What is the test for a motion pursuant to Rule 45.02 to order that there can be no execution prior to judgment?

Rule 45.02 is one of the few exceptions that exist to the general rule that there can be no execution prior to judgment. Another exception is a Mareva injunction. The exceptions, however, are few and they are viewed by the courts as extreme remedies to be exercised with caution. In [page59 ]Stearns v. Scocchia, [2002] O.J. No. 4244, [2002] O.T.C. 855 (S.C.J.), in considering a motion pursuant to rule 45.02, G.P. Smith J. stated [at] para. 22 as follows: Because of the extreme nature of a rule 45.02 order and/or a Mareva injunction, they are remedies that should be available only when it is necessary to balance the interests of the plaintiff and defendant. Both orders maintain the status quo until trial in a way that is fair to both the plaintiff and defendant and must not place the interests of the plaintiff before those of the defendant. Such orders are not merely procedural in nature and should be granted only in exceptional circumstances because they have potential to injure a defendant before the plaintiff has proven its case at trial. Furthermore, it can place a defendant in an unfair position because it freezes a fund that would otherwise be available to the defendant and available for the purpose of operating its business. In short, such an order can appreciably tilt the scales in favour of a plaintiff on the basis of unproven allegations. Judicial discretion is therefore to be carefully exercised when considering a rule 45 order or the granting of a Mareva injunction given the severe prejudicial consequences that can result.