Supreme Court of Canada Comments on Anton Piller Orders

An Anton Piller order (court-supervised seizure before trial) can be a powerful weapon at a party's disposal in technology litigation. (See E-TIPS®, "A Federal Court of Canada Reminder: Anton Piller Orders are to be Granted Only in Exceptional Circumstances", Vol 4, No 18, March 15, 2006 for a summary of the Netbored v Avery Holdings case decided by Justice Hughes of the Federal Court of Canada). In a recent Supreme Court of Canada case, Canadian Bearings Ltd et al v Celanese Canada Inc et al, 2006 SCC 36, while primarily considering questions relating to solicitor-client privilege, Justice Binnie, in passing, echoed many of the concerns expressed by Justice Hughes in the Netbored case:

"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 court's 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 (Editor's emphasis). The utility of this equitable tool in the correct circumstances should not be diminished. However, 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".

This is perhaps the clearest indication yet, from Canada's highest court, that the pendulum is swinging back to a more cautious and nuanced approach in the use of a powerful judicial tool. For the full text of the Canadian Bearings Ltd case, see: http://scc.lexum.umontreal.ca/en/2006/2006scc36/2006scc36.html Summary by: The Editor