SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Teledyne Dalsa, Inc., Plaintiff

AND:

Bin Qiao Li, Defendant

BEFORE: D. M. Brown J.

COUNSEL:
M. Schafler and C. Snider, for the Plaintiff
B. Kelly, for the Defendant
R. Lee and J. Bricker, for the Attorney General of Canada

HEARD: March 3, 2014

REASONS FOR DECISION

I. Must an Independent Supervising Solicitor appointed by an Anton Piller order register under the Defence Production Act where documents concerning “controlled goods” are seized during the order’s execution?

[1] On January 14, 2014, I granted the plaintiff, Teledyne Dalsa, Inc., an ex parte Anton Piller order against the defendant, Bin Qiao Li, an employee of Teledyne (the “Initial Order”).[^1] Mr. Charles Skipper, of the Fogler, Rubinoff LLP firm, was appointed independent supervising solicitor (the “ISS”). The Initial Order was executed on January 16, 2014 at Li’s place of employment and residence.

[2] The ISS has made two reports to the Court about the order’s execution. The ISS authorized Deloitte Forensic Inc. to conduct forensic searches of various computers and electronic devices removed from Li’s residence. On February 20, 2014 an evidence review meeting was held at Deloitte at which time Li and two representatives of Teledyne Dalsa reviewed the documents which had been captured by the forensic search. They reviewed a total of 18,374 documents, of which 16,124 were marked as relevant. A sub-set of 58 documents were marked as relating to “controlled goods”.

[3] Controlled goods is a concept which arises in the context of the federal Defence Production Act.[^2] Teledyne Dalsa manufactures and sells certain strategic goods and technology identified in Item 5504 on the Export Control List.^3 By virtue of section 35 of the Defence Production Act, such goods are “controlled goods”. Section 37 of the Defence Production Act provides that “no person shall…knowingly examine or possess a controlled good…” unless “the person is registered under section 38” of that Act.

[4] Against the background of that statutory regime, two motions were brought before the Court:

(i) Teledyne Dalsa moved for an order that Part 2 of the Defence Production Act did not apply to either the ISS or to counsel for the parties “in the narrow context of their possession and examination of documents seized pursuant to the Anton Piller order”. At the hearing Teledyne Dalsa amended its request to limit it to an order that Part 2 did not apply to the ISS appointed in this proceeding; counsel for the parties were in the process of applying for registration under the Act;

(ii) The Attorney General of Canada (“AGC”) sought leave to intervene as an added party on the plaintiff’s motion. The AGC obviously had a significant interest in the subject-matter of the plaintiff’s motion and no party opposed the request for intervenor status. I granted the AGC status as an intervenor added party on this motion.

[5] The AGC took the position that when there exists reason to believe that documents seized under an Anton Piller order include those relating to controlled goods, the ISS must register under the Defence Production Act before it may possess or examine such documents and that until such registrations have been granted by the federal government, the documents relating to controlled goods should be placed in the hands of the local sheriff.

[6] The ISS took no position on the motion. In its Second Report, however, the ISS offered the following comments for consideration by the Court:

Operating as an ISS, and with the authority (and the obligations and responsibilities) of the ISS under the Order in this litigation, I have acted throughout as an Officer of the Court. The Courts cannot be everywhere. Judges cannot be everywhere. As such, the role undertaken by me as ISS pursuant to the Order of Justice Brown is simply one to act as the “eyes, ears, and the hands” of the Court to identify, collect, and preserve potentially relevant evidence in respect of litigation between certain parties. It is the function of the ISS, I believe, to be available and assist the Court in the exceptional circumstances under which the Anton Piller Order was granted.

II. The statutory framework

A. Offences

[7] The Defence Production Act (the “DPA”) contains two parts. The first deals with the procurement of defence supplies; the second regulates access to controlled goods. Such goods are those referred to in the schedule to the DPA.[^4] As mentioned, they include goods listed in Item 5504 of the Export Control List, such as global navigation satellite systems and ground control stations. Teledyne Dalsa manufactures and sells some of those strategic goods and technology.

