The Mareva Injunction and Pre-Judgment Garnishment Vacuum
Introduction
A judgment is only as good as a creditor’s ability to collect on it, and in Ontario, that ability turns on a question of timing. A plaintiff who suspects that a defendant is quietly moving money offshore, draining a bank account, or converting assets into something harder to trace, such as cryptocurrency, cannot simply ask the court to seize those assets while the lawsuit is pending. Ontario offers no general pre-judgment garnishment, and so the plaintiff must instead reach for an equitable remedy that was never designed to be a substitute for one: the Mareva injunction (sometimes with the assistance of a Norwich order).
This article argues that Ontario's reliance on equity to do the work of a statute it has declined to enact is the source of much of the doctrinal untidiness in this area, and that the rise of cryptocurrency disputes has unduly burdened legal practitioners in the satisfaction of securing a Mareva injunction. Legislative reform is encouraged to establish a structured/codified Mareva injunction regime and to address the issues arising from the current vacuum in pre-judgment garnishment remedies.
The Structural Absence of Pre-Judgment Garnishment (“Pre-Judgment Garnishment Vacuum”)
Garnishment in Ontario is a post-judgment tool. Rule 60.08 of the Rules of Civil Procedure permits a creditor to attach a debt owed to the debtor only once there is a judgment or order to enforce.[1] The wage exemption framework, which shelters the bulk of an individual debtor's earnings, reinforces the regime's protective nature.[2]
The absence of a pre-judgment garnishment, or its statutory equivalent, as the author calls it the “pre-judgment garnishment vacuum”, is arguably not an oversight. It reflects a long-standing reluctance in the common law to let a plaintiff tie up a defendant's property before the court has decided whether the plaintiff is owed anything at all: the typical analogy of “not guilty until proven (beyond a reasonable doubt/on balance of probabilities).” To do otherwise risks oppression, prejudges the merits against the defendant, and may be perceived as the plaintiff’s settlement lever. Ontario does recognise narrow statutory seizures in specialised contexts, such as the arrest of property in admiralty proceedings in the Federal Court,[3] and an interlocutory preservation order by Ontario’s Attorney General in a Civil Remedies Act proceeding,[4] but nothing of general application. The result is a structural gap, and into that gap the Mareva injunction has expanded. An equitable remedy, relying on discretionary safeguards, with caselaw as a guiding beacon, has come to perform the function of a statutory regime Parliament chose not to create.
The Mareva Framework and Its Drift
In Chitel v. Rothbart, the Court of Appeal set out the requirements for the granting of a Mareva injunction:[5]
- a strong prima facie case, full and frank disclosure on the ex parte motion,
- particulars of the defendant's assets inside and outside the jurisdiction,
- a real risk that those assets will be dissipated or removed to defeat a judgment, irreparable harm, and
- balance of convenience favouring the order,
- all supported by the plaintiff's undertaking in damages.
The mere mobility of assets, or the simple fact that a defendant operates across borders, are not sufficient. In Aetna Financial Services Ltd. v. Feigelman, the Supreme Court of Canada commented that what is required is evidence of a genuine risk that assets will be dissipated or disappear, otherwise an injunction will not be issued.[6]
In practice, the test has drifted, and the drift is most visible in commercial fraud cases. Where a plaintiff can show strong evidence of dishonesty, courts have increasingly been willing to infer the risk of dissipation from the fraud itself,[7] treating the two enquiries as though they collapse into one, and of course, with the consideration of the surrounding circumstances. The line of decisions following Sibley & Associates LP v. Ross illustrates the tendency.[8] The intuitive logic is simple, since a defendant who has already lied about money is hardly a credible or reassuring custodian of it.
Worldwide Orders and Third-Party Protection
Canadian courts will exercise jurisdiction beyond provincial boundaries where the assets are located outside its jurisdiction.. For example, in British Columbia, the worldwide Mareva injunction, accepted in Mooney v. Orr,[9] allows the court to restrain dealings with assets wherever they are found, subject to protections developed in the English jurisprudence to prevent the order from trampling the rights of foreigners and third parties, provided that in personam jurisdiction is established.[10] The Babanaft proviso and the Baltic exception, which together shield third parties acting in good faith outside the jurisdiction,[11] received a limited application in Ontario jurisprudence.
