Whirlpool Corp. v. Camco Inc.
T-2028-95
Teitelbaum J.
11/4/97
6 pp.
Appeal from A.S.P.'s decision dismissing defendants' motion to compel production of certain patent files (correspondence between American in-house counsel of plaintiffs operating in U.S.A. and Canadian patent agent entrusted with prosecution of plaintiffs' Canadian patents) on ground documents subject to solicitor-client privilege-Documents relevant to current litigation but not written in contemplation of litigation-A.S.P. stated privilege existed because plaintiffs' American lawyer had specifically requested information received from Canadian patent agent in order to later provide advice to client-Appeal allowed-A.S.P. erred in law in holding documents did not have to be produced-Overriding and conclusive Canadian case law communications between client and patent agent not privileged, unless documents prepared through medium of client's solicitor if made in contemplation of litigation-Where no inkling of any contemplation of litigation, as herein, even stronger argument for withholding solicitor-client privilege from correspondence of patent agent-Another reason to withhold privilege: American lawyer not competent to give advice to American clients on Canadian patent law on basis of information provided by Canadian patent agent-Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860 interpreted.