[8] Section 37 of the DPA creates two offences in respect of such controlled goods. First, no person may “knowingly examine or possess a controlled good or transfer a controlled good to another person” unless that person is registered or exempt from registration. Second, a person who is registered or who is exempt from registration cannot “knowingly transfer a controlled good to or permit the examination of a controlled good” by a person who is not registered or exempt from registration. Contravention of section 37 is an offence punishable on summary conviction by a fine of up to $100,000 or imprisonment for a term not exceeding two years, or punishable by way of indictment by a fine of up to $2 million and imprisonment for a term not exceeding 10 years.[^5]

B. Registration

[9] Registration is accomplished by way of application to the Minister of Public Works and Government Services under DPA s. 38. According to Pascal Girard, Director, Controlled Goods Directorate, Public Works and Government Services Canada, a business applying for registration must disclose information about its ownership and the controlled goods it intends to examine, possess or transfer. Each business must appoint at least one employee as a proposed designated official. A security assessment application for each proposed designated official must accompany the application for registration, and only Canadian citizens and permanent residents ordinarily resident in Canada are eligible to become designated officials. As could be expected, a security assessment application requires the extensive disclosure of personal information. An applicant may be subject to checks by the Royal Canadian Mounted Police, the Canadian Security Intelligence Service and credit bureaus.

[10] Once approved, a designated official of a business becomes responsible for conducting the security assessments of any employees of the business who require access to controlled goods in the course of their duties. As well, all new designated officials must complete a certification program run by the Controlled Goods Directorate.

[11] As can be seen, the registration regime is geared towards dealing with businesses which manufacture or trade in controlled goods.

C. Exemptions

[12] Section 36 of the DPA provides that Part 2 of the Act, including the registration requirements, does not apply to:

(i) a person who occupies a position in the federal public administration, including a position in a federal Crown corporation, or is employed by Her Majesty in right of a province, who acts in good faith in the course of their duties and employment; or,

(ii) a person who is a member of a class of persons prescribed by regulation.

[13] The latter exemption was in issue on this motion. In 2004 the Controlled Goods Regulations were amended to provide that Part 2 of the DPA did not apply to members of several classes of persons who act in good faith in the course of their duties and employment:

(i) Public officers, as defined in ss. 117.07(2) of the Criminal Code;

(ii) Elected or appointed officials of the federal or a provincial government; or,

(iii) Members of a visiting armed force.[^6]

[14] The exemption of “public officers” would include judges of the Superior Court of Justice because (i) s. 117.07(2) of the Criminal Code defines “public officer” to include a “peace officer”, (ii) s. 2 of the Criminal Code includes, within the definition of “peace officer”, a “justice of the peace”, and (iii) section 5 of the Justices of the Peace Act provides that every judge of the Superior Court of Justice is, by virtue of his or her office, a justice of the peace.[^7] Accordingly, a judge of this Court who is called upon to examine documents seized under an Anton Piller order which relate to controlled goods is exempt from the proscriptions and the registration requirements of Part 2 of the DPA.

[15] What about the ISS in the proceeding in which the Anton Piller order was granted and executed? Must it register under Part 2 of the DPA?

[16] The plaintiff submitted that an ISS need not because he would fall within that part of the definition of “peace officer” found in s. 2 of the Criminal Code which includes any “other person employed…for the service of execution of civil process”. The AGC submitted that the ISS did not fall within the “peace officer” exemption and therefore the registration requirements of Part 2 of the DPA applied to him.

III. Analysis

A. The role and duties of an independent supervising solicitor

[17] The judicial treatment of the execution of Anton Piller orders and the maintenance of documents seized thereunder has evolved over the past 40 years. As was pointed out in the seminal case of Anton Piller KG v. Manufacturing Processes Ltd.,[^8] in an Anton Piller order a court orders a defendant to give permission to authorized persons to enter the defendant’s premises in order to inspect papers. The initial orders provided that if entry was given, then the plaintiff and its solicitor could enter the premises, inspect certain documents or things, and remove those which belonged to the plaintiff.[^9]

[18] Canadian practice moved in a similar direction, although in some Federal Court proceedings the order required the plaintiff’s solicitor to transmit the seized documents or things to the local sheriff.[^10] The presence of the plaintiff’s solicitor as the supervising solicitor on the execution of an Anton Piller order was not considered by the courts as involving the presence of a public official in the execution of the order, even though the solicitor, by virtue of his or her professional position, was regarded as an officer of the court.[^11]

