Frozen But Available: The Limits Of A Mareva Injunction

In the recent decision Trade Capital Finance Corp. v Cook, the Ontario Court of Appeal considered a claim of a non-party creditor over the defendant's funds that were subject to a Mareva injunction.¹ While the decision focuses on a specific aspect of a Mareva injunction, as discussed further below, it serves as a reminder of how this equitable remedy can be obtained and used in commercial litigation, and of the limits of this remedy.

A Mareva injunction, which is often referred to as a "freezing order", is an extraordinary, equitable remedy intended to prevent a genuine risk that a defendant would dissipate assets prior to the conclusion of a trial or action. The jurisdiction to grant a Mareva injunction derives from a superior court's inherent jurisdiction to grant an injunction when it appears to be just or convenient to do so. While Mareva injunctions are typically granted on a motion brought by a plaintiff, their primary function is to maintain the integrity of