Urgent Commercial Remedies in Ontario: Protecting Rights Before It’s Too Late

Commercial disputes can escalate quickly, especially where there is a risk that vital evidence will be destroyed, assets concealed, or reputations irreparably harmed. In these circumstances, the ordinary pace of litigation is not enough. Courts in Ontario and across Canada recognize this reality and provide extraordinary, pre-emptive remedies that can be obtained on an urgent basis. These remedies—most notably Norwich orders, Anton Piller orders, and Mareva injunctions—are designed to preserve the integrity of the litigation process and prevent injustice before trial. They are exceptional in nature, but they play a critical role in commercial litigation strategy.

Norwich Orders: Obtaining Information from Third Parties

A Norwich order is a powerful pre-action remedy. It compels an innocent third party—often a bank, internet service provider, or other custodian of records—to disclose information that allows a plaintiff to identify wrongdoers or trace assets.

The order is rooted in equitable principles of justice and fairness. Courts recognize that without early access to information, a plaintiff may be unable to even frame a proper claim. For example, in cases of fraud or misappropriation, the wrongdoer may operate behind corporate structures or online anonymity. A Norwich order ensures that the necessary records, such as banking documents or IP addresses, are produced before the opportunity for concealment is lost.

Norwich relief is discretionary and limited. Applicants must demonstrate:

1. A bona fide claim exists.

2. The third party is somehow involved, albeit innocently, in the wrongdoing.

3. The order is necessary to obtain the information.

4. The interests of justice favour granting relief.

Because it intrudes on the privacy of third parties, courts balance carefully between the plaintiff’s need for disclosure and the potential prejudice to those affected. Still, when properly sought, Norwich orders can be indispensable in moving urgent cases forward.

Anton Piller Orders: Preserving Critical Evidence

An Anton Piller order is sometimes described as the “civil search warrant.” It authorizes a plaintiff, under supervision of an independent supervising solicitor, to enter the defendant’s premises and seize or preserve crucial evidence.

These orders are extraordinary because they allow entry without advance notice, to prevent the destruction of documents, data, or goods. They are often used in intellectual property cases—such as counterfeiting, trade secret theft, or passing off—but their reach extends to commercial disputes where there is a real risk that evidence will vanish if ordinary discovery timelines are followed.

Courts impose rigorous safeguards to protect defendants. The applicant must prove:

• A strong prima facie case.

• The potential or actual damage to the plaintiff is very serious.

• There is convincing evidence that the defendant possesses vital evidence and may destroy it.

• The harm to the plaintiff from denial of the order outweighs the intrusion on the defendant.

Because Anton Piller orders are intrusive, they are tightly controlled. The supervising solicitor must ensure respect for privilege, prevent abuse, and report back to the court. Yet, where the risk of spoliation is high, they remain one of the few tools capable of preserving the evidentiary record.

Mareva Injunctions: Freezing Assets to Prevent Dissipation

Perhaps the most dramatic of urgent commercial remedies is the Mareva injunction, commonly called a freezing order. Originating in the English case Mareva Compania Naviera SA v. International Bulkcarriers SA, this injunction restrains a defendant from dissipating assets before judgment.

Canadian courts have adopted the Mareva remedy in limited, exceptional cases. Its purpose is not to give the plaintiff security for judgment, but to prevent defendants from frustrating court orders by moving assets out of reach.

Applicants must typically establish:

1. A strong prima facie case.

2. Assets exist against which a judgment could be enforced.

3. A real risk of asset dissipation or concealment.

4. The balance of convenience favours the order.

The consequences of a Mareva injunction are severe. It can restrict banking activity, impair credit, and destabilize a business. Because of this, courts demand full and frank disclosure from applicants and impose undertakings to compensate defendants if the order proves unwarranted. Despite the burden, Mareva injunctions are often decisive: by preserving the status quo, they ensure that a successful judgment is not rendered meaningless.

Balancing Fairness and Urgency

What unites Norwich orders, Anton Piller orders, and Mareva injunctions is their exceptional nature. Each departs from the ordinary litigation process by acting in advance of judgment, often without notice to the other side. Courts therefore apply strict tests to ensure fairness.

• For plaintiffs, these remedies are essential to prevent injustice, particularly in cases of fraud, misappropriation, or urgent commercial conflict.

• For defendants, the safeguards ensure that extraordinary power is not abused and that any intrusion is proportionate to the risk.

Judges emphasize that these remedies are not to be used as tactical weapons. Abuse—whether by exaggerating evidence, failing to disclose material facts, or overreaching in scope—can lead to serious consequences, including costs and dismissal of claims.

Other Urgent Equitable Remedies

Beyond the three core tools, courts may grant additional urgent remedies tailored to the circumstances:

• Interlocutory injunctions to restrain specific conduct until trial.

• Asset preservation orders targeting specific property at risk.

• Orders for pre-action disclosure (closely related to Norwich orders).

Each serves the same overarching purpose: to preserve the court’s ability to do justice and prevent one party from undermining the litigation process.

Strategic Considerations

For businesses and individuals facing urgent threats—whether stolen trade secrets, fraudulent asset transfers, or reputational attacks—knowing when and how to seek these remedies is critical. They require:

• Meticulous preparation: Courts expect detailed, credible evidence.

• Speed: Delay can defeat the urgency necessary for relief.

• Balance: Relief must be no broader than necessary.

When granted, these orders often reshape the litigation landscape. A well-timed Mareva can prevent a fraudster from absconding with assets. An Anton Piller order can secure irreplaceable evidence. A Norwich order can unmask hidden wrongdoers.

Conclusion

Urgent commercial remedies are the legal system’s response to extraordinary risks in modern business disputes. While they are exceptional and granted sparingly, they remain indispensable for protecting litigants when time, evidence, and assets are at risk.

By understanding the scope and limits of Norwich orders, Anton Piller orders, and Mareva injunctions, parties and their counsel can act decisively to preserve their rights. When the ordinary course of litigation is too slow, these remedies ensure that justice remains within reach.