1. Our friend, Anton Piller (the injunction)
Pablo Guzman
Employment and Labour Law Conference
May 24, 2012
2. 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
3. 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.
4. 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.
5. 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.).
6. What is an Anton Piller injunction order?
“Rolling” Anton Piller and John Doe/Jane Doe
• Unknown locations
• Unknown individuals
7. Conditions
A. Conditions relating to the provisional injunction.
B. Conditions derived from case law relating to the Anton
Piller order.
8. Conditions
A. Conditions relating to the provisional injunction
• An apparent clear right.
• Irreparable harm.
• Balance of inconvenience.
• Urgency.
9. 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 there
is a real possibility that the defendant will destroy this evidence
before the action may be brought
• A full disclosure of relevant facts
10. 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.
11. Its application to labour law
• Particular value of Anton Piller
injunctions 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. Groupe
AST inc).
12. 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.
13. 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 Refplus
inc. c. Kehar).
14. 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.
15. 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.
