Our friend, Anton Piller (the injunction)

Pablo Guzman

Employment and Labour Law Conference

May 24, 2012

The Anton Piller injunction, what you need to know…

• What is an Anton Piller injunction order?

• Conditions

• The recognition of this order in Quebec

• Its application to labour law

• Protection for the defendant

• Anton Piller injunction: how to use it?

• Advantages and disadvantages

What is an Anton Piller injunction?

Its origin

• Has existed in law for over 30 years.

• This order originated in the field of intellectual property in the Anton Piller KG v. Manufacturing Processes Ltd decision rendered in 1976 by the Court of Appeal in England.

What is an Anton Piller injunction?

Objective

• Its primary objective is to preserve evidence.

• Measure to “allow search and seizure.”

• Anton Piller ≠ search warrant or criminal seizure.

What is an Anton Piller injunction order?

• This is an extraordinary remedy obtained ex parte which aims to prevent a person from hiding or destroying evidence that would be useful in the context of litigation and that would be lost or destroyed if notice was given to the defendant.

• While the defendant has the possibility of refusing the execution of such order, such refusal could result in a conviction for contempt of court.

• Moreover, such refusal could eventually jeopardize the defendant’s defence (presumption of evidence of the facts alleged in the claim).

• This is a hybrid measure with elements that are unique to both an injunction and a seizure before judgement.

• Areas of application (unfair competition, piracy, intellectual property infringement, etc.).

What is an Anton Piller injunction order?

“Rolling” Anton Piller and John Doe/Jane Doe

• Unknown locations

• Unknown individuals

Conditions

A. Conditions relating to the provisional injunction.

B. Conditions derived from case law relating to the Anton Piller order.

Conditions

A. Conditions relating to the provisional injunction

• An apparent clear right.

• Irreparable harm.

• Balance of inconvenience.

• Urgency.

Conditions

B. Conditions derived from case law relating to the Anton Piller order

• A very solid commencement of proof

• A real or possible very serious prejudice for the plaintiff

• Manifest evidence that the defendant is in possession of documents or goods that could be used as evidence and that thereis a real possibility that the defendant will destroy this evidence before the action may be brought

• A full disclosure of relevant facts

The recognition of this extraordinary remedy in Quebec

• The first debate before the Court of Appeal of Quebec regarding the validity and the recognition of this remedy in Quebec occurred in 2002 (Raymond Chabot SST inc. c. Groupe AST (1993) inc. [2002]).

• Absence of a legislative framework.

• Recourse compatible with provisions contained in the Civil Code of Quebec, the Code of Civil Procedure and the Charter of Rights and Freedoms.

Its application to labour law

• Particular value of Anton Pillerinjunctions in labour law:

• Enforce legal obligations of loyalty and confidentiality (Palmer inc. c. Dupuis).

• Enforce non-competition clauses and non-solicitation clauses (Shermag inc. c. Zelnicker and Raymond Chabot SST inc. c. GroupeAST inc).

The protection for the defendant

• The Supreme Court of Canada in Celanese Canada inc. v. Murray Demolition Corp. [2006], held that the defendant targeted by an Anton Piller application must benefit from a triple protection:

• A carefully drafted order which identifies the documents to be seized and sets out safeguards to deal, amongst other things, with privileged documents.

• A vigilant court-appointed supervising lawyer who is independent of the parties.

• A sense of responsible self-restraint on the part of those executing the order.

Anton Piller injunction: how to take advantage of it?• Presentation by ex parte application before a judge in chambers.

• It is not necessary to serve the defendant the motion demanding the order.

• Motion and documents supported by affidavits.

• During the application, the evidence will be accepted as true.

• Identify the persons authorized to execute the order (plaintiff’s representatives, bailiffs, experts, police, lawyers, etc., see Refplusinc. c. Kehar).

Advantages and disadvantages

Advantages

• Encourages out of court settlement of litigations.

• Allows one to obtain evidence to prepare a file in the context of an eventual litigation.

Advantages and disadvantages

Disadvantages

• Very strict eligibility criteria.

• Considerable costs involved.

• The plaintiff may be ordered to pay damages in cases of abuse or of non-compliance with the order.

Questions?

Thank You!