Solara Technologies Inc. v. Beard, (2007) 245 B.C.A.C. 158 (CA)

• Judge: Donald, Hall and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 18, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 245 B.C.A.C. 158 (CA);2007 BCCA 402

Solara Tech. Inc. v. Beard (2007), 245 B.C.A.C. 158 (CA);

    405 W.A.C. 158

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. AU.012

Solara Technologies Inc. (appellant/plaintiff) v. Douglas Beard (respondent/defendant)

(CA033051; 2007 BCCA 402)

Indexed As: Solara Technologies Inc. v. Beard

British Columbia Court of Appeal

Donald, Hall and Levine, JJ.A.

July 31, 2007.

Summary:

The parties were engaged in litigation concerning the terms of the contract under which the defendant was hired by the plaintiff to develop certain technology and over the ownership of the technology. In May 2004, the plaintiff obtained ex parte Anton Piller orders that resulted in the plaintiff copying the contents of the hard drive of the defendant's computer. In May 2005, the defendant applied to set aside portions of the orders made the previous year.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. Uned. 352, ordered, inter alia, that the plaintiff was restrained from using an e-mail dated May 13, 2004 that the defendant sent to his parents. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal and set aside the paragraph in the order restraining the use of the e-mail.

Practice - Topic 3378.9

Interim proceedings - Preservation of property - Anton Piller order - General - The parties were engaged in litigation concerning the terms of the contract under which the defendant was hired by the plaintiff to develop certain technology and over the ownership of the technology - In May 2004, the plaintiff obtained ex parte Anton Piller orders that resulted in the plaintiff copying the contents of the hard drive of the defendant's computer - In May 2005, the defendant applied to set aside portions of the orders made the previous year - A chambers judge ordered, inter alia, that the plaintiff was restrained from using an e-mail that the defendant sent to his parents - The plaintiff appealed, asserting that the chambers judge erred by misdirecting himself and concluding that the e-mail was not included in the class of documents the chambers judge ordered in the first ex parte order and in failing to treat the e-mail as a discoverable document that could be used by the plaintiff - The British Columbia Court of Appeal rejected the assertions - In the context of the whole of the order, the plaintiff's arguments about the nature of the e-mail did not lead to the conclusion that the chambers judge erred in excluding it - The chambers judge ordered that the e-mail was specifically excluded from use in the litigation - While he expressed the opinion in his reasons for judgment that the e-mail "did not fall within my order of May 18, 2004 and was only obtained in violation of my direction to give the defendant notice of an application to attend his residence", the effect of the order as entered was that it was excluded whether or not it was included in the class of documents ordered returned to the plaintiff on May 18, 2004, and whether or not it was discoverable in the litigation - See paragraphs 19 to 24.

Practice - Topic 3378.9

Interim proceedings - Preservation of property - Anton Piller order - General - The parties were engaged in litigation concerning the terms of the contract under which the defendant was hired by the plaintiff to develop certain technology and over the ownership of the technology - In May 2004, the plaintiff obtained ex parte Anton Piller orders that resulted in the plaintiff copying the contents of the hard drive of the defendant's computer - In May 2005, the defendant applied to set aside portions of the orders made the previous year - A chambers judge ordered, inter alia, that the plaintiff was restrained from using an e-mail that the defendant sent to his parents - The plaintiff had failed to disclose to the judge that it had been required that notice be given to the defendant as a condition for granting an order permitting entry of the defendant's premises - The plaintiff appealed, asserting that the chambers judge erred in failing to balance the factors relevant to excluding the use of an otherwise relevant and discoverable document in litigation, resulting in an injustice - The British Columbia Court of Appeal allowed the appeal and set aside the paragraph in the order restraining the use of the e-mail - There was no doubt that the plaintiff was guilty of non-disclosure in obtaining the May 2004 order to search the defendant's home, remove his computer, and copy the contents of his hard drive - On the other hand, the e-mail was directly relevant to the issues between the parties, and despite the defendant's protests that it was not very important, it could form a crucial part of the evidence in the case - To exclude it would result in an injustice - See paragraphs 37 to 50.

Practice - Topic 3379.1

Interim proceedings - Preservation of property - Anton Piller order - Conditions precedent - [See second Practice - Topic 3378.9 ].

Cases Noticed:

Ward v. Kostiew (1989), 42 B.C.L.R.(2d) 121 (C.A.), refd to. [para. 17].

Guess? Inc. v. Lee Seck Mon, [1987] F.S.R. 125 (Hong Kong C.A.), refd to. [para. 26].

Naf Naf S.A. et al. v. Dickens (London) Ltd. et al., [1993] F.S.R. 424 (Ch. D.), refd to. [para. 26].

Tsako's Shipping and Trading SA v. Orizon Tanker Co., [1998] E.W.J. No. 370 (C.A.), refd to. [para. 26].

Grenzservice Speditions GmbH v. Jans, [1996] 4 W.W.R. 362; 15 B.C.L.R.(3d) 370; 129 D.L.R.(4th) 733; 64 C.P.R.(3d) 129; 1995 CarswellBC 1041 (S.C.), dist. [para. 26].

Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55; [1976] 1 All E.R. 779 (C.A.), refd to. [para. 28].

Bank Mellat v. Nikpour, [1985] F.S.R. 87 (C.A.), refd to. [para. 29].

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. 29].

Champion International Corp. v. Merrill & Wagner Ltd. (1974), 15 C.P.R.(2d) 190 (B.C.C.A.), refd to. [para. 31].

Kuruma v. R., [1955] 1 All E.R. 236 (P.C.), refd to. [para. 40].

Quebec (Attorney General) v. Begin, [1955] S.C.R. 593, refd to. [para. 40].

R. v. Wray, [1971] S.C.R. 272; 11 D.L.R.(3d) 673, refd to. [para. 40].

Havana House Cigar & Tobacco Merchants Ltd. et al. v. Jane Doe et al. (2000), 199 F.T.R. 12 (T.D.), affd. (2002), 288 N.R. 198; 2002 FCA 75, refd to. [Appendix A].

Columbia Pictures Inc. v. Robinson, [1987] Ch. 38, refd to. [Appendix A].

Universal Thermosensors Ltd. v. Hibben, [1992] 1 W.L.R. 840 (Ch. D.), refd to. [Appendix A].

Sulphur Experts Inc. v. O'Connell et al. (2000), 279 A.R. 246; 2000 ABQB 875, refd to. [Appendix A].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance, para. 2:1100 ff. [Appendix A].

Counsel:

A.A. Macdonald, for the appellant;

J. Dawson, for the respondent.

This appeal was heard on May 18, 2007, at Vancouver, B.C., by Donald, Hall and Levine, JJ.A., of the British Columbia Court of Appeal. Levine, J.A., delivered the following judgment of the Court of Appeal on July 31, 2007.