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VOL. 76 PART 6 NOVEMBER 2018
Piller order?19 Perhaps the answer is as simple as that proffered by U.S.
Supreme Court Justice Porter Stewart: “I know it when I see it”.20 Further,
what is the distinction between the requirement that an Anton Piller order
set out a procedure for dealing with privileged and confidential materials
and the requirement that terms be included to protect “sensitive, confidential,
and privileged lawyer and client information”?21 No discussion is provided
to elucidate the distinction or overlap of those categories. Another
example where Crerar’s comparatively high-level approach leaves a little
too much mystique is in the distinction between a situation “where the
plaintiff asserts an ownership interest in the defendant’s assets” and only
needs to satisfy the interlocutory injunction test rather than the Mareva
test, and a situation where “a Mareva order is not an appropriate means”
because the plaintiff seeks to “preserve the very subject matter of the
action”.22 In any event, this is a small quibble, as a diligent practitioner will
not be determining the appropriate form of relief on the fly in the courtroom
(or at least the judges sitting in chambers very much hope that is not
the general practice).
In conclusion, I hope you will keep a copy of Crerar’s text on your shelf.
Bring it with you to court. Use it to spark ideas and lines of inquiry. Do not,
however, use it as a substitute for thorough research and careful reading of
cases. No single text can substitute for careful preparation, but this one can
assist your preparation and support you when faced with unexpected submissions
from opposing counsel or questions from the bench. Whether you
deal with Mareva and Anton Piller relief frequently or infrequently, this
friendly yellow book may as well have “Don’t Panic” emblazoned on its
cover (much like that other well-known volume—but please, do not start
bringing a towel to court).23
1. It is so late, in fact, that Crerar (with his son Harry
Crerar and Bill Maurer) has managed to publish
another successful book in the interim period: The
Glorious Mountains of Vancouver’s North Shore: A
Peakbagger’s Guide (Rocky Mountain Books, 2018).
2. Davies v Canadian Imperial Bank of Commerce
(1987), 15 BCLR (2d) 256 (CA).
3. David A Crerar, Mareva and Anton Piller Preservation
Orders in Canada: A Practical Guide (Toronto:
Irwin Law, 2017) at 1.
4. Ibid at n 56 and at 28.
5. Robert J Sharpe, Injunctions and Specific Performance
(Aurora: Canada Law Book, 1998) (loose-leaf).
6. Steven Gee, QC, Commercial Injunctions, 6th ed
(London, UK: Sweet & Maxwell, 2010).
7. Crerar, supra note 3 at 3–4.
8. Ibid at 54.
9. Ibid at 47ff.
10. Ibid at 232.
11. Ibid at 243.
12. Ibid at 76–78.
13. Ibid at 81–82.
14. Ibid at 90–91.
15. Ibid at 63.
16. Ibidat 23–24.
17. Ibid at 240.
18. Ibid at 4.
19. Ibid at 235.
20. Jacobellis v Ohio, 378 US 184 at 197 (1964).
21. Crerar, supra note 3 at 246–47.
22. Ibid at 66, 99.
23. Douglas Adams, The Hitchhiker’s Guide to the
Galaxy (London, UK: Pan Books, 1979).