An arbitration decides the dispute, but it takes time to do so. A tribunal must be appointed, a procedure settled, evidence exchanged and a hearing held, and in the months between the notice of arbitration and the award a counterparty can terminate the contract, shut off the software, sell the shares, empty the accounts or deorbit the satellites. The Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), answers that problem by giving powers to the tribunal and to the court. Section 18(1) gives the arbitral tribunal power, on a party’s request, to make “an order for the detention, preservation or inspection of property and documents that are the subject of the arbitration or as to which a question may arise in the arbitration,” and s. 31 provides that a tribunal “shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.” Section 8(1) then provides that “[t]he court’s powers with respect to the detention, preservation and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as in court actions.” The two (2) jurisdictions overlap, and the first question in every urgent case is which of them to invoke, because the tribunal’s orders bind only the parties to the arbitration agreement and the court’s orders bind the world.
The cases in which Ontario courts have granted or refused relief in aid of an arbitration are now numerous enough to show a pattern. The court will grant an interlocutory injunction preserving the status quo pending the arbitration where the applicant meets the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“RJR-MacDonald”), gives the undertaking as to damages that rule 40.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), requires, and asks for relief that ends when the tribunal can deal with the matter itself. It will grant a Mareva injunction or appoint a receiver only on the ordinary and demanding tests for those remedies, and it will not grant either because the applicant holds an award it has not yet turned into a judgment. It will leave to the tribunal every question that the tribunal can decide, including the merits, the scope of the clause and the conduct of the arbitration, and it will refuse to enjoin the arbitration itself. This article takes the subject in that order, from the tribunal’s powers to the court’s, and closes with the international regime under the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), and the practical steps that decide these motions.
The tribunal’s powers and their limit
The tribunal’s authority to make interim orders rests on the Act, on the arbitration agreement and on any institutional rules the parties have adopted. Section 18(1) is the preservation power, and it extends to property and documents “that are the subject of the arbitration or as to which a question may arise in the arbitration,” together with an order that a party “provide security in that connection.” Section 31 adds the equitable remedies, and s. 41 provides that “[t]he arbitral tribunal may make one or more interim awards.” Section 25(6) requires the parties, subject to any legal objection, to comply with the tribunal’s directions, and ss. 18(2) and 25(7) each provide that “[t]he court may enforce the direction of an arbitral tribunal as if it were a similar direction made by the court in an action.” Institutional rules commonly go further in terms; in Farah v. Sauvageau Holdings Inc., 2011 ONSC 1819 (“Farah”), the ADR Chambers rule in play, quoted at ¶ 69, allowed the tribunal to “order whatever interim measures it deems necessary, including injunctive relief, measures for the protection or conservation of property and security for costs.”
The limit on those powers is the arbitration agreement itself. In Farah, a share purchase dispute in which fraud was alleged had been referred to arbitration, and the arbitrator, on an ex parte attendance, granted what Perell J. called an “arbitral-Mareva injunction” that purported to bind all persons with notice, directed banks to freeze accounts and deliver up records, and was then issued by court staff and served on the banks as if it were an order of the Superior Court. The vendors moved to set it aside and the purchaser cross-applied under s. 50 to enforce it. Perell J. held at ¶ 6 that “while Mr. Montgomery has the authority to make a binding injunctive award enjoining Mr. Farah (a preservation order), which award can be enforced pursuant to the enforcement provisions of the Arbitration Act, 1991, he did not have the jurisdiction to make an arbitral-Mareva injunction involving third parties, who are outside the arbitrator’s jurisdiction.” The reasoning at ¶¶ 57-63 is the foundation of the modern Ontario position. Arbitrators “depend upon the Arbitration Act, 1991 and the arbitration agreement for their jurisdiction,” and “the Legislature has not given arbitrators injunctive power over third parties and the private agreement of the parties to the agreement to arbitrate cannot invade the rights of non-parties” (¶ 57). Section 18(1) confers a preservation jurisdiction that “is expressly directed only at the parties to the arbitration and not toward third parties” (¶ 60), and s. 31 contains “nothing … that extends the arbitrator’s equitable jurisdiction to persons who are not parties to the arbitration procedure” (¶ 62). Perell J. concluded at ¶ 63 that “there is nothing in the Arbitration Act, 1991 that empowers arbitrators to grant Mareva injunctions or for that matter to appoint receivers, grant Anton Pillar orders, or grant Norwich orders,” because an order of that kind “is an order in which the arbitrator purports to enjoin or direct the conduct of strangers to the agreement to arbitrate who are not bound by the jurisdiction of the arbitral tribunal.”
The purchaser’s answer in Farah was that the primacy of arbitration left a “gaping hole” unless the arbitrator could do what the court could do. Perell J. rejected it at ¶ 66, stating, “[n]ecessity is not the mother of jurisdiction, and moreover, the Legislature recognizes in sections 6, 8 (1), and 18(2) that the courts are available to fill any ‘gaping holes’ in the efficacy of arbitration proceedings.” The institutional rules did not change the result; they “enabled Mr. Montgomery to make orders binding on the parties to the arbitration agreement, but these private contractual provisions do not and cannot confer on the arbitrator the court’s jurisdiction over third parties” (¶ 70). Michael Valo and Charles Powell summarize the law in the same terms in The Law of ADR in Canada: An Introductory Guide, 4th ed. (LexisNexis) at § 2.09[14][i], stating that “[t]o the extent that the interim measure or preservation order purports to bind any non-party, the order will be set aside by a court,” and that arbitrators are therefore “precluded from granting Mareva injunctions, from appointing receivers, granting Anton Piller orders, or granting Norwich orders.”
Two (2) further points about the tribunal’s orders follow from the Act. The first is that an interim procedural order is not an award. The Court of Appeal held in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642 (“Inforica”), that an arbitrator’s order for security for costs was neither a ruling on the tribunal’s “jurisdiction to conduct the arbitration” under s. 17(1) nor an “award” under s. 46(1), so the Superior Court had no jurisdiction to set it aside on either route. Sharpe J.A. wrote at ¶ 18 that “[a] significant feature of the modern approach limiting access to the courts to review decisions of arbitrators is that there are no appeals from procedural or interlocutory orders,” and adopted at ¶ 29 the statement that only decisions determining the substantive issues should be termed awards, and that “[m]atters relating to the conduct of the arbitration are not awards but, rather, are procedural orders and directions.” A party dissatisfied with a tribunal’s interim order therefore has no recourse to the court under ss. 17(8) or 46, and must take the point up with the tribunal. The second point is that the tribunal’s interim orders need the court to enforce them against a party who will not comply, under ss. 18(2) and 25(7) for directions and under s. 50 for an interim award. In Ibrahim v. Koshi Bashi Inc., [2024] O.J. No. 4613 (S.C.J.) (“Ibrahim”), the arbitrator had circulated a consent order restraining dissipation and requiring financial disclosure, to which every respondent agreed, “but the arbitrator did not sign the order because the respondents did not pay their arbitration fees” (¶ 10), and the successful claimant was left to ask the court for the same relief after the award.
