Perell J of the Ontario SCJ provides another of his potted summaries of the law in Bergmanis v Diamond & Diamond, 2012 ONSC 5762, this time on the requirements for obtaining Anton Piller and Norwich Pharmacal orders. (Too bad the judgment sometimes refers to the former under the name Anton Pillar.)
Procedural points first. You must satisfy the technical requirements of Ontario rule 40.02 (motion for interlocutory injunction or mandatory order without notice), and also disclose all material facts, or risk having the order set aside. Because both remedies are injunctive in nature, you also need to satisfy all the requirements for that (serious issue to be tried or strong prima facie case, irreparable harm, balance of convenience favours granting rather than refusing, undertaking as to damages). As to substance, an Anton Piller order is ‘very intrusive and exceptional’, ‘at the extremity of the court’s powers’.
It prevents property from being destroyed but does not authorise access to privileged communications. In order to obtain an Anton Piller order, there must be (a) an extremely strong prima facie case, (b) very serious actual or potential damage to the plaintiff, (c) convincing evidence that the defendant possesses incriminating documents or objects and (d) a real possibility that the material may be destroyed or secreted before trial. A Norwich order is ‘a form of equitable discovery against third parties before the commencement of proceedings’, predicated on the principle that the third party has a duty to assist the applicant in pursuing its rights. To obtain a Norwich order, (a) the plaintiff must have a bona fide claim or potential claim against a wrongdoer, (b) the defendant to the Norwich proceeding must have a connection to the wrong beyond being a witness, (c) the defendant to the Norwich proceeding must be the only practical source of the necessary information, (d) the interests of the plaintiff must outweigh the defendant’s interest in privacy and confidentiality, and any public interest in non-disclosure and (e) the interests of justice must favour disclosure.
Applying each of these requirements to the facts before him, Justice Perell concluded there just wasn’t a strong enough case to justify continuing either the Anton Piller or Norwich Pharmacal orders which had previously been obtained. These are ‘not a dime a dozen remedies; they are rare and precious’, in the words of the judge.