[19] In the 1990’s a practice emerged in England of having persons independent of the plaintiff attend and supervise the execution of the orders. The practice of independent supervising solicitors caught on in Canada and was formalized by the Supreme Court of Canada in its decision in Celanese Canada Inc. v. Murray Demolition Corp.[^12] Stressing that the limited purpose of an Anton Piller order is to preserve relevant evidence,[^13] the Supreme Court set down guidelines for the preparation and execution of an Anton Piller order. The first guideline involved the appointment of an independent supervising solicitor:

The order should appoint a supervising solicitor who is independent of the plaintiff or its solicitors and is to be present at the search to ensure its integrity. The key role of the independent supervising solicitor was noted by the motions judge in this case "to ensure that the execution of the Anton Piller order and everything that flowed from it, was undertaken as carefully as possible and with due consideration for the rights and interests of all involved". He or she is "an officer of the court charged with a very important responsibility regarding this extraordinary remedy".[^14]

The Court observed that although an Anton Piller order was not placed in the hands of a public authority for execution, the presence during the execution of a “vigilant court-appointed supervising solicitor who is independent of the parties” operated to protect the party against whom the order was issued.[^15]

[20] The guidelines set down in the Celanese Canada case were used to craft a model Anton Piller order for cases on the Toronto Region Commercial List, and the Initial Order granted in this case followed the terms of the Model Order. The Initial Order dealt in some detail with the role and responsibilities of the ISS:

(i) The defendant was required to permit access to premises to authorized persons, including the ISS, “for the purposes of searching for, identifying, inspecting, preserving, reproducing and removing into the custody of the Independent Supervising Solicitor…any and all documents” listed in the order (Initial Order, para. 1);

(ii) The ISS was to “act as an officer of the Court in respect of the observance and implementation of the terms of this Order” (para. 3);

(iii) If the ISS deemed it impracticable to search for any evidence located on the defendant’s computers, “the Independent Supervising Solicitor shall be entitled to remove such electronic evidence into its possession for these purposes for a period of 72 hours or such further period as may be agreed to by the parties or ordered by the Court” (para. 10);

(iv) The ISS was to be present at the time of the initial entry into the premises (para. 11);

(v) The ISS was to advise the defendant in plain language of the nature of the order and the defendant’s legal rights (para. 12);

(vi) While the defendant was seeking legal advice, he could not refuse entry to the ISS (para. 12);

(vii) Any documents identified as privileged “shall be provided directly to the Independent Supervising Solicitor and sealed pending further order of the Court” (para. 14);

(viii) The evidence seized pursuant to the order “shall be held in the custody of the Independent Supervising Solicitor pending the trial of this action, or until such time as the Court orders otherwise” (para. 19); and,

(ix) Within 7 days of receiving a request from a party, the ISS must deliver a report “which describes the execution of this Order, who was present at the execution, and what materials were reproduced and/or removed into the custody of the” ISS (para. 27).

[21] As can be seen, under the Initial Order the ISS was responsible for ensuring the execution of the Anton Piller order in accordance with its terms and, to that end, specifically was designated as an officer of the court. All documents seized pursuant to the order found their way into the possession of the ISS. The main duty of the ISS was to ensure that the execution of the Anton Piller order remained faithful to its limited purpose – the preservation of evidence pending the trial of the action.

[22] In that regard, the Model Order distinguishes between the collection and preservation of evidence, on the one hand, and the later access to the evidence seized for the purpose of its examination. For example, paragraph 20 of the Initial Order allowed the defendant and his solicitor “reasonable access to all Evidence in the custody of the Independent Supervising Solicitor for the purpose of examining and making copies of the said Evidence in the presence of a representative of the Independent Supervising Solicitor”. The plaintiff’s access to the evidence was more limited: “the plaintiff shall not be permitted to access the Evidence seized prior to the delivery of the defendant’s affidavit of documents, unless the defendant consents or this Court orders otherwise” (Initial Order, para. 21).

