Anton Piller Orders, named after the famous 1976 English case, Anton Piller KG v. Manufacturing Process Ltd. [1976] Ch 55 1 ALL E.R. 779, which defined the process of civil search and seizure under common law.
An Anton Piller order is obtained ex parte, and allows the moving party to access the premises of the other party to gather evidence that the court fears may be destroyed if the search is not conducted immediately. To many people this resembles a private search warrant but it is not. The contempt power is used to enforce them rather than the normal criminal process where physical force may be used to execute the Order. Nor does the Order authorize entry. Rather, it commands the defendant to permit entry. The defendant may deny entry, and thereafter face contempt proceedings. The plaintiff’s agents may not use force to effect entry in the face of the defendant’s denial of permission. The defendant may move to have the access limited after the search. Therefore, the order doesn’t necessarily give the moving party immediate access to the evidence, rather it preserves it, so that access can be determined at a later time.
With a search warrant, those strangers are police officers, who may use reasonable force to execute their search. With an Anton Piller order, the strangers are not police officers (although they will usually include one peace officer from the Sheriff’s office or a Bailiff in Quebec). They may not use force to gain entry, but rather the threat of jail or other punishment.
The premise of these orders is that (a) the defendant is likely to act to frustrate the order if given notice of it in advance; and (b) there is a strong prima facie case that the defendant has already acted very badly. As Anton Piller orders play an increasingly important role in protecting businesses from disgruntled or departing employees (as in Ridgewood cited below), it is important for Investigators to fully understand their obligation to properly execute these orders.
A number of judgments have condemned the improper execution of these orders. An Ontario case, Ridgewood Electric (1990) v. Robbie, contains an excellent background of the Anton Pillar Order in Para [23] and demonstrates how not to execute the order. In Harris Scientific Products v. Araujo (2005), 54 Alta. L.R. (4th) 195, the Alberta Court of Queen’s Bench ordered damages of $35,000 for trespass and punitive damages of $10,000. Furthermore, the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd. established that there had to be strong evidence showing a real possibility that the defendant would destroy documents, not merely an inference or suspicion in order to issue an Anton Pillar Order. In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 the SCC ruled that Celanese had the onus of demonstrating that no prejudice would result from their solicitors carrying on in the file. As a result of the execution of an Order, the Celanese solicitors had come into the possession of confidential information attributable to a solicitor-client relationship, and the court said that the solicitors “bear the onus of showing there is no real risk such confidences will be used to the prejudice of the defendant.” This contentious case led the SCC to better define the requirements for successful preparation and execution of an Anton Pillar Order. The following guidance is distilled from Celanese Canada Inc. v. Murray Demolition Corp.
- An independent solicitor should act as a neutral officer of the Court to supervise the execution of the Order. This person should explain the Order to the Defendant and provide a objective report to the Court.
- Limit the scope to only necessary material and no material should be removed from the site unless pursuant to the terms of the Order. This is not a fishing expedition. However, allocate enough time and be methodical in your execution of the Order while documenting every step in the process.
- The moving party should provide an undertaking and/or security for damages if the Order is unwarranted or improperly executed. The court does not want to deal with imposing fines etc. as in Harris Scientific mentioned above.
- Include a procedure for dealing with solicitor-client privilege or other confidential materials. The court does not want a repeat of this problem as seen in Celanese above.
- Return seized material as soon as practicable.
- Commence the search during normal business hours when the counsel for the Defendant is available for consultation. Again, this was a problem faced by the Defendant in Celanese.
- The premises should not be searched, or items removed, without the presence of the defendant or his responsible employee.
- Persons conducting the search should be listed by name rather than just the number of people permitted.
- A detailed list of all evidence seized should be made and verified by the Defendant before leaving the site.