A major Toronto law firm - Cassels, Brock - has been kicked off a case involving industrial espionage because the firm unintentionally but avoidably accessed privileged electronic documents in the course of review of evidence after execution of an Anton Piller order.
Their problem stems from carelessness and an excessively adversarial approach in circumstances that called for careful restraint in recognition of the exceptional position of responsibility imposed by the unilateral and intrusive nature of an Anton Piller order. The protection of solicitor-client confidences is a matter of high importance. (para. 54)The Supremes ruled importantly that the onus is on the searching party to show that there will be no prejudice to the party that was searched. (Para. 55)
The decision is very important for its thorough review of the extraordinary Anton Piller procedure - which Justice Binnie says at the outset “bears an uncomfortable resemblance to a private search warrant”.
Interestingly, there is no indication that there was a Charter challenge to the very concept of an Anton Piller order - a possibility that was raised by an Ontario judge in the the recent Ridgewood v. Robbie case mentioned by Justice Binnie, in which the plaintiffs attempted to execute the search upon a terrified ten year old kid whose parents weren’t home. I’ve written about that case in the EIPR last year.
Indeed, Justice Binnie goes to some length to indicate that such orders are necessary in today’s world.
Para. 32 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. 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 may suggest that a Charter challenge to an Anton Piller order would not likely succeed. But with all of the caveats and dangers that lurk for lawyers who obtain and execute such orders, and all the requirements that the Supremes have spelled out in some detail, and the repeated references to their exceptional and extraordinary nature, I’m willing to predict that we will see far fewer attempts to obtain them and far more reluctance on the part of Courts to issue them.
And that would be a good thing...