[23] As disclosed in the First Report of the ISS dated January 19, 2014, in this case the ISS: (i) served the Initial Order on Li; (ii) provided Li with a document entitled, “Important Notice to the Defendant”, which the ISS had prepared and which explained the nature of the order to the defendant; (iii) reviewed each paragraph of the Notice and the Initial Order with Li so that he understood them, following a commonly-used standard script; (iv) informed Li of his right to counsel and provided him with the biographies of several local Waterloo litigation counsel; (v) provided Li with a list of the Authorized Persons who would be present in his residence; (vi) obtained from Teledyne Dalsa the work computer of Li; (vii) conducted the search of Li’s vehicle; (viii) explained to Li and his wife the plan to search their home; (ix) supervised the room-by-room search of the Li residence; and, (x) took into custody the seized paper evidence, computers and discs containing imaged evidence taken from electronic devices. On my reading, the First Report left no doubt that it was the ISS who executed the Initial Order on Li.

B. Does an ISS qualify as a “peace officer” for purposes of the controlled goods registration exemptions in the Defence Production Act?

[24] Such, then, were the duties performed by the ISS under the Initial Order, which was based on the Model Order. Do the roles and duties of the ISS under such an order exempt it from the registration requirements of the Defence Production Act in cases where documents seized under an Anton Piller order include those dealing with controlled goods? The answer to that question turns on whether a court-appointed ISS could be regarded as a “peace officer” within the meaning of section 2 of the Criminal Code, in that the ISS is a “person employed…for the service or execution of civil process”.

[25] The governing approach to statutory interpretation is well-established and recently was re-stated by the Supreme Court of Canada in Sun Indalex Finance, LLC v. United Steelworkers:

The issue we confront is one of statutory interpretation and the well-settled approach is that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".[^16]

[26] The objective of the controlled goods provisions of Part 2 of the DPA was summarized in the Regulatory Impact Analysis Statement which accompanied the making of amendments to the Controlled Goods Regulations in May, 2004 by SOR/2004-132. According to the Statement:

The Controlled Goods Program (CGP) is a domestic industrial security program that is responsible for the safeguarding of certain controlled goods within Canada’s borders…Persons (businesses or companies) possessing or examining controlled goods or seeking to transfer controlled goods within Canada or to export controlled goods…must be registered under the CGP. The CGP is legislated by the Defence Production Act (DPA), which, in addition to registration, provides for the exemption or exclusion of certain persons.

[27] The May, 2004 amendments to the Controlled Goods Regulations expanded the classes of persons to which Part 2 of the DPA did not apply to include “public officers as defined in subsection 117.07(2) of the Criminal Code.” The Regulatory Impact Analysis Statement explained the rationale behind those amendments:

Current paragraph 36(a) of the DPA excludes persons from Part 2 of the DPA who occupy a position in the federal public service or a federal Crown corporation or employed by Her Majesty in right of a province, who act in good faith in the course of their duties and employment. However, by oversight several other key governmental responsible persons were not included. This can be overcome by this new regulation to include such other equally important government person as “public officers” outline at subsection 117.07(2) of Part III of the Criminal Code (e.g., members of the Canadian forces and any police force…)

[28] Most of the categories of “public officers” identified by subsection 117.07(2) of the Criminal Code involve persons employed by the Canadian Forces, the Department of Defence or police and correctional services in Canada. That extends, as well, to most of the categories of “peace officers” defined in section 2 of the Criminal Code. But, not to all.

[29] For example, item (a) in the definition of “peace officer” includes a mayor, warden and reeve - all elected officials. Presumably the holders of those offices were included in the exemption scheme because the May, 2004 regulatory amendment also exempted elected officials of the federal or provincial government. It would appear that the federal executive must have concluded that those who make the laws merit exemption from the controlled goods registration requirements.

[30] While most of those who fall within the categories of “peace officers” are employed by some level of government, not all are, for a “pilot in command of an aircraft…while the aircraft is in flight” falls within the definition of “peace officer”, whether that pilot is employed by a private airline or a government one.

[31] For some exempt classes of persons, the link between their work duties and their exemption from the registration requirements is obvious. For example, one of the classes of public officer prescribed pursuant to subsection 117.07(2)(g) of the Criminal Code consists of federal or provincial employees who are “responsible for the examination, inventory, storage, maintenance or transportation of court exhibits and evidence”.[^17] With other classes the link is less clear – for example, park wardens[^18] – and for those classes it would appear that their involvement in the enforcement of public laws cloaks them with the attributes sufficient to merit their exemption from the controlled goods registration requirements.

