Law Times

Law Times • sepTember 12, 2011 Same old tricks with our money is we always fall for the same trick: they promise, we pay. Summer is still upon us, T but promises fall like autumn leaves from the mouths of our provincial party leaders as they ramp up their campaigns. The sad part is that in all of the mudslinging, no one is re- ally talking about the complex issues facing this province. No matter how you add it up, the bottom line is going to be more taxes and spending cuts. One look at the deficit at $14 billion and the debt at $236.6 billion tells the sorry story. Politicians can say what they want, but come Oct. 7 when the winning party prepares to run the government following the election, there are some cold and harsh realities waiting for them. Emerging as an early wedge is- sue — think of it as a reasonable doubt narrative in a criminal trial — is Premier Dalton McGuinty's offer of a $10,000 business tax credit to those hiring profes- sional and highly skilled immi- grants for jobs in their field. It's no coincidence that the province will also demand more control over immigration equal to what Manitoba, Quebec, and British Columbia have. Some critics are calling it a tick- ing policy bomb similar to former Conservative leader John Tory's ill-advised promise to fund faith- based schools in 2007, an issue that cost him the election. In launching the program, McGuinty said it would encour- age companies to hire skilled im- migrants but he hasn't defined the term more clearly except by hint- ing about professionals like law- yers and accountants. The issue is that newcomers struggle to get Canadian expe- rience and remain underem- ployed. It's a common refrain among professionals, including doctors, but there are programs in place run by various self-reg- ulating authorities. Indeed, as the Law Society of Upper Canada tells me: "In 2010, 93 lawyer candidates applied and were granted an exemption of articles. Of the 93, 20 had a Ca- nadian law degree but were inter- nationally trained candidates, and 41 of the candidates were able to be licensed in Ontario in less than 12 months, having successfully completed the licensing examina- tions and the professional conduct and practice in Ontario course." So who is this program for? Would it bump Ontario-trained lawyers? As it stands, many law graduates can't find work. Would $10,000 really sway a law firm? Probably not. Chartered accountants also have an international program and have worked hard to look at foreign educational institutions' standards and adopt those that meet the benchmark as being on par with Canadian schools. The he wonderful magic of politicians and the reality of governments Inside Queen's Park By Ian Harvey law society leaves it to the national committee on accreditation. That seems sensible enough. So the question stands as to who and which skills are at issue. There's precious little detail. As a concept, the promise has become the wedge Con- servative Leader Tim Hudak is hammering on. He suggests the Liberals are pandering and being overly generous to new Canadians while ignoring those raised and educated here. "Dalton McGuinty wants to pay companies $10,000 to hire foreign workers while half a mil- lion people in Ontario today are looking for jobs," he told reporters at an event staged for reaction. The Conservatives are also linking it to an existing program giving $30 million a year in grants to international students even as the government turns down On- tario students seeking loans. Hu- dak says he'll scrap it and move the money into the Ontario Student Assistance Program. The Liberals, meanwhile, are trying to defuse the issue by in- stituting grants of $1,600 for university students and $730 per college student to help the middle class. Many of those students don't qualify for OSAP loans because the threshold eliminates almost everyone. The $160,000 combined family income threshold for the promised grants is wise because it will qualify five of six families. The cost of an education in Ontario has risen dramatically and there are probably a few members of the bar who might have found it diffi- cult to pay tuition at today's rates. Still lost in all of this are some really hard issues: How are we go- ing to pay for it all? Which taxes will rise? What, specifically, will the next government have to cut? Can we really afford to continue the dogmatic Liberal policy of funding all-day kindergarten? Former prime minister Kim Campbell's pronouncement about elections not being the time to discuss complex issues was, sadly, sage in retrospect. This campaign is predictably be- ing reduced to slinging mud and savaging the other candidate as the parties shunt complex issues aside and denigrate the election into a war of headlines. Even more sadly, the one who gets the biggest headline may just win everything. That's the dirtiest trick of all. LT Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT Defendant's presence key in Anton Piller reviews BY SIMON SCHNEIDERMAN For Law Times T he Anton Piller order is a civil search warrant that, as described by Federal Court Justice Roger Hughes in Vinod Chopra Films Private Ltd. v. John Doe, enables a plaintiff to request entrance to premises occupied by people named or to become named as defendants in order to search for and seize relevant documents. While the courts are alert to the risks of abuse inherent in this kind of order, the light shines more brightly on them when opposing counsel are present. Unfortunately, that opposing view is frequently absent at the Federal Court of Canada. That absence may be more glaring following the recent Supreme Court of Canada decision in British Columbia (Attorney General) v. Malik. In that case, the court added one more layer for consideration by a judge asked to grant an Anton Piller order. According to the ruling in Malik, there are four conditions for granting an Anton Piller order: 1. A strong prima facie case. 2. Serious damage, potential or actual, to the plaintiff. 