteract
piracy,
counterfeit
ing,
and
other
intellectual
property
torts.
For
completeness,
this
book
also
provides,
in
Part
Two,
an
over
view
of
the
preservation
of
property
rules
that
exist
in
all
Canadian
jurisdictions.
4
These
rules
are
narrower
than
the
Mareva
and
Anton
2
See
Anton
Piller
KG
v
Manufacturing
Processes,
[1976]
1
All
ER
779
[Anton
Piller
KG],
3
Bank
Mellat
v
Nikpour,
[1985]
FSR
87
at
92
(CA).
4
See
Supreme
Court
Civil
Rules,
BC
Reg
168/2009,
r
10-1;
Alberta
Rules
of
Court,
Alta
Reg
124/2010,
r
6.25;
The
Queen's
Bench
Rules,
S
Gaz
27
December
2013,2684,
r
6-42;
Court
of
Queen's
Bench
Rules,
Man
Reg
553/88,
rr
45.01
&
45.02;
Rules
of
Civil
Procedure,
RR0
1990,
Reg
194,
rr
45.01
&
45.02
(also
adopted
by
Prince
Edward
Island);
Code
of
Civil
Procedure,
CQLR
c
C-25.01,
art
516-23;
Rules
of
Court,
NB
Reg
82-73,
rr
35.02,35.03,
and
40.03;
Nova
Scotia
Civil
Procedure
Rules,
Royal
Gaz
19
November
2008,
r
42.01;
Rules
of
the
Supreme
Court,
1986,
SNL1986,
c
42,
Sched
ule
D,
r
22.02;
Rules
of
Court,
YOIC
2009/65,
r
52;
Rules
of
the
Supreme
Court
of
the
Northwest
Territories,
NWT
Reg
010-96,
rr
468-72;
Rules
of
the
Supreme
Court
of

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