By: Dimitrios Valkanas, McGill University, Faculty of Law.
For more on this topic, see Dimitrios’ article in issue 45:1 of the Dalhousie Law Journal.
Unlike a search warrant [Anton Piller orders] do not authorize forcible entry, but expose the target to contempt proceedings unless permission to enter is given. To the ordinary citizen faced on his or her doorstep with an Anton Piller order this may be seen as a distinction without a meaningful difference.
– Binnie J in Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 28.
The modern world, with its perpetual technological progress and ever-growing list of international and domestic threats, seems to be rife with new methods to intrude into citizens’ privacy, in addition to providing the justification for such infringement. Ordinarily, the citizens of liberal democratic societies, such as Canada, would turn to the law for protection from such infringement of their most basic rights; and yet, as the peculiar case of the Anton Piller order serves to illustrate, that is not necessarily the case.
For those not familiar with the Anton Piller order, it is essentially a type of injunction granted in civil cases to allow a plaintiff to search the defendant’s premises for evidence and to seize it, where there is legitimate cause for concern that the defendant might destroy or otherwise conceal the evidence in question. Notably, an Anton Piller order is granted ex parte, which is to say that the party seeking such an order can ask a court to grant it without giving the defendant a chance to oppose the motion—or even notice that such an order has been sought.
To most people, this sounds awfully like a search warrant—which is why a very common definition of the Anton Piller order is a “civil search warrant.” The Supreme Court itself noted this similarity. Thus the obvious question arises: How can Canadians be expected to sacrifice their privacy, without a chance for a prior hearing, for a mere civil dispute—that is, a private matter? And how can Canadians who refuse this intrusion be expected to sacrifice their liberty without having committed a crime? One would assume something like this to be blatantly unconstitutional.
Unfortunately, constitutional challenges of the Anton Piller order are few and far between. Despite its very real potential for abuse—and the very real examples thereof—the order is most often used by large corporations against itinerant street vendors over the sale of copyright-infringing merchandise. It is of little surprise, then, that Anton Piller defendants typically lack the means to challenge the order. Moreover, even in those rare few instances where a judicial challenge has been mounted, courts have generally chosen to uphold the Anton Piller order, most often finding that the Charter does not apply it, or that the order meets all the criteria of constitutional scrutiny. Courts have not even been willing to strike down a more pernicious and uniquely Canadian variant of the order: the “rolling” or “John (or Jane) Doe” Anton Piller order, which is issued without a named defendant, and which may thus be used to conduct searches and seizures against multiple defendants!
With this in mind, opponents of the Anton Piller order must look to alternative paths in order to constrain the Anton Piller order. One such path is the re-examination of the jurisprudence underlying these orders, with a view to restating forgotten or commonly ignored criteria for their issuance, or to adopting novel criteria. One notable example is the proposed criterion that no “real harm” should result to the defendant—something which was stated in the original British decision that created the Anton Piller order.
Another path would be to seek to impose additional safeguards and restrictions on how Anton Piller orders are executed, in addition to various protections for harmed or severely disadvantaged defendants. Such proposals may include a requirement for an impartial third-party lawyer to be present, or for an indigent defendant to be provided with a lawyer in order to challenge the order.
Whichever path for reform one chooses, the Anton Piller order seems poised to remain part of Canadian law for the foreseeable future. Hard as it may be to believe, Canadians can indeed be forced to open their door to a private party over a civil case—and a refusal to do so can land them in jail, just like a refusal to obey a search warrant would. For now, at least, it seems that all Canadians can do is make sure that such “private search warrants” are granted as rarely and executed as painlessly as possible.
 This issue has been recognized by even the highest orders of the modern international political order. See e.g. Office of the United Nations High Commissioner for Human Rights, “Digital age: Is our privacy under threat?” (19 November 2018), online: United Nations Human Rights <www.ohchr.org/en/stories/2018/11/digital-age-our-privacy-under-threat> [perma.cc/68N3-5U3M].
 See “Resource: Anton Piller Orders” (16 December 2021), online: Fasken <www.fasken.com/en/knowledge/2021/12/anton-piller-orders> [perma.cc/UJ3R-KJB2].
 See ibid.
 “What is an Anton Piller Order?” (last modified 7 September 2022), online: Courthouse Libraries BC <www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/what-anton-piller-order>.
 See Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 1 [Celanese].
 In the landmark Federal Court case of Netbored Inc v Avery Holdings Inc, 2005 FC 1405, the party served the order in a careless and callous manner toward the defendant’s teenage daughter—much to the dismay of the judge (at paras 63-64). A more common issue is the issuance of such orders without any real proof that the defendant is likely to destroy the evidence or has a tendency to act in a dishonest manner. See Viacom Ha! Holding Co v Jane Doe, 2000 CanLII 15260 at para 66,  FCJ No 498 (QL) (FCTD) [Viacom].
 See CED 4th (online), Injunctions, “Anton Piller Orders: ‘Rolling’ Orders” (V.2) at § 270-271.
 See Jeff Berryman, “Thirty Years After: Anton Piller Orders and the Supreme and Federal Courts of Canada” (2007) 2:3 J Intl Commercial L & Technology 128 at 128-129.
 See e.g. Viacom, supra note 6; Ontario Realty Corp v P Gabriele & Sons Ltd (2000), 50 OR (3d) 539, 2000 CanLII 22697 (ON Sup Ct).
 In Celanese, supra note 5, the Supreme Court explicitly upheld the legality of such orders.
 See Viacom, supra note 6.
 See Anton Piller KG v Manufacturing Processes Ltd & Ors,  EWCA Civ 12. This criterion has also been stated in long-standing Canadian jurisprudence, such as Viacom, supra note 6.
 See Daniel S Drapeau, “Anton Piller Orders: The Latest Word from the Supreme Court, the Federal Court of Appeal and the Federal Court” (2006) 20:1 IPJ 39 at 40-41.
 Though it might sound like a radical proposal, courts have gone so far as to even order a defendant to pay the costs of a plaintiff’s constitutional challenge in other contexts. See e.g. British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71.