A seldom-used, controversial bit of law left an Ontario neighbourhood in an uproar after a former employer showed up at a private residence with a sheriff and lawyers in tow to conduct a search.
On April 14, 2004, Nigel Robbie arrived home to find a group of people in his front yard. One of the neighbours was barricading Robbie’s front door, and his 10-year-old son had been taken to another neighbour’s house, distraught.
The group — consisting of representatives of Robbie’s former employer, lawyers and a sheriff — was armed with a stack of papers and a court order and demanded to be let into the house to conduct a search.
The court order the employer had is known as an
order, and it’s becoming more frequent in the employment law realm.
“It is an extraordinary exercise of the court’s equitable jurisdiction to issue injunctions,” said Justice David Corbett of the Ontario Superior Court of Justice. “It is a creature known to a specialized portion of the bar, law students and academics, and to virtually no one else.”
The vast majority of the public has never heard of such a thing, and the Robbies and their neighbours were “left to wonder what kind of country we live in, where one’s former employer, acting secretly, may obtain a court order and then enter and search one’s private residence,” the court said.
What did Robbie do to invite such a search?
Robbie was a former employee of Ridgewood Electric Limited. He moved from England to take up employment with Ridgewood in early 1999. His employment was terminated on April 15, 2004.
Robbie was the manager of technical services. He signed an employment contract containing a non-competition clause.
Ridgewood alleged that Robbie, and another employee who was subjected to the same type of search on the same day, took various property belonging to the company and were using, or would use, the material for their benefit and to the company’s detriment.
A court granted an
order authorizing the entry and searches of both of the employees’ homes. Robbie was not home when the search team arrived shortly before 5 p.m.
But his 10-year-old son was home. He was asked by these strangers for a key to his house and for his father’s cell phone number. That’s when the neighbours got involved. One took the son into her home and another blocked entry to the residence.
Robbie and his wife arrived home around 5:30 p.m. They asked if they could consult a lawyer, and were told they could. But when they called their lawyer’s office it was closed and they left a voice mail. They then attempted to contact other counsel. At 5:45 p.m. the sheriff said it was time to start the search because the order stated it had to begin before 6 p.m.
The order allowed for one sheriff’s officer, one private investigator and a total of five people to be present in the residence during the search.
What is an Anton Piller order?
Opinion is divided on the true nature of an
order, the Ontario Superior Court of Justice said. Some liken it to a search warrant. But Justice Denning, the judge who decided the
case in a British court in 1976, went out of his way to deny that characterization in his decision.
He found it was an exercise of the court’s inherent jurisdiction to protect its own process. An
order does not authorize entry. Rather, it commands the defendant to permit entry. The defendant may deny entry and thereafter face contempt proceedings and possible adverse inferences. The plaintiff’s agents may not use force to effect entry in the face of the defendant’s denial of permission.
But the Ontario court said the line between a search warrant and an
order is a “distinction without a difference.”
With a search warrant, police officers show up at the front door demanding entry. They may use reasonable force to execute the search. With an
order, those who show up at the door are not police officers, though they will usually include at least one peace officer, usually from the sheriff’s office. They will not use force to gain entry, but rather the threat of jail or other punishment.
But the result of both is the same — the premises are entered and searched. Differences only arise if the subject of the search resists or refuses entry.
Justice Corbett said a reason for the distinction between a search warrant and an
order seems to harken back to a case from 1765 in which the court stated the fundamental principle that a person’s home is her “castle” and her own private domain and even officers of the state may not invade that sanctum without the permission of the householder.
“To honour this principle, the courts have described an
order as something other than a search warrant,” said Justice Corbett. “But the description and analysis does not change the fact that, in substance, an
order is a search warrant. And it is time that the theoretical distinction … be abandoned.”
Restructuring the order
While upholding the use of the
order in this case, Justice Corbett said such orders should be restructured to avoid the problems that arose.
“The time-honoured principle that a person’s home is his castle still rings as a bell of freedom and hallmark of a free and democratic society, and rightly so,” he said. “Searches and seizures from private dwellings should be conducted by officials who are trained and accountable for this work: the police. And the tenuous distinction between an
order and a search warrant ought to be abolished. It was created to enhance the protections of the parties being searched, not to derogate from them, but they have the opposite effect and can only serve to undermine the public legitimacy of the order. The public understands what a search warrant is; the public does not understand what an
Justice Corbett said
orders are playing an increasingly important role in protecting businesses from disgruntled or departing employees. The orders protect the court’s process, important property interests and the values underlying the relationship between employer and employee.
