The Order
| Author | David A. Crerar |
| Pages | 139-162 |
CHAPTER
10
The
Order
A.
GENERALLY
The
trial
courts
of
Ontario
and
British
Columbia
have
issued
model
asset
preservation
orders
that
include
explanatory
notes.
Ontario
Model
Asset
Preservation
Order
at
para
12:
Appendix
B
British
Columbia
Model
Order
for
Preservation
of
Assets
at
paras
7-8:
Appendix
A
It
is
critical
that
counsel
carefully
consider
the
circumstances
of
a
case
and
whether
the
model
order
adequately
achieves
the
objective
of
preserving
assets
while
protecting
the
rights
and
interests
of
the
defendant
and
nonparties.
Counsel
must
highlight
and
explain
to
the
court
any
departures
from
the
model
order
in
the
draft
order
sought.
Where
variations
to
a
model
order
are
proposed,
counsel
must
en
sure
that
the
process
is
fair
and
permits
defendants
to
exercise
their
fundamental
rights
in
a
meaningful
way
while
not
unduly
interfering
with
the
rights
of
nonparties.
1)
Drafting
the
Order
Because
of
the
penal
consequences
of
breaching
a
freezing
order
and
the
need
for
the
defendant
to
understand
exactly
what
may
and
may
not
be
done,
such
orders
must
be
clear
and
unequivocal.
JSC
BTA
Bank
v
Ablyazov,
[2015]
UKSC
64
at
para
19
139
140
■
Mareva
and
Anton
Piller
Preservation
Orders
in
Canada:
A
Practical
Guide
Notwithstanding
that
an
order
must
be
clear
and
certain,
the
inter
im
nature
of
a
pretrial
order
and
the
need
for
a
practical
solution
may
permit
an
interlocutory
order
to
be
less
precise
than
a
posttrial
order.
Steven
Gee,
QC,
Commercial
Injunctions,
6th
ed
(London:
Sweet
&
Maxwell,
2016)
at
4-002
See
also
Chapter
20,
Section
B.
2)
Effect
of
the
Order
A
Mareva
order
is
an
in
personam
remedy,
restraining
the
defendant
personally.
Aetna
Financial
Services
v
Feigelman,
[1985]
1
SCR
2
at
para
28
United
States
of
America
v
Friedland
(1996),
13
CPC
(4th)
296
at
para
23
(BCSC)
A
Mareva
order
does
not
create
rights
in
rem.
The
granting
of
a
Mar
eva
order
does
not
give
the
plaintiff
property,
nor
does
it
give
a
lien
on
the
defendant
’
s
property.
It
does
not
place
the
defendant
in
the
pos
ition
of
a
judgment
debtor.
It
gives
no
priority
to
a
potential
judgment
creditor
over
other
claimants.
Nor
does
it
affect
insolvency
laws.
Aetna
Financial
Services
v
Feigelman,
[1985]
1
SCR
2
at
para
28
Sekisui
House
Kabushiki
Kaisha
v
Nagashima
(1982),
42
BCLR
1
at
6
(CA)
Reynolds
v
Harmanis
(1995),
39
CPC
(3d)
364
at
371
(BCSC)
Because
a
Mareva
order
does
not
bestow
on
the
plaintiff
any
pro
prietary
rights
to
the
defendant
’
s
assets,
a
good
faith
purchaser
or
assignee
for
value
without
notice
of
the
injunction
will
obtain
good
title
or
good
security
over
the
assets.
Anyone
with
an
existing
charge
over
the
assets
is
entitled
to
enforce
that
charge.
Steven
Gee,
QC,
Commercial
Injunctions,
6th
ed
(London:
Sweet
&
Maxwell,
2016)
at
3-001
Boeing
Capital
v
Wells
Fargo
Bank
Northwest,
[2003]
EWHC
1364
(Comm)
Similarly,
since
a
Mareva
order
creates
no
security
or
proprietary
interest,
judgment
creditors
can
enforce
their
judgments
against
the
defendant
even
though
the
defendant
is
subject
to
a
Mareva
order.
Steven
Gee,
QC,
Commercial
Injunctions,
6th
ed
(London:
Sweet
&
Maxwell,
2016)
at
3-001
Iraqi
Ministry
of
Defence
v
Arcepey
Shipping
(The
Angel
Bell),
[1981]
QB
65
at
72
(CA)
Av
B
(X
intervening),
[1983]
2
Lloyd's
Rep
532
at
534
(QB)
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