[32] Judges of the Superior Court of Justice are exempt from the registration requirements because they are ex officio justices of the peace. Now those who apply for appointment as judges of the Superior Court of Justice must file detailed personal information and presumably are subject to security checks. But, I do not recall receiving any training at New Judges’ School in 2006 about how to deal with information concerning controlled goods, nor am I aware of any continuing education course offered on the subject by the National Judicial Institute. From that I infer that it was the nature of the duties and responsibilities of a judge, including the treatment of evidence filed with the court on a confidential basis, which led the federal executive to conclude that judges could be exempt from the requirement to register to possess or examine information about controlled goods.

[33] In sum, the classes of exempt persons identified by section 36 of the DPA and the Controlled Goods Regulations are linked by the common characteristic of being involved in the making, administration, enforcement, application or adjudication of the public laws of this country. The nature of the duties and responsibilities associated with such work seems to have led Parliament and the federal executive to conclude that certain institutional safeguards associated with such work positions would operate to ensure the safe-handling of information about controlled goods which the registration requirements otherwise seek to achieve.

[34] So, where does that leave an ISS? The AGC submitted that all of the classes of exempt persons under the DPA and Controlled Goods Regulations are “government persons with public duties exercising public powers”. (With the exception of airplane pilots, that is an accurate statement.) Teledyne Dalsa argued that the ISS was a “person employed…for the service or execution of civil process”, thereby falling into the exempt category of a “peace officer” under section 2 of the Criminal Code. The AGC relied on the decision of the Manitoba Court of Appeal in R. v. Burns[^19] to contend that that could not be so. That case involved the conviction of Burns on a charge of falsely representing himself to be a peace officer. Burns was a private baliff appointed by a leasing company to repossess a vehicle in default of payment. The narrow issue before the court was whether, as a privately-appointed baliff, Burns was a “baliff” within the definition of “peace officer” in s. 2 of the Criminal Code. The Manitoba Court of Appeal held that he was not, reasoning that everyone within the definition of “peace officer” in s. 2 of the Criminal Code was:

patently a public or statutory officer performing public duties. There is no reason to believe that Parliament intended to include, as a peace officer, a person who was a private appointee performing non-public duties.

[35] I find that analysis most instructive. It informs my conclusion that an independent supervising solicitor appointed by a court pursuant to an order which contains the terms found in the Model Anton Piller Order used on the Toronto Region Commercial List (a “Model Order ISS”) is employed for the service or execution of civil process and therefore falls within the Criminal Code s. 2 definition of a “peace officer” for the limited purpose of qualifying for the registration exemptions found in DPA s. 36(b).

[36] First, unlike the privately appointed baliff at issue in the Burns case, a Model Order ISS is appointed by a public authority – the Court.

[37] Second, the duties and powers of a Model Order ISS, which I described in paragraph 20 above, flow from the order of the Court, as was made clear by paragraph 3 of the Initial Order which stated that the ISS “shall act as an officer of the Court in respect of the observance and implementation of the terms of this Order”. That is to say, there is a very public dimension to the nature of the duties and powers of a Model Order ISS, and such an ISS is accountable to a public authority – the Court – for the manner in which he discharges those duties and powers.

[38] Third, a Model Order ISS is appointed to supervise the proper execution of an Anton Piller order; the Supreme Court of Canada so said in Celanese Canada.[^20]

[39] Those attributes – his appointment by a public authority as an officer of the Court; sourcing his duties and powers in a grant of powers made by a public authority; his accountability to that public authority; and his supervisory role in the execution of civil process – combine to qualify a Model Order ISS as a “peace officer” within the definition incorporated into s. 36(b) of the DPA with the limited effect of exempting such an ISS from the registration requirements under the DPA.

