In certain circumstances where the right to a specific fund is in issue, the court may order a party to pay the fund into court to await the outcome of the litigation.
Rule 45.02 provides as follows:
where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.
The test the moving party must meet to obtain an Order under Rule 45.02 has been set out as follows:
a. The Plaintiff must claim a right to a specific fund;
b. There is a serious issue to be tried regarding the Plaintiff’s claim to the
c. The balance of convenience favours granting the relief. 1
Rule 45 order is an exceptional remedy, as it is in effect execution before judgment. 2
A specific fund must be in existence and, in the case of money, be reasonably identifiable as earmarked for the litigation in issue. 3
“Specific fund” means a reasonably identifiable fund earmarked to the litigation in issue. 4
The “specific fund” must be available. If the specific fund has been disbursed or spent, a rule 45 Order cannot issue. 5
Careful consideration should be given before a decision is made to move to seek to force an opposing party to pay a “specific fund” into court.
1 Sadie Moranis Realty Corp. v. 1667038 Ontario Inc. 2012 ONCA 475 at ¶18,; and
News Canada Marketing Inc. v. TD Evergreen, 2000 CarswellOnt 3544 (SCJ) at ¶14.
2 D.M. Brown J. (as he then was) in Deol v. Morcan Financial Inc., 2011 CarswellOnt 13652 (SCJ – Cmml
List) at ¶ 9, citing the decision of Stearns v. Scocchia,
2002 CarswellOnt 3700
3 American Axle & Manufacturing Inc. v. Durable Release Coaters Ltd., 2007 CarswellOnt 3444 (SCJ) at
¶27, reversing 2006 CarswellOnt 5273 (SCJ – Master).
4 American Axle, supra, at ¶28.
5 American Axle, supra, at ¶29.