The court’s jurisdiction under section 8
Section 6 of the Act provides that no court shall intervene in matters governed by the Act except for four (4) purposes, the first of which is “[t]o assist the conducting of arbitrations” and the second “[t]o ensure that arbitrations are conducted in accordance with arbitration agreements.” Section 8(1) is the specific grant. Perell J. described the relationship at ¶¶ 58-59 of Farah; namely, that “[i]t is precisely because the Arbitration Act, 1991 recognizes that arbitrators do not have jurisdiction over third parties who are strangers to the arbitration agreement that the Act acknowledges the court’s jurisdiction to come to the aid of the arbitrator,” and that s. 6 “is complemented by s. 8(1) of the Act, which acknowledges the court’s jurisdiction to assist the conducting of arbitrations by making injunctive orders and orders for the detention, preservation and inspection of property and the appointment of receivers.”
The court’s power is cumulative with its ordinary jurisdiction, and the Commercial List has identified the sources more than once. In 1338121 Ontario Inc. v. FDV Inc., 2011 ONSC 3816 (“FDV”), D.M. Brown J. noted at ¶ 45 that the applicants relied on ss. 248 and 253 of the Business Corporations Act, R.S.O. 1990, c. B.16 (the “OBCA”), on s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), and on s. 8(1) of the Act, and held at ¶ 47 that “[w]hether one draws on the remedial powers found in section 248 of the OBCA, or section 253 of the OBCA, or section 101 of the Courts of Justice Act, in my view the applicants have made out a case for interim injunctive relief.” In McGinn v. Bleeker, 2024 ONSC 6379 (“McGinn”), Holowka J. held at ¶ 48 that “I am satisfied that I have jurisdiction to grant injunctive relief in aid of arbitrations,” and listed at ¶ 49 three (3) sources; namely, the court’s jurisdiction under s. 101 of the CJA, the jurisdiction “provided by ss. 6 and 8 of the Arbitration Act, 1991 … to ensure that arbitrations are conducted in accordance with arbitration agreements, including by imposing interim measures,” and s. 247 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (the “CBCA”), which allows a shareholder or director to apply for an order restraining a breach of a unanimous shareholder agreement. Holowka J. added at ¶ 49, citing Gay, Kaufman and Plotkin, Arbitration Legislation of Ontario: A Commentary, 4th ed. (Thomson Reuters, 2023) at p. 258, that the court’s interim measures “are intended to preserve ‘the ability of the arbitration process to deal with the issues’ pending a final determination by the arbitrator and, as such, ‘protecting the subject matter of the dispute or the evidence.’” Wilton-Siegel J. put the sources more briefly in NowVertical Group Inc. v. Trousdell, 2024 ONSC 595 (“NowVertical”), at ¶ 31, stating that “[t]his Court has jurisdiction under Rules 14.05(3)(d), (g) and (h), sections 6 and 8 of the Arbitration Act and Section 10(d) of the Separation Agreement to grant injunctive relief while the Arbitration is pending.” Tamar Meshel collects the same authorities in Arbitration Law: Statutes, Cases and Commentary (LexisNexis) at § 3.09[11], and notes that Ontario courts “have ordered interlocutory injunctions prior to the appointment of an arbitrator … as well as after an arbitral tribunal was appointed.”
The jurisdiction is rarely contested in a commercial case, and the respondent in McGinn did not argue it at all (¶ 47). A respondent in an international case sometimes does, and the answer in that case is art. 9 of the Model Law, discussed below, which provides that a request to a court for an interim measure of protection “is not incompatible with an arbitration agreement.” Institutional rules say the same thing. In Cash Cloud Inc. v. BitAccess Inc., 2022 ONSC 5622 (“Cash Cloud”), Hooper J. found jurisdiction at ¶ 33 on the terms of the contract and on rule 13.3 of the Canadian Arbitration Association’s Commercial Arbitration Rules, which provides that “[a] request for interim measures addressed by a Party to a court shall not be deemed incompatible with the Agreement to Arbitrate or a waiver of the right to arbitrate.”
The timing of the application and the tribunal’s priority
The court’s jurisdiction under s. 8(1) exists whether or not a tribunal has been appointed, and the reported cases divide on that line. Where no tribunal exists, the court is the only forum. In McGinn, the respondent had purported to terminate the applicant on September 6, 2024, the parties were before a judge for an urgent case conference on September 12, 2024, and the injunction issued on November 18, 2024, with an order “that the applicant’s claims against the respondents be referred to arbitration in accordance with the shareholders’ agreement and the notice of arbitration” (¶ 91). In Bombardier Transportation Canada Inc. v. Metrolinx, 2017 ONSC 2372 (“Bombardier”), Hainey J. enjoined the termination of a $770 million light rail vehicle contract for material default until the contractual Dispute Review Board had decided whether the contractor was in default. In 2859824 Ontario Ltd. v. Gen Digital Inc., 2025 ONSC 6360 (“Gen Digital”), the arbitration had been commenced but “[t]he arbitral tribunal had not been constituted when this application was heard” (¶ 15), and Kimmel J. granted the injunction “pending the outcome of the Arbitration but subject to any further order that the arbitral tribunal may make in the interim” (¶ 18). Her Honour explained at ¶ 19 that, since the request “has been fully briefed and argued, it would be highly inefficient for the court to render a decision on an interim interim basis only to require the parties to argue the interlocutory injunction motion all over again in the Arbitration proceeding,” so the injunction was granted “on the expectation that there will not be a further interim injunction hearing before the arbitral tribunal, unless the tribunal determines that to be appropriate.”
