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Race to Judgment: Mareva injunctions do not give a proprietary interest in affected assets

In Trade Capital Finance Corp. v. Cook, 2018 ONCA 27, the Ontario Court of Appeal confirmed that a Mareva injunction that had been granted and covered funds in an account does  prevent seizure of those same funds by another creditor.

The appellant, Trade Capital Finance Corp. ("Trade Capital"), obtained a Mareva injunction against various defendants, including The Cash House Inc. ("Cash House"), alleging that it had lost over $6 million in a fraudulent invoicing scheme.  Mareva injunctions, also known as freezing orders, are a form of interlocutory relief designed to preserve a defendant's assets until the plaintiff's claim can be determined.

In a separate and unrelated proceeding, Cash House was ordered to pay costs of over $120,000 to a third party, Maple Trust, when its action was dismissed.  Maple Trust had a writ of seizure and sale issued to collect its award and then moved to vary the Mareva injunction to permit it to seize the funds in an account held by Cash House.

The motion judge held that the Mareva injunction did not give Trade Capital a proprietary interest in the funds, and the Court of Appeal agreed.  As there was no evidence that any of the funds came directly or indirectly from the fraud committed against Trade Capital, there was no basis to prefer the rights of Trade Capital over the rights of other creditors in the debt collection process.

The Court of Appeal's decision is a timely reminder that while Mareva injunctions are a powerful tool to preserve assets that might otherwise be dissipated, victims of fraud and other plaintiffs cannot rely on interlocutory relief alone to defeat the competing claims of other creditors.

  • Par : Nicolas Businger