Case Report – Plaintiffs draw sharp rebuke in Saskatchewan Anton Piller case

On September 19th, Dufour J. of the Saskatchewan Court of Queen’s Bench set aside an Anton Piller order because the plaintiffs had failed to prove a real possibility that the defendants would destroy the information subject to the order.

In making his finding, Dufour J. described the standard of proof for the “real possibility” branch of the Anton Piller test as follows (citations omitted):

As it would be rare that there would be direct evidence that a defendant is preparing to destroy relevant evidence, the fourth Celanese condition is usually addressed by the plaintiff adducing evidence of the defendant’s dishonest nature. Evidence that the defendants have engaged in questionable business practices in the past or that they are generally dishonest is not sufficient. The plaintiffs must prove that the defendants are the types of persons who would destroy evidence.

Important to this case is that the plaintiffs must satisfy the Court by adducing admissible evidence. Opinion, supposition or the plaintiffs’ “fear” that documents will be destroyed will not suffice.

Dufour J. also held that he would have set aside the order given the plaintiffs’ non-compliance with their duty of full and frank disclosure. He identified the following defects, among others:

• Filing evidence of mere belief that the key defendant was dishonest
• Exhibiting an agreement without drawing a material notation on the agreement to the judge’s attention
• Referring to two different business entities by a single acronym in a manner that favoured their position
• Citing the paragraphs in Celanese that explain that Anton Piller orders are becoming more commonplace without citing a paragraph in Celanese that explains that an Anton Piller is still an exceptional remedy
• Citing Celanese for the proposition that Anton Piller orders are becoming more commonplace without citing post-Celanese cases that demonstrate that an Anton Piller is still considered to be an exceptional remedy

There is no shortage of cases that highlight the very onerous burden on a party that moves for an Anton Piller, but Dufour J.’s warning is notable for its vigor.

Agracity Ltd. v. Skinner, 2009 SKQB 361 (CanLII).