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.

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Murray A. Harris
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