AgraCity Ltd. et al. v. Skinner et al., (2009) 341 Sask.R. 240 (QB)

• Judge: Dufour, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 17, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 341 Sask.R. 240 (QB);2009 SKQB 362

AgraCity Ltd. v. Skinner (2009), 341 Sask.R. 240 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. SE.059

AgraCity Ltd. and Farms and Families of North America Incorporated (operating as Farmers of North America and/or FNA) (plaintiffs) v. Ashley M. Skinner, James G. Skinner, Dean R. Skinner, Great Northern Growers Inc., Rayglen Commodities Inc. (also operating as Rayglen Consulting Services) and Top Trade Commodities Ltd. (defendants)

(2009 Q.B. No. 482; 2009 SKQB 362)

Indexed As: AgraCity Ltd. et al. v. Skinner et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Dufour, J.

September 17, 2009.

Summary:

This dispute was primarily between two families, the Manns and the Skinners, who competed for sales of agricultural commodities through their corporations. The crux of the Mann family's claim (i.e., the plaintiff corporations' claim) was that one of the defendants, Ashley Skinner, was akin to a high level employee, who left the Mann family corporations and breached his fiduciary duty by competing with them and helping the other defendants to compete with them. The claims against the other defendants flowed from Ashley's alleged wrongdoing. The plaintiffs claimed that Ashley and all of the other defendants unlawfully conspired with each other to injure them by way of the grounds claimed against Ashley. The plaintiffs obtained an ex parte Anton Piller order authorizing a search of the defendant corporate offices and the individual defendants' vehicles and private residences or offices. The order was executed by two teams, each including a supervising solicitor, a computer expert and at least one investigator. The teams seized documents and copied the contents of computers. The defendants sought to have the Anton Piller order set aside.

The Saskatchewan Court of Queen's Bench set aside the Anton Piller order in its entirety. The court asked for further submissions on costs and damages.

Practice - Topic 3379.3

Interim proceedings - Preservation of property - Anton Piller Order - Setting aside - The Saskatchewan Court of Queen's Bench stated that "an application to set aside an ex parte order is a de novo hearing ... All of the evidence presented by both parties at the hearing, not just the evidence that was presented in support of the ex parte application, is to be considered ..." - The court noted that in Celanese Canada Inc. v. Murray Demolition Corp. (SCC 2006), the court held that the party seeking to obtain or maintain an Anton Piller order had to satisfy four conditions: "... First, the plaintiff must demonstrate a strong prima facie case. Second, the damage to the plaintiff of the defendant's alleged misconduct, potential or actual, must be very serious. Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work ..." - The court discussed what a plaintiff had to prove to meet the fourth Celanese condition - See paragraphs 47 and 48 and 51 to 56.

Practice - Topic 3379.3

Interim proceedings - Preservation of property - Anton Piller Order - Setting aside - The plaintiffs obtained an ex parte Anton Piller order authorizing a search of the defendant corporate offices and the individual defendants' vehicles and private residences or offices - The order was executed by two teams, each including a supervising solicitor, a computer expert and at least one investigator - The teams seized documents and copied the contents of computers - The defendants sought to have the Anton Piller order set aside - The Saskatchewan Court of Queen's Bench set aside the Anton Piller order in its entirety, because the plaintiffs did not adduce sufficient evidence to show that there was a real possibility that the defendants might destroy the material before the discovery process could do its work - The court opined that even if it had found that the plaintiffs had discharged their evidentiary burden, the court would have set aside the Anton Piller order because the plaintiffs did not make full and fair disclosure of the material facts and overstated the strength of their case at law (i.e., their memorandum of law was misleading) - See paragraphs 49 to 144.

Cases Noticed:

Pulse Microsystems Ltd. et al. v. SafeSoft Systems Inc. et al. (1996), 110 Man.R.(2d) 163; 118 W.A.C. 163; 67 C.P.R.(3d) 202; 47 C.P.C.(3d) 360 (C.A.), refd to. [para. 47].

Capitanescu et al. v. Universal Weld Overlays Inc. et al. (1996), 192 A.R. 85; 46 Alta. L.R.(3d) 203 (Q.B.), refd to. [para. 47].

Canadian Derivatives Clearing Corp. v. EFA Software Services Ltd. (2001), 294 A.R. 182; 2001 ABQB 425, refd to. [para. 47].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266; 2006 SCC 36, refd to. [para. 48].

Yousif v. Salama et al., [1980] 3 All E.R. 405; [1980] 1 W.L.R. 1540 (C.A.), refd to. [para. 51].

British Columbia (Attorney General) v. Malik et al., [2009] 7 W.W.R. 61;  270 B.C.A.C. 178; 454 W.A.C. 178; 2009 BCCA 201, refd to. [para. 51].

Catalyst Partners Inc. v. Meridian Packaging Ltd. et al., [2007] 10 W.W.R. 436; 417 A.R. 7; 410 W.A.C. 7; 2007 ABCA 201, refd to. [para. 52].

NAC Air, LP et al. v. Wasaya Airways Limited Partnership et al., [2007] O.T.C. Uned. O44; 88 O.R.(3d) 194 (Sup. Ct.), refd to. [para. 52].

Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 All E.R. 779; [1976] Ch. 55; [1976] 2 W.L.R. 162 (C.A.), refd to. [para. 54].

Trophy Foods Inc. v. Scott et al. (1995), 140 N.S.R.(2d) 92; 399 A.P.R. 92 (C.A.), refd to. [para. 90].

Stagliano (John) Inc. et al. v. Elmaleh et al. (2006), 292 F.T.R. 208 (F.C.), refd to. [para. 107].

United States of America v. Friedland, [1996] O.J. No. 4399 (Gen. Div.), refd to. [para. 109].

Neumeyer v. Neumeyer, [2005] B.C.T.C. 1259; 47 B.C.L.R.(4th) 162; 2005 BCSC 1259, refd to. [para. 117].

Saphie Number One Ltd. v. 6091636 Canada Inc., [2008] Q.J. No. 4645; 2008 QCCS 2233, refd to. [para. 138].

Royal Bank of Canada v. Welton et al., [2007] O.T.C. Uned. Q66 (Sup. Ct.), refd to. [para. 138].

Solara Technologies Inc. v. Beard (2007), 245 B.C.A.C. 158; 405 W.A.C. 158; 72 B.C.L.R.(4th) 15; 2007 BCCA 402, refd to. [para. 138].

Netbored Inc. v. Avery Holdings Inc. et al., [2005] F.T.R. Uned. B02; 48 C.P.R.(4th) 241; 2005 FC 1405, refd to. [para. 138].

Green v. Jernigan et al., [2003] B.C.T.C. 1097; 18 B.C.L.R.(4th) 366; 2003 BCSC 1097, refd to. [para. 139].

Multimedia Global Management v. Soroudi, [2008] O.J. No. 4383 (Sup. Ct.), refd to. [para. 144].

Counsel:

G.J. Scharfstein, Q.C. and D.L. Aldcorn, for the plaintiffs;

R.G. Kennedy, Q.C., for the defendants, Ashley Skinner and Top Trade Commodities Ltd.;

M.W. Douglas, for the defendants, James Skinner, Dean Skinner and Great Northern Growers Inc.;

J.A. Hesje, Q.C., for the defendant, Rayglen Commodities Inc.;

K.A. Stevenson, Q.C., for the non-party, West Central Pelleting Ltd.;

G.A. Meschishnick, Q.C., supervising solicitor;

C.D. Clackson, supervising solicitor.

This matter was heard before Dufour, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on September 17, 2009.