Where a tribunal exists, the court still has jurisdiction, but it expects the applicant to explain why the tribunal was not asked. In FDV, the parties had referred their dispute over a triggering event to arbitration, with a hearing scheduled for late August, when the respondents served a buy/sell notice, and the court restrained any further step on the notice “pending the decision of the arbitral tribunal presently scheduled to sit to hear the parties’ disputes at the end of August or until further order of this court” (¶ 53). In NowVertical, the injunction enforcing the standstill covenants was granted on the footing that it was “of an interim and interlocutory nature to run only until the Arbitrator renders his decision” (¶ 62). Meshel observes at § 3.09[11] that neither decision “discussed the possibility of obtaining the injunction from the arbitrator.” The international cases are more pointed. In International Steel Services Inc. v. Dynatec Madagascar S.A., 2016 ONSC 2810 (“International Steel”), Newbould J. noted at ¶ 31 that the question of interim relief “should have been dealt with before an arbitrator under the ICC emergency arbitration rules,” and treated the respondent’s refusal to respond to that request as “a factor that I take into account in considering the equities involved in the granting of an injunction.” In NorthStar Earth & Space Inc. v. Spire Global Subsidiary, Inc., 2024 ONSC 5060 (“NorthStar”), Kimmel J. observed at ¶ 43 that “[t]he court is only being asked to consider the interim measures (this injunction) because of the urgency of the situation and the September 12, 2024 deadline. This would/should have otherwise been determined by the ICC Tribunal.”
The converse rule is that the court will not interfere with the tribunal’s management of the arbitration. In Kingston Automation Technology Inc. v. Montebello Packaging, 2021 ONSC 2684 (“Kingston Automation”), Mew J. held at ¶ 34 that an application to stay the arbitral proceeding itself should be made to the arbitrator, and at ¶ 35 that the cost of continuing an arbitration while an award is challenged is not “a basis for displacing the kompetenz-kompetenz principle by interfering with the arbitrator’s management of the arbitration,” since wasted expense “can be compensated for, at least to some extent, by appropriate awards of costs.” Meshel notes at § 3.09[11] the older line that a court can intervene under s. 6 if the arbitrator “fails to control the process,” but that “[a]s long as an arbitrator remains in control of the process, a court should not intervene.”
The RJR-MacDonald test as applied pending arbitration
The test for an interlocutory injunction in aid of an arbitration is the test for any interlocutory injunction. Hainey J. applied it in Bombardier at ¶ 55; namely, “[t]here must be a serious question to be tried,” “[t]he applicant must suffer irreparable harm if the interlocutory injunction is not granted,” and “[t]he balance of convenience must favour the granting of the interlocutory injunction.” Wilton-Siegel J. adopted that approach in NowVertical at ¶ 32 as “the appropriate approach to determining an application for injunctive relief pending arbitration,” and Holowka J. applied it in McGinn at ¶ 62. Newbould J. raised the question in International Steel at ¶ 35 whether some other test might apply to interim relief pending an arbitration, was told “that the parties and the courts had just assumed that the RJR test applied,” and declined to import the divided American authority. His Honour’s qualification at ¶ 38 is nonetheless important, and the domestic cases describe the court’s role in the same way; namely, that “while RJR is instructive on such a motion, it must be recognized that the interim measure of protection is not necessarily a typical measure intended to last until the trial or other final disposition of the action. What is contemplated by the Ontario International Commercial Arbitration Act in my view is an interim measure pending the ability of the arbitration process to deal with the issues.” Holowka J. recorded in McGinn at ¶ 63 the further point that “not all parts of the RJR test must always be met by the moving party, and that the three parts must be assessed as a whole, that strength on one branch may compensate for weakness on another branch.”
The first branch depends on the nature of the order sought. The Supreme Court held in R. v. Canadian Broadcasting Corp., 2018 SCC 5 (“CBC”), at ¶ 15, that a mandatory interlocutory injunction requires a strong prima facie case, and at ¶ 16 that the judge “should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something.” The characterization question arises in almost every arbitration case, because the applicant usually wants the counterparty to keep performing a contract the counterparty says it has validly ended. The Ontario answer predates CBC. The Divisional Court held in TDL Group Ltd. v. 1060284 Ontario Ltd., [2001] O.J. No. 3614 (Div. Ct.), that “[a]n order preventing the denial of a right previously agreed to is very different from an order establishing a new right never agreed to and requiring a party to act accordingly,” and D.M. Brown J. followed that direction in 1323257 Ontario Ltd. v. Hyundai Auto Canada Corp. (2009), 55 B.L.R. (4th) 265 (S.C.J.). Newbould J. applied the distinction in International Steel at ¶¶ 42-46, holding that the applicant “seeks to enforce that agreement and not to establish some right it does not have” and was asking the court “to order Dynatec to stop taking steps that interfere with the rights of ISSI under the Agreement,” so the injunction was prohibitive. Holowka J. reached the same conclusion in McGinn at ¶¶ 56-61, where the injunction “would require the arbitral panel’s consideration of whether Mr. Bleeker is entitled, further to the shareholders’ agreement, to remove Ms. McGinn as an employee unilaterally before attempting to do so,” and Kimmel J. held in Gen Digital at ¶ 29 that an injunction restraining the decommissioning of software the respondent had covenanted to provide was prohibitive “even if the collateral effect is that Gen has to continue to provide the SecureKey Services in accordance with the MOSA to maintain the status quo.” Where the order would establish a new arrangement, the higher standard applies; in NorthStar, the order sought “would require Spire to do something: deliver data from the Failed Satellites and keep them operating” (¶ 36), and in Loan Away Inc. v. Western Life Assurance Co., 2018 ONSC 7229 (“Loan Away”), Sachs J. treated an order requiring an insurer to resume payments and keep policies in force as mandatory (¶¶ 37-38, 61).
The serious issue branch is a low one where it applies. In Gen Digital, Kimmel J. held at ¶ 32 that the threshold requires only that “the underlying issue to be tried is neither frivolous nor vexatious,” and declined at ¶¶ 40-41 to go further into the merits “[s]o as to avoid pre-determining the issues to be decided by the arbitral tribunal.” That restraint is a feature of these motions. Newbould J. said in International Steel at ¶ 49 that “[w]hether the Agreement continues is a matter for the arbitrator,” before finding a serious issue on the extension of the agreement, and Wilton-Siegel J. in NowVertical at ¶¶ 47-50 found a serious issue on the public press release while expressing a view that the private letters probably did not breach the standstill, each of which was for the arbitrator to decide. Where the contract itself promises continued performance during the dispute, the applicant’s case is stronger still; the clause in International Steel provided “that performance of the Agreement shall continue during arbitration proceedings” (¶ 44), and the respondent’s termination in the face of it was one of the serious issues (¶ 49).
