Executive summary
Jun 23, 2026
min to read
Ex parte relief : Limits to Be Aware of Before Taking Action
The principle of natural justice, audi alteram partem, dictates that all parties to a dispute must be heard before a judgment is rendered. However, some exceptional situations allow this principle to be waived, in which case a hearing may be held without the other party being present or having been notified beforehand. In such cases, the party appearing before the Court must fully disclose all evidence with complete transparency, act in good faith, and behave irreproachably throughout the proceedings.
Under What Circumstances May a Court Proceed Without Having Heard the Other Party?
As a rule, in legal proceedings, all parties to a dispute must be present at the hearing. This allows them to plead their case and respond to the other party’s arguments, thus ensuring fair and just representation.
However, under exceptional circumstances, a hearing may proceed without the opposing party being notified beforehand and heard, such as when there is a reasonable fear that evidence may disappear or that funds may be squandered. In such cases, “extraordinary” and “ex parte” relief, such as Norwich, Mareva or Anton Piller injunctions or seizure before judgment, may be sought.
A Norwich injunction is used to obtain information held by a third party to the dispute, whereas a seizure before judgment and a Mareva injunction are primarily intended to protect a party’s property and assets while a proceeding is pending to ensure the execution of a final judgment against that party. As for an Anton Piller order, its main purpose is to safeguard evidence that might be destroyed if such an order is not obtained.
The Duty of Transparency and Full and Frank Disclosure
In addition to meeting the legal criteria for obtaining these orders, the party seeking extraordinary ex parte relief must be fully transparent with the Court and make full and frank disclosure of the case. Since the other party is not heard at the time the application is presented, the applicant has a duty to disclose all evidence and present a fair and honest account of the facts and applicable law.
The party must disclose all relevant facts, evidence and legal principles, including those that may be unfavorable to its position. In other words, the applicant cannot only disclose evidence in its favour. Moreover, the party seeking extraordinary ex parte relief must act in the utmost good faith and behave in an irreproachable manner throughout the proceedings.
Consequences of a Lack of Transparency
Failure by the applicant to abide by this duty to make full and frank disclosure may result in the quashing a posteriori of the ex parte order issued by the Court, even if the other legal criteria are met. It may also result in a declaration of abuse of procedure and lead to an order requiring the reimbursement of the opposing party’s professional fees. For example, in Lévesque et al. v. Angeli et al.1, the plaintiffs, Lévesque et al., had obtained, in the judicial district of Montréal, without notifying the defendants, seizure before judgment and Mareva injunction orders on the pretext that recovery of their claim might be jeopardized without these reliefs.
The plaintiffs had thus seized all the defendants’ assets and obtained orders prohibiting them from disposing of any of their assets. The defendants then asked the Superior Court to annul the seizure before judgment and the Mareva injunction ordered against them.
Before the plaintiffs filed for and obtained the seizure before judgment and Mareva injunction orders in the judicial district of Montréal, some of the defendants had already filed, in the judicial district of Québec, an oppression remedy application. An application for safeguard order had also been filed and heard, and the parties were awaiting a judgment.
The Superior Court, hearing the defendants’ application to annul the seizure before judgment and Mareva injunction orders, found that the applicants’ course of action, namely bringing the matter before a judge in another judicial district without the defendants’ knowledge while a related proceeding was already underway between the same parties, was more than surprising and appeared to be contrary to the requirements of good faith and, at the very least, to the judicial courtesy required by the guiding principles of the Code of Civil Procedure.
Furthermore, while the plaintiffs alleged that they had a claim against the defendants to justify these two exceptional remedies, the Court found that there was no claim due and payable by the defendants.
Abuse of Procedure and Clean Hands Doctrine in Extraordinary Relief
Plaintiffs’ conduct also led to a declaration of abuse of procedure. In the subsequent judgment, Angeli et al. v. Lévesque et al.2, the Court questioned the decision not to file the ex parte application in the Court record already pending in Québec City and ruled that the lack of genuine transparency in Montréal regarding the existence of this Court record filed in Québec City constitutes an additional source of abuse.
As a result of this declaration of abuse of procedure, the plaintiffs were ordered to reimburse the defendants for the professional fees incurred in challenging this abusive application.
The Court also recognized that the clean hands doctrine applies to ex parte relief, under which the party seeking the extraordinary relief must conduct itself in an irreproachable manner. Courts may thus dismiss the relief sought solely on the grounds that the party is not blameless.
Ex parte relief: Best Practices to Follow
When filing an extraordinary ex parte application, the party must not only meet the criteria established by law, but must also demonstrate irreproachable procedural conduct as well as utmost good faith and transparency toward the Court by disclosing all relevant facts, evidence, and applicable legal principles honestly and completely, regardless of whether they may be unfavorable to its position.
Failing to do so may result in the ex parte order issued by the Court being quashed on that ground alone, and the applicant may face a declaration of abuse of procedure and an order requiring the reimbursement of the opposing party’s professional fees.
Consequently, good practice for the party seeking an ex parte order is to disclose the factual circumstances and legal principles which favour the other party. Similarly, the ex parte application and the supporting affidavit should set forth the relevant facts completely and honestly, without distorting or minimizing them.
Seeking Assistance in Shareholder Litigation
For any questions regarding extraordinary relief and corporate disputes, contact our shareholder litigation team to assess available remedies and take effective action.
You may also contact Stéphan-Charles Grenon, Partner, Lawyer and Head of the Litigation Group, whose practice focuses on commercial litigation and shareholder disputes, Isabel Pouliot, Partner and Lawyer specializing in shareholder disputes in Québec City, as well as Coralie Martineau and Véronique Milot, Lawyers practising in civil and commercial litigation.
FAQ
FAQ
An ex parte relief refers to an exceptional application brought before a Court without the other party being notified or heard beforehand. This type of relief is generally used in urgent situations, such as when there is a risk that evidence may disappear or assets may be dissipated.
A Norwich injunction allows a party to obtain information or documents held by a third party to the dispute. This relief is used, notably, to identify wrongdoers, to trace certain assets, or to obtain essential information relevant to a legal action.
A Mareva injunction or a seizure before judgment are two reliefs that can be sought when a party fears that another party may attempt to dissipate its property or assets before a judgment is rendered. These extraordinary remedies aim to protect assets while a proceeding is pending to ensure the execution of a final judgment against that party.
On the one hand, the criteria for obtaining a seizure before judgment are the existence, prima facie, of a claim and proof of an objectively reasonable fear that the recovery of that claim is at risk without the seizure before judgment.
On the other hand, the criteria for obtaining a Mareva injunction are appearance of right, serious or irreparable harm, balance of convenience and urgency, when it comes to a provisional request.
An Anton Piller order is an exceptional relief primarily intended to protect evidence that is at risk of being destroyed unless such an order is granted.
The criteria for obtaining an Anton Piller order are a strong prima facie case, serious or irreparable harm, balance of convenience and urgency, when it comes to a provisional request. Moreover, the applicant must demonstrate, by convincing evidence, that the defendant is in possession of incriminating documents or items and that there is a real possibility that the defendant may destroy these items before the pre-disclosure process can begin.
A party seeking an ex parte order must disclose all relevant facts to the Court, including those that may be unfavourable to its position. A lack of transparency or a procedural conduct deemed inappropriate may lead to the setting aside of the order and, in some cases, a declaration of abuse of procedure and an order requiring the reimbursement of the opposing party’s professional fees.