The Cryptocurrency Problem
Nothing has tested the Mareva framework like digital assets. Cryptocurrency held in a self-custodied wallet can be moved across the world in seconds, is not tied to any identifiable intermediary, and is anonymous. However, that does not prevent the broad application of a Mareva injunction to cryptocurrency. In Ontario, the freezing of convoy-related crypto donations in Li v. Barber showed the court applying Mareva principles to digital assets in a high-profile setting, on an ex parte basis, by showing evidence of dissipation of funds.[12]
The application of Mareva injunction on cryptocurrency in Ontario was novel because Mareva was intended to be used for tangible assets or debts owed by identifiable institutions, neither which cryptocurrency fits squarely. MacLeod RSJ reasoned that the application of a Mareva injunction to cryptocurrency rests on three principal considerations, with assistance of an expert witness’s affidavit: (i) cryptocurrency transactions are traceable through blockchain ledgers[13]; (ii) digital wallets and exchanges can be subject to court orders[14]; (iii) individuals controlling wallet keys were within Ontario’s jurisdiction[15].
However, many efforts were spent in arriving the above factors, such as hiring an expert investigator to monitor the activity of the targeted wallets, tacking of the ins-and-outs of the funds in these targeted wallets, and collecting evidence as to how wallet-holders intend to dissipate/distribute these funds from the wallet.[16]
On this issue, MacLeod RSJ concludes that: “[d]igital funds are not immune from execution and seizure to satisfy a debt any more than a bank account provided the individual or institution which can access the funds are within the reach of a court order.”[17]
Practitioners should be candid that much of the recent Ontario authority takes the form of short motion endorsements that are not always captured by the citators, so the reported picture understates the activity. But at least from Li v. Barber, practitioners should know that it requires a lot of additional background work to secure a Mareva injunction for cryptocurrency-related assets, or blockchain-related assets in general.
Norwich Orders as the Companion Remedy
A freezing order is of little use against assets one cannot find or a defendant one cannot name, Norwich order has become the natural companion before securing a Mareva relief. The Court of Appeal's decision in GEA Group AG v. Ventra Group Co. restates from Norwich Pharmacal Co. v. Commissioners of Customs & Excise[18] the two threshold questions: (i) there is a bona fide claim against the alleged wrongdoers;[19] (ii) there some sort of relationship between the applicant and the wrongdoers;[20] (iii) the third party is the only practice source of information;[21] and (iv) it is in the interest of justice to obtain disclosure from that third party.[22] The court affirms that the following four situations may render a Norwich order necessary: (i) the information sought is necessary to determine whether an action exist against the wrongdoer;[23] (ii) to identify a wrongdoer;[24] (iii) to find and preserve evidence that may substantiate or support an action against a wrongdoer;[25] (iv) to trace and preserve assets.[26] In crypto recovery work, these orders are now routine, directed at exchanges to unmask wallet holders, companies involved in crypto transactions, the amount involved, among other things.[27] On the surface, they sit uneasily with privacy legislation; however, caselaw has generally allowed the equitable jurisdiction to prevail over privacy objections where a bona fide, or at a higher level of proof, a prima facie, claim is made out, subject to fulfillment of other test factors.[28]
Situating Mareva in Enforcement Architecture
A Mareva injunction does not operate alone as previously shown. An Anton Piller order, the civil search order whose modern Canadian framework was set in Celanese Canada Inc. v. Murray Demolition Corp.,[29] and together with Norwich relief these form the trio of pre-judgment equitable tools deployed in serious fraud cases. They are also frequently a prelude to enforcing a judgment obtained elsewhere. The statutory reciprocal-enforcement scheme,[30] the common law of recognition built on Beals v. Saldanha and Chevron Corp. v. Yaiguaje,[31] and the limitation analysis in H.M.B. Holdings Ltd. v. Antigua and Barbuda[32] together govern when a foreign judgment can be turned into an Ontario one and enforced against assets a Mareva order has preserved.
Once judgment is in hand, the enforcement tools the plaintiff was denied at the outset become available. Post-judgment garnishment under Rule 60.08 has been adapted in practice to the reality of centralised banking.
The Case for Reform
The deeper question is whether it is sound for Ontario to leave pre-judgment asset preservation to equity at all. Three difficulties recur. The first is procedural fragility: because Mareva relief is almost always sought ex parte, it carries an exacting duty of full and frank disclosure, and orders are regularly set aside for breaches of it. The second is access. A remedy that in practice demands senior counsel, forensic accounting evidence, and a meaningful undertaking in damages (which is sometime waived as in Li et al. v. Barber et. al.)[33] is effectively closed to the individual small and medium-sized claimant (unless of course, excluding class action cases like Li et al. v. Barber et. al), however meritorious the claim. The third is coherence. The overlapping doctrines of Mareva, Norwich, and Anton Piller, each with its own threshold and its own safeguards, produce a body of law that a single statutory scheme might rationalise into something more predictable.