Irreparable harm
The second branch asks whether the applicant will suffer harm that cannot be quantified in money or cured before the award. Hainey J. summarized the standard in Bombardier at ¶ 64; namely, “[e]vidence of irreparable harm must be clear and not speculative. However, the moving party need only establish a meaningful risk of irreparable harm. This is a relatively low standard,” which His Honour described as a “meaningful doubt as to the adequacy of damages if the injunction is not granted.” Newbould J. applied the same flexible approach in International Steel at ¶ 51, citing the statement of McLachlin J.A., as she then was, that “clear proof of irreparable harm is not required. Doubt as to the adequacy of damages as a remedy may support an injunction.” The applicant must nonetheless prove the harm. In Loan Away, Sachs J. held at ¶ 57 that “[a]n assertion of irreparable harm in oral argument without a supporting evidentiary record cannot meet this threshold,” and in NorthStar, Kimmel J. agreed at ¶ 59 that the applicant’s assertions about lost customers and employees “are just that,” before finding irreparable harm on other grounds.
The cases identify the kinds of harm that qualify when an arbitration is the forum. The first is the loss of the arbitral remedy itself. In FDV, the issuance of a buy/sell notice during the arbitration of a triggering event would, if the respondents were right, nullify the applicants’ option to buy the respondents’ shares at a discount, and D.M. Brown J. held at ¶ 50 that “[t]hat potential shift in ownership rights strikes me as lying at the irreparable harm end of the scale of kinds of damages.” In McGinn, Holowka J. found at ¶ 74 that excluding the applicant from management while the arbitration proceeded “diminishes the likelihood of an arbitral panel making an order to implement” the shotgun remedy she sought, because “the panel would not find it feasible to order a remedy that could have the effect of destabilizing Assurance with the reinstallation of Ms. McGinn after months of exclusion.” The second is the loss of a business, a reputation or a workforce that cannot be rebuilt after the award. Newbould J. accepted in International Steel at ¶¶ 54-60 that the loss of business reputation and the dispersal of the applicant’s expatriate employees were a “meaningful risk of irreparable harm,” and Hainey J. accepted in Bombardier at ¶¶ 68-72 that the stigma of a termination for default on future bids, and the loss of the supply chain and workforce needed to resume performance if the contractor won, were harms with “no realistic way to quantify.” Kimmel J. went further in Gen Digital, rejecting at ¶¶ 53-54 the argument that a lost line of business is reparable because valuators can value it, on the basis that the argument “would render injunctions almost impossible to obtain in commercial cases,” and holding that “conduct which threatens to extinguish a counterparty’s business unequivocally gives rise to ‘irreparable harm’ and can and should be enjoined.” The third is harm that a contractual limitation makes irrecoverable. In NorthStar, the limitation of liability clause “may restrict the quantum and type of damages that NorthStar can claim” (¶ 60), and the deorbiting of the satellites “will be irreversible if it happens” (¶ 63), so the harm was irreparable (¶ 64). The fourth is damage to goodwill in a public company; in NowVertical, further publicity of the dispute with the largest shareholder would “raise serious doubts among the investing public regarding the Company’s future,” and Wilton-Siegel J. held at ¶ 57 that “such damage to the Company’s goodwill is, by its very nature, unquantifiable and non-compensable.”
The parties’ own contract can settle the point. D.M. Brown J. found support for irreparable harm in FDV at ¶ 50 in a clause by which the parties acknowledged “that damages and other remedies at law will not be a sufficient remedy in the event of a breach by any party of the terms of this Agreement,” and Kimmel J. relied in Gen Digital at ¶¶ 28 and 47 on an article by which the respondent had agreed not to “wilfully refuse to provide all or any portion of the SecureKey Services in violation or breach of the terms of [the MOSA].” A claim that is only about money is the opposite case. In Toronto Standard Condominium Corp. No. 2364 v. Toronto Standard Condominium Corp. No. 2442, 2021 ONSC 7689, Myers J. held at ¶ 46 that “[i]njunctions are only granted if, while waiting for the arbitration, the moving party will suffer irreparable harm that cannot be compensated later by payment of money if it wins the arbitration,” and that “[i]njunctions pending later decisions are not granted when all that is in issue is money and there is no question of the other side’s ability to pay if ordered to do so.”
The balance of convenience and the equities
The third branch asks which party will suffer the greater harm from the grant or refusal of the order pending the award. Several themes recur. The first is that the interim period is short, and the court weighs the inconvenience to the respondent against that horizon. In FDV, the arbitration was two (2) months away, no party showed that waiting would prejudice the company, and “the balance of convenience favours preserving the respective shareholder positions of the parties pending the arbitration in August” (¶ 51). In NowVertical, Wilton-Siegel J. noted at ¶ 62 that the relief would “run only until the Arbitrator renders his decision,” and that the respondent had shown no real harm during that limited period (¶ 64). The second is that a respondent cannot count as inconvenience the cost of performing the contract it made. Newbould J. held in International Steel at ¶ 63 that “[h]aving to carry out that contract which it chose to make in the first place can hardly be said to be harm in this case to Dynatec,” and Kimmel J. held in Gen Digital at ¶¶ 63-64 that “[t]he burden on Gen to perform its contractual obligations does not tip the balance of convenience back in its favour.” The third is that the court will not reward tactics. The respondent in International Steel had pressed ahead with a takeover “in the face of the arbitration and did what it could to delay any arbitration,” and Newbould J. held at ¶ 65 that “[i]t does not lie in its mouth to now complain that its tactical position will be of nought,” adding at ¶ 67 that the clean hands and “one who seeks equity” maxims “apply not only to the party seeking an injunction but also to the party opposing it.” Kimmel J. applied that reasoning in Gen Digital at ¶ 66, where the respondent “took a calculated risk” that a unilateral termination would force the applicant back to the bargaining table, and held that “[t]he balance of convenience is not about creating or preserving strategic advantages that one party has sought to obtain by its course of conduct leading up to the litigation.”