The basic thinking behind granting such an order without the employee’s knowledge is that it doesn’t give the employee a chance to destroy any information or property before it can be seized.
“With the advent of computer technology, in many cases
orders will be effective only if they can be enforced with speed and an element of surprise,” said Justice Corbett. “It is not acceptable that the search be delayed for days, or even hours, once the defendant has notice of the order. The information or property to be preserved may be copied, transferred across the world and erased from a computer with a few apt keystrokes. Once the order is served, the premises must be secured immediately and the search must proceed.”
case was decided in the 1970s, early orders usually did not provide for searches of private residences. The technology simply wasn’t available that would allow an employee to steal large amounts of data and use it from home.
In many cases, searches were carried out on commercial premises by employers looking to put “pirates” who had bootlegged information out of business. But with the advent of the personal computer, it is now possible for vast quantities of business documents to be secreted on a computer or other storage device. These materials may be kept at home, in a car or in a briefcase and can be carried easily by employees.
“Consequently, it is increasingly common for
orders to provide for a search of private dwellings, vehicles and luggage where computers may be found,” said Justice Corbett.
Those are the traditional areas defined as a person’s “castle.” But a home is not just a person’s castle nowadays, he said.
“It is also, often, that person’s office. It may contain a vast store of records on a small machine on the corner of the family desk, or in a laptop computer in the trunk of a car or on a disc located in a shallow table drawer,” said Justice Corbett. “For
orders to be effective in this context, they must provide for searches of these intimate private spaces.”
In this case the court said the employer acted properly in almost every respect. But it was critical of how the search began, and the problems it created in the neighbourhood and for the 10-year-old boy.
“The boy was outside the home, alone. A group of adults, all strangers to him, came and started asking him questions about where his parents were. They asked him to let them into the family home. This was not appropriate,” said Justice Corbett.
It likely would have been a different scenario had a police officer, with the power to enter and conduct a search, been present. First, the police might have ensured the adults were home when the warrants were executed. Second, if the police had a warrant to search, they could have entered without the boy’s permission.
“No doubt this still would have been alarming to the youngster, but perhaps he would have been somewhat reassured by the presence of a police officer,” said Justice Corbett.
The commotion it caused in the neighbourhood likely would have been avoided as well if it was a warrant being served by police.
“No doubt it would have been upsetting for them for a house in the neighbourhood to be searched, but the spectre of a well-meaning neighbour barricading entrance to the house would have been avoided,” he said. “There was a reason for this scene. People do believe, rightly, that uninvited private persons are not entitled to barge into a private residence without permission. People do believe, rightly, that this sanctity of hearth does give way to a properly authorized police search … the use of
orders in private residences is not understood by the public, and creates an atmosphere that is not consistent with a free, open and democratic society.”
Justice Corbett said the
process is “unsatisfactory, at least in respect to residential premises.”
How the order should change
Justice Corbett said Anton Piller orders must evolve to reflect the technological changes over the past 30 years and the broadening context in which they are used. He said courts should revisit the careful safeguards devised by the English Court of Appeal in Anton Piller. Those safeguards should now include:
•prior judicial authorization (as is required for a search warrant);
•execution by a peace officer, properly trained in the execution of search warrants (the court suggested off-duty police officers could be hired);
•safe retention and listing of materials seized in a manner that respects claims of privilege that may be asserted subsequently; and
•careful judicial scrutiny of execution of Anton Piller orders to balance the interests of both sides to ensure a fair disposition of the substantive issues in the case in a process that is fair to both sides.
For more information see:
Ridgewood Electric Ltd. (1990) v. Robbie
, 2005 CarswellOnt 614 (Ont. S.C.J.)
Anton Piller KG v. Manufacturing Process Ltd.
, (1975),  1 Ch. 55,  1 All E.R. 779,  F.S.R. 129,  R.P.C. 719,  2 W.L.R. 162 (Eng. C.A.)