Bavaria Autohaus, 2011 ABQB 727

Court of Queen ’ s Bench of Alberta Citation: Bavaria Autohaus

(1997) Ltd. v Beck, 2011 ABQB 727 Date: 20111123 Docket: 1103 18496 Registry: Edmonton Between: Bavaria Autohaus

(1997) Ltd. Plaintiff - and - Michael Beck Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Plaintiff Bavaria Autohaus

(1997) Ltd. ( “ Bavaria ” ) is a corporation that carries on business as a new and used car dealership in the City of Edmonton primarily selling BMW automobiles. The Defendant Michael Beck ( “ Beck ” ) was employed by Bavaria since 2001, primarily as the general sales manager. Beck ’ s employment with Bavaria was terminated on October 20, 2011.

Bavaria did not allege cause for Beck ’ s dismissal, and he was apparently paid eight weeks upon his dismissal in lieu of notice, with the expectation that there would be further reasonable compensation paid in lieu of notice once Beck found at work. [ 2 ] The Statement of Claim in this matter alleges that Beck was the sole administrator of Bavaria ’ s One-Eighty Sales Systems ( “ One-Eighty ” ), which is an electronic system that stores information about all of Bavaria ’ s customers, prospective customers, sales data

and deals. It is submitted that all the information stored in One-Eighty is highly private and confidential, that Beck was the sole administrator of this system, and had a unique username and password which he used to access One-Eighty. It is also alleged that as sole administrator of One-Eighty, Beck had access to One-Eighty's user maintenance, which contained all usernames and passwords in the Company. [ 3 ] In mid November 2011 the Statement of Claim describes how Bavaria ’ s new General Manager Brent Giblin ( “ Giblin ” ) detected some unusual and inconsistent information in One-Eighty.

The Statement of Claim alleges that on or about November 21, 2011 Giblin realized that Beck ’ s access to One-Eighty had not been removed following Beck ’ s termination, and that Beck, under the username Bavaria1 had logged into One-Eighty 47 times since his termination on October 20, 2011.

Giblin according to the Statement of Claim then took immediate steps to remove Beck ’ s access to One-Eighty and to contact One-Eighty administrators to determine the extent of Beck ’ s activities on the system. [ 4 ] The Statement of Claim then goes on to allege that following Beck ’ s removal of his access to One-Eighty, Beck unsuccessfully attempted to log in twice under the Bavaria1 username.

At that point he then logged in to One-Eighty under the username Bavaria9125, the username assigned to Klaus Maier, Bavaria ’ s President. [ 5 ] The Statement of Claim alleges that Beck ’ s activity on One-Eighty following October 20, 2011 included the following: (

a) Exporting private and confidential data concerning Bavaria ’ s customers, prospective customers, sales data and deals; (

b) Marking quotes as “ unsold ” ; and (

c) Viewing quotes. [ 6 ] Paragraph 11 of the Statement of Claim alleges that having regard to Beck ’ s access to One-Eighty ’ s username maintenance, including usernames and passwords, Beck may have had further unauthorized access to Bavaria ’ s confidential information, the particulars of which are unknown to Bavaria at this time. [ 7 ] The Statement of Claim goes on to state that Beck has breached the following duties, thereby causing damage to Bavaria: – (

a) Breach of confidence; (

b) Breach of fiduciary duty; (

c) Converting or misappropriating Bavaria ’ s confidential and proprietary information; (

d) Misusing confidential and proprietary business information of Bavaria; (

e) Intentionally and unlawfully interfering with the economic interests of Bavaria; (

f) Soliciting Bavaria ’ s customers while making use of confidential and proprietary information; (

g) Releasing Bavaria ’ s proprietary and confidential information to Bavaria ’ s competitors; (

h) Misappropriating Bavaria ’ s corporate opportunities; and (

i) Such other particulars as are within Beck ’ s knowledge but are unknown to Bavaria at this time. [ 8 ] The application before me presently is for an Ex Parte Injunction and an Anton Piller Order. Beck has retained legal counsel that has been dealing with the Plaintiff with respect to his wrongful dismissal claim. Counsel for the Plaintiff Applicant submits that no notice should be given to Beck or his legal counsel given Beck ’ s dishonest conduct, his knowing violation of the Applicant ’ s rights, and the real possibility that Beck will destroy and/or hide the materials that he has in his possession improperly or illegally.

