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 Mondaq.com.

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

Authors
Murray A. Harris
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

17 Oct 2018, Webinar, Calgary, Canada

We have been preparing for legalization day since Bill C-45 was first introduced. With October 17th just around the corner, our Corporate, Labour & Employment, and Insurance groups have the answers to your questions.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions