Pre-trial Relief

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 228-244

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CHAPTER 10

PrE-trial rEliEf

A. INTRODUCTION

Litigation is time-consuming. The length of time between the f‌iling of a

claim and the trial of the dispute may take months or years. Sometimes,

however, what is being sought in the litigation is time sensitive — the

preservation of a heritage home or the right to run a summer amuse-

ment park. Occasionally, there are genuine concerns that a defendant

will shed assets so as to become “judgment proof.” The common law

and rules of civil procedure have addressed these concerns by provid-

ing a range of legal routes for the preservation of rights pending litiga-

tion. This chapter will explore some of the more notable mechanisms

for pre-trial relief.

The chapter is divided into four sections. The f‌irst describes the

legal test for obtaining an injunction, a type of pre-trial remedy. The

second focuses on a specif‌ic type of injunction — the Mareva Injunc-

tion — which allows a party to freeze the assets of another party pend-

ing litigation. The third section focuses on another specif‌ic kind of

interim relief — the Anton Piller Order, which is designed to prevent

the destruction of evidence before trial. Finally, the fourth section

examines preservation of property pending litigation and interpleader

motions.

Pre-tria l Relief229

B. INJUNCTIONS

One possible route for parties wishing to obtain a judicial remedy in

an expedited fashion prior to trial is the interim or interlocutory in-

junction.1 Injunctions are available in order to preserve a party’s rights

in anticipation of future litigation.2 Injunctions arose out the court’s

equitable jurisdiction3 and are tied to the principle of fairness. Injunc-

tions may be “interlocutory” or “f‌inal.” An injunction is “interlocutory”

when it is granted before the trial of the plaintiff’s action or intended

action or the hearing of the applicant’s application.4 An injunction is

referred to as “f‌inal” or “permanent” when it is granted after the trial.

A permanent injunction might, for instance, be granted to stop forever

a particular use of property or a particular kind of conduct.

Injunctions are interlocutory when they do not end the litigation

but rather seek to preserve or “freeze” the status of the parties pending

a f‌inal resolution. An interlocutory injunction that specif‌ies a particular

time period may also be termed an “interim injunction” or an “interim

interlocutory injunction.”5

An interlocutory injunction involves a balancing exercise by the

court. Consider the example of a claim that a work of art is defama-

tory to a successful businesswoman. The woman brings a claim, but,

long before the claim will reach court, the artist plans to exhibit his

work. The plaintiff should not be deprived of an opportunity to have

the claim disposed of by the court. If an injunction is not granted, and

the work of art is shown, it will too late, since the remedy of preventing

a public display of the art will no longer be possible. The court must

also take into consideration that the artist may be deprived of a chance

to express herself, and gain a livelihood, if prevented from publicly dis-

playing the art. The purpose of interlocutory injunctions is to ensure

1 See, generally, Robert J. Sh arpe, Injunctions and Specif‌ic Per formance, looseleaf

(Aurora, ON: Canada La w Book, 1998–); and Eugene Meehan, Injunctions (Sc ar-

borough, ON: Carswell, 1996).

2 There are a number of specialized i njunctions available in Canadian courts. M ar-

eva Injunctions a nd Anton Piller Orders are di scussed below. In some provinc es

(notably British Columb ia, Saskatchewan, and Alb erta), pre-judgment garnish-

ment orders perm it creditors to obtain an order wher eby alleged debtors are

required to pay a s um of money into court. This money is the n returned to the

debtor or paid to the cred itor depending on the outcome of the tr ial. See, for

example, Westmills Canad a Inc. v. Harvey & Pulton Warehouse Carpet Sales Ltd .,

[1989] 3 W.W.R . 616 (Alta. C.A.).

3 See P.M. Perell, The Fusion of Law and Equit y (Markham: Butterwort hs, 1990).

4 Century Enginee ring Co. Ltd. v. Greto, [1961] O.R. 85 (H.C.J.).

5 Ibid.