CCS Corp. v. Secure Energy Services Inc. et al.,

• Judge: Wittmann
• Neutral Citation: 2009 ABQB 275
• Citation: (2009), 476 A.R. 111 (QB),2009 ABQB 275,476 AR 111,(2009), 476 AR 111 (QB),476 A.R. 111
• Date: 12 February 2009
• Court: Court of Queen's Bench of Alberta (Canada)

CCS Corp. v. Secure Energy Services Inc. (2009), 476 A.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.081

CCS Corporation (plaintiff) v. Secure Energy Services Inc., Rene Amirault, Daniel Steinke, Nick Wieler, Gordon Getzinger, Gary Perras, Myron Newman, David Engel, Stan Moodie, Corey Higham, Karen Myrheim, Enerland Consulting Services Ltd., David Baldock, Pembina Pipeline Corporation and Triumph EPCM Ltd. (defendants)

(0701 13328; 2009 ABQB 275)

Indexed As: CCS Corp. v. Secure Energy Services Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

May 5, 2009.

Summary:

A company (Secure) competed directly against the plaintiff in the oilfield waste disposal industry in Alberta. Several former employees or consultants of the plaintiff were now employed by Secure. The plaintiff sued Secure and these parties (the Secure defendants) alleging unfair competition, theft of corporate opportunity, solicitation of the plaintiff's employees, improper use of confidential information, interference with economic interests through unlawful means, breach of fiduciary duties and confidence, spoliation, and conspiracy to injure. The plaintiff obtained an Anton Piller order. The Secure defendants sought to set aside or vary the order. The plaintiff brought a cross- application seeking direction as to the process that should be used for review and disclosure of the seized material.

The Alberta Court of Queen's Bench varied the Anton Pillar order in part and gave directions respecting the review and disclosure of the seized material.

Practice - Topic 3378.9

Interim proceedings - Preservation of property - Anton Piller Order - General - The Alberta Court of Queen's Bench stated that an Anton Piller order was an extraordinary civil remedy and had been described as a civil search warrant - The Anton Piller test was developed in 1976, a period some would regard as a simpler time and predated the advent of electronic documents or at least the broad use of such documents - In earlier days, the object of the order was to seize hard copy documents that would rarely number in the thousands as they could today - Not only have the potential number of the documents that were the subject of the order multiplied, so had the ease and speed with which they could be destroyed - Motions to vary an ex parte Anton Piller order were to be heard on a de novo basis - The court was required to consider all of the evidence presented by both parties upon an application to set aside or vary the order, not just the evidence that was presented at the original hearing - The Court could also consider the "fruits of the search" - See paragraphs 11 to 14.

Practice - Topic 3379

Interim proceedings - Preservation of property - Anton Piller Order - Evidence - One of three pre-conditions for the making of Anton Piller order was a risk of serious damage to the applicant - The Alberta Court of Queen's Bench stated that the issue of what constituted "serious damage" did not appear to have been squarely addressed by either the Supreme Court of Canada or the Court of Appeal of Alberta - The jurisprudence that did discuss the issue conflicted - The court considered two approaches - The adverse financial impact approach in which the court considered the potential harm that might be visited upon the plaintiff as a result of the use of the proprietary or confidential information that the defendant had or might have in its possession - The procedural impact approach in which the evidence that was at risk was so crucial that the plaintiff could not prove its case without it - The court concluded that the procedural impact test was the appropriate test - The type of serious damage required to sustain an Anton Piller order should be informed by the purpose of the order - Viewing the issue from that perspective strongly favoured the adoption of the procedural impact approach - See paragraphs 16 to 45.

Practice - Topic 3379.1

Interim proceedings - Preservation of property - Anton Piller Order - Conditions precedent - [See Practice - Topic 3379 ].

Practice - Topic 3379.3

Interim proceedings - Preservation of property - Anton Piller Order - Setting aside - A company (Secure) competed directly against the plaintiff in the oilfield waste disposal industry in Alberta - Several former employees or consultants of the plaintiff were now employed by Secure - The plaintiff sued Secure and these parties (the Secure defendants) alleging, inter alia, theft of corporate opportunity, solicitation of the plaintiff's employees, improper use of confidential information, and breach of fiduciary duties and confidence - The plaintiff obtained an Anton Piller order - The Secure defendants sought to set aside the order on the basis that it was not drafted in as narrow a fashion as possible - The order directed the Secure defendants to deliver up "... any and all files, documents, books, records, computers ... data storage devices, compact discs, DVDs, backup media, log files, archives or any other storage medium, including electronic and paper copies, that relate to, or may relate to, the Evidence ..." - Evidence was defined as "... all documents, data or information in whatever form or format ... pertaining to the Plaintiff's business in the areas of oil and gas midstream services, energy marketing, environmental waste management services, and well disposal services ..." - The Alberta Court of Queen's Bench declined to set aside or vary the order on this basis - However, the phrase allowing the plaintiff to seize records "pertaining to the Plaintiff's business in the areas of oil and gas midstream services, energy marketing, environmental waste management services and well disposal services" was to be restricted to include only those documents that referred to the plaintiff's business, not the type of business the plaintiff was in (i.e., limited to items that arguably belonged to the plaintiff or which originated at the plaintiff) - See paragraphs 121 to 127.