[ 9 ] In support of the Ex Parte Injunction and Anton Piller Order application Joyce Tiffinger Controller of the Plaintiff has sworn an Affidavit on November 23, 2011 which describes the most serious allegations and the basis for the most serious allegations as follows: – 5. I am advised by Bavaria ’ s counsel and do verily believe that notice of the within application has not been given to Mr. Hait due to concerns that advance notice of the application would defeat the remedy sought. 6.

I am advised by Bavaria ’ s sales system administrators, One-Eighty Corp., of Waterloo, Ontario, that Beck was an administrator of Bavaria ’ s One-Eighty Sales System ( “ One- Eighty ” ). 7. One-Eighty is an electronic system used to store information about all of Bavaria ’ s customers, prospective customers, sales data and deals. All of the information stored in One-Eighty is highly private and confidential, and includes such things as customers ’ social insurance numbers, credit histories and contact information. 8. Beck had a unique username (Bavarial) and password which he used to access One- Eighty. 9.

As an administrator of One-Eighty, Beck also had access to One-Eighty ’ s user maintenance, which contains all usernames and passwords. 10. I am advised by Brent Giblin, Bavaria ’ s General Manager ( “ Giblin ” ), and do verily believe that in mid-November, 2011, he detected some unusual and inconsistent information in One-Eighty. 11. Upon further investigation on November 21, 2011, Giblin realized that Beck ’ s access to One-Eighty had not been removed following Beck ’ s termination. 12. Giblin also learned that Beck, under the username Bavarial, had logged into One-Eighty 47 times since his termination.

Attached hereto as Exhibit “ A ” is a true copy of the log in information for Beck from October20 to November21, 2011. 13. The majority of the 47 logins were made from IP address 68.148.138.62. Beck ’ s password was used to access One-Eighty. 14. Four of the logins (on October 21 and October 24) were from within the dealership through IP address 67.226.135.41 (Bavaria ’ s IP address).

I understand from discussions with Bavaria ’ s staff that Beck ’ s ability to access his work desk top computer remotely from home was not removed immediately following his termination, and that these logins occurred from that computer by way of remote access. As far as I am aware, no other Bavaria employee had this kind of remote access. I am advised by Bavaria ’ s IT staff, Devin Cooper, that the four accesses were through Beck ’ s former desk top computer, which was still active and in use. 15. Beck ’ s ability to access his work computer remotely was disabled on October 24, 2011. 16.

The remaining 43 logins as “ Bavarial ” were from what we believe is Beck ’ s home computer. 17. I am advised by One-Eighty Corp. that the other administrators of Bavaria ’ s One-Eighty system at the relevant time were: Brent Giblin, Brian Dawson, Faisal Ammar, Joyce Tiffinger and Klaus Maier. As far as I am aware, none of these individuals accessed the One-Eighty system from the IP Addresses so described, and would have no reason to do so. 18. Giblin took immediate steps to remove Beck ’ s access to One-Eighty.

19. I am advised by Giblin, and do verily believe, that he immediately contacted the One- Eighty Corp. to determine Beck ’ s activity on the system since his termination. 20. I am advised by Giblin, and do verily believe, that on November 21, 2011 following the removal of Beck ’ s access to One-Eighty, Beck unsuccessfully attempted to login to One-Eighty twice under his former username and password. He then successfully logged into One-Eighty under the username Bavaria9l25. That username belongs to Klaus Maier ( “ Maier ” ), Bavaria ’ s President.

Beck would have had access to Klaus Maier ’ s username and password through One-Eighty ’ s user maintenance. 21. Bavaria has confirmed with Klaus Maier that he did not log into One-Eighty at these times. Bavaria believes that the logins as “ Bavaria9l2s ” were by Beck after his access to One-Eighty was cut off. All activity on November 21, 2011, including the logins as Klaus Maier, occurred from IP address 68.148.138.62, the same IP address as noted in Beck ’ s logins at paragraph 12 above. Attached hereto as Exhibit “ B ” is a true copy of the login information for One-Eighty for November21, 2011. 22.

