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Whistleblowers and Public Interest Disclosure Act (MB) (“PIDA”) Rogue Employee/Contractor Protections Injunctions and Anton Piller Orders: Getting Started Interlocutory Injunction: Test Anton Piller Orders Test Content of Order Execution of Order Response by Defendant After Execution of Order
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Employees Leaking Secrets – Remedies for Breach of Confidence
Presented by G. Patrick S. Riley of Taylor McCaffrey LLP 9th Floor—400 St. Mary Avenue Winnipeg, Manitoba R3C 4K5 e: [email protected] p: 204.988.0448
Agenda 1. Whistleblowers and Public Interest Disclosure
Act (MB) (“PIDA”)
2. Rogue Employee/Contractor Protections
3. Injunctions and Anton Piller Orders: Getting Started
4. Interlocutory Injunction: Test
5. Anton Piller Orders • Test
• Content of Order
• Execution of Order
• Response by Defendant
• After Execution of Order
1. Whistleblowers and Public Interest Disclosure Act (MB) (“PIDA”)
1. Whistleblowers and Public Interest Disclosure Act (MB) (“PIDA”)
Common Law
No common law protection for whistleblowers, but injunctions are discretionary equitable remedies
Court may refuse order in the public interest
PIDA
Primarily protects government-related employees (i.e. RHAs, CFSs, MPIC, Universities) from reprisal for reporting wrongdoing
Section 31: non-governmental employees protected for reporting in good faith to Ombudsman – 2013 Labour Board Decision – re Rexall Drug Marts
2. Rogue Employee/Contractor Protections
2. Rogue Employee/Contractor Protections
Disclosure usually to improperly compete or out of spite
Defence #1 – Written Contract Include: (a) broad definition of confidential information; (b) negative covenants not to disclose; (c) injunctions; (d) reasonable non-compete clause Ensure employee understands terms and no expectation of privacy if company information involved
Defence #2 – Internal policies, access restrictions and monitoring
Apply policies consistently Have a predetermined strategy if breach (i.e. change passwords, disable access)
3. Injunctions and Anton Piller Orders: Getting Started
Marshaling Evidence of Breach
Internal computer records
• obtain through monitoring or “spiders/key loggers”
Third party reports, i.e. customer reports
Reverse defectors
Private investigators
3. Injunctions and Anton Piller Orders: Getting Started
Caution!
Don’t alert the target
Don’t perform act to render evidence inadmissible
- Section 7 Privacy Act (MB)
3. Injunctions and Anton Piller Orders: Getting Started
Motions Without Notice and In Camera
• Duty to provide full and fair disclosure – Pulse Microsystems v. Safesoft, [1996] 110 Man.R. (2d) 163 (Anton
Piller case)
– Clark v. Nucare PLC, 2006 MBCA 101(Mareva Injunction case)
Sealing of Court Pocket
• First step - call to Duty Judge or Associate Chief Justice
• Interim and permanent sealing orders – Test and factors: Sierra Club of Canada v. Canada (Minister of
Finance), 2002 SCC 41 for factors
Undertaking as to Damages
• Can be countersued; Anton Piller Order = Legal Nuclear Weapon
Bond to Indemnify Sheriff
3. Injunctions and Anton Pillers Order: Getting Started
1. Serious issue to be tried
2. Irreparable harm not compensable in damages
3. Balance of convenience
• Interrelated hurdles; weighed together – Apotex Fermentation Inc. v. Novopharm Ltd., [1994] 7
W.W.R. 420 (Man.C.A.)
4. Interlocutory Injunction: Test
1. Strong prima facie case
2. Serious damage as a result of alleged misconduct potential or actual
3. Convincing evidence defendant has in its possession incriminating documents or things
4. A real possibility that if defendant is notified, the evidence or stolen property would be concealed or destroyed
• British Columbia (Attorney General) v. Malik, 2011 SCC 18
5. Anton Piller Orders: Test
5.Anton Piller Orders: Content of Order
1. Name of parties, including officers, directors, John Does/Jane Does
2. Interim injunction against target and broad definition of related companies and companies controlled directly or indirectly by targets
3. Broad definition of conduct enjoined
4. Independent Court appointed lawyer performs search and seizure - define their powers
5. Treatment of solicitor-client material
6. Premises defined
7. Type of evidence to be seized defined
5. Anton Piller Orders: Content of Order
9. Participating parties defined (lawyers, investigators, sheriffs, locksmith, etc.)
10. Require searched parties to cooperate fully
11. Defendant procedural safeguards
12. Access time
13. Right to video tape and take photos
14. Removal of evidence and to what location
15. Copying of evidence
16. Return to court date
5. Anton Piller Orders: Content of Order
5. Anton Piller Orders: Execution
5. Anton Piller Orders: Execution
• Have good knowledge of people and premises to be searched
• Briefing meeting – assess risks of violence
• Develop method for proving continuity of seized items
• Coordinate entry times
• Stand by lawyer to go to Court if needed – Obtain Contempt Order if not granted entry; forcible entry not
permitted.
• Be prepared to serve and explain Order to defendant(s)
• Be prepared to provide materials and seizure list to defendant’s lawyer
• Sealed envelopes, boxes, exhibit bags prepared for use
• Tracking systems for evidence movement
5. Anton Piller Orders: Response by Defendant
5. Anton Piller Orders: Response by Defendant
• Keep detailed notes of events
• Ensure search conducted in compliance with Order
• Read affidavits to ensure accurate and full and fair disclosure was made
• Contact your lawyer who has right to attend
• Go before Court to narrow Anton Piller Order
• Demand copies of seizure list and documents
5. Anton Piller Orders: After Execution of Order
5. Anton Piller Orders: After Execution of Order
Intense period of inventory development
Be prepared to provide access to opposing counsel
Expect targets to attack the Order
Set up locked room and log book to avoid tampering allegations
Reports filed with Court by the supervising solicitor that executed the Anton Piller
Anton Piller Orders: Summary
Leaks can happen to anyone
Steps should be taken to limit risk
Plan now to deal with future leaks
