Feedback sought on draft model Anton Piller Order

July 6, 2010

This is a request to BC lawyers for feedback on a draft model Anton Piller order which, if sufficiently supported by the profession, may form the basis of a practice direction.

In Celanese Canada Inc. v. Murray Demolition Corp. [2006] 2 S.C.R. 189, the Supreme Court of Canada examined circumstances surrounding execution of an Anton Piller Order.

In its Reasons for Judgment, the Supreme Court set out some guidelines that should be applied "unless and until model orders are developed by legislation or recommended by law societies pursuant to their responsibility for professional conduct."

Responding to the Supreme Court, the Law Society formed a working group to prepare a draft model Anton Piller Order. The working group has now completed the draft model order: download a PDF of the draft model order.

The objective of the draft model order is to preserve evidence for use in civil proceedings while ensuring fairness of the search and seizure process to defendants. It also is aimed at ensuring that privilege and confidentiality can be maintained throughout the search process.

The model order does not alter the law with respect to Anton Piller Orders, and it is recognized that the terms of this model order may not be appropriate for all types of cases. Additional, alternative or related relief may be sought and obtained from the Court, provided that support for such relief can be established.

Depending on the response from the profession, the Chief Justice may make a practice direction referring to the draft order as a general standard. Lawyers may then point out any changes from the general standard when applying for orders, similar to the process provided for Companies' Creditors Arrangement Act model initial orders in the November 9, 2006 practice direction.

Send your comments no later than October 15, 2010 to Michael Lucas, Manager of Policy and Legal Services, at mlucas@lsbc.org.