On November 22, 2011, Giblin received a response from One-Eighty administrators which summarized Beck ’ s activity on the system since his termination. Attached hereto as Exhibit “ C ” is a true copy of the response from One-Eighty. In short, Beck has: • used his Bavarial username to view 23 quotes; • used Klaus Maier ’ s Bavaria9l25 username to change two quotes from “ sold ” to “ unsold ” ; • used Klaus Maier ’ s Bavaria9l25 username to export data from IP address 8.148.138.62 23. One-Eighty Corp. has provided me with a copy of the exported data.

The information exported by Beck through Klaus Maier ’ s Bavaria9l25 username included the first and last names, email address, home, mobile and work telephone numbers for 4,931 of Bavaria ’ s customers. This raises extremely serious privacy concerns. 24. Since discovering Beck ’ s unauthorized access to One-Eighty, Bavaria has changed the users ’ passwords. 25. The information accessed by Beck is private and confidential. Its disclosure could seriously damage Bavaria ’ s competitive interests and reputation in the community. 26.

I believe that Bavaria has suffered irreparable harm and will suffer further irreparable harm if further release or distribution of this information occurs. 27. Given the evidence currently available, I believe that Beck ’ s computers, storage devices, media, back up systems, computer software, and paper records will contain evidence confirming the access by Beck of Bavaria ’ s confidential information. 28. I believe that Beck is in possession of relevant documents and electronic data at his home office and residence, located at 148 Gariepy Crescent N.W., Edmonton, Alberta. 29.

I believe the suspicious circumstances in which Beck appears to have exported Bavaria ’ s data following his termination give rise to a strong inference that records will be destroyed unless they are preserved by an Anton Piller Order. 30. I make this Affidavit in support of an application for an Order to preserve evidence and for an injunction against the Defendant, Michael Beck.

[10] There are four essential conditions for the making of an Anton Piller Order as stated in the Supreme Court of Canada’sdecision in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 , 2006 S.C.C. 36 described at paragraph 35 asfollows:– . . . First, the plaintiff must demonstrate a strong prima facie case. Second, the damage to the plaintiff of the defendant's allegedmisconduct, potential or actual, must be very serious.

Third, there must be convincing evidence that the defendant has in its possessionincriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy suchmaterial before the discovery process can do its work. [11] Celanese Canada Inc. however also describes the difficulties inherent in Anton Piller Orders made as they are ex parte andinterlocutory; with no cross examination on the supporting affidavit(s); and the necessity of the chambers judge to rely on the good faith,candor and complete disclosure of the affiants; as well as the professional responsibility of the lawyers involved.

Anton Piller Orders arenot available in the United States. [12] In the present case while I believe that there are some gaps in the materials before me, I do have experienced counsel beforeme from a national law firm. [13] There has been no employment agreement contract presented, although I accept that the alleged breaches if proven wouldconstitute some serious impropriety.

However the extent of Beck’s fiduciary duty for example to Bavaria and his obligation of trust arenot as clear as they would have been had an employment contract existed between Beck and Bavaria that I was privy to. [14] It is also somewhat troubling that given that Beck’s employment was terminated on a without cause basis, that less then threeweeks after this termination in mid November Bavaria’s new General Manager, or Beck’s supervisor, detected these very unusual andserious problems.

While there is nothing before me that suggests that neither Bavaria or the new General Manager/Person in Charge ofBeck have done anything untoward in this case, they do stand to gain something in terms of this application vis a vis Beck. Beck on theother hand does not have as obvious a motive or ability to profit from his alleged illegal activities.

What Beck is alleged to have is almost5,000 names, email addresses, and other personal details for almost 5,000 of Bavaria’s customers which he has done nothing with so far. [15] Obviously Bavaria has serious privacy concerns and a duty to those customers, as well as a great interest in preserving itsreputation in the community and preventing a competitive interest from obtaining that information. [16] Paragraph 17 of Ms.

Tiffenger’s Affidavit only describes her knowledge as far as she is aware that none of the otherindividuals could have accessed the One-Eighty system from the IP addresses described, and would have no reason to do so. None of theother administrators at least five in number have provided the Court with Affidavits of their own in this regard. [17] Furthermore I am troubled by the fact that Beck’s username and password remained on the system for at least three weeksafter he was terminated, when this is something that is clearly in the direct control of Bavaria itself.

