Steven Levitt

The plaintiff moved to reopen a prior decision that had set aside an Anton Piller Order obtained against a former employee who joined a competitor, seeking to introduce fresh evidence allegedly showing the defendant and a third‑party competitor misled the court about future competition and misuse of confidential information.

The court applied the test for admission of fresh evidence, requiring proof that the evidence could not have been obtained earlier with reasonable diligence and that it would probably have changed the result.

The alleged new material largely concerned post‑hearing developments, including lobbying activities, industry publications, and a later government refit contract, which at most demonstrated potential future competition.

The court held that such evidence was irrelevant to the purpose of an Anton Piller Order, which is limited to preserving evidence of past wrongdoing.

The moving party therefore failed to show the evidence would have altered the earlier decision or remedied the prior failure to provide full and frank disclosure.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.