M. Schafler

Following the execution of an Anton Piller order in a commercial dispute, certain seized documents were identified as relating to “controlled goods” under the Defence Production Act.

The moving party sought an order declaring that the independent supervising solicitor appointed under the Anton Piller order was not required to register under Part 2 of the Defence Production Act in order to possess or examine such documents.

The Attorney General of Canada intervened and argued that the registration requirements applied.

The court held that an independent supervising solicitor appointed under the Model Anton Piller Order functions as a person employed for the execution of civil process and qualifies as a “peace officer” within the meaning of the Criminal Code for the limited purpose of the statutory exemption.

Accordingly, the solicitor was exempt from the registration requirement under s. 36 of the Defence Production Act.

The plaintiff employer sought ex parte relief against an employee alleged to have breached contractual and fiduciary duties by participating in a competing business and misusing confidential information.

The court applied the four-part test for Anton Piller orders set out in Celanese Canada Inc. v. Murray Demolition Corp. and found a strong prima facie case of breach of loyalty and confidentiality obligations, a risk of serious harm to the employer’s customer relationships, convincing evidence that relevant documents likely existed in the defendant’s possession, and a real risk of destruction of evidence.

The court granted an Anton Piller order with a shortened duration and appointed independent supervising solicitors.

An interim injunction restraining disclosure of confidential information and solicitation of customers or employees was also granted applying the RJR‑MacDonald test.

The court further ordered that the motion materials be sealed under the Sierra Club test pending execution of the order.