In this regard Bavaria is a contributorto their own present problems since it had care and control of the information. [18] Finally although certain IP addresses are given to me with respect to login attempts and actual logins, there is nothing beforeme from Shaw Communications Inc. that link those IP address directly to Beck. I do appreciate counsel’s submission and advice thatShaw Communications Inc. would not generally provide this information in the normal course immediately, and as part of the AntonPiller Order counsel has undertaken to immediately apply to Shaw Communications Inc. for this confirmation.

However it is not possibleon the present information before me to be technically knowledgeable enough to fully understand the workings of Bavaria’s computersas it relates to Beck and the One-Eighty system. [19] I appreciate that in these circumstances, and in circumstances generally, evidence of dishonesty or misconduct that wouldjustify an inference that the Defendant would destroy these records or perhaps hide them is almost impossible for the Applicant toproduce direct proof of.

I appreciate that Courts can certainly infer the risk of destruction when it is shown that the Defendant has beenacting dishonestly, or has knowingly violated the Applicant’s rights.

[20] As per the requirements in Celanese Canada Inc., the Plaintiff Applicant in this matter must only demonstrate a “strongprima facie case”. In emergent situations such as this, where a number of individuals have access to the computer system of Bavaria andto Bavaria’s One-Eighty system, it is difficult to provide complete Affidavit evidence.

Where an outside organization such as ShawCommunications Inc. controls the only direct means of proof with respect to the IP address that is used to access these systemsimproperly, it is not possible to provide this information generally at the time of the application. [21] Bavaria has provided its Undertaking as to Damages, and the form of Order that they have given the Court complies with theterms provided by the Supreme Court of Canada in the Celanese Canada case which require the following:–

(1) Basic Protection for the Rights of the Parties (

i) The order should appoint a supervising solicitor who is independent of the plaintiff or its solicitors and is to be present at thesearch to ensure its integrity. The key role of the independent supervising solicitor was noted by the motions judge in this case "to ensurethat the execution of the Anton Piller order, and everything that flowed from it, was undertaken as carefully as possible and with dueconsideration for the rights and interests of all involved" (para. 20). He or she is "an officer of the court charged with a very importantresponsibility regarding this extraordinary remedy" (para. 20).

See also Grenzservice, at para. 85. (ii) Absent unusual circumstances the plaintiff should be required to provide an undertaking and/or security to pay damages in theevent that the order turns out to be unwarranted or wrongfully executed. See Ontario Realty, at para. 40; Adobe Systems, at para. 43;Nintendo of America, at pp. 201-2; Grenzservice, at para. 85; Havana House Cigar & Tobacco Merchants Ltd. v.

Jane Doe (2000), (FC), 199 F.T.R. 12, aff'd (2002), 288 N.R. 198, 2002 FCA 75. (iii) The scope of the order should be no wider than necessary and no material shall be removed from the site unless clearly coveredby the terms of the order. See Columbia Picture Industries Inc. v.

Robinson, [1987] Ch. 38. (iv) A term setting out the procedure for dealing with solicitor-client privilege or other confidential material should be included witha view to enabling defendants to advance claims of confidentiality over documents before they come into the possession of the plaintiffor its counsel, or to deal with disputes that arise. See Grenzservice, at para. 85; Ontario Realty, at para. 40. Procedures developed for usein connection with search warrants under the Criminal Code, R.S.C. 1985, c. C-46, may provide helpful guidance.

The U.K. practicedirection on this point provides as follows: Before permitting entry to the premises by any person other than the Supervising Solicitor, the Respondent may, for a short time (not toexceed two hours, unless the Supervising Solicitor agrees to a longer period) -- (

a) gather together any documents he [or she] believesmay be ... privileged; and (

b) hand them to the Supervising Solicitor for [an assessment of] whether they are ... privileged as claimed.