The fourth theme is the integrity of the arbitral process. D.M. Brown J. saw “an element of unfairness in a shareholder disputing allegations that it is in material default of the USA, requiring that the dispute proceed to arbitration, and then attempting to render the arbitration moot by invoking the buy/sell provisions” (FDV at ¶ 49), and Holowka J. held in McGinn at ¶ 88 that, if the injunction were refused, “the integrity of the arbitration process will be compromised.” The fifth is the reluctance of courts to force parties to work together once trust is gone. Sachs J. relied on it in Loan Away at ¶¶ 59-60, where “there is a complete lack of trust between the parties.” Holowka J. distinguished the same line in McGinn at ¶¶ 84-87, on the basis that the parties had agreed to arbitrate, the respondent’s evidence of lost morale was inadmissible hearsay, and FDV “confirms that interim injunctive relief requiring parties to continue working together pending arbitration may be appropriate where they have agreed to adjudicate the merits of their dispute through arbitration.” The sixth is that the court can shape the order to reduce the burden. In NorthStar, the applicant offered to pay for the operation of the satellites during the injunction, and Kimmel J. ordered a payment of USD $8,000 per satellite per month, to be “revisited upon a proper record, preferably before the Arbitration Tribunal” (¶ 70). In Cash Cloud, Hooper J. would have granted only “a time-limited injunction to maintain the status quo” of sixty (60) days, because the applicant was already replacing the respondent’s software (¶¶ 60-61).
The undertaking as to damages
Rule 40.03 provides that, on a motion for an interlocutory injunction or mandatory order, the moving party “shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.” The undertaking is the price of the order, and the cases in aid of arbitration treat its absence as fatal in a commercial dispute. In Loan Away, the applicant gave no undertaking and asked to be excused because the respondent was holding $1.4 million of its money; Sachs J. held at ¶ 34, following Catalyst Capital Group Inc. v. Moyse, 2015 ONSC 4388, that “in commercial cases, an undertaking as to damages is almost invariably required and in the absence of such an undertaking the court will dismiss the motion for an injunction,” and at ¶ 36 that the failure “is a sufficient basis on which to dismiss its request for interlocutory injunctive relief.” In Cash Cloud, the applicant was a Nevada company with no assets in Ontario that wanted an order forcing the respondent to stay in business with it; Hooper J. raised the missing undertaking at the hearing, none was offered, and the application was dismissed on that ground alone, Hooper J. stating at ¶ 58 that “[t]here is no evidence explaining why Cash Cloud refused to provide this undertaking. That was its choice. But it was a fatal choice in this application.” The undertaking should be in an affidavit sworn by a person with authority to bind the applicant; Hooper J. adopted at ¶ 54 the holding in Guelph Taxi Inc. v. Guelph Police Service, 2016 ONSC 3671, that an oral undertaking given at the hearing is not enough.
The sufficiency of the undertaking is a different question. In Bombardier, the undertaking was given on the first day of the hearing, the respondent complained that it could not test the applicant’s financial strength, and Hainey J. accepted the undertaking at ¶ 56 because the applicant had already posted irrevocable letters of credit for $153 million as performance security. In NorthStar, the respondent attacked the undertaking as “hollow” on the strength of confidential board material it had obtained as a board observer, and Kimmel J. held at ¶¶ 80-82 that no binding authority made an insufficiency of assets “on its own” a ground to refuse an injunction, and that she had “some concerns about the proposition that a party seeking an injunction may be subject to an inquiry into the sufficiency of its assets (akin to what the court engages in on motions for security for costs).” Her Honour returned to the point in Gen Digital at ¶¶ 67-68, holding that “there is no basis on which the court could conclude today that the undertaking as to damages is not genuine or is worthless,” and that whether the applicant’s parent could be held to the undertaking “is a matter for another day.” A Mareva injunction carries the same requirement; the claimant in Ibrahim asked the court to waive the undertaking on a post-award Mareva motion, and Stewart J. refused, describing it at ¶ 20 as “something that the applicant ‘must’ give.”
Mareva injunctions and receivers in aid of an arbitration
The court’s power under s. 8(1) to grant interim injunctions and appoint receivers “in arbitrations as in court actions” includes the Mareva injunction, but the test is the one that applies in any action, and the cases show how seldom it is met. Perell J. stated the elements in Farah at ¶ 110; namely, “(1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before judgment,” citing Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.), and United States of America v. Yemec (2005), 75 O.R. (3d) 52 (C.A.). The Commercial List now commonly states the test in the six (6) parts set out by the Divisional Court in SFC Litigation Trust (Trustee of) v. Chan, 2017 ONSC 1815 (Div. Ct.), at ¶ 60, which Wilton-Siegel J. quoted in Ballantry Construction Management Inc. v. GR (CAN) Investment Co., 2024 ONSC 2129 (“Ballantry”), at ¶ 36; namely, a strong prima facie case, assets in the jurisdiction, “a real risk that the defendant will remove his assets from the jurisdiction or dissipate those assets to avoid judgment,” irreparable harm, a balance of convenience favouring the injunction, and the undertaking as to damages.
Robert J. Van Kessel and Paul S. Rand, in Law of Fraud in Canada (LexisNexis), ch. 9, trace the Ontario position to Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2, in which Estey J. described the injunction as the right “to freeze exigible assets when found within the jurisdiction,” subject to the condition that “unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue” (§ 9.20). The authors record at § 9.25 the Manitoba Court of Appeal’s observation in Clark v. Nucare PLC, [2006] M.J. No. 320 (C.A.), that “Ontario, and most other Canadian courts, have adopted the approach that ‘proof of a serious risk of removal or disposition of assets is required even where the action is based on fraud and it is shown that the defendant has committed a fraudulent act,’” in contrast with the “flexible” approach of British Columbia, and they add at § 9.26 the rule from 663309 Ontario Inc. v. Bauman (2000), 190 D.L.R. (4th) 491 (S.C.J.), that “Mareva orders are not available to freeze a defendant’s assets while the plaintiff looks for evidence that would raise a prima facie case.” Two (2) further principles from the same chapter bear on any Mareva motion. The first is proportionality; the order “should not tie up assets beyond the value necessary to satisfy any likely judgment,” and the applicant must show “that the extent of the viable claim bears some relation to the value of assets sought to be impounded or frozen” (§ 9.28, citing Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481, at ¶ 56). The second is the ex parte applicant’s duty of full and frank disclosure, under which the applicant must be “fastidious in disclosing to the court all important aspects of the evidence, and in pointing out what defences might be available to the defendants,” and “must not, in such a situation, exaggerate or misrepresent the strength of their case” (§ 9.27, citing Green v. Jernigan, 2003 BCSC 1097, at ¶ 24). The order itself does not give the applicant priority; Perell J. adopted in Farah at ¶ 111 the statement in Morden and Perell, The Law of Civil Procedure in Ontario, that “[a] Mareva injunction is not meant to give the plaintiff any priority over other creditors, nor to prevent the defendant from carrying on business in the usual course and paying other creditors.”
