A Clear Cut Case for an Anton Piller Order: Peters & Co Limited v Ward
In Peters & Co Limited v Ward, 2015 ABCA 6 [Ward], the Alberta Court of Appeal (“ABCA”) assessed the validity of an Anton Piller Order (“APO”). An APO, when issued, allows the claimant to conduct a search and remove evidence in the possession of the target. In this case, the APO allowed the search of “the appellant’s residences, vehicles, computer and other digital storage devices, and an office building” (para 1).
The appellant was a former principal of the respondent, an investment firm (“Peters & Co”). The respondent alleged that Ward, before resigning from Peters & Co, had “taken steps to secure for his new employer work he had commenced as a principal of Peters & Co” (para 3). The respondent had successfully filed for an APO ex parte. Subsequently, the appellant challenged the order on two grounds:
- On the basis of non-disclosure; and
- On the basis that Peters & Co had not satisfied the applicable legal test.
An APO will be set aside if the applicant fails “to disclose all relevant materials, whether negligently or deliberately … However, not every non-disclosure will cause an order to be set aside” (para 11). Ward argued that the respondents failed to properly identify various factors which, together, amounted to insufficient disclosure.
The ABCA deferred to the chambers judge’s decision. His reasons indicated that he had considered each argument and he “was best placed to consider them in the context of the entire application” (para 14).
The ABCA described the legal test for APOs:
First, the plaintiff must demonstrate a strong prima facie case. Second, the damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious. Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work (para 16).
Ward challenged the application on three fronts. The ABCA rejected each claim.
First, he argued that “the chambers judge did not precisely identify the prima facie case, nor the evidence he relied on in reaching his conclusion…” (para 18). There was no merit in this submission, according to the ABCA, because the statement of claim, combined with the decision, clearly indicated that the judge was aware of the substance of the issues.
Second, Ward claimed that the alleged damage was not serious enough. Under this heading, the ABCA predicated its response on the general purpose of the APO: to preserve evidence (documents, in particular) that might otherwise be destroyed.
The ABCA felt that, given the allegations (breach of contract and duty by stealing information), seriousness had been established. Without the APO, there was a chance that the respondent would not be able to prove “at least part of its case” since the documents that were allegedly stolen could be destroyed (para 23).
Finally, Ward challenged the last element of the test: “that there [is] a real possibility that the defendant may destroy material before the discovery process can do its work” (para 24). The ABCA held that “courts may infer a risk of destruction when it is shown that the matter has been acquired in suspicious circumstances” (para 25). The court felt that, in this case, Ward’s conduct rose to that level.
There were several factors supporting this determination. Ward had downloaded an entire database of the respondent’s clients, had removed material from his office surreptitiously, and had departed immediately. There was also footage of Ward leaving Peters & Co with carts of banker boxes during times when he had reason to suspect that the office would be empty.
The value of this case resides in its simplicity. The ABCA, in its commentary, explicitly recognized that an APO is a significant order. It resides “at the ‘absolute extremity of the court’s powers’…” (para 22, citing CCS Corporation v Secure Energy Services Inc, 2009 ABQB 275). This implies that a very high threshold must be met before the test is satisfied.
As a result, Ward is an extremely clear authority. The respondent had evidence indicating that information may have been copied or stolen. Despite imperfect disclosure, the order was upheld. This decision shows that APOs remain accessible when the right facts present themselves. In particular, when an employee appears to steal confidential information; information that could be easily destroyed if the typical disclosure process is followed.