Because these orders often sought ex parte, the
plaintiff must make full, fair and frank disclosure of all material
matters of which it has knowledge. The cost of improper disclosure
is steep. Failure to make proper disclosure may lead to the
injunction being dissolved and/or heavy adverse costs awards.
In Factor Gas v. Jean, an Ontario Superior Court judge
set aside an Anton Piller order which had authorized the search of
the defendant's home due to non-disclosure of facts on the
original ex parte motion and the failure of the applicant
to make proper inquiries prior to resorting to the motion. Finding
that the motion to obtain the Anton Piller order violated the
fundamental principles of obtaining ex parte orders, the
judge ordered a cost award against Factor Gas of a half million
In its dismissal of Factor Gas' appeal, the Divisional Court
noted that plaintiffs seeking an Anton Piller order on an ex
parte motion assume "significant responsibilities".
A court may set aside an Anton Piller order notwithstanding
satisfaction of the Celanese conditions if it determines
that the plaintiff failed to disclose material facts within its
knowledge. Further, where the plaintiff must demonstrate a strong
prima facie case and serious damage resulting from the
defendant's alleged misconduct, the duty of the plaintiff to
act in good faith in the ex parte hearing includes a duty
to make proper inquiries before bringing the motion.
That Factor Gas subsequently brought proceedings against its law
firm underscores the importance of proper disclosure for clients
and their lawyers alike.
In my next blog post, I will discuss an interesting pre-trial
remedy that allows a plaintiff to obtain evidence from a third
party, even before commencing an action.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).