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16 CPD hours
refusing entry or assistance with the search could result in a contempt
order, which carries incarceration as a potential penalty.
The properly executed Anton Piller Order gives the employer
the opportunity to present evidence at trial that would otherwise
likely have been destroyed. With the increasing reliance on electronic
data, and the ability to destroy or transfer incriminating
documents in minutes (often with little or no trace), the opportunity
afforded by an Anton Piller Order to search a person’s
private property – before they even know a lawsuit has been
brought against them – and seize evidence is invaluable.
Without the benefit of a search executed under an Anton
Piller Order, an employer is usually left speculating at how
a recently departed employee was able to develop a nearly
identical product to that being made by the employer, in
such a short period of time. Speculation will not go very far
in convincing a court to grant an Order for damages against
the employee for breach of confidentiality, breach of fiduciary
duty or the like.
On the other hand, if confidential documents and/or data
belonging to the employer are uncovered during a search
pursuant to an Anton Piller Order, the court will hear this evidence
and can reasonably infer that the employee has abused
the trust bestowed upon them. From there, it is likely not a
question of if damages are appropriate, but how much. n
Mark Repath is an associate at Van Kralingen & Keenberg LLP.
HRPROFESSIONALNOW.CA ❚ APRIL 2018 ❚ 11