Case Report – Plaintiffs can’t (yet) capitalize on loss of evidence seized on an Anton Piller

On March 25th, the Ontario Superior Court of Justice dismissed a motion brought by defendants after their documents and things seized under an Anton Piller order were lost by the supervising solicitor.

The disposition of the motion was strongly-driven by the defendants’ intent. The Court noted that their main reason for bringing a motion was not to attack the Anton Piller but, rather, was to seek a dismissal and damages for the plaintiffs’ role in the alleged unreasonable retention of evidence. This intent was highlighted by the defendants’ failure to attend the hearing at which the Anton Piller order was confirmed. As for the plaintiffs, their approach was to implicate an individual defendant in the loss of evidence by blaming him, for example, for failing to copy documents in accordance with an alleged agreement between the parties.

The Court held that the defendants’ had not established any basis for modifying or setting aside the Anton Piller order. It also held that the claim for damages and a dismissal of the action were premature and best resolved after a trial, except that the defendants could bring a summary judgement motion to forward their argument that the loss of evidence prejudiced their defence. On this point, it said:

The defendants therefore rely solely on the loss of the Evidence and their allegations that the plaintiffs are responsible for the loss in support of their request for a dismissal of the action. I think this is insufficient to succeed on such a motion. The loss of the Evidence by itself is not determinative of the issue of prejudice and the ultimate responsibility for the loss is irrelevant (unless the loss were due to the defendants’ actions). The important point is that there is no reason or evidence put forward by the defendants that suggests that the Evidence would have provided a defence to the plaintiffs’ allegations regarding the defendants’ business. Accordingly, the evidence before the Court on the issue of prejudice is not sufficient at this time to demonstrate prejudice that would entitle the defendants to the requested relief.

Bell ExpressVu Limited Partnership v. Echostar Satellite LLC, 2008 CanLII 12837 (ON S.C.).

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