BARRISTERS AND SOLICITORS |
ESCO Corp. v. Quality Steel Foundries Ltd.
T-238-03
2003 FC 993, Gauthier J.
20/8/03
15 pp.
Defendants seeking to remove Dimock Stratton Clarizio LLP (Dimock) as solicitors of record for plaintiffs because young associate did previous work on behalf of defendant in context of patent application for invention back in 1999 while working at another law firm--Whether reasonably informed member of public would be satisfied no use of confidential information would occur if Dimock allowed to continue its representation of plaintiffs in this case (MacDonald Estate, [1990] 3 S.C.R. 1235)--In order to apply test set out in MacDonald Estate v. Martin, two questions to consider-- First, whether lawyer received confidential information attributable to solicitor/client relationship relevant to matter-- If so, whether risk information will be used to prejudice of former client--With respect to first question, one must look at similarities in factual situations and in legal questions involved in two mandates and at nature of work performed by tainted individual--With respect to second question, colleagues of tainted lawyer may still act in file if they establish through clear and cogent evidence fair-minded, reasonably informed member of public would not conclude confidential information imparted or presumed to have been imparted--Integrity of administration of justice and public's confidence in it, is fundamental and paramount, but rule should not be applied so rigidly as to unduly deprive party of its right to counsel of its choice and right of lawyers to mobility--Court must make "realistic appraisal" of possibility confidential information disclosed to Mr. Crinson while he was at Borden Ladner Gervais LLP--Court gave defendant benefit of doubt and found realistic possibility relevant confidential information about technical specifications of maglock locking system shroud, imparted to Mr. Crinson-- However, relationship between prior legal work done by Mr. Crinson with defendant and current mandate at Dimock not such that Court could realistically presume any other type of relevant confidential information imparted to Mr. Crinson-- As of July 2002, Mr. Crinson did not actually possess any confidential information relevant to current action which he could disclose to colleagues at Dimock--Conclusion based upon affidavit of Mr. Crinson which does state he did not then and does not now remember any involvement whatsoever with defendant but also on circumstantial evidence which corroborates this statement--Also, Dimock diligent in implementing conflict check policy--Finally, weighing all of particular circumstances, well-informed member of public would be satisfied no confidential information would be disclosed to anybody working on file for plaintiffs by Mr. Crinson--Motion dismissed.