Case Report – Employer uses spyware to forward its case but has Anton Piller set aside

The Ontario Superior Court of Justice issued an order setting aside an Anton Piller order on April 8th. The judgement is another stressing the extreme burden on parties who seek such orders.

The Anton Piller was initially granted in 2006 in support of a departing employee claim that included allegations of fraud and breach of confidence. The Court it aside because the plaintiff failed to fully and frankly disclose material facts and failed to make reasonable inquiries into material facts. More specifically, it held the plaintiff:

  • failed to ask customers whose business it claimed was lost or threatened due to the individual defendant’s actions whether they had been approached by the individual defendant;
  • failed to disclose that a customer relationship on which it relied was responsible for only a 2% portion of its gross profit; and
  • despite raising the difficulty in seeking production of the individual defendant’s MS Hotmail (which resided in the United States), failed to disclose that it had launched an action in Texas against the individual defendant’s new employer concurrently with its Ontario action, that it had sent a preservation letter to the new employer in conjunction with the action and that it had an agreement from Microsoft to retain the individual defendant’s MS Hotmail e-mails indefinitely.

The Court also criticized the execution of the order and, in particular, a search conducted of the purse of the individual defendant’s wife (also named). The Court said:

[The plaintiffs] were authorized to search for paper documents and electronic data related to Factor’s business, the business of Lanxess and Jean’s potential use of documents from Factor to promote his own and Bigler’s business interests. I question whether any of this material was reasonably likely to be found in Margaret Jean’s purse.

Also interesting, though it was neither challenged nor part of the Court’s consideration: the plaintiff discovered significant evidence of wrongdoing and determined the relevance of the individual defendant’s MS Hotmail account by installing spyware on his computer while he was employed.

Factor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.).

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