Is The Test For Mareva Injunctions/Freezing Orders Too Stringent?

An important pre-trial remedy in cases of fraud is the Mareva injunction, now more commonly called a "freezing order". This remedy, in simple terms, allows the victim of a fraud, as a plaintiff in the civil courts, to prevent the defendant (the alleged fraudster) from disposing of or dealing with his or her assets, except under strict conditions.

The test used by the courts to determine whether to issue a freezing order varies to some extent from province to province, partly as a consequence of the Supreme Court of Canada not having comprehensively opined on freezing orders since the mid-1980's in Aetna Financial Services Ltd. v. Feigelman, 1985 CanLii 55 (SCC).

In Alberta and Ontario, the test for a freezing order—consistent with the Aetna case from 1985—requires, among other things, that the plaintiff demonstrate, as to the merits of the fraud claim, a "strong prima facie case".