3. Convincing evidence that the defendant has in its possession incriminating documents or things. 4. A real possibility that the defendant may destroy such material before the discovery process begins. Under the normal route to obtain one of these orders, the plaintiff applies ex parte for one. When the order is executed and goods or materials are seized, a court review is usually mandated within 10 days after enforcement. It's at the review stage that the defendant can appear and, if things unfold as they should, there will be careful scrutiny of the circumstances leading to the order and whether it should continue to be in place. When granting an Anton Piller order, there has been a general acceptance that the court can infer a risk of destruction of the material where it's shown that the defendant has been acting dishonestly. The issue in Malik was whether the judge considering an Anton Piller application could admit as evidence an earlier decision in which adverse findings had been decided against the same defendant in a criminal court. The Supreme Court of Canada said a judge could do so. The background to the ruling in Malik was that in 2000, Ripudaman Singh Malik had been one of the defendants charged with murder in the Air India bombing. When first charged, he applied for bail and held himself out as having assets with a net worth of $11 million. Within a year, he claimed he was without the resources to pay for his legal defence and sought assistance from the British Columbia government to pay for his counsel. Malik then brought a Rowbotham application to obtain non-repayable provincial funding for his defence. The judge hearing it found that Malik was a multimillionaire and that he had arranged his financial affairs so as to evade contributing to his legal defence. His Rowbotham application was unsuccessful, but Malik subsequently entered into a repayable funding arrangement with the province. As a result, he owed about $5.2 million at the conclusion of the criminal trial. In turn, the B.C. government commenced proceedings to recover this money and brought an Anton Piller application in order to obtain financial records from Malik, his wife, and his son, a lawyer alleged to be involved in his father's financial affairs. The judge on the Anton Piller application considered the decision in the Rowbotham matter when deciding to grant the province's request. As a result, the province www.lawtimesnews.com seized documents concerning Malik's finances. When the Supreme Court of Canada decided on Malik, it overruled a line of cases that held that the opinion of the criminal court was irrelevant to the subsequent civil trial. In the Supreme Court's view, given the congruence of matters before the court in British Columbia dealing with the same parties and similar issues, the earlier decision was admissible evidence and proof of its findings and conclusions on the Anton Piller hearing. Speaker's Corner order to One of the consider- ations in favour of this line of reasoning, according to the court, was to promote efficiency in litigation and reduce its overall costs to the parties. However, admissibility of earlier court decisions was always subject to disputing evidence from the defendant in contradict the previous finding unless prevented from doing so by estoppel considerations. We can therefore see that the defendant's presence at the Anton Piller review would be crucial. But in the Federal Court, the defendant is frequently not there. A distinctive variant of the Anton Piller order is the rolling Anton Piller order introduced by the Federal Court. The objective of this order, according to University of Windsor law professor Jeff Berryman, is to protect property whose primary wealth lies in its use value, often in relation to trademarks, copyright, and patents, areas that are the unique province of the Federal Court. The rolling Anton Piller order aims to address the specific characteristics of those infringing this new property, namely anonymous transient vendors selling counterfeit or pirated goods. Frequently, the whereabouts and identities of those vendors may be difficult to discern. As a result, the rolling Anton Piller order often incorporates an additional court technique: John Doe defendants. Their names, once known, are like a roll call of alleged miscreants added to the order. In recognizing the highly intrusive aspect of the rolling Anton Piller order, the Federal Court set out precise criteria for awarding it, with a primary concern being that a moving party successfully meets the test of potential material destruction. However, as Berryman pointed out in a 2001 article, "there has been a relative paucity of either strong or willing defendants to mount concerted actions against the [Anton Piller] order." That situation remained unchanged until 2010, when Hughes, ruling in Vinod, dealt with the review of the Anton Piller order granted to the copyright holder of an Indian motion picture entitled 3 Idiots. Hughes observed that while the defendants before him were opposing the Anton Piller order, historically and frequently it was only the plaintiffs who appeared. He concluded on the evidence before him that the plaintiff's evidence was vague and the sources of information inadequate. Notably absent from the submissions, he said, was cogent proof of the likely destruction of material evidence. Hughes also wasn't persuaded that the use of the John Doe defendants was appropriate as some of them were known to the applicant and, he concluded, the use of this tactic was misleading. Hughes therefore threw out the action in its entirety against the opposing defendants. In Vinod, then, the review process worked and it did what it should have. In his 2001 article, Berryman described the Anton Piller review in the absence of the defendants as less than ideal. That understatement will become even more relevant given the decision in Malik. LT Simon Schneiderman is a Toronto lawyer who represented the defendants Royal Paan Inc. and Neerad Upadhyay in Vinod. PAGE 7

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