WIC Premium Television v. Levin
T-686-99
Sharlow J.
28/4/99
15 pp.
Plaintiff alleging being damaged by certain illegal acts of defendant (offering for sale equipment used to decode encrypted signals from foreign based broadcasters who do not have right to transmit signals in Canada, contrary to Radiocommunication Act, s. 9) and, after ex parte order, defendant ordered restrained-Motion for confirmation of order and motion to have order set aside and all seized material restored to defendant-Application for confirmation of order denied-Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 All ER 779 (C.A.) laying out three conditions for order: extremely strong prima facie case; damage, potential or actual, must be very serious; clear evidence that defendants in possession of incriminating documents or things, and real possibility they may destroy such material before any application inter partes can be made-(1) Parties agree prima facie condition met-(2) Serious damage to plaintiff not established-Plaintiff carrying on programming distribution undertaking licenced by CRTC-ExpressVu Inc. v. NII Norsat International Inc., [1998] 1 F.C. 245 (T.D.) distinguished-No evidence that acts of defendant have caused or may cause plaintiff to suffer serious damage-No evidence of market share, not even estimate of defendant's volume of business-No evidence of even single movie or special event licensed to plaintiff that might have flowed through device sold by defendant and that might have been seen by viewer in plaintiff's market in Western Canada-(3) Likelihood records will be destroyed-Same evidence establishing prima facie case of defendant's unlawful activities evidence of existence of incriminating documents in defendant's possession-If defendant given advance notice of plaintiff's claim, defendant has both incentive and means to destroy its business record too quickly for plaintiff to retrieve them-Should be inferred defendant likely to do just that if Anton Piller order not granted or continued-Third condition met-Anton Piller order set aside and plaintiff ordered to restore all seized material to defendant, and at its own cost effect any necessary reinstallation of seized material-Radiocommunication Act, R.S.C., 1985, c. R-2, s. 9 (as am. by S.C. 1989, c. 17, s. 6; 1991, c. 11, s, 83; 1993, c. 40, s. 24).