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Litigation: Some Key Differences between Civil Litigation in Canada and the United States—Part 4

Canada’s common law provinces and territories offer some extraordinary remedies to parties involved in civil litigation.

In addition to the various differences between civil litigation in Canada and in the United States, which were summarized in the previous three articles in this series, there are some extraordinary remedies available to parties in civil litigation in Canada’s common law provinces and territories. Many of these remedies are akin to forms of interim or interlocutory injunction, but in addition to them bearing distinct names such as “Anton Piller,” “Mareva” and “Norwich,” they each possess distinct characteristics.

Injunctions

Both prohibitive injunctions (“you must not…”) and mandatory orders (“you must…”) are available to plaintiffs and defendants in Canada. The normal test for granting an injunction (which is well-established but may vary in certain circumstances) consists of a three-part analysis: (1) a preliminary review of the merits of the case, usually merely to determine if there is there “a genuine issue for trial” or, in other instances “a strong prima facie case;” (2) a determination if the moving party will suffer irreparable harm (i.e., harm which cannot be compensated by an award of money) if the relief sought is not granted; and (3) a weighing of the “balance of convenience” as to whether the harm the responding party will suffer if an injunction is imposed outweighs the harm the moving party will suffer if such relief is refused.

Anton Piller orders

The purpose of an Anton Piller order is to protect evidence in special circumstances. An Anton Piller order directs a person (almost always the defendant or his/her/its representatives e.g., employees) to allow representatives of the plaintiff, an independent supervising solicitor and other authorized individuals to enter specified premises for the purpose of searching for, seizing and copying documents or other evidence. An Anton Piller order may also compel a defendant or other person to divulge the location of relevant evidence and, for example, to reveal passwords otherwise restricting access to electronic evidence. Electronic evidence is now almost invariably among the evidence being seized for preservation pursuant to an Anton Piller order.

 

An Anton Piller order may be obtained on an ex parte motion (i.e., without notice to the respondents) in circumstances where there is cause to believe that the defendant, if notified of the motion, would destroy or hide evidence prior to its discovery, thereby stymieing the judicial process.

Despite the repeated recognition by various Canadian courts that an Anton Piller order is not a “search warrant,” it is clear that the practical effect of such an order has long been that of a search and seizure order. Indeed, it was acknowledged by the Supreme Court of Canada in 2006 that the order “bears an uncomfortable resemblance to a private search warrant.” 

Given that an Anton Piller order is recognized to be one of the court’s most extreme remedies, the test to obtain such an order, and the procedural and other safeguards that are associated with it (e.g., to protect the defendants’ solicitor-client privileged communication from being viewed  by the plaintiff), are correspondingly extreme.  

Mareva Injunctions

A Mareva injunction restrains a defendant in a civil action from disposing of assets, or handling them in specific ways, prior to trial. Accordingly, it is an extraordinary order which runs contrary to the normal rule that execution cannot be obtained prior to judgment (execution in this sense includes judicial orders impounding assets or otherwise restricting the rights of the defendant to deal with his/her/its assets without a trial).

A Mareva injunction, often combined with an Anton Piller order, is of obvious value to a plaintiff dealing with a defendant who has committed fraud because such persons are inclined to hide or destroy evidence and to abscond with the proceeds of their fraud.

Norwich Orders

A Norwich order is a form of pre-action discovery whereby a plaintiff can obtain information from a non-party (e.g., a financial institution or an internet service provider) so as to identify an unknown or anonymous defendant, to locate evidence or to trace funds. The innocent non-party is compelled to assist the plaintiff on the basis that the non-party was someone wound up in the misconduct in issue, usually thought no fault of its own— or indeed without even its knowledge. Thus, for example, an internet service provider (ISP) may have been the innocent conduit by which internet defamation or fraud occurred and though the plaintiff may have no idea who the real defendant is, the non-party ISP may have critical evidence which permits the defendant to be traced and identified. The Norwich order allows the plaintiff to secure such evidence.

Conclusions

Extraordinary cases sometimes call for extraordinary remedies. Injunctions, Anton Piller orders, Mareva injunctions and Norwich orders— whether used individually, sequentially or in simultaneous combination— provide plaintiffs will powerful remedies to track and identify defendants and funds (Norwich orders), secure evidence (Anton Piller orders) and freeze assets (Mareva injunctions).

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Berkley Sells

Berkley Sells is a partner at Fasken Martineau. He practices civil litigation with a focus on corporate/commercial disputes and internet litigation.

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