Executive Summary: Key Legal and Evidentiary Issues

• Timeliness of the Defendants’ application to set aside the Anton Piller Order (APO) and the Court’s discretion to extend the deadline under Rule 9.15.

• Whether Plaintiffs’ counsel fulfilled the duty of candour in the ex parte application for the APO.

• Sufficiency of the Plaintiffs’ evidence to establish a strong prima facie case for the APO.

• Whether loss of evidence would have prevented the Plaintiffs from proving their claim (procedural impact).

• Existence of a real possibility that the Defendants would destroy evidence before discovery.

• Appropriateness of drawing adverse inferences against the Defendants for not filing evidence in response to the application.

Facts of the case

Weinrich Contracting Ltd. (WCL) and Scott Weinrich (Scott) brought an action against Robert August Weinrich (Robert), 1873056 Alberta Ltd. (187), MCL Group Ltd. (MCL), and Sauve Construction Ltd. (Sauve). WCL is a heavy equipment contractor in Alberta. Robert and Scott are brothers and former shareholders of WCL; Robert was the sole director until August 31, 2016. 187 was incorporated on January 21, 2015, with Robert as sole director and shareholder. MCL and Sauve were competitors of WCL, with MCL being a larger competitor and Sauve a smaller one. MCL and Sauve were added as Defendants in December 2017 and later removed from the action in April and May 2021, respectively.

In 2014, Scott commenced a shareholder oppression action against Robert, which ended with Scott buying out Robert’s interest in WCL through a Share Purchase Agreement (SPA) that included a Non-Competition and Non-Solicitation Agreement (Non-Compete). WCL and Scott alleged that Robert and 187 breached the Non-Compete by lending money or providing services to MCL and Sauve, and that Robert breached his fiduciary duties to WCL. The Plaintiffs sought and received an ex parte Anton Piller Order (APO) and an injunction on November 2, 2017, with the APO varied on November 9, 2017.

On December 5, 2017, the Defendants applied to set aside the APO under Rule 9.15 of the Alberta Rules of Court. The application was heard on June 11, 2025. The Defendants did not seek to set aside the injunction, as it had expired. The Defendants sought to set aside the APO so they could pursue damages for trespass.

Key legal issues and arguments

The main issue was whether the APO granted on November 2, 2017, should be set aside. The Defendants filed their application 25 days after being served, five days outside the 20-day period set by Rule 9.15(2). The Court exercised its discretion to extend the deadline, finding no wilful or intentional delay by the Defendants.

The Plaintiffs bore the onus of showing the APO was properly granted. The application to set aside was heard de novo, allowing both parties to present evidence. The Defendants alleged that Plaintiffs’ counsel failed to meet the duty of candour by not disclosing adverse evidence or available defences and by mischaracterizing the contracting process and the Non-Compete. The Court found that Plaintiffs’ counsel met the duty of candour, noting that the application was made before a judge familiar with the parties and their prior litigation, and that counsel identified available defences and provided relevant agreements and submissions.

The Plaintiffs requested the Court draw adverse inferences against the Defendants for not filing evidence, but the Court declined, finding the application could be determined on the evidence already before the Court.

Discussion of policy terms and clauses at issue

The Non-Compete in the SPA was central to the dispute. The Defendants argued the Non-Compete was not a reasonable restraint of trade, lacked consideration, and was not enforceable, as it was added after the main terms were agreed. They also argued that any breach would be technical only, as there were no known losses to WCL. The Plaintiffs argued the Non-Compete was reasonable, enforceable, and supported by consideration, and that Robert’s actions—such as lending money to MCL and Sauve and engaging in business with them—constituted breaches.

Court’s analysis and findings

The Court applied the four-part test for an APO:

1. The Plaintiffs demonstrated a strong prima facie case, relying on evidence including registry searches, financial transactions, and text messages indicating Robert’s involvement with competitors during the restricted period. Evidence included Robert’s loans to MCL and Sauve, payments received, and business arrangements involving equipment and addresses.

2. The Plaintiffs established that loss of evidence would have prevented them from proving their claim, particularly regarding financial records, text messages, and emails.

3. The Defendants conceded they were plausibly in possession of some evidence sought by the Plaintiffs.

4. The Plaintiffs showed a real possibility that the Defendants would destroy evidence before discovery, based on evidence of damaged property, lack of compliance with court orders, and dishonest conduct.

The Court found the Plaintiffs met all elements of the test for an APO. The Defendants’ arguments regarding the enforceability of the Non-Compete and lack of damages were noted but left for determination at trial.

Ruling and outcome

The application to set aside the Anton Piller Order was dismissed. The Court concluded the APO was properly granted, and the Plaintiffs had established the necessary grounds. The Defendants’ application was not successful, and no damages or relief were granted to them. The issue of costs was left open for further submissions if the parties could not agree. No specific monetary amount was determined in this decision.