Canada: Catching Up With A Lie : How Do You Prove Those Dirty Little Secrets?

Originally published Summer 2007


While most people are honest most of the time, most of us are likely to have the misfortune of crossing paths with dishonest people in our lifetime. A rogue may misappropriate your company funds or assets, departing employees may take confidential information and use it in new employment with your competitors or set up competing businesses, you may be the subject of corporate espionage or counterfeiters may knock-off your goods and sell them at rock bottom prices. If you are the target of such activities, it will expose your business to substantial loss and give rise to legal claims.

While you could litigate such claims in the usual way, the standard process, which involves commencing a lawsuit, exchanging documents and oral examinations for discovery, is premised upon a degree of honesty and forthrightness that may not be present when the defendant is a rogue. To effectively pursue such claims, it may be necessary to seek extraordinary relief from the courts, in the forum of a Civil Search Order (usually known as an Anton Piller Order, after an early case in which one was granted).

What is an Anton Piller Order?

Anton Piller Orders have been referred to as the "nuclear bomb" of civil litigation. They are severe orders, generally obtained before notice of the claim is even given to the defendants. They require a defendant to allow representatives of a plaintiff access to their business or home to search for, identify, remove and preserve eviden relevant to a claim. Taking advantage of the element of surprise, Anton Piller Orders may help secure critical evidence of your claim against a rogue, trace your lost funds, identify other wrongdoers or allow you to take the tools of the harm out of the hands of counterfeiters and those using your confidential information.

While Anton Piller Orders do not permit forcible entry into premises, if a defendant does not respect the order they may face contempt of court proceedings that can result in fines, imprisonment or seizure of their assets. In addition, adverse inferences may be drawn against them that assist you in pursuit of your claim. Given the severity of Anton Piller Orders, they are controversial. However, their use in appropriate cases has recently been endorsed by the Supreme Court of Canada:

Experience has shown that despite their draconian nature there is a proper role for Anton Piller Orders to ensure that unscrupulous defendants are not able to circumvent the courts’ processes by, on being forewarned, making relevant evidence disappear. Their usefulness is especially important in the modern era of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed. The utility of this equitable tool in the correct circumstances should not be diminished.

How Do You Obtain an Anton Piller Order?

Anton Piller Orders may be granted where you have evidence to demonstrate a very strong claim against a defendant, the conduct of the defendant exposes you to very serious potential or actual damage, the defendant is in possession of incriminating documents or other things and there is a real possibility that the defendant will destroy evidence before the usual litigation process can do its work. Proving such a case requires a thorough investigation. It may require retaining private investigators, computer forensic experts or forensic accountants, depending on the issues. Given the difficulty of proving the likelihood of destruction of evidence, such orders are more likely to be granted where there is an element of dishonesty inherent in the wrong being committed against you.

There are many potential pitfalls in obtaining and enforcing Anton Piller Orders. They are specialized orders, and you should ensure that you retain experienced and knowledgeable counsel to obtain one. As the order is obtained without notice to the defendant, you will have a duty to disclose all relevant information to the court, including the weaknesses of your case. If you feel like your lawyer is arguing for the defendant, that suggests they are doing their job well. Similarly, if during enforcement of the order you feel your counsel is controlling the process in a manner which focuses heavily on the defendants’ rights, rest assured that they are looking out for your interests by protecting you against allegations of misconduct. This will benefit you down the road.

Anton Piller Orders will be strictly enforced. You will be stuck with the precise terms of the order. So Anton Piller Orders must be carefully drafted, to ensure all evidence you are looking for can be seized. Counsel with experience in enforcement will be better able to identify potential areas of dispute and to ensure the order is appropriately drafted.

During enforcement do not expect all to run smoothly. The process will be stressful for all involved, unanticipated issues will arise and, if you attend the enforcement, you may find much of your time is spent waiting while the stage is set for the search and the defendants retain counsel. Experienced enforcement counsel will be best placed to anticipate issues and negotiate and help the process run smoothly.

If Anton Piller Orders are improperly obtained or enforced, you may be penalized in a number of ways, including liability for damages caused by enforcing the order, complex and costly applications to set aside the order and possibly removal of counsel who, by this stage in the game, will be intimately knowledgeable about the issues and costly to replace. As the Supreme Court of Canada noted:

…such orders should only be granted in the clear recognition of their exceptional and highly intrusive character and, where granted, the terms should be carefully spelled out and limited to what the circumstances show to be necessary. Those responsible for their implementation should conform to a very high standard of professional diligence. Otherwise, the moving party, not its target, may have to shoulder the consequences of a botched search.

While there is risk in the process, properly obtained and enforced Anton Piller Orders are a very powerful tool. They often lead to quick resolution of disputes, substantial recovery and early settlement. Further, in cases involving counterfeit goods and use of confidential information, Anton Piller Orders may permit you to take the tools of wrongdoing out of the hands of the defendant and help to bring an end to ongoing financial loss.

What if an Anton Piler Order is Granted Against You?

From the perspective of a defendant, a validly obtained Anton Piller Order cannot be ignored. If you do so you may find yourself subject to proceedings for contempt of court, which have very serious penalties. If you are served with an Anton Piller Order things will happen quickly, the process will be stressful and you can anticipate that you will not be thinking at your clearest. If you are innocent of the allegations against you, you will no doubt be angry and feel that your reputation has been unfairly impugned.

Enforcement is not the time to vent. You will want to conduct an appropriate investigation. Unfortunately that may disclose that you have hired an unscrupulous employee who has committed a wrong that affects your business. You have rights in the process, such as the right to assert valid claims of lawyerclient privilege and irrelevance to oppose seizure or at least require review of such items, and to seek to set aside the order.

The best way to ensure that your rights are protected is to immediately contact counsel. Having them present during the search will allow you to ensure that the Anton Piller Order is enforced within the scope of its terms and with the least interference possible to your business, and, if appropriate, to move quickly to set aside the order.

Borden Ladner Gervais LLP has lawyers across Canada with extensive experience in obtaining and enforcing Anton Piller Orders in a variety of cases, including intellectual property, counterfeit goods and fraud. We have acted for both plaintiffs and targets of Anton Piller Orders. We are able to respond quickly to sensitive problems and coordinate enforcement nationally where appropriate.

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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