Canada - Attachment of Assets
Richard R. Wozenilek, Partner, Keel Cottrelle LLP, Barristers and Solicitors
Seher Goderya, Student-at-Law, Keel Cottrelle LLP, Barristers and Solicitors
Carlos M. de Vera, J. Brian Casey and Lisa M. Douglas, Baker & McKenzie LLP (original contributors)
Originally from Attachment of Assets
Canada is a federal state consisting of ten provinces and three territories in which the federal and provincial governments share political and legal power. Under the Canadian constitution the federal and provincial governments are assigned respective spheres of jurisdiction. Federal law applies throughout Canada while the laws of a particular province apply only within that province. The constitution assigns “property and civil rights” to provincial jurisdiction and, as a result, the attachment of assets is a topic that must be addressed individually for each province. The scope of this chapter is restricted to the law applicable in the province of Ontario, which consists of both statute law and common law. In the province of Ontario “attachment” generally covers any legal process by which the property of a debtor is taken into possession or constructive possession by a creditor. For purposes of this chapter a distinction is made between pre-judgment and post-judgment forms of attachment.
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
Although the general rule is that there is to be no interference with a defendant’s assets before judgment, there are several judicial measures available in Ontario to plaintiffs who need to obtain provisional relief affecting the property of debtors as security for judgments to be obtained. The court may provide various interlocutory injunctions or mandatory interim orders, including interim orders for the preservation or recovery of property, certificates of pending litigation, the appointment of interim receivers, or orders that funds be paid into court or otherwise secured, all in strictly defined and limited circumstances. These various interim remedies are described more fully below.