The arbitration cases apply those rules without adjustment. In Farah, having quashed the arbitral order, Perell J. considered the purchaser’s alternative request for a judicial Mareva against each vendor, refused it against one of them because the case against her was “pathetically weak” (¶ 115), and granted it against the other on a changed record and with the arbitration imminent, on the basis that the purchaser “has just barely satisfied the criterion for the granting of a Mareva injunction” (¶ 123). In Ballantry, an award creditor holding awards of $4,104,393.37 moved, pending its application under s. 50 to enforce and the debtor’s application to set aside, for a preservation order or an injunction restraining the debtor from dealing with its assets. Wilton-Siegel J. held that the motion was in substance for a Mareva injunction (¶ 28), that the creditor had shown a strong prima facie case for enforcement (¶ 87), and that the motion nonetheless failed on the risk of dissipation, since “dishonesty on its own is not sufficient to evidence a risk of dissipation of assets” (¶ 48), “evidence of insolvency is not automatically evidence of a risk of dissipation” (¶ 55), and the creditor’s position “is based entirely on speculation” (¶ 57). His Honour added at ¶ 92 that “[a] Mareva injunction should not however be available in circumstances of an alleged insolvency to a party that lacks standing to seek a receivership,” and at ¶ 93 that the creditor’s inability to execute before judgment “is the natural consequence of its acceptance of arbitration” and counted for nothing on the balance of convenience. In Ibrahim, the claimant obtained judgment under s. 50 on awards for $75,000 and $223,585.71 but failed in a motion for a worldwide Mareva injunction, because the relief sought was “in the nature of a permanent injunction, which is not appropriate relief on a motion within an application” (¶ 19), no undertaking was offered, and “the test for a worldwide Mareva injunction is not met” (¶ 21). Stewart J. noted at ¶ 22 that the claimant could still seek an order “compelling the respondents to provide financial information and prevent the dissipation or disposal of assets in Ontario,” if an undertaking were given. A strong prima facie case alone does not carry the motion; in Sherif Gerges Pharmacy Professional Corp. v. Niam Pharmaceuticals Inc., 2026 ONSC 1720 (Div. Ct.), the motion judge had found a strong prima facie case of conversion but refused a Mareva injunction over the proceeds of a property sale because the other elements were not met, and the Divisional Court dismissed the appeal with costs of $35,000 (¶¶ 18-20, 73).
A receiver stands on the same footing. Section 101 of the CJA allows a receiver or receiver and manager to be appointed by interlocutory order “where it appears to a judge of the court to be just or convenient to do so,” rule 41 governs the appointment, and s. 8(1) of the Act makes those powers available in aid of an arbitration. Perell J. confirmed in Farah at ¶ 63 that the appointment of a receiver is beyond the tribunal, and Wilton-Siegel J. treated receivership in Ballantry at ¶ 92 as one of “[t]he traditional insolvency remedies” that remain open to an award creditor with standing. The appointment is intrusive and the court is slow to make it over an operating business while the merits are unresolved, but where the dispute is between the shareholders of a company whose management has broken down, a receiver or an inspector under the OBCA may be the practical way to keep the company intact until the award.
Preservation orders, certificates of pending litigation and the stay of time
Rule 45.01(1) allows the court to “make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding,” and rule 45.02 allows a fund whose ownership is in question to be paid into court or secured. Section 8(1) makes those powers available pending an arbitration, and the tribunal has a parallel power under s. 18(1) over property “that are the subject of the arbitration or as to which a question may arise.” The limit of rule 45.01 is the phrase “property in question.” Wilton-Siegel J. held in Ballantry at ¶¶ 24-28, following Shanghai Lianyin Investment Co. v. Lu, 2023 ONSC 399, that the rule reaches only “an asset over which a party asserts a legal right in the proceeding or an asset that could be evidence in the proceeding,” so that an award creditor who “will become an unsecured creditor of the Respondent” if the award is recognized cannot use it to freeze the debtor’s general assets. The rule is apt for evidence. In Cash Cloud, Hooper J. refused the injunction for want of an undertaking but ordered the respondent under rule 45.01 “to preserve Cash Cloud’s customer data for a period of sixty (60) days” and to let the applicant download it (¶¶ 36-39, 63). Family arbitrations show the same jurisdiction at its most urgent; in Nugent v. Nugent, 2022 ONSC 7370, Madsen J. granted an ex parte temporary preservation order under ss. 6 and 8 during a mediation-arbitration, reasoning at ¶ 9 that an award of the arbitrator “would be unlikely to be enforced by financial institutions without having been taken out as a Court Order. Meanwhile, time would pass during which further dissipation could transpire.”
A certificate of pending litigation is a court remedy that no arbitrator can issue, and the Superior Court has granted it in aid of an arbitration. In Berthault v. Green Urban People Ltd., 2021 ONSC 8039 (“Berthault”), purchasers of new homes whose agreements the builder had purported to terminate under the Tarion warranty, which required disputes about termination to be arbitrated under the Act, applied for certificates over the land. Nicholson J. held at ¶ 34 that “the court has the jurisdiction to authorize the issuance and registration of a Certificate of Pending Litigation even if the underlying dispute must be resolved through arbitration pursuant to agreement between the parties,” relying on ss. 6, 8 and 18 of the Act (¶¶ 36-38) and on 2033363 Ontario Ltd. v. Georgetown Estates Corp., [2006] O.J. No. 687 (S.C.J.), where Master Albert had observed that obtaining a certificate from an arbitrator “would be a lengthy and cumbersome process” (¶ 29). The certificates issued on terms that the purchasers “initiate the arbitration process, or cooperate with the Respondents in doing so … within 20 days” (¶ 62). Leave to appeal to the Divisional Court was granted in Green Urban People Ltd. v. Berthault, 2022 ONSC 737 (Div. Ct.), on “the issue as to whether the court can issue a Certificate of Pending Litigation in the face of an arbitration agreement,” and no decision on the appeal has been reported.
The court can also stop a contractual clock. In 407 ETR Concession Co. v. Ontario (Minister of Transportation) (2005), 199 O.A.C. 221 (C.A.), the Province served a notice of default that would end the highway lease if the concessionaire did not cure within sixty (60) days, the concessionaire invoked the arbitration clause, and the Court of Appeal held that, once the application judge had found that the concessionaire’s right under the cure period could be lost and that the agreement gave no timely remedy, an interim order maintaining the parties’ rights should have been made. Hainey J. applied that decision in Bombardier at ¶¶ 81-84, making the injunction effective from the date of the notice of default “so that it stays the running of any relevant cure periods in the Contract,” while leaving the meaning of the cure periods “for the DRB to determine.”