If the Supervising Solicitor decides that ... any of the documents [may be] privileged or [is in any doubt as to their status, he or she] willexclude them from the search ... and retain [them] ... pending further order of the court [(if in doubt as to whether they are privileged), orreturn them to the Respondent and retain a list of the documents (if the documents are privileged)]. [A] Respondent [wishing] to take legal advice and gather documents as permitted ... must first inform the Supervising Solicitor and keephim [or her] informed of the steps being taken.

Experience has shown that in general this is a workable procedure. Counsel supporting the appellants suggested the basic "two-hour"collection period permitted in the U.K. is too short. This is a matter to be determined by the judge making the order, but it must be kept[page215] in mind that unnecessary delay may open the door to mischief. In general, the search should proceed as expeditiously as

circumstances permit. (

v) The order should contain a limited use clause (i.e., items seized may only be used for the purposes of the pending litigation). See Ontario Realty , at para. 40; Adobe Systems, at para. 43; Grenzservice , at para. 85. (vi) The order should state explicitly that the defendant is entitled to return to court on short notice to (

a) discharge the order; or (

b) vary the amount of security. See Adobe Systems , at para. 43; Grenzservice , at para. 85; Nintendo of America , at pp. 201-2. (vii) The order should provide that the materials seized be returned to the defendants or their counsel as soon as practicable.

(2) The Conduct of the Search (

i) In general the order should provide that the search should be commenced during normal business hours when counsel for the party about to be searched is more likely to be available for consultation. See Grenzservice , at para. 85; Universal Thermosensors Ltd. v. Hibben , [1992] 1 W.L.R. 840 (Ch. D.) . (ii) The premises should not be searched or items removed except in the presence of the defendant or a person who appears to be a responsible employee of the defendant. (iii) The persons who may conduct the search and seize evidence should be specified in the order or should specifically be limited in number.

See Adobe Systems , at para. 43; Grenzservice , at para. 85; Nintendo of America , at pp. 201-2. (iv) On attending at the site of the authorized search, plaintiff's counsel (or the supervising solicitor), acting as officers of the court should serve a copy of the statement of claim and the order and supporting affidavits and explain to the defendant or responsible corporate officer or employee in plain language the nature and effect of the order. See Ontario Realty , at para. 40. (

v) The defendant or its representatives should be given a reasonable time to consult with counsel prior to permitting entry to the premises. See Ontario Realty , at para. 40; Adobe Systems , at para. 43; Grenzservice , at para. 85; Sulpher Experts Inc. v. O'Connell (2000), 279 A.R. 246 , 2000 ABQB 875 . (vi) A detailed list of all evidence seized should be made and the supervising solicitor should provide this list to the defendant for inspection and verification at the end of the search and before materials are removed from the site.

See Adobe Systems , at para. 43; Grenzservice , at para. 85; Ridgewood Electric , at para. 25. (vii) Where this is not practicable, documents seized should be placed in the custody of the independent supervising solicitor, and defendant's counsel should be given a reasonable opportunity to review them to advance solicitor-client privilege claims prior to release of the documents to the plaintiff. (viii) Where ownership of material is disputed, it should be provided for safekeeping to the supervising solicitor or to the defendant's solicitors.

(3) Procedure Following the Search (

i) The order should make it clear that the responsibilities of the supervising solicitor continue beyond the search itself to deal with matters arising out of the search, subject of course to any party wishing to take a matter back to the court for resolution.

(ii) The supervising solicitor should be required to file a report with the court within a set time limit describing the execution, who was present and what was seized. See Grenzservice , at para. 85. (iii) The court may wish to require the plaintiff to file and serve a motion for review of the execution of the search returnable within a set time limit such as 14 days to ensure that the court automatically reviews the supervising solicitor's report and the implementation of its order even if the defendant does not request such a review. See Grenszervice , at para. 85.

Conclusion [ 22 ] Although I have identified certain gaps in the evidence of Bavaria presented through their Controller ’ s Affidavits, although I lack concrete evidence with respect to the IP address from Shaw Communications Inc., and although the Statement of Claim contains unproven allegations, I have decided never the less that there is a proper role for an Anton Piller Order in this matter despite its draconian nature given the modern era of computer technology where documents can easily be destroyed or hidden by unscrupulous defendants upon being forewarned. [ 23 ] I am satisfied that even if Beck is innocent of some or all of the allegations being made against him on an ex parte basis, Bavaria has a public interest and duty under the appropriate Privacy Act legislation, to do everything it can to preserve the integrity of information that appears to have gone missing or unaccounted from almost 5,000 of its customers that it had care and custody of, and that this Order is also lin the public interest. [ 24 ] As such I have decided to grant the following Order notwithstanding some of the deficiencies I have identified above: – 1.

