Fraud You Say! Applying for Pretrial Injunctions

Published on 29 August 2022, 07:22:56 AM

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Missing money or disappearing receipts could be fraud. When your bank account doesn’t match your accounts receivable, you may need a pretrial injunction to get a fraudster stopped in their tracks. 

Suing in Ontario Civil Court

When what you’re told doesn’t match the reality, you could be a victim of civil fraud. Twisting facts to deceive you or concealing information by withholding it or hiding records are acts of deceit. You expect to be able to rely on what a business partner or investment advisor tells you so you can make informed decisions. When that’s not your experience, you have the right to ask the court for an injunction to get to the bottom of what happened.

Proving Civil Fraud in Court

Fraud is wilful, meaning the fraudster meant to be unfair or dishonest. Alleging civil fraud or false misrepresentation requires you to prove every element of the deception. You must show the party you are suing planned to deceive and you suffered damages as a result. To win your case, you require evidence:

  • a fact or omission was false or misrepresented
  • the fraud was intentional
  • you relied on the fact or omission
  • it was believable and not something a reasonable person could have seen through or found out from publicly available sources like the Internet or media 
  • you suffered real damages because you relied on it.

Remedies for Civil Fraud

How to fix a fraud? Civil judges often rely on rescission, which means reversing the fraudulent agreement or transaction, to make it right. They might award you compensatory damages, a financial award to remedy your loss. A court could also give you punitive damages. Punitive damages are an additional monetary award that punishes the fraudster and discourages others from doing the same.

Fraud As a Criminal Offence

Fraud can be an offence under Canada’s Criminal Code. Section 380 (1) includes “property, money or valuable security or any service.” Insurance fraud, forgery and bank fraud qualify, as do using false pretenses to steal. 

Prosecute!

It all looks so simple on TV. The accused is arrested and dragged into criminal court, where a slick-looking, glib-talking public prosecutor puts them behind bars. Yes, fraudsters do go to jail, pay fines, get probation or community service and can be forced to compensate you. The reality is most frauds don’t make it into criminal court because the kind of evidence prosecutors need to make their case isn’t available. Before you get your hopes up, talk to an Ontario criminal lawyer. Without the evidence you need, you could be better off pursing the villain in civil court.

Collecting Evidence

Either way, you’ll need evidence to prove your case. You probably don’t want to tip your hat, so consider asking the court for a pretrial ex parte injunction. It freezes the fraudster’s bank account without notice (the ex parte part in Latin). 

When to Get an Ex Parte Injunction

You can request it when you need to act with extreme urgency, such as when you are concerned the fraudster is making plans to flee the country. It can also be used when the accused could make evidence disappear if they knew your intentions. Your injunction is typically good for up to 10 days. Because the Canadian legal process is based on fairness and everyone has a right to justice, only request this type of injunction if the matter is pressing and serious. 

Applying for an Interim Injunction

You’ve gotten this far. Now what? Ask the court for an interim injunction. It gives the accused time to file their response in court and allows you to cross-examine them in court. Unlike the ex parte process, the other party has a chance to defend themselves. They can request the court to set aside the injunction or present facts the court didn’t have when it granted the ex parte injunction. 

Interlocutory Injunction and When You Need It

Interim injunctions are the in-between step. Interlocutory injunctions decide what goes on before a trial occurs or after the legal dispute is over. You may have frozen the accused’s bank account, but they need money to live on or pay legal bills before you go to trial. The court can order the bank to release some funds just by changing the interlocutory injunction. 

Getting to Yes Without a Trial

Are you sure you want to proceed to trial? You could resolve the dispute with an out of court settlement or mediation. Either is less costly and can be more satisfying than preparing for a lengthy court action. Especially if you are self represented, ask yourself if a trial is really worth the time and effort it will take. No point making your financial grief any worse than it may already be.

Notarize an Affidavit for Civil Court

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