Cases Noticed:

Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55 (C.A.), refd to. [para. 12].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266, refd to. [para. 12].

Capitanescu et al. v. Universal Weld Overlays Inc. et al. (1996), 192 A.R. 85 (Q.B.), refd to. [para. 14].

Canadian Derivatives Clearing Corp. v. EFA Software Services Ltd. (2001), 294 A.R. 182; 2001 ABQB 425, refd to. [para. 14].

Alberta (Treasury Branches) v. Leahy et al. (2000), 270 A.R. 1; 2000 ABQB 575, affd. (2002), 303 A.R. 63; 273 W.A.C. 63; 2002 ABCA 101, leave to appeal refused (2002), 303 N.R. 392; 327 A.R. 120; 296 W.A.C. 120 (S.C.C.), refd to. [para. 14].

Polesystems Inc. et al. v. Martec Manufacturing Ltd. et al. (1989), 96 A.R. 218 (Q.B.), refd to. [para. 22].

Netsmart Inc. v. Poelzer et al. (2002), 324 A.R. 260; 2002 ABQB 800, refd to. [para. 24].

Ritter et al. v. Hoag et al. (2003), 341 A.R. 376; 2003 ABQB 611, refd to. [para. 25].

Yaghi v. WMS Gaming Inc., [2003] A.R. Uned. 533; [2004] 2 W.W.R. 657; 2003 ABQB 680, refd to. [para. 26].

Catalyst Partners v. Meridian Packaging Ltd. et al., 2006 CarswellAlta 2046 (Q.B.), revd. (2007), 417 A.R. 7; 410 W.A.C. 7 (C.A.), refd to. [para. 27].

E.M.I. v. Pandit, [1976] R.P.C. 333 (Ch. D.), refd to. [para. 28].

Yousif v. Salama, [1980] 3 All E.R. 405 (C.A.), refd to. [para. 28].

Rank Film Distributors Ltd. v. Video Information Centre, [1980] 2 All E.R. 273 (C.A.), affd. [1982] A.C. 380 (H.L.), refd to. [para. 28].

Indicii Salus Ltd. v. Chandrasekaran and others, [2007] EWHC 406 (Ch.), affd. [2008] EWCA Civ. 67, refd to. [para. 32].

Nintendo of America Inc. v. Coinex Video Games Inc. et al., [1983] 2 F.C. 189; 46 N.R. 311 (F.C.A.), refd to. [para. 33].

Adobe Systems Inc. et al. v. KLJ Computer Solutions Inc. et al., [1999] 3 F.C. 621; 166 F.T.R. 184 (T.D.), refd to. [para. 35].

M.M. International Business Directories Ltd. et al. v. International Business Index et al., [2000] F.T.R. Uned. 394; 8 C.P.R.(4th) 515 (T.D.), refd to. [para. 36].

WIC Premium Television v. Levin et al., [1999] F.T.R. Uned. 295 (T.D.), refd to. [para. 37].

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. 38].

Microsoft Corp. v. Cerrelli, 2007 CarswellNat 4684; 2007 FC 1213, refd to. [para. 39].

Brunswick News Inc. v. Langdon (2007), 334 N.B.R.(2d) 273; 858 A.P.R. 273; 2007 NBQB 423, refd to. [para. 40].

Bell ExpressVu Limited Partnership v. Rodgers et al., [2007] O.T.C. Uned. N85 (Sup. Ct.), refd to. [para. 41].

Lock International plc v. Beswick and others, [1989] 1 W.L.R. 1268 (Ch. D.), refd to. [para. 44].

Thermax Ltd. v. Schott Industrial Glass Ltd., [1981] F.S.R. 289 (Ch. D.), refd to. [para. 114].

Spar Aerospace Ltd. v. Aerowerks Engineering Inc. et al. (2007), 428 A.R. 84; 2007 ABQB 543, affd. [2008] A.R. Uned. 27; 85 Alta. L.R.(4th) 14; 2008 ABCA 47, refd to. [para. 133].

Authors and Works Noticed:

Craigen, Ronald, Anton Piller: Valuable remedy or oppressive tool? (1995), 14 Adv. Soc. J. No. 2, p. 11 [para. 11].

Myers, Elliott M., Search and Seizure in Civil Cases: The Anton Piller Order (1984), 42 Advocate 41, p. 45 [para. 23].

Counsel:

S. Carscallen, Q.C., L.Y. Pan, B.L. Robinson and M.J. Whiting, for the applicant;

M.H. Hollins, Q.C., and J.L. Wilkins, for the defendant, Secure Energy Services Inc. et al.;

L.R. Duncan, Q.C., for the defendant, Pembina Pipeline Corp.;

D.W. Dear, for the Independent Supervising Solicitor.

This motion and cross application were heard on February 12, 2009, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on May 5, 2009.