Case: Peters & Co Limited v Ward, 2015 ABCA 6
Keywords: Anton Piller Order, search & seizure, ex parte
Synopsis: The appellant, Mr. Ward, was employed by the respondent Peters & Co. He was a key senior employee holding an ownership interest. Peters & Co was concerned that when Ward left to start work with a competitor he would take work with him. An investigation led Peters & Co to find the following:
- Ward downloading the company contact list to his iPhone
- Ward printing various documents containing sensitive information
- A video showing Mr. & Mrs. Ward leaving the office with more than 8 bankers boxes at 10 p.m. when the company Christmas party was being held elsewhere
- Another video showing them leave with six more bankers boxes the next day at 1 a.m.
Peters & Co issued a statement of claim alleging breach of contractual, common law and fiduciary duties. It sought as a remedy and applied ex parte for an Anton Piller Order. The order was granted the same day. The appellants sought to set aside the Anton Piller Order. The chambers judge resisted and held that the evidence justified the order. The Court of Appeal dismissed the appeal.
Importance: Anton Piller orders are exceptional remedies — the Court of Appeal noted they have been described as residing at the “absolute extremity of the court’s powers” (para. 22). While the SCC set out the test for granting Anton Piller orders in Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36, they continue to generate considerable case law given their contentious nature. The Court of Appeal in the present case considered two issues: (1) when will an ex parte Anton Piller order will be set aside on the basis of non-disclosure and (2) when will a party meet the prerequisites for granting such orders. On the first issue, the Court emphasized deference to the trial judge with respect to determining whether there was non-disclosure and whether such non-disclosure will cause an order to be set aside. For instance, an “irrelevant and immaterial” non-disclosure may have no effect on an order. With respect to the prerequisites for an Anton Piller order the Court reviewed the four-part test from Celanese and added some useful commentary. On the first part, demonstrating a strong prima facie case, the trial judge “‘cannot be expected to resolve all of the conflicts in the evidence, nor is that necessary to determine if there is a prima facie case. Those are matters for trial'” (para. 20). On the second part, that the damage must be very serious, the Court endorsed the “procedural impact test”. This considers whether destruction of the documents seized would prevent the plaintiff from proving part of its case. Lastly, on the fourth part, real possibility that the defendant may destroy material before discovery process, the Court stated that “courts may infer a risk of destruction when it is shown that the matter has been acquired in suspicious circumstances” (para. 25). This decision provides insight into the circumstances that would justify an Anton Piller order and would resist an application to have that order set aside.
Counsel for Appellants: Richard Billington, Q.C. & Judd Blitt (Billington Barristers, Calgary)
Counsel for Respondent: Douglas McGillivray, Q.C. (Burnet, Duckworth & Palmer LLP, Calgary)