Area of Law: Fraud and Fraud Recovery
Answer # 1542
Pre-trial injunctionsRegion: Ontario Answer # 1542
There are three types of pre-trial injunctions: ex parte, interim and interlocutory. If an injunction is granted after trial it is often referred to as a permanent injunction.
1. Ex parte injunctions
Ex parte injunctions (the latin term for without notice) are injunctions applied for by the victim without first giving notice to the fraudster. This can occur in the following cases:
- extreme urgency, and / or
- when informing the fraudster first could make the purpose of the injunction unnecessary. For example, if the purpose of the injunction is to freeze the money obtained by fraud that is held by the fraudster, the victim would not want the fraudster to know about the application and either spend or move the money. Therefore, the motion should be brought to the Court ex parte.
Ex parte orders are ordinarily only issued for up-to 10 days. This provides enough time to get the bank account frozen by first serving the court order on the bank and then on the fraudster. The fraud victim can then make a request to the Court for an interim injunction at the next court date, known as the return date of the ex parte order.
2. Interim injunctions
If an interlocutory injunction is postponed, Courts often order interim injunctions under the following two circumstances:
- To allow the fraudster time to file materials.
- To allow for cross examinations to be held.
Interim injunctions are “interim” because, as with ex parte injunctions, they are time sensitive. When the parties return to Court for the interlocutory injunction, the hearing takes place de novo, which means “as if it is the first time”.
Difference between ex parte and interim injunctions
In an ex parte injunction the victim must provide full and honest disclosure to the Court because the fraudster is not present to represent him or herself and advise the Court of any facts that may not be presented. In an interim injunction, both the victim and the fraudster are given an opportunity to present their cases. The fraudster has a chance to convince the Court to get the injunction set aside. However, if the fraud victim has strong evidence to back up the allegation of fraud, interim injunctions are often ordered with little resistance from the fraudster.
3. Interlocutory injunctions
Interlocutory injunctions dictate the conduct of the parties until trial or until the dispute has otherwise been resolved (such as a resolution made during mediation). Interlocutory injunctions are ordered based on evidence obtained from affidavits, other documents and cross examination transcripts.
Interlocutory injunctions are often ordered because the fraudster recognizes they have no chance to resist, such as in cases where the victim is seeking to freeze money obtained by the fraudster until trial. However, even in cases where the assets are frozen, the fraudster can apply to the Court to vary the terms of the interlocutory injunction to allow for access to the funds for the purposes of living and legal expenses.
If you discover you are a victim of fraud, it is a good idea to contact a fraud recovery expert for advice.
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