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Civil Search Warrants in Canada: Guidance for Anton Piller Orders

23/11/2010


“It has long been an axiom of mine that the little things are infinitely the most important.” -Sherlock Holmes, A Case of Identity

Background

Civil search warrants in Canada are known as Anton Piller Orders, after the famous 1976 English case Anton Piller KG v. Manufacturing Process Ltd.1, which defined the process of civil search and seizure under common law.

Under normal circumstances, parties to litigation are required to disclose to their opponents all documents relevant to the dispute that are not privileged. This disclosure is made in good faith. However, in rare situations, where a real risk exists that evidence would not be provided or would be destroyed by the Defendant, an Anton Piller Order may be granted to allow the Plaintiff the means to protect and collect the evidence. Such Orders are being increasingly sought by Plaintiff’s counsel because of the relative ease of destruction or movement of data of all forms in an increasingly complex and electronic world.

When an Anton Piller Order is obtained, the Plaintiff is given the right to attend at the Defendant’s location unannounced and without warning, and demand access to, and search for and seize evidence. This is an override of normal privacy rights and is so severe has been called a “Draconian” measure by the Supreme Court of Canada.2 It is only under circumstances deemed exceptional that private citizens are allowed such powers that are normally reserved for law enforcement and other Government authorities. The Anton Piller Order is a powerful tool and one that can be obtained provided that the proper steps are taken.

The key to successful execution of an Anton Piller Order is the manner and process in which it is considered, planned, and undertaken. Plaintiffs need to consider the many pitfalls and costs that may arise should the Order not be executed carefully. The following principle rules have historically been applied to a situation in determining whether an Anton Piller Order may be granted3:

  • The plaintiff must demonstrate a strong prima facie case;
  • The Defendant’s alleged misconduct, potential or actual, must be very serious;
  • There must be clear and convincing evidence that the Defendant has incriminating documents in his possession; and
  • It can be shown that there is a real possibility that the defendant may destroy the incriminating documents or records.

The Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd. 4 further established that in order to rule that there had to be strong evidence showing a real possibility that the defendant would destroy documents, not merely an inference or suspicion.

New Rules

In 2006, the Supreme Court of Canada (SCC) provided definitive guidance on how Anton Piller orders should be conducted in Canada. In Celanese Canada v. Murray Demolition Corp., Celanese Canada operated a plant for the production of vinyl acetate in Edmonton. Celanese hired Murray Demolition to demolish the plant. Celanese alleged that Murray Demolition allowed Canadian Bearings Ltd. onsite during the period of demolition and that Canadian Bearings Ltd. used proprietary technologies, discovered during its visit to the demolition site, to construct its own vinyl acetate plant in Iran.

Celanese Canada then sought and obtained an Anton Piller Order against Canadian Bearings Ltd. During its execution, a number of issues arose.

In its judgment, the SCC took the opportunity to clarify the elements required to successfully execute and prepare an Anton Pillar Order:

  • The Order should appoint an independent supervising solicitor (ISS) to act as a neutral officer of the Court. The ISS’s role would be to explain the Order to the Defendant; supervise the search and seizure; and provide a objective report to the Court.
  • The scope of the Order should be no wider than necessary and no material should be removed from the site unless pursuant to the terms of the Order.
  • The plaintiff should provide an undertaking and/or security to pay damages in the event the Order is wrongfully executed, or was unwarranted.
  • A term setting out the procedure for dealing with solicitor-client privilege or other confidential materials should be included.
  • Materials seized should be returned to defendants as soon as practicable.
  • The search should be commenced during normal business hours, when counsel for the Defendant is available for consultation.
  • The premises should not be searched or items removed without the presence of the defendant or his/her responsible employee.
  • Persons conducting the search should be listed by name in the Order.
  • A detailed list of all evidence seized should be made and verified by the Defendant before leaving the site.

Practical Considerations for Execution

The SCC has provided sound guidance for the conduct of Anton Piller Orders. Other practical considerations must also be made in order to ensure the successful execution of the Order, as well as avoidance of costly and legally damaging pitfalls that may prevail.

Considerations that should be made are:

  • The Order should be specific and clear about technical or financial evidence that it seeks to preserve, using definitions if necessary. Vague or all-encompassing terminology should be avoided. The Order should also specify in what form (physical, electronic) the evidence is expected to be found in.
  • The Order should only seek that information which is required to litigate the dispute. The Plaintiff should be prepared to support any and all information requests by reference to the underlying dispute. A civil search warrant is not a fishing expedition.
  • The conditions of urgency under which the Order is sought and granted need not produce rushed results. Methodical execution and documented steps in the process are the only way to proceed.
  • Sufficient time should be allotted for a proper and careful search. Knowledge about the Defendant’s place of business, and what information and data may be discovered is useful when determining how much time will be required to execute the Order.
  • The evidence must be clearly and carefully collected and presented. Care should be given to the selection of experienced accounting and legal professionals.
  • Careful thought should be given when appointing an independent supervising solicitor. The Courts are more likely to grant an Anton Piller Order if the independent supervising solicitor is a respected member of the bar who is known to them.

How MNP Can Help

MNP’s Investigative and Forensic Services Practice has experience in the successful execution of criminal and civil search warrants in Canada. Our team can assist in the appointment of the independent supervising solicitor, identification of knowledgeable counsel, preparation of the required documents, securing of electronic and computer data, and removing materials from the premises. We can determine if materials found meet the scope and spirit of the Anton Piller Order, and whether the substance of documents required under the Order are satisfactorily located. Our team will also log and itemize all materials found, and can assist with the evidence required to obtain the Anton Piller Order a well as the subsequent document and data analysis.

MNP’s Forensic Technology practice is experienced in the correct imagery of computers and other data storage devices in a manner that protects metadata and is consistent with the requirements of Canadian law.

Conclusion

Anton Piller Orders are a valuable tool in a dispute where the preservation of evidence is a concern. However, given their extraordinary powers, they must be handled with care in order to ensure they are successfully obtained and monitored.

As the SCC stated in Celanese: “the more detailed and standardized the terms of the Order, the less opportunity there will be for misunderstandings or mischief.”5

Article By: Lisa Majeau Gordon, CA-IFA, Meyers Norris Penny LLP
Edited By: Walter Pavlic, QC, MacPherson Leslie & Tyerman LLP

This article is for informational purposes only and does not constitute legal advice to be acted on.


References
  1. Anton Piller KG v. Manufacturing Process Ltd. [1976] Ch 55 1 ALL E.R. 779
  2. Celanese Canada v. Murray Demolition Corp., 2006 SCC 36 (Celanese) at para. 30.
  3. Celanese, supra note 1 at para. 40.
  4. Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201
  5. Celanese Canada v. Murray Demolition Corp., 2006 SCC 36