Until further Order from this Court, the Defendant, Michael Beck, is hereby prohibited and restrained from: (

a) Making any use of any confidential information obtained or created in the course of his employment with Bavaria Autohaus

(1997) Ltd. ( “ Bavaria ” ); or (

b) Making use of any information obtained by Michael Beck from Bavaria following termination of his employment. 2.

The Defendant, Michael Beck, and anyone else appearing to be in charge of the Premises as defined in paragraph 9 below, upon being served with a copy of this Order, shall forthwith grant entry to CONSOLIDATED CIVIL ENFORCEMENT INC. and its agents (hereinafter called the “ Bailiff ’ ) and the other Authorized Persons described in paragraph 10 below, to the Premises in order that they may search for, retrieve, detain and take away the Records, computer equipment and evidence as described in paragraphs 3, 4 and 5 below. 3.

Immediately upon service of this Order, Michael Beck shall disclose to the Bailiff the location of all of the following (the “ Records ” ) in his possession or power computers, storage devices, media, back up systems, computer software, notes, records, working papers, files, printouts, quotes, customer data and any other documents relating to the sale of automobiles and all and those activities reasonably associated therewith. 4.

Without limiting the generality of the foregoing, Michael Beck shall forthwith deliver to the Bailiff all computer hard drives and servers (including laptop computers) in his possession or power, all storage devices and media, all computer hard disk drives ( “ HDD ” ), servers, including email, file and proxy servers, any electronic storage devices or magnetic form including but not limited to floppy diskettes, ZIP disks, CD-ROMs, optical discs, digital cameras, CompactFlash Il/Microdrives, CompactFlash I, Memory Stick, Secure Digital, SmartMedia, Smart Phones (except for the Sim card) MultiMediaCard, Memory Stick Duo, backup tapes, printer buffers,

personal digital assistants such as RIM (Blackberry devices) (except for the Sim Card) and Palm Pilot computers, as well as printouts or readouts from any magnetic storage device, and such equipment and evidence shall be considered part of the Records. 5. Immediately upon service of this Order, Michael Beck shall disclose to the Bailiff the location of any data or information downloaded or copied from the Plaintiff ’ s computer systems, including, without limitation, any data or information forwarded to third parties, whose identities must be disclosed to the Bailiff.

Such data or information shall be considered part of the Records. 6. The Bailiff is authorized to leave Computer equipment at the Premises if he, in his discretion, is satisfied that they do not contain any relevant information. 7. Pending further Order of this Court or pending an agreement between counsel for the parties to this action, all of the Records detained or taken away pursuant to this Order shall be retained by the Bailiff. No copies of the Records shall be released to any party without further Order of the Court or agreement between counsel for the parties to the action. 8.

Records seized pursuant to this Order shall only be used for the purposes of the pending litigation. 9. The parties shall appear before this Court on December 21, 2011, for: (

a) Review of the independent supervising solicitor ’ s report and the implementation of this Order; (

b) Advice and directions concerning ownership or disposition of the Records, computer equipment and evidence seized pursuant to this Order; (

c) Advice and directions concerning any privilege issues should they arise from implementation of this Order. 10. The premises to which the Bailiff and the other Authorized Persons shall be given entry are described as all business offices and other business, residential, motor vehicles, and storage facilities (the “ Premises ” ) utilized by the Defendant, Michael Beck, at the following locations: (

a) Michael Beck ’ s home office and residence, at 148 Gariepy Crescent N.W., Edmonton, Alberta; (

b) Such other locations where Records, computer equipment and evidence are stored as identified by Michael Beck in accordance with paragraph 3, 4 and 5 of this Order, which other locations shall be deemed to be part of the Premises to which Michael Beck is required to give the Bailiff and the other Authorized Persons access hereunder. 11. The persons authorized to enter the Premises, to assist the Bailiff in carrying out the terms of this Order (the “ Authorized Persons ” ) are as follows, for each of the locations identified in paragraph 3 and 5: (

a) one (1) representative of the Bailiff; (

b) an independent supervising lawyer; (

c) up to two (2) employees, officers, directors or representatives of the Plaintiff for the purpose of searching for and identifying Records; and

