Civil Procedure Rules of Nova Scotia  
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Part 10 - Temporary Remedies

Rule 42 - Preservation Order

Scope of Rule 42
42.01 (1) A party to a proceeding may make a motion for an order preserving any of the following, in accordance with this Rule:
   
(a)
evidence that is relevant to an issue in the proceeding;
   
(b)
property claimed in the proceeding;
   
(c)
assets that would be available to satisfy a judgment claimed in the proceeding.
  (2) A similar motion may be made to a prothonotary in limited circumstances under Rule 43 - Temporary Recovery Order, and Rule 44 - Attachment.
       
Preservation of evidence or property by injunction
42.02 (1) A party who files an undertaking as required by Rule 42.07 may make a motion for an injunction to preserve evidence relevant to an issue in, or to preserve property claimed in, a proceeding.
  (2) The motion must be made on notice to each party and the person in control of the evidence or property, unless the motion may be made ex parte under Rule 22.03, of Rule 22 - General Provisions for Motions.
  (3) The order may be restraining, mandatory, or part restraining and part mandatory.
       
Preservation of evidence or property by seizure (Anton Piller or similar orders)
42.03 (1) A party who files an undertaking as required by Rule 42.07 may make an ex parte motion for an order for seizure of evidence relevant to an issue in, or property claimed in, a proceeding.
  (2) The party must satisfy the judge that the party has met requirements of the common law for an order for seizure, such as the requirements on each of the following subjects:
   
(a)
the need for an ex parte order to preserve the property or evidence;
   
(b)
the strength of the party’s case;
   
(c)
the likelihood of the evidence or property being hidden, removed, lost, or destroyed;
   
(d)
the seriousness of the damage to the party if the evidence or property is hidden, removed, lost, or destroyed.
  (3) An order for delivery or seizure must include terms for preserving the thing that is the subject of the order while causing the least intrusion on the party who holds it, and each of the following kinds of orders is less intrusive than the next:
   
(a)
a preservation order restraining the person who holds the thing from disposing of it, requiring the person to preserve it, or providing a combination of restraints and mandatory requirements necessary in the circumstances;
   
(b)
seizure by injunction to put another person in control of the thing by forced delivery, such as a mandatory injunction requiring the person holding the thing to deliver it to the sheriff, an experienced insolvency practitioner, or another person approved by the judge;
   
(c)
an order for seizure of the thing by the sheriff, an experienced insolvency practitioner, or another person approved by the judge.
  (4) The order must provide a time, date, and place for a rehearing on notice.
  (5) The order may provide terms, including terms for storage of the thing until the rehearing.
       
Entry, contempt, and use of force
42.04 (1) An order for delivery or seizure may authorize a person appointed under the order to enter on lands or to take control of a moveable.
  (2) The order may include a direction requiring a person who receives notice of the order to cooperate in the delivery or seizure.
  (3) The provision in the order containing the direction may include the words “Failure to obey this direction may be punishable as a contempt of court.”
  (4) The order must not authorize the use of force against a person, but it may authorize the person appointed under the order to open a building or moveable, including to break a lock or take down a barrier.
  (5) The order must require the appointed person to do all of the following:
   
(a)
hold the thing delivered or seized;
   
(b)
not permit access by a party until further order;
   
(c)
file a report in writing about the enforcement of the order before the date set for the rehearing.
       
Supervising lawyer
42.05 (1) A judge who grants an order for delivery or seizure may appoint a lawyer to supervise the delivery or seizure.
  (2) The judge must appoint a lawyer to act as supervisor of a delivery or seizure that may include the delivery or seizure of a thing containing privileged information.
  (3) The person appointed to take delivery or make a seizure must follow the directions of a supervising lawyer.
       
Rehearing
42.06   The provisions about rehearing an ex parte motion, in Rule 22 - General Provisions for Motions, apply to an ex parte motion for a preservation order.
       
Undertaking and award of damages
42.07 (1) A party who makes a motion for an order preserving evidence or property must file, with the ex parte motion or notice of motion, an undertaking to do all of the following:
   
(a)
indemnify a person who has an interest in the property that is the subject of the order for losses caused by the enforcement of the order, if a judge who finally determines the claim is satisfied that the order is not justified in light of the findings on final determination;
   
(b)
move without delay for an interlocutory injunction or interlocutory receivership, if the party successfully makes a motion for an interim injunction or interim receivership;
   
(c)
bring the party’s claim to a final determination without delay.
  (2) A judge may assess damages, and grant an order for judgment on an undertaking, after a claim is discontinued or dismissed.
  (3) A failure to proceed without delay may be dealt with under Rule 88 - Abuse of Process.
       
Privilege and other confidential information
42.08 (1) A preservation order that might cause one of the following to be taken from a person, or shown to anyone other than the person holding it, must include terms protecting confidential information:
   
(a)
records that are likely to include communications between a lawyer and the lawyer’s client;
   
(b)
records that are likely to include other privileged communications;
   
(c)
anything that, when inspected or tested, may give up a trade secret or otherwise disclose confidential information.
  (2) The terms of the order may include a process for making and determining claims of privilege or confidentiality and a requirement that a judge, the court, or an independent lawyer hold the thing preserved until the claims are determined.
       
Sale of property
42.09 (1) A judge who is satisfied that the property is perishable or is diminishing in value, or that it is otherwise in the interests of justice to order a sale, may order the sale of property, including land, that is the subject of a claim in a proceeding.
  (2) The property may be sold in accordance with Rule 74 - Other Sales by the Court.
  (3) The proceeds of the sale must be paid into court, unless the order for sale provides otherwise.
  (4) Interests in the property continue as interests in the proceeds of sale as if the proceeds were the property.
       
Dispute about security interest
42.10 (1) A party who claims property held, or claimed to be held, by another party under an instrument that secures the payment of money may pay into court the amount claimed, interest calculated under the instrument to the date when the claim is likely to be finally determined, and estimated costs.
  (2) A judge may order the party claiming property under a security instrument to deliver the property to the party paying the money into court.
  (3) The security interest, and any other interest in the property, continues against the fund in court as if the fund were the property.
       
Preservation of assets (Mareva Injunction)
42.11 (1) A party who files an undertaking required by Rule 41.06, of Rule 41 - Interlocutory Injunction and Receivership, may make a motion for an interim or interlocutory injunction that does any of the following:
   
(a)
restrains a party from disposing of assets available to satisfy a judgment claimed in the proceeding;
   
(b)
restrains a party from removing assets from Nova Scotia;
   
(c)
requires a party or other person to cooperate in preserving assets.
  (2) The party must satisfy the judge that the party has met requirements of the common law for an injunction preserving assets, such as the requirements on each of the following subjects:
   
(a)
a claim for damages;
   
(b)
the strength of the party’s case;
   
(c)
the risk that assets will be made unavailable to satisfy a judgment for the damages;
   
(d)
the likelihood of recovery on a judgment for the damages if the assets are not preserved.
  (3) Rule 41 - Interlocutory Injunction and Receivership, applies to an injunction preserving assets, except an interlocutory injunction for preservation of assets continues until judgment is satisfied.
  (4) An injunction preserving assets may be directed to a person who has control of an asset belonging to a party claimed against, or in which the party has an interest.
       

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INTERLOCUTORY INJUNCTION
AND RECEIVERSHIP

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TEMPORARY RECOVERY ORDER >>