International arbitrations and the Model Law
Where the arbitration agreement is international, the ICAA governs, and s. 5(1) gives the force of law in Ontario to the UNCITRAL Model Law on International Commercial Arbitration as amended in 2006 (the “Model Law”). Article 9 provides that “[i]t is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.” Chapter IV A, added in 2006, is the code for the tribunal’s interim measures. Article 17(2) defines an interim measure as a temporary measure by which the tribunal orders a party to “[m]aintain or restore the status quo pending determination of the dispute,” to “[t]ake action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself,” to “[p]rovide a means of preserving assets out of which a subsequent award may be satisfied,” or to “[p]reserve evidence that may be relevant and material to the resolution of the dispute.” Article 17A sets the conditions; the requesting party must satisfy the tribunal that “[h]arm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted,” and that “[t]here is a reasonable possibility that the requesting party will succeed on the merits of the claim.” Articles 17B and 17C allow a tribunal to grant a “preliminary order” without notice, directing a party not to frustrate the purpose of a requested measure, which expires after twenty (20) days and “shall be binding on the parties but shall not be subject to enforcement by a court.” Article 17E allows the tribunal to require security, art. 17G makes the requesting party “liable for any costs and damages caused by the measure or the order to any party if the arbitral tribunal later determines that, in the circumstances, the measure or the order should not have been granted,” and arts. 17H and 17I provide that a tribunal’s interim measure “shall be recognized as binding and … enforced upon application to the competent court,” subject to narrow grounds of refusal. The tribunal’s measures under the Model Law remain measures against the parties; the court is still the forum for relief against banks and other strangers to the agreement.
Article 17J is the court’s provision, and it provides that “[a] court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of this State, as it has in relation to proceedings in courts. The court shall exercise such power in accordance with its own procedures in consideration of the specific features of international arbitration.” The Superior Court has read that last sentence as an invitation to adapt the domestic test. In International Steel, Newbould J. granted an interim protective order under art. 9 restraining the respondent from interfering with the applicant’s contractual rights pending an ICC arbitration, on the RJR-MacDonald principles but as “an interim measure pending the ability of the arbitration process to deal with the issues” (¶ 38), and the order was expressed to be “in effect until and unless an order is made in the arbitration to the contrary” (¶ 72). In NorthStar, the applicant sought a mandatory order, with a deadline two (2) days after the hearing on which the respondent would lose the ability to deliver data from three (3) failed satellites, requiring the respondent to keep them operating pending an ICC arbitration it had not yet commenced. Kimmel J. accepted at ¶¶ 41-44 that, in consideration of the specific features of the arbitration, the merits standard was the art. 17A standard of “a reasonable possibility that it will succeed on the merits of the claim,” which “falls somewhere on the spectrum between serious issue to be tried and strong prima facie case (although closer to serious issue to be tried),” rather than the strong prima facie case that CBC would otherwise require for a mandatory order, and found that standard met at ¶ 55. Her Honour treated the undertaking as to damages as a requirement “embodied in Article 17g of the Model law” (¶ 77), granted the injunction within two (2) days of the hearing, and ordered the applicant to “commence the arbitration immediately (by no later than September 20, 2024) and request that it be expedited” (¶ 95). Meshel notes at § 7.08[10] that earlier cases applied the strong prima facie case requirement to a mandatory injunction pending an international arbitration, and Kimmel J. herself confined the point in Gen Digital at ¶ 23 to “the context of the particular arbitration proceedings in that case.”
The institutional rules complete the picture. Article 28(2) of the ICC Rules, quoted in International Steel at ¶ 32, provides that before the file is transmitted to the tribunal, “and in appropriate circumstances even thereafter,” the parties “may apply to any competent judicial authority for interim or conservatory measures,” and that such an application “shall not be deemed to be an infringement or a waiver of the arbitration agreement.” The ICC’s emergency arbitrator provisions give a party a tribunal-side route before the tribunal exists, and Newbould J.’s remarks at ¶ 31 of International Steel show that a respondent who stonewalls that route will pay for it on the equities.
The anti-arbitration injunction
The court’s injunctive power in aid of an arbitration does not extend to enjoining the arbitration because one party says the tribunal lacks jurisdiction. In NetSys Technology Group AB v. Open Text Corp., [1999] O.J. No. 3134 (S.C.J.), the plaintiff sought an injunction limiting the scope of an international arbitration to the matters it conceded were arbitrable, and the defendant moved to stay the action. Stinson J. held at ¶ 35 that art. 16 of the Model Law “expressly contemplates that the arbitral tribunal itself will first decide the matter of its own jurisdiction,” and at ¶ 40 that the conclusion “applies equally to the motion brought by Open Text for a stay of the court proceedings commenced by NetSys and to the cross-motion by NetSys for an injunction to limit the scope of the arbitration. In either case, the question of the scope of the authority conferred upon the arbitrator by the parties’ arbitration clause is to be decided by the arbitrator.” The injunction was refused and the action stayed (¶ 51). Section 17(1) of the Act gives a domestic tribunal the same competence, and the competence-competence principle described in our article on staying a court action in favour of arbitration in Ontario leads to the same result. In Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 894, the party resisting the arbitration applied under s. 48 for a declaration that it was invalid and moved for an interim stay of the arbitration; Myers J. declined to stay it, on the footing that “[t]he competence-competence principle suggests the panel should rule on its jurisdiction” (¶¶ 10, 27), the panel did so, and the question came back to the court under s. 17(8) only after the preliminary ruling (¶ 14). Kingston Automation applies the same restraint to a request to stay an arbitration pending a challenge to an interim award (¶ 34).