[40] The AGC argued at some length in its factum that since the powers exercised by sheriffs in their enforcement of court orders were much more extensive than the powers exercised by an ISS in the course of the execution of an Anton Piller order, an ISS could not fall into the category of “peace officer” found in s. 2 of the Criminal Code. I do not find that reasoning to be persuasive. The office of the independent supervising solicitor was one created by the courts, not the legislatures, and the courts have sought to limit the powers of the ISS to those which are necessary to give proper effect and execution to an Anton Piller order, but no more. The Anton Piller order remains one upon which very distinct limits are placed in order to prevent its misuse, and for that reason the powers granted by courts to an ISS are much more limited than those afforded by statute to sheriffs. That the powers of an ISS are more limited in my view does not detract from the fact that those powers are vested in the ISS by order of a public court and the ISS expressly is made an officer of that court for the purpose of discharging his duties and responsibilities in supervising and participating in the execution of an Anton Piller order.

[41] Moreover, the primary duty of an ISS – to preserve evidence pending further order of a court – generally results in the appointment of lawyers as independent supervising solicitors who possess the skills and experience needed to ensure the security and confidentiality of seized documents. As an officer of the court a Model Order ISS discharges that duty subject to the supervision of the Court. Those circumstances strike me as functionally satisfying the policy concerns concerning the treatment of information about controlled goods underpinning Part 2 of the DPA.

[42] I have limited my conclusion to independent supervising solicitors appointed pursuant to the Model Anton Piller Order used by the Toronto Region Commercial List. I have done so because my conclusion has rested heavily upon the nature of the duties and powers vested by the Model Anton Piller Order in the ISS and his appointment as an officer of the court. A similar conclusion might not be warranted where an ISS is appointed pursuant to an order which does not contain such extensive provisions dealing with the duties and powers of the ISS.

[43] For those reasons, I grant the order sought by the plaintiff that the registration requirements of Part 2 of the Defence Production Act do not apply to the independent supervising solicitor appointed pursuant to my Initial Order.

C. Concluding comments

[44] I wish to make a few additional comments. First, during the course of several 9:30 a.m. appointments before the hearing of this motion I inquired of counsel whether any “work-arounds” could be found to the problem. I commend counsel for their efforts in trying to find one. The AGC proposed three possible work-arounds: (i) appointing an ISS who was registered under the DPA; (ii) requiring the sheriff to accompany the ISS on the execution of the Anton Piller order; and, (iii) ordering that any seized controlled goods be held in the custody of the sheriff. As is evident, I did not adopt any of the AGC’s proposed work-arounds. The first simply begged the question to be decided. The second and third also presumed the need for an ISS to register, but also risked imposing delays on the process of executing an Anton Piller order. Such orders usually are sought and granted in “real-time” situations where the risk of delay most likely would increase the risk of the destruction of the evidence sought to be seized. As recognized by the Supreme Court of Canada in the Celanese Canada case:

Experience has shown that despite their draconian nature, there is a proper role for Anton Piller orders to ensure that unscrupulous defendants are not able to circumvent the court's processes by, on being forewarned, making relevant evidence disappear. Their usefulness is especially important in the modern era of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed. The utility of this equitable tool in the correct circumstances should not be diminished. However, such orders should only be granted in the clear recognition of their exceptional and highly intrusive character and, where granted, the terms should be carefully spelled out and limited to what the circumstances show to be necessary.[^21]

[45] Second, in its Supplementary Factum the AGC requested that the motion be adjourned for three weeks to permit the ISS to apply for registration under the DPA. I did not grant the adjournment. The motion raised important questions about the role and responsibilities of the ISS which required judicial determination.

[46] Third, in the present case the forensic examination of the seized digital evidence was undertaken by Deloitte, which is registered under the DPA. Deloitte had been selected by Teledyne Canada, a registrant under the DPA, and conducted the examinations subject to the direction of the ISS. In my view an important, practical distinction exists in cases where Anton Piller orders are issued between the preservation – i.e. possession – of evidence and the examination of that evidence. Ensuring the preservation of evidence through a fairly conducted seizure process is the primary function of any ISS. As was disclosed in the First Report of the ISS, as typically happens the seizure of digital evidence involves either the physical removal of computers and electronic devices from premises or the on-site imaging of the hard-drives of such equipment, or both. The time constraints involved in the execution of an Anton Piller order usually make impractical any on-site examination of specific digital documents.

