Supreme Court of Canada allows B.C. government’s appeal; reinstates Anton Piller Order

The Supreme Court of Canada  today released its decision in British Columbia (Attorney General) v. Malik, reversing the British Columbia Court of Appeal and reinstating the Chambers Judge’s ex parte Anton Piller Order granted to the Province of British Columbia against Ripudaman Singh Malik’s arising from his defence in the Air India bombing trial, in which Mr. Malik and a co-accused were acquitted.

The Province sued in debt, breach of contract, conspiracy, and fraud, seeking reimbursement of over $5.2 million  paid to fund Malik’s defence arising from prior judicial proceedings brought by Malik to obtain non-repayable provincial funding for his defence made pursuant to R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.) (the “Rowbotham application”).

The chambers judge relied on the Rowbotham application as grounds for granting the Anton Piller order authorizing the search of the Malik family’s business and residential properties to obtain evidence of fraudulent concealment of Malik’s assets. The British Columbia Court of Appeal set aside the Anton Piller order on the basis that Rowbotham findings and conclusion were largely inadmissible, including on an interlocutory application.

Justice Binnie sets forth the “four essential conditions” for granting an Anton Piller order in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189:

           There are four essential conditions for the making of an Anton Piller order.  First, the plaintiff must demonstrate a strong prima facie case.  Second, the damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious.  Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work. . . .  [para. 35]

Binnie, J. disagreed with the B.C. Court of Appeal that an underlying Rowbotham application requires a hearing de novo. Rather, a prior civil or criminal judgment, if relevant, is admissible as prima facie proof in subsequent interlocutory proceedings, unless precluded from  by the doctrines of res judicata, issue estoppel or abuse of process. (at paras. 7, 36) .

Justice Binnie also rejected the assertion of solicitor-client privilege made by Jaspreet Malik relating to seizure of files from his law office. Binnie, J. noted that  Jaspreet Malik, who appeared in person on the appeal, was alleged to be party to the alleged fraud and conspiracy, and therefore no privilege attached to the relevant documents and the few documents in issue were not relevant, not removed and never viewed by the Province (at para. 63).

The Court concludes:

[36]                          The chambers judge accepted the Rowbotham findings as prima facie proof of their content, and noted that while Mr. and Mrs. Malik and Jaspreet led evidence at the hearing to set aside the ex parte orders, none of this evidence disputed the transactions relied on by the Province to make the factual case against them.  The question of whether the Rowbotham findings were conclusive and binding on the Maliks in this case (which would only have arisen had they made the attempt to adduce evidence to contradict those findings), was not something the chambers judge believed he was required to decide.  I agree with the chambers judge that the admissibility of the Rowbotham facts was not dependent on the respondents being foreclosed from challenging them because of issue estoppel or abuse of process.

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