Geophysical Service Inc. v. Sable Mary Seismic Inc. and Kimball, 2003 NSSC 73

• Judge: Hall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 01, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSSC 73;(2003), 213 N.S.R.(2d) 303 (SC)

Geophysical Service v. Sable Mary Seismic (2003), 213 N.S.R.(2d) 303 (SC);

 667 A.P.R. 303

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. AP.016

Geophysical Service Incorporated (plaintiff) v. Sable Mary Seismic Incorporated and Matthew Kimball (defendants)

(S.H. 190408; 2003 NSSC 73)

Indexed As: Geophysical Service Inc. v. Sable Mary Seismic Inc. and Kimball

Nova Scotia Supreme Court

Hall, J.

April 1, 2003.

Summary:

The defendants applied to set aside an ex parte Anton Piller order permitting the search and seizure of business records from business and residential premises. The plaintiff applied to confirm the order and vary it to authorize its access to the copies of the documents seized under the order.

The Nova Scotia Supreme Court set aside the Anton Piller order and awarded $1,000 damages to the defendants with respect to breaches of the order.

Injunctions - Topic 1785

Interlocutory or interim injunctions - Preservation of status quo - Seizure (Anton Piller order) - The plaintiff alleged that the defendants deliberately over billed the plaintiff for services knowing that it was contrary to the parties' agreement and thereby committed fraud - The plaintiff obtained an ex parte Anton Piller order permitting the search and seizure of business records from business and residential premises - The Nova Scotia Supreme Court set aside the Anton Piller order - The plaintiff had not established: an extremely strong prima facie case in support of its position; that it would suffer substantial loss if the order was not made; or that there was a real possibility that the documents would be destroyed if the order was set aside - See paragraphs 1 to 50.

Injunctions - Topic 7945

Setting aside injunctions - Remedies - Damages - The plaintiff alleged that the defendants deliberately over billed the plaintiff for services, knowing it was contrary to the parties' agreement and thereby committed fraud - The plaintiff obtained an ex parte Anton Piller order permitting the search and seizure of business records from business and residential premises - The defendants applied to set aside the order - The Nova Scotia Supreme Court allowed the application and awarded the defendants $1,000 damages for two breaches of the order - Six members of the plaintiff's search crew were present for a search, rather than the maximum of four authorized by the order - Further, certain items including RRSPs and personal banking records were seized, as was the personal computer hard drive belonging to the individual defendant's son - See paragraphs 51 to 53.

Practice - Topic 3379.1

Interim proceedings - Preservation of property - Anton Piller Order - Conditions precedent - The English Court of Appeal created the Anton Piller order in a case by the same name and set out three preconditions for such an order: 1) an extremely strong prima facie case; 2) the damage, potential or actual, must be very serious for the applicant; and 3) there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made - The Nova Scotia Supreme Court stated that, despite certain judicial pronouncements to the contrary, it was not satisfied that Canadian jurisprudence sanctioned any departure from the three stringent preconditions set out in the Anton Piller case, in particular the requirement for "an extremely strong prima facie case" - See paragraph 40.

Practice - Topic 3379.3

Interim proceedings - Preservation of property - Anton Piller Order - Setting aside - [See Injunctions - Topic 1785 ].

Cases Noticed:

Anton Piller KG v. Manufacturing Processes Ltd. et al., [1976] 1 Ch. 55 (C.A.), appld. [para. 25].

Nintendo of America Inc. v. Coinex Video Games Inc. et al. (1982), 46 N.R. 311 (F.C.A.), refd to. [para. 29].

Yousif v. Salama, [1980] 3 All E.R. 405 (C.A.), refd to. [para. 31].

Ontario Realty Corp. v. Gabriele (P.) & Sons Ltd. et al., [2000] O.T.C. 796; 50 O.R.(3d) 539 (Sup. Ct.), refd to. [para. 31].

Feigelman et al. v. Aetna Financial Services Ltd., Lax and Burke, [1985] 1 S.C.R. 2; 56 N.R. 241; 32 Man.R.(2d) 241, refd to. [para. 31].

Sulphur Experts Ltd. v. O'Connell et al. (2000), 279 A.R. 246 (Q.B.), refd to. [para. 32].

Merck & Co. and Kelco/Ail International Ltd. v. Scotia Marine Products (1983) Inc. and Protan A/S (1986), 73 N.S.R.(2d) 374; 176 A.P.R. 374 (T.D.), refd to. [para. 33].

Chin-Can Communication Corp. et al. v. Chinese Video Centre Ltd. et al. (1983), 70 C.P.R.(2d) 184 (F.C.T.D.), refd to. [para. 35].

Fila Canada Inc. v. Doe et al. (1996), 114 F.T.R. 155 (T.D.), refd to. [para. 36].

Counsel:

Richard Southcott and Colin Piercey, for the plaintiff;

Nash Brogan and Derrick Kimball, for the defendants.

These applications were heard at Kentville, N.S., on February 25 and 28, 2003, by Hall, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 1, 2003.