In a civil court case, it’s often necessary for one side to obtain documents or files from the other to use as proof in Court. But what happens when a plaintiff thinks a defendant may destroy the evidence?
Enter the Anton Piller order.
Known as the “nuclear bomb” of civil law and named for one of the early court cases from which it sprang, the Anton Piller order is a judicial tool that allows one party to access the home or office of the other party without notice in order to prevent essential evidence from being destroyed. In family law cases, for example, one party might be hiding evidence of their true income and assets for the purposes of lowering the amount of spousal or child support they are ordered to pay or family asset partition.
While an Anton Piller order has some similarities to a search warrant, it doesn’t authorize the plaintiff to exercise the same level of force accorded to the police. In the case of Anton Piller KG v. Manufacturing Processes Limited, the judge wrote that such an order
“does not authorise the Plaintiffs' Solicitors or anyone else to enter the Defendant's premises against his will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the Defendants…””
In brief, an Anton Piller order doesn’t allow one party to break down the other’s door: the Plaintiff still needs to get the Defendant’s permission to enter the premises. However, if the Defendant doesn’t give permission, he or she is in contempt of Court, and authorization to enter the premises immediately can be accorded by a judge.
There are several protections in place to prevent the abuse of Anton Piller orders. In Canada, that includes a four-part test: The plaintiff has a strong prima facie case (a strong case at first glance), the potential damage to the plaintiff caused by destruction of evidence must be very serious, there is convincing evidence the defendant has possession of incriminating documents or items, and there is a real possibility those materials would be destroyed.
There are also a number of strict conditions that determine how searches authorized by an Anton Piller order can be carried out. For example, the execution of the order has to take place during normal business hours, the defendant must have a reasonable amount of time to call a lawyer, and receipts must be left for anything taken in the search.
Neither the plaintiff nor the plaintiff’s attorneys are allowed to be present during the search of the defendant’s home or office. The search itself is executed by bailiffs and overseen by an independent superintending attorney named by the Court. The superintending attorney’s job is to make sure that only information related to the case is seized and that no information protected by professional privilege is shared with Plaintiff's attorneys until a judge authorizes it.
In all, Anton Piller orders are a very powerful tool, but only available for use when there is no other means to obtain evidence without risking its destruction.
Goldwater-Dubé specializes in family law and divorce. If you think we can help, contact us on our website or call us at (514) 861-4367 to set up a consultation.