Canada: Court Of Appeal Upholds Anton Piller Despite Non-Disclosure

Last Updated: February 9 2015
Article by Murray A. Harris

The Alberta Court of Appeal has begun 2015 by approving an Anton Piller order granted despite defective disclosure. The order was obtained initially from the Court of Queen's Bench in early 2014 and upheld by Justice Hawco on August 7, 2014.

The applicant was the brokerage firm, Peters & Co Limited. It asked the Court for the Anton Piller last winter after discovering the Defendant Mr. Ward – a former "senior and key employee" – attended Peters & Co's offices with his wife to remove several bankers' boxes of records instead of going to the company's Christmas party. During the festive season Mr. Ward was also shown to have downloaded client lists and other allegedly confidential information.

This satisfied the Court of first instance, which granted the Order allowing invasive steps to recover and preserve evidence at Mr. Ward's home and other locations.

Counsel and risk managers familiar with Anton Piller Orders will know this ex parte order is only granted by common law courts if "full and frank disclosure" of both sides of the case is given to the Court. The notion being that the defendant is about to have the fullest power of the law exercised against him or her without judgment and without any chance to respond to the allegations. "Why not", says the law, "force the Applicant to advise the Court of any possible evidence against its own position and resulting defences if the defendant is not even aware of the Application?"

If the Court finds an Applicant has failed to disclose to the Court material aspects of the case on behalf of the party not appearing, it can and often does set aside the Anton Piller.

Here, the brokerage firm obtained the Order, and in the review application before Justice Hawco several months later, he upheld it despite finding defective disclosure by Peters & Co. His primary reasoning was the deficiencies were irrelevant, possibly inadvertent and in any event not material.

On appeal, Mr. Ward argued Justice Hawco ignored his evidence of material non-disclosure, and applied the incorrect test to determine whether Peters & Co had a prima facie case. Specifically, Ward alleged the applicants needed to provide the Court with better particulars of his alleged contractual and fiduciary breaches, and therefore the Order should be set aside.

On face value, Ward's actions, as described by Justice Hawco, are a "flagrant" disregard for his position as a fiduciary to Peters & Co. However, Ward's case also has merit, given the evidence he submitted regarding Peters & Co's non-disclosure, some of which was:

  • When advised he was dismissed, Ward was told to "pack up" his effects and leave;
  • The CEO of Peters & Co met with Ward after the removal of boxes, and it should have been obvious a considerable number of files were missing; yet nothing was said;
  • Ward was in contact with Peters & Co's director of finance often in the week prior to the Anton Piller application, and the director did not mention any missing items, or ask for them back.

Ultimately, Justice Hawco did not accept any of this was material, and weighed it as less significant than the evidence supporting the Order.

Ward also argued Justice Hawco used the incorrect test to determine whether a prima facie case exists.

On appeal, the three member panel found no merit in Ward's submissions, and upheld the Anton Piller Order.

Their reasoning focused in detail on Justice Hawco's analysis of the standard for a prima facie case, and reiterated the Supreme Court of Canada's four part test set out in Celanese Canada v. Murray Demolition . The panel also relied on other Alberta Court of Appeal cases and adopted the Queen's Bench test for what constitutes serious damage from CCS Corp. v. Secure Energy, effectively stamping that with Court of Appeal approval.

More briefly, the Court considered His Lordship's findings in relation to the materiality and relevance of the alleged non-disclosure. On this point, the Court paid signficant deference, essentially stating the Justice was in a better position to hear that evidence than the panel. This is not surprising, given the standard of review only allows overturning the decision if it was arbitrary, or applied incorrect legal principles.

So what does it mean?

Primarily, the case stands for three things:

1. The Court of Appeal will grant almost total deference to a judge using judicial discretion on an Anton Piller Order, unless the decision patently ignores the evidence or uses the wrong test;

2. The Court will continue to rely, as expected, on binding authority and its own policies set out in prior cases; and

3. Most interestingly, the Court now appears to have adopted the CCS Corp v. Secure Energy test for what constitutes serious damage in order to determine whether an Anton Piller remedy is necessary.

In other words, counsel applying to set aside an Anton Piller had better be prepared with evidence of material non-disclosure sufficient to make an impact on the lower Court. Without that evidence the Order will be upheld, and defendants will find little help from the Court of Appeal. It is trite appeal courts will not re-hear evidence, but Peters & Co v. Ward demonstrates clearly the Court of Appeal will rely heavily on a Queen's Bench Justice's decision in respect of an Anton Piller.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Murray A. Harris
Events from this Firm
27 Oct 2016, Seminar, Edmonton, Canada

Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.

2 Nov 2016, Webinar, Calgary, Canada

“Problem Employees” come in a variety of forms but seem to take up the majority of an employer’s time. Each form brings its own challenges and each must be addressed in a different way.

30 Nov 2016, Webinar, Calgary, Canada

Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.