Anton Piller Orders: Exceptional Relief and a Reminder of the Adversarial Conversation
Junior associates in civil litigation spend a great deal of time navigating layers of rules and procedures. We are mindful of deadlines, fearful of mistakes, and strive to master the technical elements of practicing the law.
These early years of practice are not always as glamorous as law school visions of dramatic cross-examinations, impeccably timed objections, impassionate closing arguments, and making new law. On occasion, however, we are reminded of the dynamic and frankly invigorating nature of the adversarial conversation that takes place between plaintiffs and defendants. I had one such reminder while reading the recent Court of Appeal decision in Sutherland Estate v. Murphy, 2025 ONCA 227.
The decision dealt with an appeal from a civil contempt ruling. The Court’s primary focus was to address whether section 11(c) of the Charter applies to civil contempt proceedings, whether the appellant’s compelled testimony was improperly used to support a finding of contempt and justify his sentence, and whether the finding of contempt was supported by evidence.
Ultimately, the Court allowed the appeal, set aside one of the three findings of contempt, vacated the sentence, and remitted the matter back to the Superior Court for a new sentencing hearing. A detailed analysis of this case may well merit another post, but my interest was piqued by the underlying use of an order that is reserved for exceptional situations: an Anton Piller order.
This very intrusive injunctive relief is used in the context of a civil action to permit entrance to a party’s property to search and seize evidence that is at risk of being destroyed.[1] As Justice Binnie described it, the order “bears an uncomfortable resemblance to a private search warrant.”[2] It is however, considered particularly useful in cases involving intellectual property, misappropriation of confidential information or trade secrets, and the sale of counterfeit goods.
For the court to grant such an order, the plaintiff must demonstrate a strong prima facie case, the damage to the plaintiff arising from the defendant’s alleged misconduct, whether potential or actual, must be very serious, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process.[3]Additionally, as the motion for such an order would typically be heard without notice to the other party (ex parte), “there is a heavy obligation upon the moving party to make full and frank disclosure of all relevant facts to the Court.”[4]
The Sutherland Estate action arose out of allegations that the appellant operated a fraudulent cryptocurrency scheme.He refused to comply with an Anton Piller order to seize his phone and subsequently deleted the data on the phone,leading to contempt proceedings.
The appellant admitted to refusing to surrender his phone and deleting its data. However, the motion judge also found him in contempt for failing to produce the deleted data, which the appellant claimed was not retrievable. The motion judge sentenced the appellant to 5 months in jail.
As noted, there are various details in this case that could each be developed into a worthwhile discourse, not least of which is that the appellant was self-represented for much of the action in the lower courts, though he was represented on appeal. For our purpose here, I will limit my discussion to the order to surrender his phone.
For those of us whose practice regularly involves extended email discussions over discovery plans and ensuring sufficient time to review Schedule “A” productions before a discovery, the availability and use of such a powerful and invasive tool in our legal system is striking. Though it is exceptional relief, its availability is a reminder that as lawyers we spar about issues with real consequences in people’s lives.
It reminds me that even when we are focused on meeting deadlines for producing expert reports or making sure not to exceed factum page-limits, we champion our client’s rights and goals. Though this may be obvious, as a junior associate focused on building my substantive and procedural legal knowledge it can sometime be difficult to see the forest for the trees. I appreciate these reminders that we use the tools that we are honing to engage in an adversarial debate, and advance the conversation towards fair, just, and favourable results for our clients.
[1] Named for a 1975 English Court of Appeal decision rendered by Lord Denning, Anton Piller KG v. Manufacturing Process Ltd. (1975), [1976] 1 All E.R. 779 (Eng. C.A.).
[2]Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, para 1.
[3] Ibid, at para 35, citing Nintendo of America, Inc. v. Coinex Video Games Inc., [1983] 2 F.C. 189 (C.A.), at pp. 197-99; Indian Manufacturing Ltd. v. Lo (1997), 75 C.P.R. (3d) 338 (F.C.A.), at pp. 341-42; Netsmart Inc. v. Poelzer, [2003] 1 W.W.R. 698, 2002 ABQB 800, at para. 16; Anton Piller KG, at pp. 58-61; Ridgewood Electric, at para. 27; Grenzservice, at para. 39; Pulse Microsystems Ltd. v. SafeSoft Systems Inc. (1996), 67 C.P.R. (3d) 202 (Man. C.A.), at p. 208; Ontario Realty Corp. v. P. Gabriele & Sons Ltd. (2000), 50 O.R. (3d) 539 (S.C.J.), at para. 9; Proctor & Gamble Inc. v. John Doe (c.o.b. Clarion Trading International), [2000] F.C.J. No. 61 (QL) (T.D.), at para. 45; Netbored, at para. 39; Adobe Systems Inc. v. KLJ Computer Solutions Inc., [1999] 3 F.C. 621 (T.D.), at para. 35.
[4] Ibid, at para 37, citing Netbored Inc. v. Avery Holdings Inc. (2005), 48 C.P.R. (4th) 240, 2005 FC 1405