The comparative picture sharpens the point. England has codified freezing injunctions within its Civil Procedure Rules, giving the remedy a clearer procedural home while preserving its equitable foundation,[34] and other common law jurisdictions have developed their own structured variants. Ontario's purely equitable approach, by contrast, begs the question whether the province's litigants are well served by leaving so consequential a power to case-by-case discretion.
Developments to Watch
Three threads are worth following over the next several years. The Civil Rules Review has not yet turned squarely to pre-judgment asset preservation, but the author urges it to consider a more structured framework, and its eventual treatment of the subject could reshape the field. The cryptocurrency jurisprudence will continue to develop, with the hardest problems still ahead in enforcing orders against decentralised finance entities and non-custodial wallets that have no intermediary to serve.
Conclusion
Ontario has built a sophisticated regime for freezing assets before judgment. It works impressively when involves well-resourced litigants and experienced judges. Whether the right response is to refine such equitable approach by way of further caselaw or to enact the pre-judgment regime under the Rules of Civil Procedure, it may soon become unavoidable for the issue to be addressed through the Civil Rules Review Committee.
[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 60.08.
[2] Wages Act, R.S.O. 1990, c. W.1, ss. 7(2)(3)(4) (e.g. exemption of 80 per cent of wages, subject to judicial variation).
[3] Federal Courts Rules, SOR/98-106, rr. 481–490 (arrest and pre-judgment seizure in admiralty actions in rem).
[4] Civil Remedies Act, 2001, SO 2001, c 28, ss. 4(1) and 9(1).
[5] Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.) (ONCA); See also Sibley & Associates LP v. Ross, 2011 ONSC 2951 at para 11. See also Brenner v. Saks, 2026 ONSC 2857, at para 33.
[6] Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2. (SCC) at para 26.
[7] Sibley & Associates LP v. Ross, 2011 ONSC 2951 at paras 62-63.
[8] Kolodzey v. Canadian Imperial Bank of Commerce et al, 2026 ONSC 2527, at paras 51-54 (Applied).
[9] Mooney v. Orr 1994 CanLII 16698 (BC SC).
[10] Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII), [2017] 1 SCR 824, at para 38.
[11]Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, at paras 127-131. Babanaft International Co. SA v. Bassatne [1989] 1 All E.R. 433.
[12] Li v. Barber, 2022 ONSC 1176, at para 36.
[13] Li v. Barber, 2022 ONSC 1176, at para 22.
[14] Li et al. v. Barber et. al., 2022 ONSC 1176 at para 23.
[15] Li et al. v. Barber et. al., 2022 ONSC 1176 at para 23 and 24.
[16] Li et al. v. Barber et. al., 2022 ONSC 1176 at para 24.
[17] Li et al. v. Barber et. al., 2022 ONSC 1176 at para 23.
[18] Norwich Pharmacal Co. v. Commissioners of Customs & Excise [1974] A.C. 133 (H.L.) at 175.
[19] GEA Group AG v. Ventra Group Co., 2009 ONCA 619 at para 49.
[20] ibid.
[21] ibid.
[22] ibid.
[23] GEA Group AG v. Ventra Group Co., 2009 ONCA 619 at para 93.
[24] ibid.
[25] ibid.
[26] ibid.
[27] See for example: Hao Chen et al. v. Masih Moazen-Safaei, 2025 ONSC 3098, at para 69.
[28] Hao Chen et al. v. Masih Moazen-Safaei, 2025 ONSC 3098, at para 23-24. See also York University v. Bell Canada Enterprises (2009), 99 O.R. (3d) 695 (S.C.J.) at para 25; Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5., s.7(3)(c).
[29] Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, at para 28-32; 35-36.
[30] Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5;
[31] Beals v. Saldanha, 2003 SCC 72; Chevron Corp. v. Yaiguaje, 2015 SCC 42.
[32] H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44.
[33] Li et al. v. Barber et. al., 2022 ONSC 1176, at para 37-38.
[34] Civil Procedure Rules 1998 (England & Wales) 1998 No. 3132 (L. 17), Part 25 (interim remedies, including freezing injunctions)
