It is possible in lawsuits in Alberta to get an order to directly seize records from another party early in the lawsuit. This is called an Anton Piller order. These are sometimes used in conjunction with Mareva Injunctions, which allow assets of a party to be frozen. Anton Piller Orders are a drastic remedy, but in certain instances can be advisable.
The Alberta Court of Appeal in talked about these orders in the case of Secure 2013 Group Inc v Tiger Calcium Services Inc, 2017 ABCA 316. The Court said at paragraph 56:
[56] An Anton Piller order is a form of civil search warrant that “displaces the normal rules on discovery of records”: Catalyst Partners Inc v Meridian Packaging Ltd, 2007 ABCA 201 at para 6, 417 AR 7. It enables the applicant “to attend at the premises of the defendant, without notice, and take possession of the records of the defendant. They are highly intrusive orders ... subject to a number of procedural limitations designed to protect the defendant”: .....
[58] Catalyst Partners summarizes the requirements (set out in Celanese Canada at para 35) as follows at para 7:
a) The plaintiff must demonstrate a strong prima facie case;
b) The damage to the plaintiff of the defendant's alleged misconduct must be very serious;
c) There must be convincing evidence that the defendant has in its possession incriminating documents or things; and
d) 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.
Since the raison d'etre of an Anton Piller order is to preserve documents that might otherwise be destroyed, the fourth criterion is of central importance.
If you are involved in a lawsuit and in would like to discuss what is involved in this type of order, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
