Paul J. Green

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The plaintiffs obtained an ex parte Anton Piller order, which was subsequently set aside by a Superior Court judge.

The plaintiffs sought to appeal the setting aside of the order and brought a motion before a single judge of the Court of Appeal for a stay pending appeal.

The Court of Appeal judge determined that the order setting aside the Anton Piller order was interlocutory, not final, because it did not determine the real matter in dispute between the parties.

Consequently, the appeal belonged in the Divisional Court, and the motion for a stay in the Court of Appeal was dismissed.

The appellant appealed the trial judge's findings on liability and the quantum of damages.

The Court of Appeal found the trial judge's findings on liability to be reasonable and supported by the evidence.

The court also found no basis to interfere with the quantum of damages.

The appeal was dismissed with costs fixed at $15,000 on a partial indemnity scale.