Anton Piller Orders - What Not To Do

Plaintiffs sometimes determine that the rules and remedies afforded to them to acquire or preserve evidence and assets in the regular course of litigation are inadequate. In certain instances, Plaintiffs can overcome the hurdles that delay these standard remedies through Anton Piller Orders, Mareva Injunctions or Attachment Orders. An Anton Piller Order is a form of civil search warrant that displaces the normal rules on discovery of records. It enables the Applicant to attend at the premises of the Defendant, without notice, and take possession of the records of the Defendant. Mareva Injunctions are court orders temporarily freezing a defendant's assets pending the final resolution from the Court. It is granted pursuant to the court's equitable jurisdiction to grant injunctive relief pursuant to Section 13(2) of the Judicature Act. An Attachment Order is made pursuant to the Civil Enforcement Act, Part 3 and is an order permitting a party to obtain pre-judgment relief where there are reasonable grounds for believing that a defendant is dealing, or is likely to deal, with its exigible property other than for the purpose of meeting its reasonable and ordinary business and living expenses.

Each of these remedies are considered extraordinary because they permit the Court to restrict or impede a defendant's use of certain assets before the Court has rendered a final determination of the issues in dispute. Invariably, applications for these remedies commence with an ex-parte Application supported by Affidavit evidence. Since the Court only hears from one party in that application, it is imperative that the evidence be precise and there is complete candor from the applicant about all of the relevant facts that the Court must consider before granting such remedies.

Recently, the Court of Appeal of Alberta in Secure 2013 Group Inc. v. Tiger Calcium Services Inc. , 2017 ABCA 316 confirmed the need for strict compliance with the criteria for each remedy. In that case, Plaintiff's counsel applied for Anton Piller Orders against the Defendants as well as against the offices of the Defendant's lawyers and accountants. The Plaintiff's counsel also applied for Mareva/Attachment Orders.

In a wide and comprehensive overview of what not to do, the Court set aside each of the Anton Piller Orders and Mareva Injunctions excluding one, which remains subject to a pending application to set it aside.

The Anton Piller Orders were set...