Digests

Weight Watchers International, Inc. v. Vale Printing Ltd.

T-238-00

2001 FCT 578, Morneau P.

1/6/01

8 pp.

Motion to remove plaintiff's solicitor (Mr. Robbins) or his firm from case--Imperial Oil Ltd. v. Lubrizol Corp. (1999), 86 C.P.R. (3d) 331 (F.C.T.D.) referring to Heck v. Royal Bank (1993), 52 C.P.R. (3d) 372 (Ont. Div. Ct.) wherein stated courts should remove solicitors only in clear cases; application to remove can be made to trial judge when problem certain--Decision also calling for application of flexible test for purpose of determining any motion to remove--Application to remove law firm as counsel of record should not be granted unless Court satisfied attorney from that firm certain or very likely to testify: International Business Machines Corp. v. Printech Ribbons Inc., [1994] 1 F.C. 692 (T.D.)--For purposes of within motion, case at preliminary stage--Court not persuaded counsel must be removed--First, defendants alleging e-mail message sent to Robbins evidence defendants always acted with transparency, honesty in regard to plaintiff, but plaintiff's solicitors not acknowledging receipt thereof--Defendants therefore wish to examine Robbins to this effect--Not certain Robbins must be examined to establish whether plaintiff got wind of intention announced by defendants' solicitor in e-mail--Other methods may be used i.e. under Federal Court Rules, 1998, r. 255 defendants could send plaintiff formal notice to admit authenticity of e-mail and truth of facts surrounding knowledge by plaintiff of e-mail--Also possible concessions or admission may be made on plaintiff's examination--Furthermore, as website accessible by general public, plaintiff itself may be able to answer some questions in that regard--Secondly, defendants would like to examine Robbins on documents cited in statement of claim or statement of defence but not listed in affidavit of documents, as attached to his affidavit--Must first establish affidavit made in support of application for interlocutory injunction presented by plaintiff--Circumstances surrounding injunction application res judicata--Affidavit not made in support of substantive issues to come in action since plaintiff's evidence will have to be made by witnesses testifying viva voce--Moreover, plaintiff's counsel not intending to use Robbins' testimony or affidavit in hearing on merits--Uncertain Robbins will testify at hearing on merits--Specifically defendants referred to letter sent to Robbins' colleague--Robbins associated with production of letter for purposes of injunction--That stage over--Robbins or firm should not be forced to withdraw from case on account of letter did not write but which was written by defendant--Possible introduction as evidence will not necessarily occur through testimony of Robbins or colleague--Thirdly, as to documents included in affidavit, what was said above as to past context applies here as well--No significant connection with Robbins--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, r. 255.