(

d) up to one (1) computer technicians or other computer forensic investigative personnel from Deloitte & Touche LLP. for the purpose of retrieving electronic data. 12. Initial entry to any one of the Premises may be obtained by the Bailiff and the other Authorized Persons on any business day between the hours of 9:00 a.m. and 8:00 p.m., provided however, that once entry to any one of the Premises is initiated, the Bailiff and the other Authorized Persons may remain on or in the Premises, and enter into the remaining Premises without interruption until the terms of this Order are fully carried out. 13.

Michael Beck shall not delete, alter or destroy any Records, computer equipment or evidence or cause or instruct any person to do the same. Once Michael Beck is presented with a copy of this Order, the Bailiff shall ensure that Michael Beck is not left in the presence of the Records without supervision of the Bailiff. 14. Members of the Edmonton Police Service may be called upon by the Bailiff or may otherwise be required to see to the objectives of having the terms of this Order implemented and yet avoiding any breach of the peace.

Such members of the Edmonton Police Services are hereby expressly empowered to use such degree of force as may be reasonably necessary in the circumstances in meeting the said objectives. 15. The independent supervising lawyer shall: (

a) Serve a copy of the Statement of Claim, Order, and supporting Affidavit upon Michael Beck, and explain to him in plain language the nature and effect of this Order; (

b) Ensure that Michael Beck is given a reasonable time to consult with counsel prior to permitting entry to the Premises, provided that Michael Beck shall not be left in the Premises or in the presence of Records, computer equipment or evidence unattended; (

c) Ensure that if any claim of privilege is made by Michael Beck while Records, computer equipment and evidence are gathered pursuant to this Order, that such Records over which privilege is claimed are kept segregated in the custody of the Bailiff pending further order of the Court, and that they are not disclosed to the Plaintiffs; (

d) Cause to be made a detailed list of all Records, computer equipment and evidence seized, and provide a copy of this list to Michael Beck for inspection and verification at the end of the search and before materials are removed from the Premises; (

e) Deal with matters arising out of the search, subject to any party wishing to take a matter back to the Court for a resolution; (

f) File a report with the Court within 5 days describing the execution, who was present and what was seized. 16. All such steps taken by the Bailiff and the other Authorized Persons shall be undertaken in the presence of the Defendant or his representative should the Defendant express the desire to be present and/or to monitor such activities. 17.

Michael Beck shall forthwith unlock any locked door, cabinet, safe or safety deposit box and shall forthwith provide all necessary computer passwords and encryption tools and all other information and devices as may be necessary or of assistance to the Bailiff and the other Authorized Persons in the carrying out of this Order. 18. The Bailiff may photograph and make video and/or audio recordings of or at the Premises as the Bailiff deems appropriate in connection with its carrying out the terms of this Order, and in particular, in order to be able to adequately and accurately document the

location or circumstances where the original copies of the Records may be found. 19. The Bailiff shall serve the Statement of Claim together with a copy of this Order and copies of all Affidavits sworn in support hereof, on the Defendant upon entry to the Defendant ’ s Premises. 20. Any party shall be a liberty to apply to this Honourable Court to discharge or vary this Order upon 48 hours notice to the other interested parties. 21.

The costs of this application shall be costs in the cause. [ 25 ] Separate and apart from the terms of this Order to protect Beck ’ s privacy vis a vis Shaw Communications Inc., I further Order that Shaw Communications Inc. shall provide counsel for the Plaintiff with all identifying information concerning the identity of the user of the IP Address 68.148.138.62 between October 20 – October 31, 2011, including, without limitation, the identity of the account holder (including account number, name and address), the MAC address of the modem or any other device or equipment used to access Shaw ’ s internet services between the said dates.

Heard on the 23 rd day of November, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of November, 2011. Donald Lee J.C.Q.B.A. Appearances: G. James Thorlakson and Dale Weston Miller Thomson LLP for the Plaintiff