On November 21st, the Ontario Superior Court of Justice dismissed a motion to set aside an Anton Piller order granted to the plaintiff on evidence that the defendants had been involved in the sale and acquisition of satellite piracy hardware.
Motions to set aside Anton Piller orders are often granted for failure to meet the very high standard of disclosure (“full and frank”) or the equally high standard of conduct in execution. In this case, the defendant raised ten bases for setting aside the order, all of which were rejected by Madam Justice Pepall. Of greatest significance:
- Pepall J. refused to set aside the order because it was not executed by a peace officer. She stated that an Anton Piller need not be executed by a police officer despite the Court’s earlier statement in Ridgewood v. Robbie. She noted that the Supreme Court of Canada’s subsequent decision in Celanese did not endorse such a requirement.
- Pepall J. followed Ferenczy to excuse the fact that the computer forensics specialist whose evidence was adduced in support of the Anton Piller ought to have been licensed under the now-repealed Private Investigators and Security Guards Act.
In one sense, this award demonstrates effective use of an important and powerful civil remedy. In another, it may highlight how a defendant’s response to an Anton Piller can work to its prejudice. The defendant initially denied entry to his premises and, though he permitted entry later the same day, two computers subject to the search were missing hard drives. One wonders whether this misconduct (found earlier to be done in contempt) tempered Pepall J.’s inclination to apply the extremely unforgiving approach typically applied when persons who have executed Anton Piller orders are brought back before the court.
Bell ExpressVu Limited Partnership v. Rodgers (Tomico Industries), 2007 CanLII 50595 (Ont. S.C.J.).