SCC Comments on Requirements for an Anton Piller

The Supreme Court of Canada issued a decision yesterday in which it affirmed an Anton Piller order issued in support of the province of British Columbia’s action for recovery of monies from Ripudaman Singh Malik and family.

The judgement is about the admissibility of prior judgements as evidence in a subsequent interlocutory proceedings. Justice Binnie, for the Court, held that prior judgements are generally admissible as evidence as proof of their findings provided the parties are the same or were themselves participants in the prior proceedings on similar or related (as opposed to identical) issues.

The Supreme Court of Canada decision in Celanese remains the leading case on the requirements for an Anton Piller order, though Justice Binnie did comment on requirement that there be a “real possibility” that the defendant may destroy evidence. He said:

It will often be difficult or perhaps impossible for a plaintiff to show that a defendant will actually destroy evidence, but it is always open to the court to draw inferences reasonably compelled by the surrounding circumstances. As Paperny J. (as she then was) observed in Capitanescu v. Universal Weld Overlays Inc. (1996), 46 Alta. L.R. (3d) 203:

Generally, courts have inferred a risk of destruction when it is shown that the defendant has been acting dishonestly, for example where matter has been acquired in suspicious circumstances, or where the defendant has knowingly violated the applicant’s rights. [para. 22]

This passage was cited with approval by the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201, 76 Alta. L.R. (4th) 264, at para. 13.

Justice Binnie held that the motions judge did not err in finding a “real possibility” from evidence that Mr. Malik had previously refused to provide proper disclosure of financial information.

British Columbia (Attorney General) v. Malik, 2011 SCC 18.

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