The arbitration clause
The clause can make these motions easier or harder, and four (4) drafting points follow from the cases. The first is an express reservation of the right to seek interim relief from the court. The clause in Loan Away excepted “an application for temporary injunctive relief” from the obligation to arbitrate (¶ 63), the rule in FDV provided that an aggrieved party “may apply to a court for injunctive or mandatory injunctive relief to remedy the situation pending the conduct of arbitration” (¶ 39), and the separation agreement in NowVertical was itself one of the sources of the court’s jurisdiction (¶ 31). Section 8(1) and art. 9 make such a clause unnecessary in law, but it removes the argument that the application is a step inconsistent with the agreement, and it tells the counterparty in advance where the urgent motion will be heard. The second is a covenant that performance continues during the dispute. The clause in International Steel “that performance of the Agreement shall continue during arbitration proceedings” (¶ 44) supplied both the serious issue and the characterization of the order as prohibitive, and the covenant in Gen Digital not to “wilfully refuse to provide all or any portion of the SecureKey Services” did the same work (¶¶ 28-29, 47). The third is an acknowledgement that a breach will cause irreparable harm and that injunctive relief is an appropriate remedy. D.M. Brown J. gave weight to such a clause in FDV at ¶ 50, and Kimmel J. held in Gen Digital at ¶ 61 that the respondent’s agreement that the applicant was entitled to seek “injunctive relief” on a default, “together with the irreparable harm already established, tips the balance of convenience in favour of Interac.” The fourth is the choice of institutional rules that give the tribunal interim powers and an emergency arbitrator, so that the tribunal-side route exists before the tribunal does.
The clause cannot do two (2) things. It cannot give the tribunal jurisdiction over strangers, so a party whose real concern is the counterparty’s bank accounts, its lenders or a purchaser of its assets must plan on a court motion whatever the clause says (Farah at ¶ 70). Nor can it stop the court from granting relief against a party, since s. 8(1) and art. 9 are the Legislature’s allocation and the agreement cannot oust them, although a clause that commits the parties to seek interim measures from the tribunal first will weigh on the equities in the way International Steel and NorthStar describe.
Practical considerations
The first consideration is speed. Each of the successful applications was brought promptly and heard on an urgent basis; the injunction in NorthStar was argued on September 10, 2024 and granted on September 12, 2024, the parties in Gen Digital extended the decommissioning date by agreement to let the court decide, and Kimmel J. remarked at ¶ 16 that the court “expects parties to conduct themselves responsibly in this manner and appreciates when they do so.” Delay cuts the other way on irreparable harm (Gen Digital at ¶ 42), and a consent interim order to hold the position until the hearing, as in McGinn at ¶ 4 and Berthault at ¶ 3, is the usual first step.
The second is the record. The applicant needs affidavit evidence of the harm, by a witness who can be cross-examined, and the cases turn on it. Newbould J. accepted the detailed evidence of the applicant’s officer about its reputation and its expatriate workforce in International Steel (¶¶ 55-58), Hainey J. accepted the evidence of the applicant’s project commercial manager in Bombardier (¶¶ 65-72), and Sachs J. and Kimmel J. gave no weight to assertions made in argument or in general terms in Loan Away (¶ 57) and NorthStar (¶ 59). The respondent’s evidence is held to the same standard; Holowka J. rejected the respondent’s evidence of lost morale in McGinn as “inadmissible hearsay” (¶ 82), and Wilton-Siegel J. rejected the respondent’s hearsay about disparagement in NowVertical (¶ 52). The undertaking as to damages belongs in the applicant’s affidavit, sworn by someone with authority to give it.
The third is the framing of the order. The applicant should describe the relief as the preservation of a right already agreed to, identify the covenant it enforces, and explain why the effect is to stop the respondent from acting rather than to make it act, since that characterization decides whether the first branch of the test is a serious issue or a strong prima facie case. The order should name its end point; namely, the tribunal’s decision on interim relief or the award, with liberty to the tribunal to vary it, as in International Steel at ¶ 72, Bombardier at ¶ 78 and Gen Digital at ¶ 69. An applicant who has not yet commenced the arbitration should expect to be ordered to do so promptly and to seek expedition, as in NorthStar at ¶ 95 and Berthault at ¶ 62, and should offer those terms before they are imposed.
The fourth is the choice of forum. Where the tribunal exists and the relief is against a party, the tribunal is the first stop, and a party that goes to court without asking the tribunal should be ready to explain the urgency. Where no tribunal exists, or the relief must bind a third party, or the remedy is one only a court can grant, the court is the forum, and the application should say so in terms, citing s. 8(1) or art. 9 and the agreement. Where the relief is a Mareva injunction, the applicant must prove a real risk of dissipation, with evidence of conduct aimed at defeating the award, and must be proportionate in what it asks to freeze; Ballantry shows that a strong case on the merits and a debtor of doubtful solvency are not enough.
The fifth is cost. The applicant in NorthStar recovered partial indemnity costs of $195,000 on an urgent motion decided within two (2) days of the hearing, the applicant in Gen Digital recovered $75,000 by agreement, the unsuccessful award creditor in Ballantry paid $19,827, the claimant in Ibrahim recovered $4,500 on divided success, the appellant in Sherif Gerges paid $35,000 on the appeal, and the party that fought the arbitrator’s security for costs order through two (2) levels of court in Inforica paid $15,000 on the appeal and $25,000 below. A motion of this kind is a trial in miniature, and the party that loses it usually pays for both sides of it.
How we can help
Grigoras Law acts as counsel in commercial arbitrations seated in Toronto, in shareholder, partnership, contract, lease, franchise and fraud disputes, and in the court proceedings that surround them, including urgent applications under s. 8(1) of the Act and art. 9 of the Model Law for injunctions, preservation orders, certificates of pending litigation, Mareva injunctions and the appointment of receivers in aid of an arbitration, requests to the tribunal for interim measures under ss. 18 and 31 of the Act and art. 17 of the Model Law, the enforcement of a tribunal’s interim orders under ss. 18(2), 25(7) and 50, and the defence of each of those motions. We also draft and review the arbitration clauses that decide where the urgent motion will be heard. Our arbitration practice and our commercial litigation practice are described on the pages linked here, our shareholder disputes practice covers the buy/sell, oppression and management disputes in which these motions most often arise, and our urgent commercial remedies practice and civil fraud practice cover the Mareva, Anton Piller and Norwich orders discussed above. Our articles on staying a court action in favour of arbitration in Ontario, on arbitrating a shareholder dispute in Ontario, on evidence in a commercial arbitration in Ontario, on setting aside an arbitral award in Ontario, on appealing an arbitral award in Ontario and on enforcing an arbitral award in Ontario take the dispute from the stay motion to the award and its enforcement.
This article is general information about the law of Ontario as of October 2026 and is not legal advice. Whether interim relief will be granted depends on the arbitration agreement, the evidence of harm, the undertaking offered and the conduct of the parties, and the authorities cited should be read in full before they are relied on.
This article is part of the firm’s work in arbitration and commercial litigation.