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Injunctions - Anton Pillar. Macciacchera (Smoothstreams.tv) v. Bell Media Inc.
In Macciacchera (Smoothstreams.tv) v. Bell Media Inc. (Fed CA, 2024) the Federal Court of Appeal explained that only state action attracts application of the Charter, here in an appeal of a review of an Anton Pillar orders:[5] First, the appellants cannot ground their appeal upon a Charter right. This is because the Charter does not apply between private parties, and Charter rights do not exist in the absence of state action: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 at para. 95 [Hill]; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573 at p. 599; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 SCR 530 at p. 571.
The execution of an Anton Piller order does not involve state action; the order "“is not placed in the hands of a public authority for execution”": Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 at para. 1 [Celanese]. Rather, as in this case, an Anton Piller order "“authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search, the purpose of which is to seize and preserve evidence to further its claim in a private dispute”": Celanese at para. 1 (emphasis added); see also Ontario Realty Corp. v. P. Gabriele & Sons Ltd., 2000 CanLII 22697 (ON SC) at para. 34; Viacom Ha! Holding Co. v. Jane Doe, [2000] F.C.J. No. 498 at paras. 80–81.
[6] Second, in the absence of an explanation as to how the execution of the Order was inconsistent with Charter values, this argument cannot be entertained: Hill at para. 95; Singh Brar v. Canada (Public Safety and Emergency Preparedness), 2024 FCA 114 at para. 66. . Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]
In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court considered the application of Charter s.8 ['search and seizure'] to contempt enforcement of a civil Mareva injunction:[26] The motion judge found that the compelled production of information from Dr Saad was a lawful term of the Mareva order, in furtherance of the court’s civil jurisdiction over claims of civil fraud and related allegations. The authority to make such an order has not been contested on this appeal, and it is well established in our jurisprudence.[15]
[27] The court also has the jurisdiction to make an Anton Piller order[16] which sometimes has been described as a “civil search warrant.”[17] I address this point in more detail below but make the following initial observations about the relationship between Mareva and Anton Piller orders. It is a common feature of Mareva orders to direct production and information from a respondent. While this may be an extraordinary and intrusive order, it is less intrusive than an Anton Piller order, which authorizes a plaintiff to enter premises and seize the information and documents themselves. Other techniques that may be used in the context of cases involving Mareva and/or Anton Piller orders are orders for production from third parties such as banks and other financial institutions. In the absence of extraordinary orders such as Mareva and Anton Piller orders, parties to civil proceedings are obliged under the Rules of Civil Procedure to disclose and produce documents and to provide information during oral examinations for discovery. Compelled information is inherent to the civil litigation process. Then, of course, at a trial in the civil proceedings, compelled information may be used, and any witness who testifies may be compelled to answer questions and produce documents during the course of their testimony.
[28] These disclosure processes, in civil proceedings, are contrasted with the investigative powers of the state in criminal matters – and the protections afforded accused persons in criminal proceedings. The state may obtain warrants to search and seize materials in aid of a criminal investigation. This process is not available in civil proceedings, except to the extent that an Anton Piller order may be available and is seen in that way.[18] In a criminal case, the prosecution has substantial disclosure obligations[19] and the defence has very few obligations to disclose information and evidence to the prosecution.[20]
[29] To put the point generally, investigation of criminal matters is generally unilateral – the state has powers to obtain evidence, and they do not, generally, include compelling a person under investigation to provide information. Investigation of civil matters is generally a bilateral process of compelled disclosure – where the parties are required to provide information and documents to each other but are generally not permitted to exercise the investigative powers available to the state in investigation of criminal matters.
[30] The motion judge found that information and documents compelled from the appellants in the civil proceedings prior to commencement of the contempt motion could be used against the appellants in the contempt motion. Specifically, he concluded that such use would not violate the appellants’ right not to be compelled as a witness in the contempt motion. The motion judge reasoned as follows:a. Section 11(c) of the Charter provides: “any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence”.
b. The appellants cannot be compelled to testify in the contempt motion.[21]
c. There is some authority that evidence that could be tendered against an alleged contemnor may not be gathered in the civil proceedings after commencement of a contempt motion until that motion has been concluded. This principle does not apply to information compelled prior to commencement of the contempt motion.[22]
d. Information compelled under regulatory regimes may generally be used for enforcement proceedings in those regimes.[23]
e. Information obtained in this case prior to the contempt motion was compelled in aid of the civil fraud proceedings – the cause in respect to which the Mareva order was made. [31] The motion judge concluded that use of the Compelled Evidence did not compel the appellants to be witnesses in the contempt motion, and that this conclusion did not create a “gap” in the protection against testimonial compulsion that should be filled by s. 7 of the Charter (Decision, paras. 101 – 102):The protections afforded by a Mareva order would be seriously impaired and, in some cases, entirely undermined if, when the defendant purports to comply with the order by giving a sworn statement of assets and is examined, and the defendant discloses that assets allegedly stolen and ordered to be frozen are, in fact, being dissipated, the evidence so given is inadmissible on a subsequent motion for contempt because of the residual application of s. 7 of the Charter. The very purpose of the provisions of the Mareva order requiring the statement of assets and examination thereon is to facilitate enforcement. The defendant who is subject to the order is well aware that a failure to comply may attract severe sanctions through an order for contempt of court. I regard as significant the fact that when Dr. Saad’s affidavits were given, and when he was examined, he was not facing jeopardy through a contempt motion. When this evidence was given, Dr. Saad had not been charged with an offence, and his evidence was not given in respect of an offence. The protections against self-incrimination in s. 11(c) and s. 13 do not apply in this context.
