A lawyer for two podcasters asked a judge Wednesday to set aside a contempt citation and an “extraordinary” court order that was used to search their homes last year.

Craig Alcock, the lawyer representing podcasters David Wallace and James DiFiore, said there wasn’t enough evidence brought forward by Sandy Edmonstone, a former Alberta Health Services board member, who alleged a campaign of harassment and intimidation. 

For that and other reasons, the information seized during the search should be kept confidential, Alcock argued.

Edmonstone has said in court filings he believes that campaign was meant to “retaliate against and otherwise intimidate” him from giving testimony in the ongoing wrongful dismissal suit of Athana Mentzelopoulos, the former head of AHS. 

Mentzelopoulos has also alleged a campaign of harassment and intimidation by the two podcasters, and has asked for them to be held in contempt of court. Mentzelopoulos’s application was meant to also go before Court of King’s Bench Justice Michael Lema on Wednesday but was adjourned.

Last year, Lema authorized a legal mechanism known as an Anton Piller order, a court order which permits an unannounced search to seize evidence and to prevent it from being destroyed.  If the request to set aside the order is successful, lawyers for the podcasters want evidence seized as part of the search to be returned to them, and never used in proceedings.

Solicitors appointed by the court visited the homes of DiFiore and Wallace in December, searching multiple cellphones and computers.  

The ‘nuclear weapon’ of the law

Alcock described the Anton Piller order as the “nuclear weapon” of the law. 

“It’s certainly not illegal to get onto your podcast and say things at the risk of offending people. If you go too far, there’s remedies other than contempt and Anton Piller to address those types of things,” Alcock told the court.

Alcock argued that the order was based on hearsay, and argued Edmonstone was alleging defamation rather than making a case for contempt. 

“Even if you find Wallace and DiFiore’s comments to be offensive, that isn’t enough to justify an order that’s at the extremity of the court’s powers,” Alcock said.

Jordan Bierkos, the lawyer for Edmonstone, argued that the podcasters’ own broadcasted words took the matter beyond mere commentary, citing comments that Wallace wanted to “punish and root out” anyone who was involved in “what he describes as a conspiracy.”

“With respect to Mr. Edmonstone, [Wallace] indicated that he wanted to turn his life upside down, he wanted to ruin his personal and professional relationships and make Mr. Edmonstone’s life, in his words, unbearable,” Bierkos said.

Bierkos also said that while the Anton Piller order is at the far end of the court’s powers, the powers were “appropriately used in appropriate circumstances.”

“It was executed with an independent supervising solicitor, with privilege screening, and under this court’s supervision. There’s no evidence of overreach of that order,” he said.

“It is an extraordinary remedy. I don’t discount that. But it is by no means, exceptionally rare.”

Lema plans to issue his decision in the coming months.

Mentzelopoulos has asked the court to force a takedown of the videos, podcasts and social media posts focused on her and her family, and for the court to require Wallace and DiFiore disclose the contact information of “all of the individuals or corporations that back the respondents financially.”

Early last year, Mentzelopoulos sued AHS and then-health minister Adriana LaGrange for wrongful dismissal, alleging she was fired for probing too deeply into AHS contracting and procurement deals. The health agency said in its statement of defence that AHS had lost confidence in Mentzelopoulos’s abilities.