[47] However, once the evidence has been seized and preserved, the pressure of time generally subsides. So, when it comes to the process of examining the seized digital evidence to ascertain whether any documents concern controlled goods, I see little reason why, as a general practice, the actual forensic examination should not be done by an examiner who is registered under the DPA, such as Deloitte was in this case. The Model Anton Piller Order does not authorize the ISS to retain persons to examine the seized evidence. On the contrary, paragraphs 19 through to 21 of the Initial Order contemplated that the examination of the seized evidence would be done by the parties, under the supervision of the ISS. Since the examination of seized evidence moves beyond the core ISS seizure and custodial functions and is left in the hands of the parties, compliance with the DPA’s registration requirements should be made.

[48] Fourth, although one rarely sees Anton Piller cases involving controlled goods, where an applicant has reason to anticipate that documents seized under an Anton Piller order may include those concerning controlled goods, it would be a good practice to flag that issue in the motion materials. That would at least enable the court to consider whether any special directions should be given to the ISS about how to preserve documents which might relate to controlled goods.

[49] Finally, the security of information about controlled goods is an important concern of the Controlled Goods Regulations, section 10(e) of which requires a registrant to establish and implement a security plan in respect of each place of business where controlled goods are kept. The written measures in such a security plan mentioned in the regulation include (i) the procedures used to control the possession and examination of controlled goods, (ii) the procedures used to report and investigate any security breaches, (iii) the identity of those who are responsible for the security of controlled goods, and (iv) the training given to those who may have access to controlled goods.

[50] The reports filed by the ISS in this case addressed many of those security issues. For example, in its First Report the ISS stated that he placed all seized evidence in an independently locked office at his law firm. Initial forensic searches of the seized computers were conducted by Deloitte at the offices of the ISS. Searches of Li’s email account were conducted by Deloittes under the supervision of the ISS. In his Second Report the ISS disclosed the directions which he had given to Deloitte to conduct further document searches on the various imaged devices. Deloitte conducted those searches at its forensic laboratory. On the consent of the parties a meeting was then held at Deloitte’s office during which the parties identified the controlled goods documents.

[51] Nevertheless, it might be worthwhile for the Model Order subcommittee of the Commercial List Users’ Committee, who drafted the Model Order now in use, to consider whether any modifications should be made to the Model Order to deal with situations where information about controlled goods might be seized during the execution of an Anton Piller order. Although I have found that a Model Order ISS is exempt from registration under the DPA, it is important that the Model Anton Piller Order give proper consideration to the public policy concerns about the integrity of controlled goods information reflected in the Controlled Goods Program.[^22] If the Model Order subcommittee sees merit in considering the matter, it would be useful to involve counsel from the Attorney General of Canada in those discussions.

[52] Given the novel nature of the issue on this motion, this is not an appropriate case in which to grant costs. I wish to express my appreciation to all counsel for their most helpful written and oral submissions.

D. M. Brown J.

Date: March 6, 2014

[^1]: 2014 ONSC 323

[^2]: R.S.C. 1985, c. D-1

[^4]: Defence Production Act, s. 35.

[^5]: Ibid., s. 45(1)

[^6]: SOR/2004-132, s. 1.

[^7]: R.S.O. 1990, c. J.4

[^8]: [1976] 1 All E.R. 779 (C.A.)

[^9]: Ibid., p. 784.

[^10]: See, for example, Nintendo of America Inc. v. Coinex Video Games Inc., 1982 5251 (FCA), [1983] 2 F.C. 189 (C.A.), para. 11.

[^11]: Fila Canada Inc. v. Doe (T.D.), 1996 4060 (FC), [1996] 3 F.C. 493 (T.D.), para. 12.

[^12]: 2006 SCC 36, [2006] 2 S.C.R. 189.

[^13]: Ibid., para. 31.

[^14]: Ibid., para. 40.

[^15]: Ibid., para. 1.

[^16]: 2013 SCC 6, [2013] 1 S.C.R. 271, para. 136.

[^17]: Regulations Prescribing Public Officers, SOR/98-466, s. 1(1)(a).

[^18]: Ibid., s. 1(1)(e).

[^19]: 2002 MBCA 161

[^20]: Celanese Canada, supra., para. 40.

[^21]: Celanese Canada, supra., para. 32.

[^22]: Telesat Canada v. Boeing Satellite Systems International, Inc., 2011 ONSC 84, para. 19.