In my view, having regard to the context in which Dr. Saad’s affidavits were given and his examinations were held, the interests of our justice system in ensuring that there is an effective civil remedy to protect against, as Myers J. put in in Pronesti, “a rogue flouting the civil process of the court”, and the fact that the evidence was given before any contempt motion was brought, there is no residual gap to be filled by s. 7 of the Charter. To give s. 7 of the Charter the effect urged by Dr. Saad would open the door to evasion by wrongdoers of their obligations under Mareva orders and introduce an obstacle to enforcement that could render ineffective or, in some cases, illusory, the protections of a Mareva order.[24] I agree with this analysis.
[32] I would draw an analogy to situations where there are parallel administrative and enforcement powers, such as the enforcement scheme in the Income Tax Act.[25] Taxpayers are required to provide information and documents in income tax returns. Tax authorities have administrative powers to compel information and documents, including, among other things, the power to audit books and records of a taxpayer. Where tax authorities pursue prosecution of an offence under the Income Tax Act, they may not use administrative enforcement powers, because they are conscriptive. Instead, they may have recourse to investigative powers associated with criminal prosecutions, such as search warrants. The taxpayer still has an obligation to file complete and accurate tax returns: these obligations are not suspended because of a nascent or actual prosecution.
[33] I note this point, not because it affects the disposition of this appeal, but to be clear that the motion judge’s decision does not open a pathway for use of compelled disclosure (whether pursuant to a Mareva order or pursuant to the Rules of Civil Procedure) for the purpose of obtaining evidence for a prosecution for contempt of court which is penal, rather than coercive, in nature. As is the case in enforcement of the Income Tax Act, compelled disclosure to ensure compliance with the Act is not inherently for the purpose of prosecution. The court has the power to restrain abuse of the civil justice process for the purpose of a penal contempt prosecution, and neither the decision below nor this decision on appeal holds otherwise.[26]
....
[46] In respect to further requests for production of documents, the motion judge considered a line of authorities[33] to the effect that documents compelled prior to criminal proceedings, for other lawful purposes, are not inadmissible in subsequent criminal proceedings. The motion judge then considered R. v. Jarvis, upon which the appellants relied, in support of the proposition that when an investigation shifts from administrative to criminal in nature, administrative powers may no longer be used to compel a taxpayer to provide documents and information, in violation of their right to remain silent.[34] The motion judge then concluded as follows (the “Production Ruling”):The Court in Jarvis did not provide for an exception to the taxpayer’s Charter rights where the documents required from the taxpayer exist independently of any state compulsion.
I do not agree that Branch[35] is authority for the proposition that where documents exist independently of any state compulsion, the principle against self-incrimination under the Charter does not apply. The plaintiffs have brought a contempt of court motion seeking remedies against Dr. Saad and Mohammed. The plaintiffs having done so, the Charter rights of Dr. Saad and Mohammed are engaged. The plaintiffs cannot conscript Dr. Saad and Mohammed to assist in the prosecution of the contempt motion against them by compelling them to assemble and produce documents which the plaintiffs reserve the right to use to convict them of contempt of court.
This conclusion applies to both Dr. Saad and Mohammed. Although the documents sought from Mohammed are sought under the Mohammed Mareva Order and the contempt motion against Mohammed is brought in respect of the Saad Mareva Order, the plaintiffs reserve the right to use any documents produced by Mohammed to aid in the prosecution of the contempt motion against him. In these circumstances, the principle against self-incrimination under the Charter is engaged in respect of Mohammed and Dr. Saad.
Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion. I agree with the motion judge’s analysis except for one core point: an allegation of contempt does not transform proceedings from civil to criminal unless the court also finds that the contempt allegation is predominately penal rather coercive. If the contempt motion is predominantly coercive, then the nature of the proceedings has not been “transformed” to criminal.
[47] The problem with the Admissibility Ruling and the Production Ruling are their apparent inconsistency, in principle, with the motion judge’s decision respecting Issues 1 and 2. It is clear that the motion judge wrestled with this problem, and he correctly concluded that the weight of authority supported drawing a distinction between compelled evidence provided prior to an allegation of contempt and compelled evidence provided after an allegation of contempt. This context does matter, but it does not determine the issue.
[48] First, the motion judge is correct in finding that the Mareva order continues in force and the appellants’ obligations thereunder likewise continue. On the basis of the Mareva order, undertakings must be answered and information and documents provided.
[49] Second, until the respondents seek to rely on information and documents compelled from the appellants in support of the contempt motion, the court need not rule on the admissibility of that evidence.
[50] Third, if the respondents do seek to rely on information and documents compelled from the appellants and provided by them after commencement of the contempt motion, at that time the court should assess the “predominant purpose” of the contempt motion, by analogy to R. v. Jarvis.[36] If the court finds that the predominant purpose of the contempt motion is “coercive” rather than “penal” then the evidence may be compelled and will not be inadmissible because it is conscriptive.[37] If the court finds that the predominant purpose of the contempt motion is penal, then the moving party may pursue alternative approaches to obtain evidence for the contempt motion. . White (Beast IPTV) v. Warner Bros Entertainment Inc.
In White (Beast IPTV) v. Warner Bros Entertainment Inc. (Fed CA, 2022) the Federal Court of Appeal considered aspects of an Anton Pillar order:[7] Contrary to what Mr. White says, the test for issuance of an ex parte interim Anton Piller order requires as the first of four essential conditions that the party seeking the order demonstrate that there is a "“strong prima facie case”" NOT an "“extremely strong prima facie case”". This is clear from the leading authority from the Supreme Court of Canada in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R 189 at para. 35.
[8] The applicability of the "“strong prima facie case”" test for issuance of an interim Anton Piller order was confirmed by the Supreme Court of Canada in British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657 at para. 29 and more recently by this Court, for example, in Bell Canada v. Lackman, 2018 FCA 42, [2018] 4 F.C.R. 199 at para. 10.
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