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Ontario Court Rules Plaintiffs Electronic Self Help Remedy Improper
On October 11, 2005 Justice Quigley of the Ontario Superior Court of Justice permanently stayed a plaintiff’s action when the plaintiff electronically helped itself to an Anton Piller type remedy and obtained privileged material in addition to the intellectual property which was the subject matter of the dispute.
Autosurvey, the defendant’s (Prevost) former business partner, designed software for the Internet delivery of surveys. The software Prevost design was based on three source codes that were his personal property. Eventually, Autosurvey’s principal and Prevost had a falling out.
While an Anton Piller motion was pending, Autosurvey received a complaint from one of its customers that it was unable to access its purchased services. Upon investigation, Autosurvey found that the data had been relocated to another server in the same off-site building as Autosurvey’s server. Autosurvey surmised that this server was under the control of Prevost, and Autosurvey feared that Prevost would further interfere with the Autosurvey server.
While an Anton Piller motion was pending, Autosurvey received a complaint from one of its customers that it was unable to access its purchased services. Upon investigation, Autosurvey found that the data had been relocated to another server in the same off-site building as Autosurvey’s server. Autosurvey surmised that this server was under the control of Prevost, and Autosurvey feared that Prevost would further interfere with the Autosurvey server.
Several weeks after the fact, this deed was disclosed to the defendants. At an urgent case conference, an order was made requiring Autosurvey to provide the court with the hard copies that it had made of the data and that it delete and overwrite any remaining copies.
Following the case conference, the defendants moved for a stay and to have the plaintiff’s counsel removed as solicitors of record.
Justice Quigley’s analysis referred to section 8 Charter jurisprudence, and stated the principle that the plaintiff had a right to be free and secure from encroachment upon its reasonable expectations of confidentiality and privacy, whether at the instance of government or non-governmental parties or a litigation adversary. He then went on to discuss the importance of solicitor-client privilege, and the obligation of solicitors to protect the privilege of other parties. He held that there was a positive duty on Autosurvey’s lawyers to advise the defendant’s counsel of their client’s mistake. This was breached by their failure to disclose the potential breach of privilege to the other side until several weeks after learning of it.
Justice Quigley concluded that this was “a stronger case of improper and wanton conduct than any of those reported in our jurisprudence in recent years.” He held that it was not sufficient to simply remove Autosurvey as counsel for the plaintiff. Since Autosurvey would remain seized with knowledge of the defendant’s privileged communications, the only appropriate remedy was to permanently stay the proceedings. Costs were awarded against Autosurvey on a substantial indemnity basis.
For a copy of the decision, visit: