The Civil Sheriff Comes Knocking On The Door — Anton Piller Orders

Often cited as the most draconian of civil procedural

remedies, the Anton Piller (AP) order is poorly understood by

both the public and the litigating bar generally. The recent

case of Nac Air, LP v. Wasaya Airways Ltd.,

2007 CanLII 51168 (ON S.C.) demonstrates that this lack of

appreciation for the underpinning principles of the AP order

may also extend to the judiciary.

To be fair to all three sectors named, the AP order, which

has been described by the Supreme Court of Canada (SCC) in

Celanese Canada Inc. v. Murray Demolition

Corp., [2006] 2 S.C.R. 189 as a "private search

warrant," is not something one encounters every day.

However, if one is on either end of such a drastic order, then

it is extremely important to note just what terms, limits and

conditions should prevail in the application for, granting of

and execution of such an order.

The NAC case is somewhat reminiscent of the Air

Canada-WestJet internal website access and garbage pickup

dispute. NAC apparently had been required to file fare

changes with a federal department, Health Canada. It was

alleged that every time it did so, a competitor,

Wasaya, immediately countered with its own change.

Health Canada denied any leak on its part. NAC

proceeded to obtain an AP order in the usual "without

notice" way.

The nature of an AP order is that it compels the defendant

to consent to a search team entering its premises to effect a

review of material so that evidence for a civil suit may be

preserved. Failure to consent places the target of the search

at risk of contempt of court if the AP order is ignored. The

target therefore has a "Hobson's Choice," i.e., a

choice between taking the only option offered or not taking it.

Needless to say, neither choice is particularly palatable.

The Celanese case provided that four essential

conditions must exist for making an AP order:

First, the plaintiff must demonstrate a strong prima

facie case. Second, the damage to the plaintiff caused

by the defendant's alleged misconduct — potential

or actual — must be very serious. Third, there must be

convincing evidence that the defendant has in its possession

incriminating documents or things. And fourth, it must be

shown that there is a real possibility the defendant may

destroy such material before the discovery process can do its

work.

It is interesting to note that the case from which the AP

order originated, Anton Piller KG v. Manufacturing

Processes Ltd., [1976] 1 Ch. D. 55 (C.A.), provided that

there be an extremely strong prima facie case, and

this is what the reviewing judge in NAC set as the

test. However, that same judge required a probability of risk

of destruction of material before discovery, not a real

possibility as set out by the SCC.

The SCC helpfully pointed out various protections that

should be incorporated in any AP order granted. These

include:

In addition to the search team from the plaintiff's

law firm, an independent outside lawyer should be appointed

to supervise the execution of the order as an officer of the

court. While such a process ideally should be conducted by

independent outside lawyers, in practical terms, such an

outside team would be at a "knowledge" disadvantage

as to what was relevant to the case. An AP order is to be

executed in an efficient and timely way. Thus practicality

dictates that plaintiff's counsel may be involved,

although it might be preferable to have the persons involved

in the search team isolated behind a confidentiality wall

from those who...