Groupe Tremca Inc. v. Techno-Bloc Inc.
T-1064-97
Blais J.
15/10/98
21 pp.
Conflict of interest-Appeal from decision of prothonotary of Federal Court dismissing defendant's motion that plaintiffs' counsel be declared in conflict of interest in instant patent infringement action and disqualified from continuing to act on plaintiffs' behalf-Three meetings between defendant's vice-president and patent agent for Robic firm, patent and trade-mark agents, latter firm being one with law firm Léger Robic Richard-Point in dispute whether confidential information exchanged during meetings and whether patent agent and consequently solicitors of Léger Robic Richard subsequently in conflict of interest when solicitors agreeing to represent plaintiffs in case at bar-Whether prothonotary erred in law in applying principles set out in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 to instant situation and whether prothonotary erred in fact and in law in deciding information contained in documents received by Robic in public domain and consequently that Léger Robic Richard had discharged its burden of proof by applying principles laid down in Martin: (1) Court concerned with three competing values: concern to maintain high standards of legal profession and integrity of system of justice, value of not depriving litigant of choice of counsel without good cause, and desirability of permitting reasonable mobility in legal profession; (2) Whether lawyer received confidential information attributable to solicitor and client relationship relevant to matter at hand; whether risk information will be used to prejudice of client; whether court or reasonably informed member of public would be satisfied no confidential information imparted; (3) Lawyer with relevant confidential information automatically disqualified from acting against client or former client-Two fundamental criteria in assessing conflicts of interest to determine whether disqualifying conflict of interest exists: possibility of real mischief (misuse of confidential information by lawyer against former client) and precept justice must not only be done but must manifestly be seen to be done-Appeal allowed-In instant case, previous relationship and relationship with retainer proven and sufficient-Substance of instant dispute whether solicitor rebutted presumption and managed to demonstrate no relevant information disclosed-First, contentions by plaintiffs' counsel defendant waived raising issue of conflict of interest and agreed Léger Robic Richard could act as counsel for plaintiffs dismissed-Regard must be had to fundamental rule set out in Canadian Bar Association's Code of Professional Conduct providing "The lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the client or prospective client concerned, he should not act or continue to act in a matter when there is or there is likely to be a conflicting interest."-Sequence of three meetings between client and solicitor can create atmosphere of trust constituting framework for confidential communications between solicitor and client-Not possible for either client or solicitor to inventory every aspect of discussions, but patent agent clearly in better position to know objectives and strategic considerations contemplated by defendant's vice-president in relation to disputed patent as result of meetings-Court not persuaded that having given defendant's vice-president opinion orally and in writing on scope of patent and subsequently bringing action on behalf of other party alleging infringement of that patent not, on its face, conflict of interest-Although reason for infringement action altered over years between two actions, still involves same patent for which patent agent gave opinion in one sense to defendant, while legal firm with which patent agent closely related bringing action in support of opinion appreciably different in relation to same patent and against same individual-Court must therefore conclude decision reached by prothonotary in case at bar clearly wrong, as exercise of prothonotary's discretion based on misapprehension of facts-Discussions in course of three meetings did involve exchange of documents and oral discussions between them, fully subject to privilege, confidential information exchanged on both sides between two individuals and accordingly patent agent and law firm subsequently in conflict of interest when latter agreed to represent plaintiffs in instant case-Appears appropriate accordingly for matter to be heard de novo and for judge to exercise own discretion as to assessment of instant motion-In conclusion, plaintiffs' counsel has not rebutted presumption of confidentiality of information conveyed, therefore conflict of interest exists.