Almost always, a civil plaintiff has a chance to review a defendant’s records only after the statements of claim and defence are filed and served. In certain circumstances, however, a plaintiff may seek a civil search warrant to seize and obtain the defendant’s records even before the latter party has notice of a claim against it. This extraordinary tool is referred to in legal parlance as an “Anton Pillar order”, named after a British case of the same name. The Anton Pillar order has been a fixture in Canadian jurisprudence for over 3 decades.
The order is quite powerful, as it enables a party to employ the services of a bailiff to attend at the premises of the defendant, without notice, and take possession of records. Normally the plaintiff would do so before the defendant even knows that there is a filed claim against it. Due to its intrusive nature, an Anton Pillar order is issued by Courts only where there is clear and convincing evidence that such an order is necessary.
To obtain the order, a plaintiff must show the Court that it has the makings of a strong case, that the damage to the plaintiff of the defendant’s alleged misconduct is very serious, that there is convincing evidence that the defendant has in its possession incriminating documents or items, and that there is a real possibility that the defendant may destroy such material before discovery.
Any one of the 4 aforementioned requirements is challenging to satisfy, let alone all of them. For that reason, issuance of an Anton Pillar order is indeed rare. It is important for a plaintiff to understand this fact.
The path to getting such an order is also an expensive one. Besides a lawyer, the plaintiff needs to retain a bailiff (to actually seize the documents) and an independent supervising lawyer (appointed by the court) to take custody of the seized records and deal with them as ordered by the Court subsequently.
The lawyer representing the plaintiff needs to produce the form of order, the affidavit of the plaintiff in support of the without notice application, and likely a brief that lays out the grounds on which the Court is asked to issue the order. These documents must be produced with tremendous care, detail, and candour. The Alberta Court of Appeal lays out the importance of this with vigour in the recent case of Secure 2013 Group Inc. v. Tiger Calcium Services Inc.
The Court of Appeal in Tiger Calcium overturned multiple Anton Pillar orders obtained without notice for several reasons, including the following. First, there was no compelling evidence suggesting that the defendants had incriminating evidence in their possession, much less evidence that there was a real possibility that such would be destroyed. Second, the submissions by the plaintiff misrepresented the evidence. Third, the orders were overreaching in regard to the records to be seized. Fourth, and quite importantly, the Court held (paragraph 80(e)):
Assuming that it could have been established that the [the respondents] had incriminating documents in their possession, less severe alternatives could have been used such as obtaining an undertaking or a court order prohibiting the third parties from dealing with such records or releasing them to the defendants pending further court order. No explanation was provided to the chambers judge or this Court why such remedies would not have been adequate and why any seizure of any records from these third parties was required.
The culmination of the plaintiff’s actions compelled the Court of Appeal to set aside the Anton Pillar orders, which the Court believe enabled “intrusive searches that could potentially damage [the respondents’] reputation and affect their business.”
The key takeaway is that the requirements for Anton Pillar orders are strict. A litigant should opt for alternative forms of relief if the facts demand it.
Invitation for Discussion:
Our litigation lawyers are skilled in pre-litigation strategy. If you would like to discuss this blog in greater detail, or any other business litigation matter, please do not hesitate to contact Mohamed Amery or one of the lawyers in the Business Litigation Group at Nerland Lindsey LLP.
Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.