Canada: Anton Piller And Preservation Of Evidence In Copyright Actions

Last Updated: October 29 2009
Article by Dale E. Schlosser

An Anton Piller order has been described as a private search warrant. This reference has been described as "uncomfortable" by the Supreme Court of Canada.

Such orders are used to preserve evidence on the basis that the defendants would hide or destroy relevant evidence if notified of the action. The order permits the plaintiff to demand entry to the defendant's premises to search them and to remove documents and other evidence.

Where there is a prima facie case of copyright infringement, the recovery of possession of copies, and plates, is specifically provided for in the Copyright Act. But in view of commentary from the Supreme Court that the Copyright Act is an exhaustive statutory regime, it raises the question as to whether there are limits as to what material a plaintiff may obtain in a seizure order in a copyright action.

The Copyright Act

Section 38 of the Copyright Act provides the following:

38. (1) Subject to subsection (2), the owner of the copyright in a work or other subject-matter may

(a) recover possession of all infringing copies of that work or other subject-matter, and of all plates used or intended to be used for the production of infringing copies, and

(b) take proceedings for seizure of those copies or plates before judgment if, under the law of Canada or of the province in which those proceedings are taken, a person is entitled to take such proceedings,

as if those copies or plates were the property of the copyright owner.

(2) On application by

(a) a person from whom the copyright owner has recovered possession of copies or plates referred to in subsection (1),

(b) a person against whom proceedings for seizure before judgment of copies or plates referred to in subsection (1) have been taken, or

(c) any other person who has an interest in those copies or plates,

a court may order that those copies or plates be destroyed, or may make any other order that it considers appropriate in the circumstances.

(3) Before making an order under subsection (2), the court shall direct that notice be given to any person who has an interest in the copies or plates in question, unless the court is of the opinion that the interests of justice do not require such notice to be given.

(4) In making an order under subsection (2), the court shall have regard to all the circumstances, including

(a) the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and

(b) the extent to which the infringing copy or plate is severable from, or a distinct part of, the substrate or carrier embodying it.

(5) Nothing in this Act entitles the copyright owner to damages in respect of the possession or conversion of the infringing copies or plates.

In the Federal Court it has been found that, provided the plaintiff establishes a prima facie case of copyright infringement, Sections 38(1)(a) and (b), in conjunction with Rule 377(1) of the Federal Courts Rules, allow the plaintiff to seize, before judgment, all infringing copies of the work in which it owns the copyright.

The Anton Piller Order

With an Anton Piller order, no notice is given to the party against whom it is issued. As Justice Binnie of the Supreme Court of Canada stated in Celanese Canada Inc. v. Murray Demolition Corp.: "The order is not placed in the hands of a public authority for execution, but authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search, the purpose of which is to seize and preserve evidence to further its claim in a private dispute. The only justification for such an extraordinary remedy is that the plaintiff has a strong prima facie case and can demonstrate that on the facts, absent such an order, there is a real possibility relevant evidence will be destroyed or otherwise made to disappear. The protection of the party against whom an Anton Piller order is issued ought to be threefold: a carefully drawn order which identifies the material to be seized and sets out safeguards to deal, amongst other things, with privileged documents; a vigilant court-appointed supervising solicitor who is independent of the parties; and a sense of responsible self-restraint on the part of those executing the order."

The Anton Piller order may relate to "documents or things." The party obtaining an Anton Piller order obtains possession, not as property, but to preserve it for the court. On the other hand, s.38 of the Copyright Act explicitly deals with the copyright owner's property rights in the copies and plates, and provides a means for obtaining interim possession of its property pending a trial.

In Théberge v. Galerie d'Art du Petit Champlain Inc., Justice Binnie stated that "copyright in this country is a creature of statute and the rights and remedies it provides are exhaustive." Since Section 38 provides for seizure before judgment and is restricted to copies or plates, there is an issue as to whether the other documents or things that may be obtained through an Anton Piller order are available through Section 38. And so, in light of Théberge one question is whether there is jurisdiction to grant such an order. It would appear that there may be under s. 34(1) of the Act which entitles the owner of copyright "to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right." An Anton Piller order is a common law order that may be conferred by the courts, thus s.34(1) would appear to provide jurisdiction.

Some Final Remarks

The evidence to obtain an Anton Piller order must be given with candour and full and frank disclosure to the Court. Therefore, it will be interesting to see whether this issue is openly discussed when Anton Piller orders involving copyright are sought.

This article appeared in the Lang Michener LLP InBrief Fall 2009. To subscribe to this publication, please visit our Publications Request page.
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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