In Peninsula Employment v. Castillo, 2025 ONSC 1121, the Superior Court of Justice, in obiter, provided helpful directions as to the obligations of the Independent Supervising Solicitor (“ISS”) under an Anton Piller order to disclose and produce documents.
Background
In an action involving allegations of misappropriation of intellectual property, some of the defendants brought a motion seeking an order staying the action for abuse of process. The moving defendants argued that the plaintiff had failed to make timely disclosure to them of settlement agreements that the plaintiff reached with three other defendants, in which those defendants agreed to cooperate with the plaintiff in advancing its claims.
As well, at the outset of the proceeding, the plaintiff had obtained an Anton Piller order authorizing the seizure of evidence from one of the defendants. The order obliged the ISS to provide the defendant with a list of all evidence seized and to ensure that the defendant had reasonable access to that evidence. The order also permitted the defendant to return to Court for a better report if it believed that the disclosure it had received from the ISS was insufficient.
As a result, the moving defendants also sought an order for further and better production of approximately 1-4 million documents which had been seized under the Anton Piller order, arguing that the documents provided by the ISS were in a format which was inaccessible and did not reveal their metadata. It therefore could not be determined when or where the documents were created, which was an important issue in the action.